Public Document No. 12
Ci)e Commontoealt!) of Qgassacijusetts
REPORT
ATTORNEY GENERAL
Year ending June 30, 1955
r
Public Document No. 12
C!)e Commontoealtb of a^assacbusetto
REPORT
ATTORNEY GENERAL
FOR THE
Year ending June 30, 1955
Publication of this Document Approved by George J. Cbonin, State Purchasino Agent
1100-6-66-917664.
^
STATE LIBRARy OF MASSACHySETTS
OCT 11 1956
STATE HOUSE, BOSTON
v^aaSS OFFICIALS
/
1
/9
A
Cbe Commonltiealt!) o( ^assaciiusetts
Boston, December 7, 1955.
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, 1955.
Respectfully submitted,
GEORGE FINGOLD,
Attorney General.
Cfte Commontoealtl) of 0ia00ac|)usett0
DEPARTMENT OF THE ATTORNEY GENERAL
Attorney General
GEORGE FINGOLD
First Assistant Attorney General
Fred Winslow Fisher
Assistant Attorneys General
Jason A. Aisner^ Edward J. Kimball ^
Samuel H. Cohen James F. Mahan
Malcolm M. Donahue Charles F. Marsland, Jr.
Joseph H. Elcock, Jr. Edward F. Mahony -
Daniel J. Finn Lowell S. Nicholson
DoRiCE S. Grace Harris A. Reynolds
Saul Gurvitz Arnold H. Salisbury
Matthew S. Heaphy Barnet Smola
Philip Jones'^ Norris M. Suprenant
Andrew T. Trodden
Assistant Attorney General; Director, Division of Public Charities
Hugh Morton
Assistant Attorneys General assigned to Department of Public Works
Vincent J. Celia Max Rosenblatt
James C. Gahan, Jr.^ Charles V. Statuti ^
Floyd H. Gilbert David L. Winer
Special Assistant Attorney General assigned to Department of Public Works
Frank Ramacorti
Assistant Attorneys General assigned to Metropolitan District Commission
John V. Phelan William J. Robinson
Joseph H. Sharrillo
Assistant Attorneys General assigned to Division of Employment Security
Lazarus A. Aaronson * David Gorfinkle ^
Stephen F. LoPiano, Jr.
Assistant Attorneys General assigned to State Housing Board
Milton I. Abelson Keesler H. Montgomery
Assistant Attorney General assigned to Veterans' Division
Fred L. True, Jr.
Chief Clerk to the Attorney General
Harold J. Welch
Asiiistant Chuf Clerk
Russell F. Landrigan
Administrative Legal Consultant to the Attorney General
James J. Kelleher
1 Resigned, March 31, 1955. * Resigned, Jan. 14, 1955.
2 Appointed, Apr. 1, 1955. 5 Leave of absence, Sept. 1, 1954 to Apr. 3, 1955.
3 Appointed, Jan. 19, 1955. o Appointed, Sept. 1, 1954; Resigned, Apr. 1, 1955.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1954, to June 30, 1955
Appropriations.
Attorney General's Salary ....
Administration, Personal Services and Expenses
Claims, Damages by State Owned Cars .
Small Claims ......
Veterans' Legal Assistance ....
Total
$12,000 00
297,751 58
35,000 00
15,000 00
24,000 00
,751 58
Expenditures.
Attorney General's Salary ....
Administration, Personal Services and Expenses
Claims, Damages by State Owned Cars .
Small Claims ......
Veterans' Legal Assistance ....
Total
$12,000 00
285,812 50
34,991 42
15,000 00
19,997 13
$367,801 05
Financial statement verified (under requirements of c. 7, § 19, of the General Laws),
September 14, 1955.
Approved for publishing.
FRED A. MONCEWICZ,
Comptroller.
Cf)e Commontoealtl) of 9^a^^athmtm
Department of the Attorne? General,
Boston, December 7, 1955.
To the Honorable Senate and House of Representatives.
Pursuant to the provisions of G. L., c. 12, § 11, as amended, I here^\ith
submit my report.
The cases requiring the attention of this department during the fiscal
year ending June 30, 1955, totahng 17,506, 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 Education
Department of Mental Health
Department of Natural Resources .
New Bedford Textile Institute
Department of Public Utilities
Miscellaneous cases, including suits for the collection of money due to the
Commonwealth ........
Estates involving application of fimds given to public charities
Settlement cases for support of persons in State institutions
Pardons :
Investigations and recommendations in accordance with G. L. c. 127,
§ 152, as amended .....
Small claims against the Commonwealth
Workmen's compensation cases, first reports .
Cases in behalf of Division of Employment Security
Cases in behalf of Veterans' Division
151
143
975
171
1
3
1
1
1
5,717
1,044
55
130
891
5,530
513
3,179
Introduction.
The fiscal year ending June 30, 1955, marked the creation, by me, of
two new and highly important divisions in the Department of the At-
torney General : the Division of Public Charities and the Youth Division.
There were, as well, expanded activities in my previously-established
Anti-Communist, Criminal and Land Damage Di^dsions, and Employ-
ment Security and Housing Board units, not to mention the manifold
and varied ser\dces rendered by my office outside the scope of any of
these separate divisions or units.
The Division of Public Charities was set up by statute, as recommended
by me, to centralize and coordinate in my office the administration and
8 P.D. 12.
supervision of all charities in which there is a pubHc interest. An As-
sistant Attorney General was designated as director of this division and
in the first year more than 2,000 matters were handled before the courts.
Four experts on my staff were assigned, in December 1954, to organize
and operate the Youth Division as one of the Commonwealth's most
powerful single answers to the disturbing problem of juvenile delinquency.
On March 3, 1955, with over 300 persons from throughout the State in
attendance, an all-day Conference on Juvenile Delinquency was held in
Boston to analyze the situation and discuss remedies and preventatives.
Altogether, in excess of 150 different "categories" of legal work fall
within my jurisdiction at present. These run an alphabetical gamut from
abatements, accidents and aeronautics to wills. Workmen's Compensa-
tion and Youth Service Board. New classifications are constantly being
added, but old ones seldom taken away. This means, of course, as I have
previously reported, that the grave and already heavy responsibihties of
the Attorney General ever continue to increase.
Nor is this necessarily surprising when it is understood that my depart-
ment is the sole legal representative and custodian of a two billion dollar
($2,000,000,000) business — the Commonwealth of Massachusetts — and
thus one of the biggest law offices in the nation and probably the largest
in the State.
At the same time, it is a far cry from the modest beginnings of the
Massachusetts Attorney General (or "Atturney Generall," as the Col-
onists originally termed the office and officer). It ma^^ interest you to
know that this is, indeed, an ancient office, dating back to April 29, 1680,
almost a century before the American Revolution. Exactly 275 years ago,
one Anthony Checkley was appointed Attorney General by the Colonial
Council under the presidency of Joseph Dudley. He was a merchant who
had served as attorney in the Colonial courts and his designation was for
a limited period and a specific purpose : to try persons charged ^ith witch-
craft. That is one category which no longer comes under my responsi-
bilities! But some of the many that have arisen to take its place are dis-
cussed herewith.
Anti-Communist Division.
Upon taking office as Attorney General, I established a special Anti-
Communist Division, because I felt that this vast field required specialized
attention and study. An Assistant Attorney General was assigned to
correlate activities in the Commonwealth's campaign against subversives
and much solid progress has been made. Some of my moves, outlined
here, originated before July 1, 1954, when the last fiscal year began, but
are included in this report to give a more comprehensive picture of the
relentless war Massachusetts is waging against the Reds.
First of all, I prepared a summary of all laws pertaining to subversive
activities, including: (a) anarchy, (b) the State's 1951 act outla\A'ing the
Communist Party, and (c) the Teachers' Oath Law. Conferences were
held at my office in the State House with all law enforcement agencies and
P.D. 12. 9
police chiefs of the Commonwealth. A compendium of all anti-subversive
laws was distributed to police chiefs and veterans' organizations through-
out the State.
I also sponsored a bill, later enacted by the Legislature, whereby records
of the Division of Employment Security are made available to the At-
torney General, grand juries and the courts of the Commonwealth for use
as evidence in cases involving national defence or subversive activities.
Such records can prove valuable in shomng contributions to the division
by outlawed organizations for the benefit of possible members on their
payrolls.
Following an investigation by the Anti-Communist Division, an indict-
ment was obtained by me against Massachusetts' No. 1 Communist,
Otis Archer Hood, for becoming and remaining a member of the Com-
munist Party, kno^^ing it to be subversive. He was indicted under our
1951 Anti-Communist Act, but this was the first time this statute, out-
lawing the Communist Party, had been invoked.
Presently pending, the case of Commonwealth v. Otis Archer Hood was
reported to our Supreme Judicial Court by Justice Murray of the Superior
Court on three proposals: (1) whether each of the three indictments is
invalid in that it contravenes the Constitution of our Commonwealth;
(2) whether each indictment is invalid in that it contravenes the Constitu-
tion of the United States; and (3) whether or not the laws of the Common-
wealth are superseded by the laws of the United States. This case has
already been argued before our State Supreme Judicial Court.
In addition, I filed a brief with the United States Supreme Court up-
holding the right of States to prosecute Communists. This came about
in the following manner: the Commonwealth of Pennsylvania indicted
one Steve Nelson for subversive activities. Following the conviction of
Nelson and appeal, the Supreme Court of Pennsylvania reversed the con-
viction. The Commonwealth of Pennsylvania then filed a petition with
the United States Supreme Court for the issuance of a writ of certiorari.
This action was designed to obtain a decision by that Court on the merits
of the decision by the Supreme Court of Pennsylvania.
I filed an amicus curiae brief with the United States Supreme Court in
support of the position of the Commonwealth of Pennsylvania. The
United States Supreme Court allowed the issuance of the writ of certiorari,
following which I filed an amicus curiae brief in support of the position of
the Commonwealth of Pennsylvania which sought to have upheld the
conviction of Nelson. The case is due for argument before the United
States Supreme Court in the fall of 1955.
Issues to be decided by the United States Supreme Court in the Nelson
case and our State Supreme Judicial Court in the Hood case will determine
two vital questions: (1) "Whether it is within the constitutional power of
the Legislature to proclaim the Communist Party to be a subversive or-
ganization ; and (2) whether or not the field of prosecution of Communists
by a State has been pre-empted by the Federal Government.
I regard it as unlikely, but in the event that the issue of pre-emption
should be determined against us, we must not cease our endeavors. We
10 P.D. 12.
must root out and uncover the zymotic sources from which are spawned
traitors. There is no place in constitutional government or any of its
agencies for a "Fifth Amendment" patriot, whether in the business world,
in our schools, or otherwise engaged. We must come to the stark compre-
hension that there is no greater nor more heinous crime than the practice
of Communism.
Back in our primary school days we were taught to look upon individual
treason as an abominable act. Communism teaches a thousand treasons.
It has as its ambition the spiritual and political genocide of our way of
life. We have seen the rape of foreign democracies and their conversion
into docile concubines of the Kremlin. In decisions of the United States
Supreme Court there is reference made to the necessity of there being a
"clear and present danger." There was a time when certainly there was
a clear and present danger in those foreign democracies. Because they
did not act in time and in tune to that danger, they have vanished. I say
that now, and every day that passes, presents a clear and present danger.
No one can be unmindful of the fact that the Kremlin has acquired a
sovereignty over a vast portion of the world, far greater than was ever
envisioned by Kaiser Wilhelm in his famous '^drach Noch Osten," or Hitler
in his march to the sea. The Red shade on our global maps is constantly
spreading as blood spreads on the ground after it has been let. The
promise of the future, as I see it, is that we will witness the death of Com-
munism as we have that of Fascism. This will inevitably come in our
lifetimes, but can be brought about only by our alertness and vitaUty as
officers and citizens charged with a solemn duty: to recognize the clear
and present danger.
That our Massachusetts program to eradicate Communism and other
subversive activities has attracted national attention was shown when,
in October 1954, I was appointed chairman of a national committee of
Attorneys General created to coordinate State prosecution of Com-
munists with the efforts of Federal officials, headed by United States
Attorney General Herbert Brownell, Jr. The Attorneys General of
Wisconsin, Montana, Louisiana and New Hampshire were named to
serve on my committee, and we are mapping strategy for a cooperative
fight that promises results. ''-
Criminal Division.
Anti-criminal activities of the Department of the Attorney General
continued to be centralized in the special Criminal Division w-hich I found
it necessary to estabhsh shortly after taking office in January 1953, be-
cause of complaints and requests for assistance received from citizens in
many parts of the Commonwealth. Assistants assigned by me to this im-
portant phase of my duties as chief law officer are expert investigators and
former officers in the State Police, Federal Bureau of Investigation and
United States Armed Forces. They have worked effectively and ex-
peditiously, without obtruding on city and town police departments.
P.D. 12. 11
Let me hasten to add, however, that I have nothing but praise for the
overwhelming majority of police departments, police officers and other
local law-enforcement officials now engaged in doing such outstanding
service. My confidence in them remains as unshaken as when I first
stated it in my initial report to the Legislature two years ago. Almost
^vithout exception, they have moved rapidly when I have brought to their
attention an apparent laxity in law enforcement. Only in rare cases has
it been my decision to step in to a community, after I was convinced the
people were being forced to tolerate unhealthy conditions due to a dis-
position on the part of some local officials not to enforce the laws. An
example was the series of gambling raids I directed in New Bedford in
October 1954.
Seventy State Pohce from the Department of Pubhc Safety, led by an
Assistant Attorney General and a lieutenant in the State Police, entered
21 business establishments and homes in New Bedford and smashed a
$1,000,000 bookie operation in that city. Altogether, 45 persons were
arrested and charged with 53 offences concerned with gaming, registering
bets, lottery and perjury, the latter occasioned when a government wit-
ness "choked up" when he could have given evidence to convict in one of
the lottery cases prosecuted by my Assistant. Thirty-six of the de-
fendants were found guilty of a total of 40 offences. Three received sen-
tences to the House of Correction and eight others received suspended
sentences. Fines and forfeitures aggregated $22,350. In the perjury case,
the defendant pleaded guilty to six counts and was fined $3,000 and given
a 7>^-year House of Correction sentence, suspended for five years. In
addition, by invoking a rarely used section of the Massachusetts General
Laws, I was able to obtain a forfeiture of $6,000 of the perjury defendant's
lottery \\'innings which my law-enforcement officers had recovered at the
time of the raids. This cash was turned over to the State Treasurer.
Other activities of the Criminal Division included investigations at
the Charlestowii State Prison and the new Massachusetts Correctional
Institution at "Walpole, cooperation -^dth the State Crime Commission,
emergency operation of the office of District Attorney of Plymouth County,
and various duties involved in handling defective delinquent cases, chari-
table solicitations, extradition cases, pardon petitions, and writs of error
and writs of mandamus.
Charitable Solicitations. — Under G. L. c. 68, § 17 (inserted by St. 1954,
c. 559), most persons or groups soHciting funds or other property for
charitable or benevolent purposes are required to provide in advance
certain information concerning such solicitation, and then, within 90 days
after the period of solicitation, they must file another report giving the
total raised and the amount paid for expenses of the drive. Information
so ffied is available to the general public as a matter of public record.
Churches, religious organizations, non-profit charitable hospitals and
educational institutions incorporated in this Commonwealth are exempted
under the statute, as are solicitations where the fund to be raised is $1,000
or less.
Forms for such charitable sohcitations are provided by the office of the
12 P.D. 12.
Attorney General, and if the solicitation is to be conducted in more than
one city or town, the specified information may be filed with my office,
instead of with the clerk of each city or town where the solicitation is to be
conducted. During the past fiscal year, 98 such forms were filed -with the
Attorney General.
Charlestown State Prison hivestigation. — On January 18, 1955, the anti-
quated State Prison at Charlestown was the scene of an armed uprising
against the Commonwealth. Four desperate criminals serving sentences
for robbery, rape, kidnapping and murder attempted to escape. Failing
to accomplish their purpose when their ladder broke, they seized five
guards and six other inmates as hostages, placed their lives in jeopardy
and for 85 hours staged a revolt in the Cherry Hill section of the prison.
Shortly after the eruption, I went to the institution, at the request of
His Excellency, the Governor of the Commonwealth, and advised the
rioters that should any of their hostages be killed, I would demand that
the maximum penalty be imposed. Fortunately for all concerned, the
insurrection was ended without bloodshed. Immediately following its
cessation, I assigned six members of my Criminal Division staff to investi-
gate thoroughly the manner in which the convicts effected their escape
from their cells and how they obtained the guns in their possession.
Outstanding investigators of the Commonwealth worked around the
clock for two and one-half months to gather all available facts. Some 180
prison employees were interrogated orally and a public notice was posted,
inviting all personnel to volunteer additional helpful information, "either
on or off the record." Three weeks after the investigation began, on
February 10, 1955, I first presented evidence to the Suffolk County Grand
Jury, and I and my Assistants appeared before that body on several oc-
casions thereafter. All the evidence obtained as a result of the investiga-
tion, including the personal testimony of the five hostage guards, was
presented for the consideration of the Suffolk County Grand Jury. It was
— and is — my firm belief that these vicious criminals who initiated an
abortive escape attempt and participated in the subsequent four-day riot,
during which they threatened the lives of their 11 hostages, were guilty
of grave offences and should have been prosecuted in our courts. But
it is solely -within the province of the Grand Jury to weigh the evidence
presented and determine whether indictments should be returned. In
Massachusetts, its power as the accusing body is supreme, and in this
case the Grand Jury, in its wisdom, saw fit to return no indictments.
Early in April 1955, I submitted a 45-page report to the Governor,
summarizing my investigation of security conditions at the Charlestown
State Prison. I made 126 recommendations how to prevent future dis-
turbances at Charlestown and at other State institutions. Thirty-five of
these proposals dealt with the Cherry Hill section of the soon-to-be
abandoned prison, and the rest with officer and inmate procedure in the
main prison. Many of my suggestions were covered in the Governor's
special message to the Legislature in June, proposing reorganization of the
entire State penal system.
Massachusetts Correctional Institution, Walpole. — In March 1955, it was
P.D. 12. 13
alleged certain defects had been found in the walls and buildings of the
new and then still-unfinished $9,500,000, 600-prisoner capacity Massachu-
setts Correctional Institution at Walpole which was scheduled to receive
most of the convicts from Charlestowii. I assigned four of my Assistants
and investigators to seek out any deficiencies in the setup or in materials
used in the construction of the institution. I also obtained the services of
a construction expert from the Massachusetts Institute of Technology as
a guide for my staff, and he tested various sections of the walls and other
materials and construction. Following this investigation, I submitted a
report to the Department of Correction.
Crime Commission and Wire-Tapping. — On several occasions I have
appeared, in a cooperative capacity, before the Special Commission Investi-
gating Organized Crime and Gambling mthin the Commonwealth. With
Assistants from my special Criminal Division, I conferred with mem-
bers of the Crime Commission on matters concerning the office of the
Attorney General and the various District Attorneys' offices in the State.
One special circumstance, which involved a wire-tap of the horse-race
track at Suffolk Downs in East Boston, was investigated by the office of
the Attorney General and after a conference with the chairman of the
Crime Commission, the Hon. Charles C. Cabot, former Judge of the
Superior Court, and Attorney Thomas J. McArdle, counsel to the Crime
Commission, the entire matter was referred, for purposes of investigation,
to the Crime Commission.
Ever since the Crime Commission was established by the General Court
(Resolves of 1953, c. 100), the Attorney General's office has constantly
been working cooperatively with that special body, and I am always ready
to receive and investigate any information forwarded to me by the Crime
Commission, and to take appropriate action on any results of its investi-
gation which it feels warrants action by a Grand Jury.
Defective Delinquents, Extradition, Extraordinary Writs, Pardons. — An
important function of the Criminal Division continued to be the further
detention, the release, or the return to confinement of defective dehn-
quents, although a sharp decline in the total number of cases handled dur-
ing the past fiscal year proved that the intolerable situation extant when
I took office, was effectively being remedied.
It will be recalled that such inmates, in growing numbers, had been ob-
taining their freedom on writs of habeas corpus on the ground that they
had originally been committed illegally; specifically that there was no
individual notice of commitment, which the Supreme Judicial Court had
held was a deprivation of due process. Courts committing delinquents had
kept no records; true circumstances had been impossible to ascertain.
Many dangerous persons were being released by the courts and others
were due for release, to roam at large in communities which had no facili-
ties for handling the problems they would inevitably create. To protect
the public peace, I drafted and guided through the Legislature an emer-
gency act known as the Fingold Law (St. 1953, c. 645). This statute re-
quired that every defective delinquent seeking release would have to
undergo psychiatric examination to determine his fitness to return to
14 P.D. 12.
society. Those found not fit were legally recommitted to our institutions
for proper care.
At the time I became Attorney General, there were 379 male and 94
female defective dehnquents committed to the State Farm at Bridgewater
and other institutions throughout the Commonwealth. Of them, 27
males and one female obtained their releases before the new Fingold Law
went into effect on July 11, 1953. In the fiscal year then beginning, my
Criminal Division handled the cases of 377 defective delinquents, of whom
131 were denied immediate release, 84 being promptly recommitted. In
the fiscal year ending June 30, 1955, the number of defective delinquent
cases requiring attention by the Criminal Division dwindled to 37, includ-
ing habeas corpus proceedings in the Superior Court and petitions for dis-
charge in the Probate Court. Of this number, 24 were granted their re-
lease, 12 were recommitted and one defective delinquent was adjudged
properly committed.
I believe the menace to the people of the Commonwealth — and to
their children — which had been created by the legal loophole freeing those
mentally irresponsible, has been eliminated. *
The Criminal Division also handled 151 extradition cases, including re-
quests from other States as well as requests by the Commonwealth of
Massachusetts to other States. I recommended upon 130 pardon petitions
and appeared for the Commonwealth in 17 writs of error and four writs
of mandamus.
District Attorney for Plymouth District. — In my last previous report I
told how the Supreme Judicial Court had, on May 28, 1954, removed BasU
Winslow Flynn from the office of district attorney for the Plymouth Dis-
trict. This official was charged, in essence, with violating his fiduciary
obligations to a charitable trust of which he was trustee. Removal pro-
ceedings had been instituted by me under the statute making the Attorney
General responsible for enforcing the proper application of charitable
funds. The Supreme Judicial Court found the charges established by the
evidence presented and ordered Flynn removed, whereupon I assigned
five members of my staff to take over the district attorney's office in
Plymouth County. Subsequently^, George L. Wainwright of Brockton was
sworn in as Special Assistant Attorney General to aid my staff.
Less than a week after these men began their duties, the Grand Jury
met, all cases had been prepared and were presented so sessions could be
terminated after only two and one-half days of proceedings. Five days
later the first session of Superior Court was opened at the Plymouth Court
House and one week afterward a second session of court was conducted at
the Brockton Court House. We presented a total of 193 continued, pend-
ing and new cases to the first and second sessions of court, and were suc-
cessful in obtaining verdicts of guilty in 169 of these cases.
There were verdicts of not guilty in 24 of these cases and eight cases
were nolprossed for one reason or another. The court gave ten sus-
pended sentences and placed 23 persons on probation. Twenty-eight de-
fendants paid fines in the amount of $1,125 and costs were assessed in
P.D. 12. 15
three cases totaling $60. Seven defendants received sentences to the
State Prison, two women defendants were sentenced to the Reformatory
for Women and 21 defendants were sentenced to the House of Correction.
There were two sentences to the Youth Service Board and one nolo plea
for a boy was accepted upon payment of costs. Fourteen defendants Avith-
drew their appeals and two cases were dismissed by the court. In ten
cases the court ordered that restitution be made to the victims.
One murder case was tried during the regular session of court, eliminating
the necessity and costs of a separate trial. With Assistant Attorney
General Andrew T. Trodden representing the State, the defendant,
Frederick E. Erickson, was tried on charges of murdering his wife by
stabbing. On the third day of the trial the defendant changed his plea
to guilty to that part of the indictment which included second-degree
murder; his plea was accepted by the court after a conference with defence
counsel and the prosecution, and Erickson was sentenced to hfe imprison-
ment in the State Prison.
We were greatly assisted, during our conduct of the office of district
attorney for the Pljonouth District, by Clerk of Courts George C. P.
Olsson and Chief Probation Officer James A. Carr, Jr., and members of
their staffs, as well as Sheriff Charles H. Robbins, the court officers and
members of the police departments of Plymouth County. With their
cooperation, the court sessions were conducted efficiently, expeditiously
and conservatively, and by trying the murder case during the regular
court session Plymouth County was saved a substantial sum of money.
Division of Public Charities.
The Attorney General, under G. L. c. 12, § 8, has long been charged
with the responsibility of seeing to the proper application of funds or
propert}'^ given or appropriated to public charities, and of preventing
breaches of trust in their administration.
By St. 1954, e. 529, the General Court created, as recommended by me,
a Division of Public Charities in the Department of the Attorney General.
It amended the provisions of said section 8, with respect to administrative
procedures, and required all public charities to file annual reports with
this new division.
The work of the division during the initial year of its existence has
served to demonstrate the wisdom of this step. Administration and
supervision of charities in which there is a public interest have been
centralized and coordinated. The chances of an estate or gift escaping
examination have been materially reduced, and their proper application
accordingly made more certain.
The division, under the direction of an Assistant Attorney General, has
handled, during the past year, in excess of 2,000 matters involving the
interests of the public before the courts. These have ranged from the
examination and approval of accounts filed by executors and trustees,
appearances "with relation to the allowances of wills, petitions for instruc-
16 P.D. 12.
tions of various sorts, including the application of the doctrine of cy pres,
to the preparation and trial of cases before the full bench of the Supreme
Judicial Court.
In one instance, the division was instrumental in bringing to fruition
the establishment of a laboratory for surgical research under a gift for
that purpose, in excess of $1,000,000, which had been lying idle since 1932.
In addition, the interests of the Commonwealth were represented before
the courts of Connecticut and New York, and in the administrative field
the division established the machinery for dealing with the annual reports
of all public charities, which may be expected to reach a volume of more
than 3,000 per annum.
Any report with respect to the valuable work of this new Division of
Public Charities would be incomplete, I feel, if it did not recognize the
outstanding cooperation extended to the division by the bench and bar,
and those handling the affairs of the public charities. Such aid and assist-
ance have been invaluable in bringing activities of the division to such a
high peak of effectiveness in a comparatively short period of existence.
Land Damage Division.
The prompt and fair disposition of land damage claims continued to be
one of the heaviest single responsibilities of this department, requiring the
exclusive activities of six Assistant Attorneys General assigned to staff
this separate division. However, by close adherence to the system of
organization and procedure which I set up shortly after taking ofhce in
January 1953, we have again carried forward our record of efficiency and
economy, beneficial alike to the Commonwealth and its citizenry.
Our aims in disposing of land damage claims have been three-fold:
(1) acceleration of payment of damages to the land owiier, (2) prompt
termination of interest charges running against the Commonwealth, and
(3) restoration of confidence in the equitable handling of such cases.
My original plan to review every current land damage claim was car-
ried out. We created a new, standardized procedure for the investiga-
tion, processing, settlement or trial of these claims. Under this procedure
we determine a settlement figure by a panel of Assistant Attorneys Gen-
eral; confer with attorneys for the land owners in an effort to reach settle-
ments; attend pre-trial conferences held by Superior Court justices in
many counties in a further effort to arrive at settlements, and record every
dollar of each settlement reached, in the Superior Court of that county.
In the fiscal year ended June 30, 1955, the Land Damage Division, with
the close cooperation of Chief Justice Higgins, arranged special land
damage sessions in Worcester, Norfolk, Barnstable and Essex Counties.
Working together, we devised what I believe to be the most efficient and
practicable method yet. All cases disposed of without trial by jur}^ must
be approved by a justice of the Superior Court after the court has heard
evidence introduced by the petitioner and the Commonwealth. The jus-
tice makes a finding after the introdviction of such evidence. Some con-
ception of the need existing for such a direct approach may be gained
P.D. 12. 17
from the fact that average land damage cases can be disposed of by actual
trial at the rate of about three every two weeks, whereas, under my plan
of special land damage sessions without trial by jury, we were able to
settle a total of 341 cases this past fiscal year.
Petitioners in these 341 cases requested various sums aggregating S7,340,-
433.43. Through compromise ^^dth the approval of Superior Court justices,
or through trial by jury when other plans proved ineffective, my Land
Damage Division was able to dispose of the 341 cases at a total cost of
only $4,334,239.04. Thus the difference in what the petitioners sought as
damages and what they received amounted to $3,006,194.39. In addition,
this division, by its speedy disposition of the 341 land damage cases, has
saved the Commonwealth, in interest charges alone, $298,499 from July 1,
1954 to June 30, 1955.
The effectiveness of my over-all program for disposing of land damage
claims is clearly shown by figures covering the first two and one-half years
of my administration as Attorney General. In this period a total of 1,075
land damage cases has been settled, more than five and one-half times as
many as were handled during the four years immediately before I took
office. This earlier figure, for a period of a year and a half longer, was
192, or an average of 48 per year, com.parcd wdth our record of 430 per year.
It is significant to note that, out of the total of 1,075 cases handled by
my Land Damage Division, only 67 cases went to the jury. The differ-
ence between these cases that went to a jury and the 1,008 claims that
were otherwise disposed of by the Attorney General's office would repre-
sent, it is estimated, more than nineteen and one-half years of trial work.
It is a statistical fact that it costs the Commonwealth approximately $750
a day when a jury is impanelled for trial. Therefore, carrying our figures
a step further, it is a fair statement to observe that the disposition of
nineteen and one-half years of trial work within a period of two and one-
half years has resulted in the saving of $2,500,000.
At the same time, this new approach to the problem of land damage
litigation has broken the deadlock on all civil litigation in the Superior
Courts of the Commonwealth by clearing clogged court dockets and mate-
rially reducing the time lag for other civil matters.
The policy of the Land Damage Division is to speedily dispose of all
pending cases either by marking such cases to be advanced for quick trial
or by assenting to the same if the motion is made by the petitioner. This
division has cooperated with the judges of the Superior Court and \sdth
all attorneys who represent petitioners.
In addition to the foregoing, the Attorney General reviewed, during the
fiscal year ending June 30, 1955, approximately 864 title abstracts sub-
mitted by attorneys throughout the Commonwealth for the Department
of Public Works. In this connection, we have rendered some 157 informal
opinions to the Department of Public Works. These opinions are usually
rendered within a 48-hour period, enabling the rapid clearing of non-
contested land damage cases.
18 P.D. 12.
Youth Division.
Because of the disturbing problem of juvenile delinquency and the
many factors which contribute to and complicate the lives of our oncoming
generations of citizens, I created, in December 1954, a special Youth
Division and assigned four experts from my staff to this extremely im-
portant activity.
To learn about youth work on the local level, I called separate con-
ferences in my ofhce of the nine district attorneys of the Commonwealth,
and of officers and members of the Executive Committee of the Massa-
chusetts Chiefs of Police Association. From these meetings many practical
procedures were brought to light.
For example, there was considerable discussion of a State curfew, but
it was finally determined that, due to the comparatively small percentage
of delinquency in Massachusetts, it would be imposing a hardship on the
98 per cent of law-abiding boys and girls. A good suggestion was that a
youth division be set up in every police department in cities and in towns
of 25,000 or more population. It was also urged that a record should be
kept of all offences brought to the attention of the police, even during the
youth's early years.
A conference was held with officers of the Massachusetts Youth Service
Board to ascertain how the Attorney General could assist and cooperate
with the board in meeting the juvenile delinquency problem.
Out of this initial activity emerged a plan to hold an all-day Attorney
General's Conference on Juvenile Delinquency, to which would be invited
all police chiefs, probation officers, representatives of youth divisions and
men and women engaged in working with juveniles. This State-wide
seminar was carefully planned and successfully held on March 4, 1955, in
John Hancock Hall, Boston. During the conference the 300 persons in
attendance had the opportunity of hearing numerous authorities on youth
problems, including two experts with national reputations: Richard
Clendenen, former executive director of the United States Senate Judiciary
Subcommittee which investigated the problem on a national level, and
Ralph W. Whelan, executive director, New York City Youth Board, who
explained how juvenile delinquency was affecting the larger cities and
what was being done to combat the problem.
On the State and local level, John D. Coughlan, chairman, Massachu-
setts Youth Service Board, outlined the operation of that body, and
Judge John J. Connelly, presiding justice, Boston Juvenile Court, explained
the role of the judiciary and told of methods used in court. The delin-
quency problem and its effect on the police department was discussed by
Lieutenant Cornelius S. DriscoU of the AVorcester Police Department and
Captain Arthur O'Leary, representing General Otis M. Whitney, Com-
missioner of Public Safety and head of the State Police.
This conference was highly successful and was generally regarded as one
of the first constructive steps taken to combat — and prevent — juvenile
delinquency.
Other activities of my new Youth Division included the holding of
P.D. 12. 19
various meetings throughout the year \\ath persons responsible for the
selection of music recordings that are broadcast from radio stations in
Greater Boston. A cooperative plan was worked out with the broad-
casters' "disc jockeys," whereby records that were considered objection-
able have been removed from their libraries.
Crime and horror "comic" books, which occupied considerable attention
of my office during the previous fiscal year, have appeared in constantly
decreasing numbers on our newsstands the past 12 months. A cooperative
plan of comic book publishers and distributors is serving effectively to
eliminate most of the objectionable magazines from the distributors' lists.
Boston City Hospital — Investigation op Diarrhea Outbreak.
For three months prior to July 12, 1954. numerous cases of diarrhea
occurred among infant patients in the Pediatric Building of the Boston
City Hospital, resulting in a number of deaths. On that date the Director
of the Division of Hospitals in the Department of Public Health was first
officially notified of this outbreak and he instituted an immediate survey
of the situation, coming to the conclusion that facilities available for the
care of infant patients, and certain of the practices employed at the hos-
pital, were in need of improvement.
At the request of the director, I conducted an extensive investigation of
the whole matter and caused all the persons most closely concerned with
the diarrhea outbreak to be interviewed. Inspection visits were made to
the hospital by two of my assistants, who also examined certain records
of the institution.
Conclusions reached as the result of the impartial investigation con-
ducted by me, all as set forth more fully in a letter to the director dated
November 24, 1954, were, briefly: (1) that the diarrhea outbreak should
have been reported to the director some days, at least, before it was, and
that failure of the hospital authorities to do so resulted from their misinter-
pretation of the rule requiring such a report; (2) that the isolation,
sterilization and other physical equipment available for the care of infant
patients at the hospital was antiquated and inadequate, and (3) that the
isolation procedures established for the pediatric wards were not properly
carried out, owing to a shortage of nursing personnel.
My recommendations to the director, contained in said letter, were,
in part, as follows :
"As the result of my investigation, I have two recommendations to
make to you.
"1. The department appears to be principally disturbed by the failure
of the hospital authorities to report to it, under its rule, until July 12,
1954. In my opinion, this failure was due to an erroneous interpretation
placed upon that rule by the hospital .... It seems to me that an
immediate conference with the hospital authorities should be arranged
with the express purpose of explaining to them what is meant by the
department rule, and of impressing on them that its purpose is to prevent
the spread of a condition which might heccme epidemic diarrhea, rather than
20 P.D. 12.
to assist in controlling an epidemic already existing. Such an agreement,
thoroughly understood by all the participants in such a conference, would
put an end to any question of interpretation and would prevent any future
misunderstanding.
"2. To my mind, however, the most disturbing aspect of the whole
situation is that, in the recent past, someone or some group of persons
has succeeded in establishing at the Boston City Hospital a policy which
has placed the saving of money above the saving of lives. . . . Whatever
the actual figures may be, it is undisputed that at least for the year and a
half preceding last July no new equipment was purchased for the pediatric
service although, as of January, 1953, the opinion of Dr. David McL.
Greeley (director of teaching in pediatrics and acting head of the pediatric
service at the hospital) was that he couldn't 'imagine any worse equipment
in the United States.' During that period, as an example, newborn pre-
mature infants in need of incubation were kept in makeshift wooden boxes
heated by ordinary light bulbs. When such a patient needed to have
oxygen administered, this was done by inserting a piece of tubing through
a hole in the bottom of a 'Dixie cup,' so-called, which was then placed
upon the baby's face. During this procedure, however, the light bulbs had
to be turned off, for fear of explosion: 'You could give them heat or
oxygen, but not both at the same time.'
"Repeated requests made to the hospital administration, at least since
early 1953, were met with silence. Dr. George Flessas (chief resident in
pediatrics until June 15, 1954) stated to my assistants: 'We sent numerous
requests to the higher administration, requests for new-type bassinets,
more nurses, more equipment, more laboratory equipment, all those things
necessary to run an efficient service. I know these requests went in. I saw
them in the basket of Mrs. Harrington, the basket next to mine. It obtained
through the whole hospital. My experience is, in 20 years they have been
cutting corners to show savings. In order to get this hospital up to par,
all this money they saved in 10 years has got to be put back. If the
Pediatric Department had adequate enough budget so doctors could make
recommendations for necessary equipment, I think the whole caliber of
the hospital would be better. With nurseries for premature without
incubators, you are going to have a full-time job trying to keep them
alive.' . . .
"While all the people of Boston would applaud measures of economy
designed to eliminate waste in governmental procedures, I cannot believe
that they would have approved of any such policy as that which my in-
vestigation indicates was adopted with reference to the management of
their city hospital. The welfare and safety of sick people, and especially
of sick children, should come before the tax rate in the consideration of
every thoughtful person.
"My recommendation to you is that the department take all possible
steps in the immediate future to bring to the attention of the hospital
trustees, and especially to that of the Mayor's office, all of the deficiencies
which it has found to exist within the hospital. For this purpose, I should
be glad to put at the disposal of the department the source material gathered
P.D. 12. 21
during my investigation, all of which indicates the wholehearted agree-
ment of the personnel of the hospital as to the accuracy of your appraisals
of its needs. The department should see to it that no one concerned with
the acquiring of adequate and proper equipment, and with the appropria-
tion of the necessary monies therefor, can possibly misunderstand the
existence of those deficiencies and their responsibilities to remedy them.
Not until the Boston City Hospital is once again the great and proud
institution which at one time it was, should there be any decrease in the
intensity of such a program of constructive criticism."
Cape Cod Hurricane Disaster.
Within hours after Hurricane "Carol" unleashed all her devastating
force on southeastern Massachusetts on August 31, 1954, I made a per-
sonal survey by automobile, extending the entire length of Cape Cod,
consulting the local officials and citizens generally and in every way possi-
ble assisting local law enforcement officers in the performance of their
heavy duties during the emergency. It was inspiring to see the courage
and poise so evident everywhere, and for the most part the situation was
kept well in hand in spite of the great destruction that had been wrought.
Subsequently, the General Court, in extra session assembled, made lib-
eral provisions financially and otherwise for alleviating the distress and
damage caused by the storm (St. 1954, c. 689, approved September 8,
1954). I and my staff were available and availed of in no small measure
by all concerned in the interpretation and administration of the hurricane
legislation.
Distress and damage caused by Hurricane "Carol" were, of course,
augmented by the succeeding Hurricane "Edna" on September 11, 1955.
However, in one way or another, much of the damage caused by "Edna"
was handled by chapter G89, supplemented later by further legislation.
Civil Defense.
An Assistant Attorney General sat on the Civil Defense Claims Board
which paid medical benefits to those injured in Civil Defense training
operations. In addition, various executive and administrative orders rel-
ative to making adequate provisions for disaster were approved.
Contributory Retirement Appeal Board.
By virtue of the provisions of G. L. c. 32, § 16, when I first assumed
office I assigned one of my Assistant Attorneys General to sit, together
with a designee of the Commissioner of Insurance and a representative of
the Director of the Division of Accounts, as the Contributory Retirement
Appeal Board for the purpose of hearing appeals of persons aggrieved by
reason of the decisions of the various Retirement Boards — State, county,
municipal and the Teachers' Retirement Board.
The pressure of work upon this board seems to be increasing. Appeals
22 P.D. 12.
often involve matters of vital importance, not only to the applicants and
the retirement boards, but also to the general public, which contributes
generously to the retirement allowances. For the most part, appeals
arise when local retirement boards deny applications for accidental dis-
ability retirement allowances and accidental death benefits under the pro-
visions of sections 7 and 9 of chapter 32. Allowances under both these sec-
tions are substantial. Accordingly, testimony is taken by sound recording
instruments and every effort is made to assure that these cases are finally
and wholly heard and adjudicated in accordance with the law and the
evidence.
Unfortunately, there are few Supreme Judicial Court decisions inter-
preting sections 7 and 9, and the board has been largely obliged to blaze
the trail with its own decisions. Two cases within the last year in which
the appeal board affirmed the decisions of local retirement boards were
appealed to the full bench of the Supreme Judicial Court. In both cases,
after argument, the full court affirmed the action of the appeal board.
The case of Hunt v. Contributory Retirement Appeal Board, 332 Mass. 625,
apparently settled one important phase of accidental disability retirement
law when, in interpreting the provisions of section 7 relative to applica-
tions for accidental disability retirement allowances, it said:
" These provisions make it abundantly clear that there can be no retirement for
accidental disability unless the local board finds that the disability is both total
and permanent. And before this finding can be made the board must have before
them as evidence a certification 'of such incapacity' by the medical panel pro-
vided for in § 6 (3). Such certification, it is true, is not binding on the local board
{Gassier v. Contributory Retirement Appeal Board, 332 Mass. 237) but without it
the board cannot make a finding that the applicant is 'totally and permanently
incapacitated'; it is, in other words, a condition precedent to an accidental dis-
ability retirement allowance."
Whether this language will be construed to apply to the appeal board,
as well as the local boards, was awaiting decision as the fiscal year closed.
Another serious question of law which ha^ confronted the board is
whether the Hart Act (c. 32, § 94) so-called, creating under some circum-
stances a presumption of service-connected disability, applies to applica-
tion for death benefits under section 9 of chapter 32. A petition for a writ
of certiorari against the board to determine this question is pending in
the Supreme Judicial Court. However, a decision adjudicating this ques-
tion is expected to result from another action due to be argued before the
full court in the fall.
The board sits regularly, hearing all appeals and adjudicating them —
finding the facts upon the evidence and interpreting and applying the in-
numerable provisions of chapter 32 relative to contributory retirement
allowances.
CusHiNG General Hospital.
In accordance with chapter 469 of the Acts of 1954, the Department of
the Attorney General handled the conveyance of the Gushing General
Hospital in Framingham from the United States Government to the
P.D. 12. 23
Commonwealth of Massachusetts. The hospital will be operated by the
Department of Mental Health for the care and custody of elderly persons
exclusively. It will be a unique institution in the Commonwealth.
As a result of many conferences with attorneys for the United States
Department of Health, Education and Welfare, conveyance of the former
Veterans Administration facility was advanced to January 4, 1955, which
will result in accelerating the opening date of the hospital for elderly
citizens of Massachusetts.
This completely equipped hospital was valued by the Federal Govern-
ment at $4,500,000, exclusive of contents. The property consists of a
tract of land containing 144.53 acres on which are located numerous
hospital buildings, an auditorium, a chapel, a warehouse and a railroad
siding. The structures contain a variety of equipment ranging from ice-
making machines to motion picture projectors. Not only was the prop-
erty acquired by the Commonwealth without cost, but a substantial
portion of the operating expense of the new facility for the State's aged is
to be borne by the Federal Government.
Doctor-Lawyer Fee Splitting.
In the spring of 1954 the Massachusetts Claim Investigation and the
Massachusetts Medical Society filed complaints with the Board of Regis-
tration in Medicine, charging that certain East Boston and Winthrop
doctors had been guilty of fee splitting with a certain lawyer. The fee
splitting allegedly was done by the lawyer who collected money from
insurance cases involving court claims by patients of the respective doctors.
The latter, it was contended, had referred said cases to the lawyer in each
instance. Out of the settlement, the lawyer would send to the doctor not
only paj'ment for his medical services but also would "kick back" to the
doctor part of the lawyer's legal fee.
The Board of Registration in Medicine, acting on such complaints,
summoned the doctors before it, charging them with fee splitting as an
offence for which their licenses to practice could be revoked or suspended.
The board claimed jurisdiction to try the doctors on these charges under
G. L. c. 112, § 61, which grants power to the board to suspend or revoke a
doctor's license where it appears to the board, after hearing, that he is
guilty of "gross misconduct in the practice of his profession."
Early in 1955 one of the doctors brought a petition in the Superior
Court for a determination that the board did not have jurisdiction over
the case. The petition was reported mthout decision to the Supreme
Judicial Court and was heard by that court in its May 1955 sitting, an
Assistant Attorney General arguing the case for the State board. A
decision, expected early in the fall of 1955, will determine whether or not
the Board of Registration in Medicine has jurisdiction to hear cases in-
volving fee splitting by a doctor with a lawyer.
24 P.D. 12.
Division of Employment Security.
Activities of two Assistant Attorneys General assigned to assist the
Division of Employment Security have been centered largely in handling
cases against employers who were found to have failed to pay their proper
quarterly tax contributions into the Massachusetts State Employment
Securit}'" Fund. At the start of the fiscal year, 440 of the 498 cases on
hand were employer contribution cases. Fifteen new referrals raised the
total to 513 cases, of which number 185 were closed by the two Assistants
before June 30, 1955. In 36 cases payment resulted from litigation; 63
were transferred to other attorneys; 67 wTre adjudged uncollectible; and
19 were otherwise closed.
In these cases a total of $103,568.91 was collected during the fiscal year.
Included was one check for $33,070.10, largest lump sum collection of a
delinquent account in the history of the Massachusetts Division of Em-
ployment Security and representing full contributions for 13 quarters due
the Commonwealth from a large Boston corporation. Some 22 months'
activity by members of the Attorney General's unit preceded liquidation
of this claim. Involved w^ere a number of legal proceedings in Suffolk
Superior Court and personal conferences ^vith four Federal agencies in
Washington, D. C. The two Assistants also appeared before the Supreme
Judicial Court and the United States Court of Appeals to represent this
division.
Guaranty Fire and Marine Insurance Company.
Upon information received that the Guaranty Fire and Marine Insur-
ance Company of South Carolina was about to withdraw from the Com-
monwealth its assets on deposit with various banks in the city of Boston,
w^hich assets substantially represented the collection of premium payments
by policyholders of automobile insurance, I brought a bill in equity against
the company.
The bill of complaint alleged that the Guaranty Company, although
not authorized by the Insurance Commissioner to do business in Massa-
chusetts, was actually issuing policies of insurance on automobiles to
Massachusetts residents, all of which was in violation of G. L. c. 175.
The bill in equity sought to and did enjoin the insurance company from
withdrawing or negotiating or transferring any and all of its bonds, com-
mon stocks. United States Treasury Notes, United States Bonds and cash
on deposit with various banks in the city of Boston.
Following a hearing before Justice Morton of the Suffolk Superior
Court, he allowed a decree under the terms of which: (a) all Massachu-
setts pblicyholders were to be repaid the unearned premiums on their
policies; and (b) all claims of Massachusetts policyholders were to be
paid from and out of the said funds and assets of the Guaranty Company.
This prompt and summar}^ action prevented the flight of the assets of
the corporation which were obtained from citizens of Massachusetts, and
insured the payment of all of their just claims as well as reimbursement
P.D. 12. 25
of their monies expended for insurance coverage. As a result of this ac-
tion, no citizen of Massachusetts has suffered loss.
The action proved timely and fortunate, for in June 1955 the Guaranty
Fire and Marine Insurance Company was placed in the hands of a re-
ceiver in South Carolina because of its unsound methods of o])eration and
financing.
Illegal Dental Advertising.
The General Court in 1954 passed chapter 408 of the Acts of 1954, in
substance prohibiting dental laboratories from advertising their services
in the newspapers, magazines or by radio or television. This act was
passed to alleviate a situation where certain dental laboratories were ad-
vertising to the general public inexpensive dental plates. Through such
advertising the general public flocked to the doors of the dental laboratories.
These laboratories then would refer such prospective customers to a par-
ticular dentist or dentists to take the impressions necessary before false
teeth could be made by the laboratory.
The dental laboratories involved claimed that the statute was uncon-
stitutional, and shortly after the law was passed brought a petition for a
declaratory decree in the Suffolk Superior Court. The case was reported
without decision to the full bench of the Supreme Judicial Court upon an
agreed statement of facts.
The case was argued before the Supreme Judicial Court at the February
1955 sitting by me, representing the respondents, the State Board of Den-
tal Examiners, after I had filed a brief. In the spring of 1955 the Supreme
Judicial Court decided that the statute was constitutional as a reasonable
exercise by the Legislature of its police power, in protecting the dental
profession against the siphoning of business away from dentists in the
community into the hands of a very few dentists because of the advertis-
ing by the laboratories and their referral of customers to said one or two
dentists. Perlow v. Board of Dental Examiners, 332 Mass. 682.
In addition, the Supreme Judicial Court found that the new legislation
had a reasonable tendency to protect the public health against inferior
professional work.
Insurance and Motor Vehicle Appeal Boards.
An Assistant Attorney General was assigned to attend all hearings of
the Insurance Appeal Board and the Board of Appeal on IVIotor Vehicle
Liability Policies and Bonds. During the past fiscal year he attended a
total of 5,664 hearings before the Motor Vehicle Appeal Board, including
5,450 cancellation and refusal cases, 153 appeals from registrar's decisions,
and 61 points cases.
He also sat with the Insurance Appeal Board while it was engaged in
establishing rates of insurance premiums.
26 P.D. 12.
Massachusetts Highway Safety Committee.
Under chapter 570, Acts of 1953, the Attorney General was appointed
a member of the permanent Massachusetts Highway Safety Committee,
headed by the Governor of the Commonwealth and the Registrar of Motor
Vehicles as permanent chairman. The function of the committee is to
arouse and enlist public cooperation in an official traffic accident preven-
tion program in a concerted effort to cut down the appalling toll of motor
mishaps. Special emphasis is placed on regulation and control of traffic
during the critically hazardous Fourth of July, Labor Day and Christmas-
New Year holiday periods.
I assigned an Assistant Attorney General to meet regularly with this
large and important committee.
Mental Health.
Collections against estates for claims for maintenance and support of
patients in the mental health institutions are handled by the Department
of the Attorney General. For the fiscal year from July 1, 1954, to June 30,
1955, exactly 29 cases were settled and the sum of $63,652.01 was col-
lected for the Commonwealth.
Milk Control Commission.
An Assistant Attorney General was assigned to work with the Milk
Control Commission to represent the Commonwealth in a United States
Department of Agriculture hearing which was conducted from April 18,
1955, through May 5, 1955. Matters under discussion were concerned
primarily with the extension of the existing Federal Order Markets in
Boston, Worcester and Springfield. An overwhelming number of Massa-
chusetts milk producers, as well as the commission, were in opposition to
the proposals which, if allowed, would have included all of the followdng
counties: Suffolk, Middlesex, Worcester, Franklin, Hampshire and Hamp-
den.
All prior hearings of this nature had resulted in the total extensions of
the Federal orders as proposed. On this occasion the only extension al-
lowed covered four towns of Middlesex County contiguous to the Boston
Federal Order. There presently are exceptions pending to such allowance.
On all other matters before the hearing, the United States Department of
Agriculture decided favorably, as the Massachusetts milk producers and
the Milk Control Commission desired.
I also assigned an Assistant Attorney General to attend all meetings of
the Milk Regulation Board, which includes the Chairman of the Milk
Control Commission, Commissioner of Agriculture, Commissioner of Public
Health, and the Attorney General.
Motor Tort Cases.
All automobile accident cases, involving the operation of Common-
wealth-owned motor vehicles by State employees and occurring during
the scope of their employment, are handled by the Department of the
P.D. 12. 27
Attorney General. Under G. L. c. 12, § 3B, cases of this nature may be
settled for a sum no greater than S5,000 per person for injuries or death
and a sum no greater than $1,000 for property damage. Where counsel
for the plaintiff requests larger payments and refuses settlement, we are
obliged to go to trial.
From July 1, 1954, to June 30, 1955, we disposed of a total of 158 motor
tort cases either by settlement or trial. Forty additional eases also were
closed because of the statute of limitations.
Pollution Abatement.
Following action by the Public Health Council of the Massachusetts
Department of Public Health on January 11, 1955, the Commissioner of
Public Health referred to me the question of the responsibility of the city
of Northampton to provide sewage treatment facilities which the Depart-
ment of Public Health had held are essential to the purification of the
Connecticut River, into which Northampton conveys its waste matter.
As early as August 9, 1888, the then State Board of Health advised the
Board of Sewer Commissioners of Northampton relative to the disposal
of sewage from that city. In 1945 the Legislature passed a comprehensive
stream pollution control law (St. 1945, c. 615) and in 1947 the Department
of Public Health asked Northampton for its proposed plans to construct
a municipal treatment plant. The city was authorized to borrow up to
$400,000 for such a project, plans were prepared and approved, but the
city failed to act. On December 7, 1954, the Director of the Bureau of
Accounts determined, at a public hearing in Northampton, that the city
had the ability to finance a plan for pollution abatement. When no action
still was forthcoming, the matter was referred to the Attorney General
under G. L. c. Ill, § 5, as amended by St. 1945, c. 615.
After conferences with the mayor and city officials of Northampton,
I held a meeting at the State House on February 3, 1955, attended by
officials of neighboring towns in the Connecticut River Valley, as well as
the mayor and city officials of Northampton, and representatives of the
Department of Public Health. On April 21, 1955, the Northampton City
Council requested legislation authorizing the city of Northampton to
borrow up to $1,050,000 for the construction of sewage treatment works.
The Legislature passed such a bill and it became St. 1955, c. 462, when it
was signed by the Governor on June 23, 1955.
Public Administration.
When a person having property dies without leaving a will, and without
being survived by a widow, widower or kindred, his or her estate, after the
paj^ment of debts and the expenses of administration, escheats to the
Commonwealth under G. L. c. 190, § 3, cl. (7). In the past fiscal year,
$55,828.13 was received by the Attorney General as escheats to the Com-
monwealth.
Such estates are administered and the respective residual sums are paid
into the State treasury by 62 public administrators in the Commonwealth,
28 P.D. 12.
each appointed for a term of five years. A public administrator owes a
solemn duty to administer the estate over which he has control as though
he were a private administrator. His appointment imposes a great trust
upon him. Immediately, he must arrange for burial of the deceased.
Thereafter, he must marshal the assets of the estate and make a diligent
search for heirs. Finding none, he must, of course, turn over the remainder
of the estate to the Commonwealth. Of late there is a growing tendency
on the part of public administrators to consult the Attorney General on
various matters.
Since chapter 194, section 4, provides that the State Treasurer must be
made a party to a petition for public administration and all subsequent
proceedings, and one of my duties is to "appear for the commonwealth
and for state departments, officers," etc., I appear in behalf of the Treasurer
and Receiver General on public administration matters in connection with
the original appointment, the sale of real and personal property, approval
of accounts and the question of the genuineness of alleged heirs. 1 have
prepared a brief for hearing before the full bench of the Supreme Judicial
Court this fall upon an appeal by alleged heirs.
In addition, I investigate suits for personal services, of which there are a
large number.
Public Utilities — Telephone Rate Case.
The Attorney General serves as legal counsel to the State Department
of Public Utilities, rendering opinions, appearing before the Single Justice
of the Supreme Judicial Court for the Department of Public Utilities,
whenever sued, bringing bills in equity to enforce decrees of the Depart-
ment of Public Utilities and representing the Department on appeals to
the Supreme Judicial Court. In the past fiscal year I was successful on
every occasion when called on to represent the Department of Public
Utilities. Most important single case was the question of increasing
telephone rates, which involved some new concepts of law.
New England Tele/phone and Telegraph Company v. Department of Public
Utilities, 331 Mass. 604. — This was an appeal by the company under
G. L. c. 25, § 5, to review orders of the Department of Public Utilities dis-
allowing a requested rate increase of S10,225,000, filed December 10, 1952.
Hearings began February 17, 1953, but final adjudication did not come
until during the fiscal year just ended, with every legal question decided
in favor of the Department of Public Utilities and the Attorney General.
The case was greatly involved.
The Telephone Company, claiming the decision of the Department of
Public Utilities to allow it only $7,446,800 was confiscatory and uncon-
stitutional, raised three major points in its appeal to the Supreme Judicial
Court: (1) the rate base, (2) rate of return, and (3) debt ratio.
(1) For the first time in this Commonwealth the question was raised as
to whether the Department of Public Utilities was obliged to use the
original cost (prudent investment) theory in arriving at a rate base, as had
been its policy, or whether the department should use, instead, the fair
P.D. 12. 29
value or reproduction cost theory on which the Telephone Company based
its figure for rate increases. I contended the Department of Public Utili-
ties had a right to use the original cost theory and was not required by
our Constitution to use the fair value theory in reaching a rate base. The
Supreme Judicial Court upheld my contention. Difference between the
original cost and the fair value figure urged by the company was 52.9
percent, resulting in savings to ratepayers running into millions of dollars.
In this case, the Attorney General invoked for the first time a new theory
of law, namely, the exclusion of any allowance for cash working capital
from the rate base, and the Supreme Judicial Court upheld me. This
meant a reduction of §2,444,000 from the rate base established by the com-
pany, with resultant added savings to ratepa3''ers. In addition, items of
S5, 391, 000 for plant under construction and $136,000 for plant held for
future use were deducted from the company's rate base, and the Supreme
Judicial Court decided the Department of Public Utilities had a legal
right to do so.
(2) As to the rate of return, the Telephone Company asked for 7.33
percent. The Department of Public Utilities allowed 6.313 percent,
which the company claimed in its appeal was confiscatory and unconsti-
tutional. Again the Supreme Judicial Court upheld the Attorney General,
ruling the 6.313 percent rate was neither confiscatory nor illegal. This
meant additional savings to ratepayers in excess of $4,009,000.
(3) In connection with the debt ratio, the Telephone Company had
asked 35-percent debt capital and 65-percent equity capital, but the
Department of Public Utilities set the ratio at 45-percent debt capital
and 55-percent equity capital. Once more the Supreme Judicial Court
upheld my contention, on behalf of the Department of Public Utilities,
meaning further savings of about $90,000 to ratepayers.
However, although everj^ legal question thus was decided in favor of
the Department of Public Utilities and the Attorney General, and the
increase allowed by the department would be substantially correct, many
factors entered the proceedings after the filing of the rate schedules by
the company on December 10, 1952. There were two wage increases of
over $2,000,000 each, causing added expenses of over $4,000,000 and
decreasing net earnings by $1,500,000; also increased costs for new con-
struction, causing the rate base to be raised to reflect a substantially
increased investment. The Supreme Judicial Court further found that the
effect of inflation upon the company's earnings was such as to require
another and current study of its operating results. Accordingly, it re-
committed the case to the Department of Public Utilities to review its
findings in accordance with this opinion.
On November 19, 1954, the Telephone Company filed a new schedule
of rates, asking for further increase in gross revenues in the sum of
$6,500,000. The recommittal and new petition were heard together and
the rates filed on December 10, 1952, were allowed, but the request for
$6,500,000 was cut to $5,515,000 and the rate of return was reduced from
6.313 percent to 6.25 percent. In order to give the company a $1.00 in-
crease, the Department of Public Utilities must approve a rate raise of
30 P.D. 12.
$2,213, because of Federal income tax, which takes 52 percent of the net
earnings of the company.
Cambridge Electric Light Company v. Department of Public Utilities. —
This is another rate case which was appealed to the Supreme Judicial
Court under G. L. c. 25, § 5. Issues involved were the same as in the
telephone case; namely, rate base (this company also contended we were
legally bound to use fair value in arriving at a rate base), debt ratio, rate
of return, etc. The decision in our favor in the telephone case caused the
Cambridge Company to withdraw its appeal on these issues.
As a result, the only issue now to be tried is whether the Department of
Public Utilities is obliged, as a matter of law, to establish rates for the
company designed, under reasonably efficient management and in times of
normal or better-than-normal business activity, to allow the company
sufficient revenues and earnings to maintain a fair market value of each
of the company's 90,600 shares of stock outstanding at approximately $150
a share. I have prepared a brief on this case and it will be argued at the
October sitting of the full bench of the Supreme Judicial Court.
Grey van Storage, Inc. v. Department of Public Utilities, 332 Mass. 712. — •
This was an appeal from decision of the Department of Public Utilities
dismissing Greyvan's petition for the right to use distinguishing plates on
two motor vehicles owned by an independent contractor and operated by
him under a contract with the plaintiff. The Supreme Judicial Court
found for us, saying it perceived no error in the refusal of the Department
of Public Utilities to grant Greyvan's application.
James E. Tatten et als. v. Department of Public Utilities, 332 Mass. 448. —
This was a bill in equity brought by three owners to review an order of the
Department of Public Utilities granting the Algonquin Gas Transmission
Company the right to take by eminent domain easements over the prop-
erty of the aforementioned owners. The bill also sought to review a
second order refusing to revoke the first order.
This was a very involved case, because it pertained to a certificate of
convenience and necessity issued by the Federal Power Commission, revo-
cation of the certificate by the Court of Appeals, the effect upon the order
of the Department of Public Utilities, authority of the Department of
Public Utilities to revoke right to take by eminent domain, status of the
parties after the decision of the Court of Appeals, etc. The case was ar-
gued by me before the full bench on two occasions and the Supreme Ju-
dicial Couit found for us both times. All issues were decided in our favor
and the orders of the Department of Public Utilities were affirmed.
Town of Wenham v. Department of Public Utilities, 333 Mass. 15. —
This was an appeal from decision of the Department of Public Utilities
granting an exemption from the operation of a zoning by-law for the pur-
pose of erecting a gatehouse by the Haverhill Gas Company in a residential
district, for distributing gas through its system. The full bench of the
Supreme Judicial Court ruled that erection of a gatehouse, as found by
the Department of Public Utilities, was reasonably necessary for the con-
venience and welfare of the public, and affirmed the department's decision.
P.D. 12. 31
Real Estate.
The Attorney General represents the interests of the Commonwealth
of Massachusetts before the Land Court. From July 1, 1954, to June 30,
1955, I processed a total of 143 Land Court cases. In this connection, I
represent the public interest in all cases and the protection of the rights
of the public in highways, great ponds, the Massachusetts coastline,
harbors, creeks, rivers, pubhc lands, etc.
With the cooperation of justices of the Land Court, I have instituted a
new procedural policj^: at the present time, before the issuance of decrees
which may involve a public interest, the Attorney General is given an op-
portunity to read the proposed decree for approval and, if necessary, to
suggest change or assent thereto. As a result of the new procedure, the
processing of Land Court cases in which the Commonwealth is a party
has been speeded up.
It is common knowledge that the volume of business in the Land Court
has tripled since the close of World War 11. Formerly, it was the prac-
tice of the Department of the Attorney General simply to answer a Land
Court petition in accordance ^vith data from the various State depart-
ments. The case then would remain dormant until petitioner's counsel
would mark the case for hearing or, under Rule 85 of the court, the case
would be marked "Inactive."
Under my new policy, upon receipt of a Land Court citation, I now
disseminate copies to those departments which have any potential in-
terest. The departments are requested to furnish me with an adeciuate
report by a specific date or, if they need further time, to inform me of the
date I can expect such a report. Upon receipt of the various reports, I
draft the answer of the Commonwealth or withdraw if no interest is in-
dicated. With my answer, I usually draft a stipulation which will meet
\^dth the Commonwealth's requirements. The stipulation and a copy of
the answer as filed in the court are then mailed to petitioner's counsel
mth a return envelope and a letter setting forth the details. We have
received the cooperation of more than 90 percent of Land Court counsel
in this matter and in many cases letters indicating their satisfaction mth
the system have been received. It is my opinion that the relationship be-
tween the justices and staff of the Massachusetts Land Court and the De-
partment of the Attorney General is at an all-time high.
In addition to Land Court matters, I have handled the titles and opin-
ions thereto for the erection of new armory buildings throughout the Com-
monwealth. In this connection I have represented the Military De-
partment of Massachusetts before the National Guard Bureau of the
United States Government. As a result of this activity, new armories are
either under construction or about to be started in Braintree, Bourne,
Chicopee, Gardner, Newburyport, Ware and Webster.
I also drafted the long-range lease of the "Scusset Beach Recreational
Area" from the United States Government, Department of the Army, to
the Commonwealth of Massachusetts. I render service to all towns of
32 P.D. 12.
the State, through town counsel or selectmen, in all matters relating to
public lands, highways or waterways.
Splitting Insurance Premiums.
As a result of complaints received by the Attorney General concerning
alleged splitting of commissions on insurance policies placed on financed
automobiles by and between the financing bank, insurance companies and
insurance agents, I caused an intensive investigation to be conducted over
a period of three months. Premiums in excess of $1,000,000 yearly were
being paid for various insurance coverages.
Following the investigation, I filed a bill in equity on behalf of Insurance
Commissioner Joseph A. Humphreys, which named as respondent the
National Shawmut Bank, the Pacific National Fire Insurance Co., the
Newfoundland American Insurance Co., and the General Agency of
OBrion, Russell & Co. This bill in equity alleged that the provisions of
G. L. c. 175 were violated in that it was agreed upon by all of the parties
respondent, their agents, officers and employees as follows:
"A. That the Pacific Co. issue a jnaster finance policy covering the Shawmut
Bank and car purchasers against loss from theft, fire and collision on automobiles
financed through and by the Sha^vmut Bank.
"B. That certificates of insurance would be issued under said master policy
to each car purchaser and that the premium for said insurance be added to the
amount of the loan with the entire total bearing interest.
"C. That the Shawmut Bank pay by check the total of said premiums charged
to the purchasers of OBrion, Russell who would deposit the proceeds thereof in
their entirety to the account of Pacific Co. in the Sha^Tnut Bank.
"D. That OBrion, Russell act as disbursing agent for all parties respondent
in accordance with the provisions of the agreement among them.
"E. That Pacific Co. receive out of said account an amount equal to 10 per-
cent of the total earned premiums.
"F. That OBrion, Russell receive out of said account an amount equal to
5 percent of the total earned premiums.
"G. That in addition thereto, OBrion, Russell pay out of said account the
expenses arising out of the investigation and/or adjustment of claims under said
policies, and make payments of settled or adjudicated claims therefrom.
"H. That the Newfoundland Co. receive out of said account an amount equal
to 5 percent of the total earned premiums.
"I. That OBrion, Russell paj^ the remainder of the total earned premiums to
the Newfoundland Co.
"J. That the Newfoundland Co remit the same remainder referred to in the
previous Paragraph I in its entirety to the Shawmut Bank.
"K. That the Newfoundland Co. execute and deliver an agreement to reinsure
the Pacific Co. for anj'- and all losse.-, sustained under the said master polic}' issued
to the Shawmut Bank in excess of SO percent of the earned premiums up to a
ceiling of 300 percent.
P.D. 12. 33
"L. That the .Shawinut Bank execute and deliver an agreement to pay to
the Newfoundland Co. an amount equal to all losses over and above SO percent
of the earned i)remiums up to a ceiling of 300 percent."
On March 4, 1955, a final decree was allowed and entered by Justice
Hudson of the Suffolk Superior Court at Boston, which enjoined rebates
from insurance premiums on financed automobile risks. As a result of the
action, rebates to financing banks were decreed to be in contravention of
the State insurance laws.
Thus notice was served that this type of improper competition with
regular licensed brokers would not be tolerated in Massachusetts. The
court decree ended the agreement which had deprived individual brokers
of the opportunity to write such insurance and share in the annual com-
missions totaling over $1,000,000.
State Contracts.
During the fiscal year I disposed of 13 contract claims which had been
brought against the Commonwealth under G. L. c. 258. Several State
departments were involved in these claims by contractors for extras on
State jobs. The suits totaled $1,224,245.81, but they were adjudicated for
only $118,026.94, representing a net saving of $1,106,218.87 for the Com-
monwealth; in other words, the amount paid was approximately nine per
cent of the total amount of claims. Six of the claims were settled without
trial and three during trial. In two of the claims the State paid nothing.
Several other contract claims are pending, and are in various procedural
stages. The rate at which new contract actions for additional compensa-
tion for alleged extra work are brought, has dropped from an average of
about three per month in 1953 to about one per month over the past year.
There has also been a decrease, at about the same ratio, in the number of
petitions by subcontractors to establish liens under G. L. c. 30, § 39.
John Bo wen Cani'pany, Inc. — The Bowmen Company cross actions, dating
back to May 21, 1953, were tried during the past fiscal year before Justice
Kirk in the Superior Court without a jury. Commonwealth v. John Bowen
Company, Inc. was a contract action to recover $789,712.20 paid on monthly
estimates under contract #1 of the Department of Public Health for con-
struction of the Chronic Diseases Hospital at Forest Hills, which had
been held illegal by the Supreme Judicial Court on April 8, 1952, in Gifford
V. Commissioner of Public Health, 328 Mass. 608. The cross action is
John Boxcen Company, Inc. v. Commonwealth, a petition under G. L. c. 258,
to recover on a quantum meruit basis a balance of $633,247.23 alleged
to be due after credit of the above $789,712.20 for the fair value of the
work done under contract #1 to the date of the Supreme Judicial Court
decision. By order of the court, trial was limited to the issue of liability.
Justice Kirk found for the defendant in each case. While appeals by both
parties were pending, agreement for disposition of the cases on the basis
of the findings for the defendants w^as approved by the Department of
Public Health. Releases were exchanged and the Commonwealth released
to the Bowen Company a balance of $1,000,000, accrued on contract #1A
34 P.D. 12.
for the completion of the Shattuck Hospital, which had been held under
G. L. c. 29, § 17, as security for payment of the amount sought to be re-
covered by the Commonwealth. The Bowen Company's release included
a waiver of its claim for interest on the sum so held.
Route 9 Crossover Closings. — A petition for a writ of certiorari was
brought by an owner of land in Westborough on the north side of Route 9
to review the action of John A. Volpe, Commissioner of Public Works, and
the Associate Commissioners in ordering the closing of a crossover opening
located opposite the land of the petitioner, affording him immediate access
to the east-bound lane of the divided highway. Justice Hurley of the
Superior Court sustained a demurrer and dismissed the petition. The
petitioner has taken an appeal to the Supreme Judicial Court, and the
case should be heard during the fall of 1955. The case tests the validity
of the entire program of crossover closings undertaken as a safety measure
to reduce the serious accident rate on Route 9. Justice Hurley's ruling
held the closings to be valid.
State Housing Board.
The Attornej'' General's duties in connection with the State Housing
Board were further expanded this past fiscal year as a result of the opera-
tion of a new law, chapter 667 of the Acts of 1954, providing for the hous-
ing of elderly persons of low income. Section 26VV of this statute author-
izes State financial assistance for such housing projects, and it is the
responsibility of my office to review and approve contracts for same.
During the year five such contracts were reviewed and approved, and
one was reviewed and disapproved, subject to correction of defects.
Otherwise, the operations of my special unit, located with the board,
fell under six general categories, as previously reported :
1. .Rendering written opi7iions on general legal problems confronting the
hoard. — There were 31 opinions prepared and submitted, as well as 43
legal advice memoranda. Opinions have to do with substantive law,
usually involving original and novel questions, setting precedents; legal
advice memoranda pertain principally to routine advice on administrative
matters and reviews. Both are indexed for reference.
2. Review for approval of title abstracts and other problems involving pur-
chase or sale of land. — Total of 60 opinions submitted to board.
3. Administration of organization transcripts of approximately 88 active
housing authorities. My work is to keep all these transcripts in proper
form, so the board may be certain the authority is legally organized as an
authority whenever it presents a problem for decision of the board. Be-
cause of close cooperation on the part of a new board employee handling
these transcripts, the number of errors and omissions found in these
records was greatly reduced during the year and it was possible to correct
many of the deficiencies by informal conferences without the necessity for
written memoranda.
4. Review for approval of original and refunding note and bond issues.
In all, 44 note issues, both original and refunding, involving the borrow-
P.D. 12. 35
ing of a cumulative total of $71,976,000, were reviewed and approved.
Decrease in the number and amount from last year is due to the fact that
last year's approvals included many approvals withheld during prior years
because of defects in the organization transcripts of particular housing
authorities.
5. Attendance at or conducting meetings involving contract disputes,
making findings and writing decisions. Total of 348 such hearings and/or
conferences attended or conducted, in many of which Assistant Attorneys
General assisted in or made findings in behalf of the board and wrote
decisions in conformity therewith.
6. Litigation and trial work. Six civil service cases, commenced during
the prior fiscal year, were completed, being decided favorably. Appeals
from the decision of the Civil Service Commission are pending in two of
these cases. We also appeared before various courts in a number of
matters. We accompanied and assisted the chairman of the board in the
conduct of a public hearing held February 11, 1955, in the Gardner Audi-
torium in connection with the proposed "New York Streets" Redevelop-
ment Project in the city of Boston. And we aided the chairman and
advised him with regard to the various legal problems involved in his
decision based upon that hearing.
In addition, I appeared before a single justice of the Supreme Judicial
Court on behalf of the chairman of the State Housing Board, and before
the full bench of the Supreme Judicial Court in the case of Chairman of
the State Housing Board v. Civil Service Commission, 332 Mass. 241. This
case was of great interest and importance to the public, various political
factions and particularly to the veterans, as it involved the clarification
of chapter 30, section 9A, insofar as the commencement of a veteran's
tenure of office in order to obtain the protection of the same chapter and
section is concerned. Decision of the court was favorable and set a prece-
dent for the guidance of all individuals and State agencies directly affected
by this act. An unusual amount of time and effort was required in pre-
paring my brief and argument for the hearing, as it was a question of law
never before decided.
Location of my Assistants with the board has resulted in a considerably
closer integration with that organization than if we were situated apart,
and has made for excellent cooperation and high efficiency in functioning,
alike with board officers and attorneys for local housing authorities.
We have sat with the chairman and other officers of the board to con-
sider legislation amending the Housing Authority Law, and we prepared
19 bills which were submitted to the 1955 Legislature.
Sunday ''Censorship" of Motion Pictures.
Under G. L. c. 136, § 4, no license granted by local authorities for the
holding of a public entertainment on Sunday shall have any effect "unless
the proposed entertainment shall have been approved in writing by the
commissioner of public safety as being in keeping with the character of the
day and not inconsistent with its due observance."
36 P.D. 12.
I
The commissioner refused to give his written approval of the proposed
showing of a certain motion picture on Sundays, and the exhibitor there-
upon brought a petition for a declaratory judgment against him and the
local licensing authorities, seeking a determination as to the commissioner's
legal right to prevent such an entertainment by withholding his approval
under the statute. The petitioner, relying on Joseph Burstyn, Inc. v.
Wilson, 343 U. S. 495, and other recent Federal decisions establishing that
"expression by means of motion pictures is included within the free
speech and free press guaranty of the First and Fourteenth Amendments,"
expressly challenged the constitutionality of said section 4. Thus the
Department of the Attorney General was brought directly into the case,
under G. L. c. 231 A, § 8, and I caused a demurrer to be filed.
This demurrer was sustained and the resulting appeal was argued before
the Supreme Judicial Court on May 5, 1955. At the same time, another
case, in which the same issues were raised, was also taken under advisement
by the court. The decisions in these matters had not come down at the
end of the fiscal year; however, on July 6, 1955, they were handed down,
and G. L. c. 136, § 4, was declared unconstitutional, as a prior restraint on
the freedom of speech and of the press, as applied to the petitioning ex-
hibitor. Brattle Films, Inc. v. Commissioner of Public Safety, 333 Mass. 58;
Times Film Corporation v. Commissioner of Public Safety, 333 Mass. 62.
While the clear effect of these decisions was to make unnecessary any
application to the commissioner for his prior approval of Sunday showings
of motion pictures, they left somewhat in doubt the duty of an exhibitor
to follow the additional statutory requirement that licenses for such show-
ings be procured from local authorities. This doubt was swept aside,
however, by the enactment of chapter 742 of the Acts of 1955, which made
clear that, notwithstanding the Brattle and Times Film decisions, local
Sunday licenses must still be procured by motion picture exhibitors.
Town By-laws.
An important service to town voters is rendered by an Assistant Attorney
General who promptly processes all town by-laws before they are placed in
effect. Citizens affected thus have every assurance of the validity and
propriety of local statutes without waiting for possible litigation leading
to a court ruling. My policy has been to see that each by-law submitted
for approval is carefully studied, acted upon and returned with all possible
speed so as to minimize the uncertainty and embarrassment which might
result from any delay. In the year ending June 30, 1955, a total of 214
town by-laws were thus processed.
Veter.a.ns' Services.
The Veterans' Division of the Department of the Attorney General,
during the fiscal year ending June 30, 1955, handled a total of 3,179 cases,
advising veterans and their dependents in matters relating to retirement,
civil service, tax exemptions, pensions, education and loans. Further
P.D. 12. * 37
assistance also was given to various veterans' organizations and Stat-e and
local officials relative to such problems.
As a member of the Korean War Bonus Commission since its inception,
I supervised the payment of more than $35,000,000 to our returning
servicemen. Exactly 132,327 veterans (or their next of kin or dependents)
have received $35,556,200 from the State in the 22 months ending June,
1955. Over 94,000 of these were servicemen who saw overseas duty and
who collected $300 each. Disallowed bonus claims totaled only a rela-
tively small two and one-half percent, considerably lower than the dis-
allowed claims during the payment of World War II bonus. In this con-
nection I desire to pay tribute to the close cooperation of local veterans'
services officers with an efficient, smoothly operating State Bonus Com-
mission office.
An Assistant Attorney General also sits with the Veterans' Bonus
Appeals Board.
Workmen's Compensation.
An Assistant Attorney General appeared before the Industrial Accident
Board in approximately 275 cases during the fiscal year ending June 30,
1955. These cases included not only claims by employees of the Com-
monwealth but also claims arising under sections of the Workmen's Com-
pensation Act dealing with death claims and with reimbursement to
insurers under certain conditions.
In connection with workmen's compensation cases, there w^ere processed
in the office of the Attorney General the following: employer's first report
of injury, 5,530; doctors' bills, 2,500; agreements for compensation, 454;
and agreements to resume compensation, 30.
In the payment of workmen's compensation benefits to injured State
employees and to doctors and hospitals in the treatment of said employees
under the provisions of G. L. c. 152, the Commonwealth expended the
following monies: compensation payments, including dependency pay-
ments, $450,886.06; payment to doctors and nurses, $79,808.88; and
payment to hospitals, $87,110.65.
Conclusion.
With the close of the third fiscal year during my tenure as Attorney
General, I wish to reiterate that I am humbly conscious of the great
honor and privilege involved in serving the Commonwealth of Massachu-
setts in the high office of chief law officer, and that I will continue to exert
my sincerest efforts in behalf of the best interests of this State and all of
our people.
Moreover, I would be remiss indeed if I did not again express my deep
appreciation to His Excellency, the Governor of the Commonwealth, to
members of the General Court, and to all the other constitutional officers
of the State government for their always helpful cooperation and assist-
ance in matters pertaining to Massachusetts.
38 P.D. 12.
I also wish to thank the district attorneys and all State and local police
officials whose advice and aid have been invaluable in administering the
Department of the Attorney General.
Finally, I commend my Assistant Attorneys General and all other
employees in my office who have served so faithfully and efficiently, in
many cases above and beyond the call of duty.
Only through the combined efforts of all these has it been possible for
me to establish this record.
Respectfully submitted,
GEORGE FINGOLD,
Attornty General.
INDEX TO REPORT FOR 1954-55
DEPARTMENT OF THE ATTORNEY GENERAL
Subject page
Copy of Covering Letter 3
Departmental Staff 5
Appropriations and Expenditures 6
Tabulation of Cases 7
Introduction 7
Anti-Communist Division 8
Criminal Division 10
Charitable Solicitations 11
Charlestown State Prison (and Walpole) 12
Crime Commission and Wire-Tapping 13
Defective Delinquents, Extradition 13
Extraordinary Writs, Pardons 13
District Attorney foi Plymouth County 14
Division of Public Charities 15
Land Damage 16
Youth Division (Records, Comic Books) 18
Boston City Hospital — Investigation of Diarrhea Outbreak . . . .19
Cape Cod Hurricane Disaster . .21
Civil Defense 21
Contributory Retirement Appeal Board 21
Cushing General Hospital 22
Doctor- Lawyer Fee Splitting 23
Division of Employment Secuiity 24
Guaranty Fire c^l: Marine Insurance Co 24
Illegal Dental Advertising 25
Insurance and Motor Vehicle Appeal Boards 25
Massachusetts Highway Safety Committee 26
Mental Health 26
Milk Control Commission 26
Motor Tort Cases 26
Pollution Abatement 27
Public Administration 27
Pubhc Utilities (Telephone Rate Case) 28
Cambridge Electric Light Co. y. D. P. V 30
Grey van Storage, Inc. y. D. P. L' 30
Jcmies E.Tattenetalsy.D.P.lJ. 30
Town of Wenham y.D.P.U 30
Real Estate 31
Land Court 31
New Armory Buildings 31
Scusset Beach Recreational Area 31
Splitting Insurance Premiums 32
State Contracts 33
John Bowen Co., Inc 33
Route 9 Cross-over Closings 34
State Housing Board 34
Sunday " Censorship " of Motion Pictures 35
Town By-Laws 36
Veterans' Services (Korean War Bonus) 36
Workmen's Compensation 37
Conclusion 37
OPINIONS.
Rent Control — State Housing Rent Co-ordinator — When his Duties
Terminate.
July 15, 1954.
Hon. Paul Goddard, State Housing Rent Co-ordinator.
Dear Sir: — You have requested my opinion with reference to the
termination of the provisions of chapter 434 of the Acts of 1953 in so far
as these provisions concern the powers and authority of the office of State
Housing Rent Co-ordinator.
Section 14 of said chapter, the first sentence of which provided for the
termination of the act, was amended by chapter 496 of the Acts of 1954,
with an emergency preamble, which amendment struck out said sentence
and inserted in place thereof the following:
"This act and all powers delegated herein shall terminate on June
thirtieth, nineteen hundred and fifty-four; provided, however, that any
city or town in which rent controls are in effect may vote to continue the
provisions of this act in accordance with section twelve for an added
period not exceeding nine months from said June thirtieth."
Section 12 of said chapter 434, to which reference is made, sets forth the
procedure by which a city or town may, in the first instance, accept the
provisions of the act. Section 14, as amended, provides that the same
procedures shall be followed by cities or towns which continue rent controls
for a further period.
Upon the basis of the foregoing facts, you request my opinion as to the
f ollo\ving questions : —
1. Do the powers, responsibiUties, rights and authority of the office of
the State Housing Rent Coordinator, as provided for in St. 1953 c. 434,
terminate on June 30, 1954?
2. If the answer to the foregoing is in the negative, are the powers,
responsibilities, rights and authority of said office, during the period after
June 30, 1954 in which cities and towns continue rent controls, identical
with the powers, responsibilities, rights and authority which existed before
that date?
A careful analysis of said chapter 434 as a whole leads clearly to the
conclusion that the Legislature intended that the office of the State Housing
Rent Co-ordinator should continue to carry on its duties and responsibilities
during the period that cities and towns have rent control under the act.
Section 3 of the act provides for the appointment of a State Housing
Rent Co-ordinator. It provides that he may prescribe forms, that "he
shall be available, in an advisory capacity, to city and town rent boards,"
that he shall co-operate with the Federal Government. The general sense
is that the Rent Co-ordinator shall serve as a guiding hand to local boards
in the handhng of their problems. These problems will continue so long as
rent controls are in force.
42 P.D. 12.
Section 4 (c) requires approval and certification by the Co-ordinator
before cities and towns can receive reimbursement from the Common-
wealth of the forty percent of their expenditures to which the act entitles
them. The function of the Co-ordinator in this respect is vital and con-
tinuing.
Section 14 of the act, as amended, states that the act shall terminate on
June 30, 1954, 'provided that any city or town may vote to continue the pro-
visions of this act for a period not exceeding nine months. Thirty-one cities
and nineteen towns, representing a large proportion of the people of the
Commonwealth, have so voted.
The words "the provisions of this act," given a natural meaning, must
be taken to include all the provisions of the act. There is no question as
to the authority of the Legislature to delegate its powers in this respect
and to leave to cities and towns the question whether they wish to continue
these provisions. Commonwealth v. Hudson, 3 15 Mass. 335, 342. Opinion of
Justices, 234 Mass. 597. Stockus v. Boston Housing Authority, 304 Mass.
507. Commonwealth v. Slocum, 230 Mass. 180, 190. Opinion of Justices,
286 Mass. 611. The Legislature clearly intended that the office of the
State Housing Rent Co-ordinator should continue to carry out its duties
and responsibihties during the entire period that cities or towns retained
rent controls. There is no reason to except from the continuation of the
act those provisions relative to the Rent Co-ordinator whose function, so
far as the communities which have adopted and continued rent controls
are concerned, is a vital and essential one.
It may be noted, also, that the Legislature inserted in its budget for
fiscal year 1955 two items — 0473-01 and 2604-01, the first providing
for all expenses of the Co-ordinator's office, and the second for the expenses
of reimbursement.
In conclusion, the answer to your first question is in the negative, and
the answer to your second question is in the affirmative.
Accordingly, the office of the State Housing Rent Co-ordinator, and the
Co-ordinator, continue to have and to exercise all the powers, responsibili-
ties, rights and authority originally given to it and to him by said chapter
434, and will continue to have and to exercise, under the present circum-
stances, such powers, responsibihties and rights until March 31, 1955.
Very truly yours,
George Fingold, Attorney General.
Tenement House Act — Revocation by City of its Acceptance of Act.
July 21, 1954.
Robert E. Archibald, M.D., Deputy Commissioner, Department of Public
Health.
Dear Sir: — You have recently asked this department for an opinion
as to whether the city of Somerville can revoke its acceptance of the
"Tenement House Act."
I understand that chapter 144 of our General Laws, entitled "Tenement
Houses in Cities," was accepted by the city of Somerville on December 2,
1948, in accordance with section 1 of that chapter which provides for per-
missive acceptance by a vote of the city council with approval of the
mayor.
You request an opinion as to the following question:
P.D. 12. 43
"The inquiry is, in the case of Somerville, may that city, having ac-
cepted the provisions of this chapter in the past, now by the vote of the
City Council, with the approval of the Mayor, rescind that action of
acceptance?"
The answer to the above question is in the negative. Even though the
city had its choice whether or not it would accept the provisions of this
statute, once that acceptance has been duly made, the statute then be-
comes binding on the city to the same extent that any statute ena'^ted by
the General Court is binding on the city. It is clear that no individual
city can "rescind" the provisions of any general statute enacted by the
Legislature which apphes to the city. For the same reason, no city can
rescind the provisions of a statute passed by the Legislature which has
become applicable to that city by reason of its acceptance of such statute.
After such acceptance, the statute is binding upon the city and the provi-
sions of such statute cannot be changed by the city. Adains v. Selectmen
of Northbridge, 253 Mass. 408, 410. Hurley v. Lynn, 309 Mass. 138, 145.
It is also provided by section 4 of chapter 144 that "no city authority
shall have the power to minimize, avoid or repeal any provision of this
chapter." This restriction apphes both to changes in details of various
provisions within the chapter, and also to a omplete rescission of the
chapter.
Jn numerous statutes which provide for permissive acceptance by a city
or to\\Ti, the Legislature has deliberately provided a method by which a
city or town may revoke its acceptance. Examples of this permitted
method of revoking an acceptance will be found in the following acts:
St. 1949, c. 13, § 41; St. 1951, c. 406, § 21; St 1953, c. 434, § 12. There
is no similar provision for revoking an acceptance in chapter 144 which
relates to "Tenement Houses in Cities." The failure to include such a
provision is a clear indication that the cities which accept the provisions
of the act do not have a right, acting only upon their own initiative, to
revoke their acceptance.
The Legislature has occasionally permitted a city or town to revoke
acceptance of the provisions of chapter 144 (Tenement Houses in Cities)
or of chapter 145 (Tenement Houses in Towns). See, for example, St 1943,
c. 20, and St. 1947, c. 7. The title of the latter act is "An Act authorizing
the town of Swampscott to revoke its acceptance of certain provisions of
law applicable to tenement houses in to-^Tis." The provisions of the town
act, chapter 145, are substantially similar to the provisions of chapter 144
which relate to cities. It is recognized that towns, in order to rescind
their acceptance of chapter 145, must obtain special authority from the
Legislature to revoke acceptance. Cities stand in the same position.
Once the provisions of chapter 144 have been ar-cepted, that entire chap-
ter is binding upon the city until the Legislature changes the statute or
permits the city to consider revocation of its acceptance and the city re-
vokes the acceptance in accordance with such new authority given to it.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
44 P.D. 12.
Veteran's Non-contributory Retirement — University of Massachusetts —
State Employee — Payment from "Revolving Trust Fund."
July 22, 1954.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir: — You have recently requested an opinion from the Attor-
ney General with reference to an application from an employee of the
Commonwealth for retirement under G. L. c. 32, § 58.
From your letter I understand that the facts are as follows: The em-
ployee in question is now an employee of the Commonwealth by virtue of
his position with the University of Massachusetts at Amherst. In his
application for retirement, he claims as creditable service the period of
time from 1912 to 1936, during the latter portion of which period he was
in service for the University of Massachusetts under some of its former
names, and during the earlier portion of such period, he was in service
with the Massachusetts Agricultural College while it was a charitable cor-
poration and prior to its absorption by the Commonwealth. During this
period the applicant for retirement was connected with the Agricultural
Experiment Station at Amherst. His services were all related to the test-
ing of cows and certification of cows following such testing. During the
period from 1912 to 1936, the applicant was paid by checks signed by the
treasurer of the college. The funds used by the treasurer for the salary
checks came from a so called Dairy Cattle Certification Revolving Trust
Fund. This fund was financed by private dairy cattle interests and such
fund was used for the testing of cows at the request of the Jersey, Guernsey
and Holstein Cattle Clubs. Fees for services of this kind were paid by
private interests and such fees went into this trust fund and the fund was
carried on a more or less revolving basis. This fund was handled by the
treasurer of the University of Massachusetts and its predecessors. The
fund was audited and examined during this period by the State Auditor.
The Dairy Cattle Certification Revolving Trust Fund was discontinued
as of July 1, 1936, and an appropriation has been made annually since that
date by the Legislature to carry on this work.
You inquire as follows:
"Your opinion is sought on the question whether this employee is to be
considered a State employee for the period 1912 to 1936 during which
time his salary was paid from the Dairy Cattle Certification Revohang
Trust Fimd."
The Massachusetts Agricultural College, the predecessor of the present
University of Massachusetts, was incorporated by act of the Massachu-
setts Legislature in 1863 (St. 1863, c. 220) as a public charitable corpora-
tion. It was dissolved as a corporation in 1918 (St. 1918, c. 262) and by
that same act the dissolved charitable corporation became the Massachu-
setts Agricultural College. By a series of changes in name, the Massachu-
setts Agricultural College has become the present University of Massa-
chusetts. The 1918 statute declared that the Massachusetts Agricultural
College was a State institution. Section 5 of that statute specified that
"All employees of the institution shall be considered state employees."
The Agricultural Experiment Station, to which you refer in your letter,
has been a part of the University of Massachusetts and of its predecessor
P.D. 12. 45
since 1882 (St. 1882, c. 212). It is still a part of the present University
of Massachusetts. G. L. c. 75, § 18.
It seems clear from the above statutes that the appUcant has been an
employee of the Commonwealth from the time in 1918 when the Massa-
chusetts Agricultural College became a State institution. Beyond this,
however, your facts present the question whether or not the applicant can
claim as creditable service the period during which his salary came from
the Dairy Cattle Certification Revolving Trust Fund. In my opinion,
this fact does not prevent the applicant from being entitled to this period
as a period of creditable service. Since 1918 his compensation has come
directly from the Commonwealth, through its officer, the treasurer of the
college. The fact that a trust fund from a private source was drawn upon
for his compensation does not alter the situation. Since 1918 the Trustees
of the Massachusetts Agricultural College have been directed by statute
to " manage and administer . , . any gift or bequest of money . . . made
to the commonwealth for the use of such institution." St. 1918, c. 262,
§ 3; G. L. c. 75, § 7. The situation is analogous to the payment of em-
ployees of the college from Federal grants. In two instances these pay-
ments from Federal grants have been studied by this department and it
has been ruled that the employees in question are employees of the Com-
monwealth, notwithstanding the source of their compensation, and that
such employees are eligible for membership in our State Retirement
System. VIII Op. Atty. Gen. 191 ; Op. Atty. Gen. 1948', p. 34.
An entirely different question arises in connection with the claim of the
applicant for creditable service from 1912 until the time in 1918 when
the college became a State institution and the applicant became a State
employee. However, since the applicant's service from 1918 to the pres-
ent time constitutes more than the thirty years required by G. L. c. 32,
§ 58, it appears unnecessary to pass upon the applicant's service prior
to 1918.
In conclusion, the answer to the question presented, limited to the
period from 1918 to 1936, is in the affirmative.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Outdoor Advertising Authority — '^Public Records.'^
July 23, 1954.
Mr. William F. McCarty, Executive Director, Outdoor Advertising
Authority.
Dear Sir: — -You have recently written to this department inquiring
as to the "public records" in the possession of your Authority.
The principal statutes relating to public records are as follows:
G. L. c. 4, § 7, cl. 26:
"Public records" shall mean any written or printed book or paper, any
map or plan of the commonwealth, or of any county, city or town which
is the property thereof, and in or on which any entry has been made or is
46 P.D. 12.
required to be made by law, or which any officer or employee of the com-
monwealth or of a county, city or town has received or is required to re-
ceive for filing, ..."
G. L. c. 66, § 10:
"Every person having custody of any public records shall, at reasonable
times, permit them to be inspected and examined by any person, under his
supervision, and shall furnish copies thereof on payment of a reasonable
fee. . . ."
The Outdoor Advertising Authority was created by G. L. c. 6, § 60.
That section requires you to make an annual report to the Legislature.
Such annual report would be a public record.
It is provided by G. L. c. 66, § 6, that every department, board, com-
mission, or office of the Commonwealth "shall enter all its votes, orders
and proceedings in books." All such entries are required to be made by
law and are therefore pubhc records. In chapter 93, section 29, it is pro-
vided that your Authority shall make rules and regulations. Such rules
and regulations are required by G. L. c. 30, § 37, to be filed in the office of
the Secretary of State. Such rules and regulations are also public records.
Your letter refers specifically to applications and permits for outdoor
advertising. Your rules and regulations provide that applications for
permits "shall be filed with the Authority." Applications filed "with you
in accordance with this requirement are papers which are required by law
to be filed and which you are required to receive for filing. Accordingly,
all such appHcations are pubhc records. As to permits issued by you,
I assume that each permit is issued in accordance with some vote or order
or proceeding of your Authority. Since all your "votes, orders and pro-
ceedings" are pubhc records (G. L. c. 66, § 6), the permits authorized by
such proceedings, and w'hich could not exist apart from such authority,
are themselves pubhc records.
There are many cases in Massachusetts relating to pubhc records. The
precise question which you have asked, relating to your own Authority,
has not been covered specifically. The above opinion, that your records
and apphcations and permits are pubhc records, is consistent with the
decisions which have been made and is required by such decisions. The
most important of these printed decisions are as follows: Direct-Mail
Service v. Registrar of Motor Vehicles, 296 Mass. 353, 356. Hurley v.
Board of Public Welfare of Lynn, 310 Mass. 285. Hobart v. Commissioner
of Corporations & Taxation, 311 Mass. 341, 348-49. New England Box
Co. Y.C & R Construction Co., 313 Mass. 696, 703. Op. Atty. Gen. 1952,
p. 39.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
P.D, 12. 47
Tornado Relief Fund — Continuing Right of Commission on Administration
and Finance to make Payments.
Aug. 9, 1954.
Hon. Caul A. Sheridan, Commissioner of Administration.
Dear Sir: — You have requested my opinion concerning St. 1954,
c. 618.
Your first question is as follows :
"1. Is it legal under chapter 651 of the Acts of 1953, as amended by-
chapter 618 of the current year, to make payments and reimbursements?"
The 1953 statute to which you refer relates to the appropriation and
use of money for the relief of the fuiancial burden imposed on cities, towns
and counties by the tornado of June 9, 1953. Section 2 of that chapter
pro\aded that funds remaining in your hands on June 30, 1954, "shall be
available" for payments thereafter due on bonds issued under the authority
of the act. The amendment made by St. 1954, c. 618, merely changes the
date at which such remaining funds "shall be available" from June 30,
1954 to June 30, 1955.
The answer to your first question is in the affirmative. The amendment
of the current year does not affect in any way your right to make pay-
ments and reimbursements under the 1953 act. The 1953 act did not limit
your right to make payments and reimbursements to a period prior to
June 30, 1954. To the extent that the 1953 act gave you the right to
make any payments or reimbursements, that right still continues.
The reference in section 2 of the 1953 act, now amended by the 1954
act, that certain funds remaining in your hands "shall be available" for
payment on account of bonds issued under the act, is a permissive provi-
sion and not a mandatory one. The only change made by the 1954 amend-
ment is that this permission to use such remaining funds is now extended
until June 30, 1955.
Your second question is as follows :
"2. Does the enactment of the above-mentioned chapter 618 affect
the bond issue authorized by chapter 651, Acts of 1953?"
The 1954 amendment does not affect in any way the validity of the
bond issue authorized by the 1953 statute. It is true that the 1954 amend-
ment affects in a very minor way such bond issue, that is, your permissive
authority to use remaining funds for payment on such bonds has now
been extended from 1954 to 1955. Except for this delay in the permissive
provisions of this act, the 1954 amendment does not affect in any way the
bond issue authorized by the 1953 act.
Very truly yours,
George Fingold, Attorney General.
48 P.D. 12.
Assistant Commissioner of Agriculture — Term or Tenure of Office —
Procedure for Removal.
Aug. 17, 1954.
Hon. L. Roy Hawes, Commissioner of Agriculture,
Dear Sir: In a recent letter you inquire about the status of the Assist-
ant Commissioner of Agriculture. After referring to section 5 of St. 1954,
c. 674, you ask the following questions:
"1. Would an assistant commissioner appointed under St. 1954, c. 674,
have permanent tenure?
"2. What procedures would be followed in a removal for cause of an
assistant commissioner appointed under the provisions of said law?
"3. Would it be understood that the term of office of an assistant com-
missioner appointed under the provisions of the above-mentioned law would
run concurrently with that of the commissioner who is appointed for a
definite number of years?"
The answer to your question No. 1, in my opinion, is in the negative.
After providing in section 1, for the appointment of the commissioner
"for a term of four years" section 4 of chapter 674 then provides as follows:
"The governor, with the advice and consent of the council, shall appoint
an assistant commissioner from a panel of not less than three names sub-
mitted by the board and the commissioner shall assign to him from time
to time such duties as he may determine."
It cannot be assumed that the failure to provide for a definite term of
office of the assistant commissioner was by accident or oversight. On the
contrary, all legislation is presumed to result from the rational processes
of legislative thought. It must be assumed, therefore, that in failing to
provide a tenure of office for the assistant commissioner no term of office
as such was intended. Where a term of office is not fixed by law, the officer
is regarded as holding at the wdll of the appointing power. See cases
collected in 67 C.J.S. 197. Moreover, it is a well-nigh universal rule that
where no definite term of office is fixed by law the power to remove an in-
cumbent is an incident to the power of appointing, in the absence of some
constitutional or statutory provision to the contrary. Adie v. Mayor of
Holijoke, 303 Mass. 295, 300.
Relative to your question No. 2, section 9 of chapter 30 of the General
Laws provides that
" Unless some other mode of removal is provided by law, a public officer,
if appointed by the governor, may at any time be removed by him for cause,
and, if appointed by him with the advice and consent of the council, may
be so removed with its advice and consent."
The removal, therefore, of the assistant commissioner would be carried
out pursuant to the pro\asions of section 9, after notice of the charges
against the assistant and the opportunity to be heard on those charges.
The answer to your question No. 3 is in the negative. While it would
be a convenient and probably intelhgent arrangement for the term of the
assistant commissioner to run concurrently with that of the commissioner,
the law fails to so provide. For reasons known to itself, the General Court
P.D. 12. 49
in this legislation has provided for a term of office for the commissioner and
has provided no term of office for the assistant. The reasons for this
method of handling the situation cannot be explored by this department.
It is the general rule of common law, apart from specific statutory provisions
to the contrary, that a public officer cannot give an appointee a tenure of
office beyond his own. Opinion of the Justices, 275 Mass. 575, 579. In
that case, in dealing with the position of First Deputy Auditor of the
Commonwealth, the court said: "No statute in terms fixes the tenure of
office of the first deputy. The inference is not permissible that he holds
office for life or during good behavior without any statute to that effect."
See also Opinion of the Justices, 239 Mass. 603. The same rule was applied
in the case of the First Deputy Secretary of the Commonwealth in Howard
v. State Board of Retirement, 325 Mass. 211, 213, the court saying: "The
petitioner does not come within either category. His situation is simply
that his tenure of office ended upon the ending of the tenure of the Secretary
of the Commonwealth who appointed him and the qualification of the
succeeding Secretary." The Governor appoints the assistant.
Since you have not mentioned the subject, there seems to be no need for
a discussion of section 9A of chapter 30 relative to veterans.
Very truly yours,
George Fingold, Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Veterans' Benefits — Effect of St. 1954, c. 627, on Boston's Retirement Sys-
tem — Credit under State Retiretnent System — Definition of " Veteran."
Aug. 18, 1954.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir: You have requested my opinion on the following questions with
respect to St. 1954, c. 627, the new veterans' law.
1. What is the effective date of the act?
The effective date of the act is June 10, 1954, the date on which this
law, duly enacted by the General Court, was approved by you.
2. Does the law deprive members of Boston's 4% retirement system of
the right to retire under G. L. c. 32, §§ 56-58?
No. These rights have not been taken away, in my opinion. The city
of Boston, I am informed, properly accepted prior to January 1, 1946,
sections 56-59, inclusive, relative to veterans' non-contributory pensions.
Section 60 of G. L. c. 32, inserted by section 14 of St. 1954, c. 627, provides
that "Sections fifty-six to fifty-nine, inclusive, shall be in effect in any
county, city, town or district which accepted them or accepted corre-
sponding provisions of law prior to January first, nineteen hundred and
forty-six, by the retiring authority ..." The law, then, in its present
form pro\'ides that sections 56-59 shall be in effect in any city which
accepted them prior to January 1, 1946. A careful examination of chapter
627 discloses no reason, therefore, why sections 56-59 are not in effect in
Boston, and I believe they are. Had the General Court intended to except
50 P.D. 12.
the city of Boston from the provisions of section 60 it would doubtless
have said so. Innumerable instances may be found where the General
Court has excepted the city of Boston from the operation of general
statutes when it so intended. The omission of any such provision in the
present section 60 is significant.
3. Is a person who is killed in action after serving less than ninety days
a "veteran" so that his widow would be entitled to civil service preference?
Yes. Such persons are posthumously awarded the Purple Heart and
thus are exempted from the ninety-day requirement by G. L. c. 4, § 7,
cl. fort3''-third (b), which provides that a veteran must have served "for
not less than ninety days' active service, . . . unless for wartime service
of a lesser period he was awarded a service-connected disabihty or a Purple
Heart." The "lesser period" refers to the ninety days' not the ten days'
wartime service. In such cases only one day's wartime service is needed.
4. Do persons who serve in the armed forces beyond the wartime period
receive credit for their military service under the contributory retirement
system?
Section 8 of the act amends G. L. c. 32, § 4 (1) (h), by providing in part
that "... Any member who served in the armed forces between January
first, nineteen hundred and forty and July first, nineteen hundred and
fifty-five, shall have such actual service credited to him as creditable
service when reinstated or re-employed in his former position or in a similar
position within two years of his discharge or release from such service . . ."
Thus such persons receive credit for time in miUtary service which in-
cluded any period an employee was compelled to serve beyond the wartime
period.
5. Does chapter 627 require removal from Soldier Rehef rolls of any
individual receiving veterans' benefits?
No. Section 41 of the act provides: "No person actually receiving
veterans' benefits or hospital benefits or treatment on the effective date of
this act shall be deprived of such benefits because of the provisions of
this act."
The word "deprived" means taken away. The new definition applies
only to persons who apply or re-apply for veterans' benefits after June 10,
1954.
Very truly yours,
George Fingold, Attorney General.
Election — Primary — Names to be Printed on Ballot — Absence of Cer-
tificate that Candidate is Registered Voter.
Aug. 19, 1954.
Hon. Edward J. Cronin, Secretary of the Commonwealth.
Dear Sir: — In your letter of recent date you inquire "as to whether
the State Secretary shall place the name of one Annette GUck, a candidate
for Representative in the General Court, 13th Suft'olk Representative
District, on the Democratic ballot to be voted on at the biennial State
Primary September 14, in the current year." Referring specifically to
P.D. 12. . 51
G. L. (Ter. Ed.) c. 53, § 48, you state that "Mrs. Glick did not file the
certificate (of her party enrollment) within the statutory time limit,"
but that you now have "a certificate stating that said Annette Glick was
an enrolled member of the Democratic party, signed by the Election Com-
missioners ... of Boston, dated August 9, 1954."
You further state that on August 4, 1954, the State Ballot La^^' Com-
mission ruled that the name of said candidate should not appear upon the
official ballot for said primary, and that on August 13, 1954, said Com-
mission ruled that her name should so appear.
Said § 48 provides explicitly that "there shall not be printed on the
ballot at a state primary the name of any person as a candidate for nom-
ination for . . . representative to the general court . . . unless a cer-
tificate from the registrars of voters of the city or town wherein such per-
son is a registered voter that he is enrolled as a member of the political
party whose nomination he seeks is filed with the state secretary on or
before the last day herein provided for filing nomination papers . . . ."
The date therein referred to was, in the current year, July 27.
If, as you set forth in your letter, the candidate failed to cause such a
certificate to be filed udth 3^ou prior to said date, the answer to your ques-
tion is obvious: her name cannot be printed on such ballot. In so far as
the second of the conflicting decisions of the State Ballot Law Commis-
sion mentioned in your letter might be interpreted to decide that the
filing of a certificate of party enrollment after July 27, 1954, constitutes
a compliance with the provisions of said § 48, I advise you that it is not
binding upon you. The governing provisions of a general law cannot so
easily be overridden.
Very truly yours,
George Fingold, Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Election — Question on Ballot — Pensions to Aged Citizens is Question of
Public Policy.
Sept. 30, 1954.
Edward J. Cronin, Secretary of the Commonicealth.
Dear Sir: — In a recent letter to the Attorney General you state that
there have been filed -with you several applications for placing the follow-
ing question on the biennial state election ballot in the current year:
"Shall the state senator from this district be instructed to vote for a
resolution memorializing the Congress of the United States to enact legis-
lation providing for a pension of not less than $100 per month to all re-
tired citizens at 65 years of age or over?"
You request a determination as to whether or not said question is "one
of public policy," all as pro\'ided by section 19 of G. L. c. 53. Since the
enactment of St. 1925, c. 97, the responsibility of making such a deter-
mination has rested upon this department. Thompson v. Secretary of the
Commonwealth, 265 Mass. 16, 18 (1928).
Regardless of the position which particular groups or individuals may
take concerning the necessity and feasibility of federal legislation such as
52 P.D. 12.
that described in said question, there can be no dispute that every citi-
zen of the Commonwealth has an interest, direct or indirect, in its con-
sideration by the Congress. The words "public policy," as used in said
section 19, are not limited or qualified in anv way, and are to be con-
strued broadly. VIII Op. Atty. Gen. 490, 493 (1928). In my opinion,
the proposed question is one of public policy, and is, as now stated, in
proper form for presentation upon the ballot.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
Motor Vehicles — License for Charter Service — Issuance of Restricted
Charter Licenses.
Oct. 26, 1954.
Hon. DAyiD M. Brackman, Chairman, Department of Public Utilities,
Dear Sir: — In reply to your request for an opinion as to whether or
not the Department of Public Utilities had authority to issue restricted
motor vehicle charter licenses under section llA of G. L. c. 159A, please
be advised that in my opinion the department had such a right.
The restriction attached to charter licenses by the department is in
effect granting to the licensee less than the department has the authority
to grant. This cannot be construed, in my opinion, as exceeding the
authority granted by statute in section 1 1 A.
It is stated in Higgins v. License Commissioners of Quincy, 308 Mass.
142, on page 147 :
"The statute does not in terms provide for the imposition of conditions
or for the conditional issue of a license. But if the board did impose
certain conditions, Commonwealth v. Willcutt, 259 Mass. 406; Leach v.
State Fire Marshal, 278 Mass. 159, they do not appear to be included in
the vote granting the license or to have been made a part of the records of
the board. . . ."
It is stated in Commonwealth v. Willcutt, supra, on page 408:
"We find nothing unreasonable or beyond the authority of the board
of aldermen in the restrictions imposed. They were dealing \\ath the
sale of gasoline. They had the right to take into account the hazard from
fire and the danger to the public if this space were unprotected by a
wall. ..."
It is also stated in Leach v. State Fire Marshal, 278 Mass. 159, on
page 165:
"In the case at bar both the local licensing authority and the fire marshal
have decided that the business may be conducted consistently with the
public safety if certain restrictions and conditions are observed. . . ."
Then on page 166:
"... His right to impose conditions finds support to some extent in the
principle stated in Southern Pacific Co. v. Olympian Dredging Co., 260 U. S.
P.D. 12. 53
205, 208; 'The power to approve implies the power to disapprove and the
power to disapprove necessarily includes the lesser power to condition an
approval. ' "
The fact that section 7 provides that the department may issue a license
for partial exercise of the privilege sought does, in my opinion, strengthen
rather than militate against the granting of a restricted charter license
under section 11 A.
It is stated in 50 Am. Jur. page 308:
"In order that effect may be given to every part of an act in accordance
with the legislative intent, all the language of the act must be brought into
accord. The various provisions of an act should be read so that all may,
if possible, have their due and conjoint effect without repugnancy or in-
consistency, so as to render the statute a consistent and harmonious
whole. . . ."
There is no necessity for answering question 2 as I have answered
question 1 in the affirmative.
Very truly yours,
George Fingold, Attorney General.
Watervjays — Authority of Department of Public Works to Protect Shores
and Harbors — Private Property.
Oct. 27, 1954.
Hon, John A. Volpe, Commissioner of Public Works.
Dear Sir: — You have requested my opinion relative to certain shore
protective and harbor development work.
I have examined the statutes to which you expressly refer in your letter,
as well as chapter 91 of the General Laws which relates to "waterways."
You have submitted three certain questions and seek advice as to the
sufficiency of legislative authority in the department. The precise ques-
tions submitted are as follows:
1. A timber bulkhead retaining wall constructed by the town on town
property, abuts Scituate Harbor and is adjacent to a town road and
parking area. Said structure is now practically demolished. The town has
requested that we replace this structure with a concrete seawall after which
they propose to construct timber piers from said wall to deep water some
75 feet therefrom. They propose to contribute 50% of the cost of the pro-
posed seawall.
2. The construction of a seawall or stone bank revetment on private
property located at or a short distance landward of the mean high Avater
line.
3. The construction of a seawall or stone bank revetment on public
beach property located at or a short distance landward of the mean high
water fine.
JMy answers thereto are as follows :
1. By virtue of G. L. c. 91, § 11, the department is authorized to under-
take such work for the improvement, development, maintenance and
protection of tidal and nontidal rivers, and streams, harbors, tidewaters,
foreshores and shores along a public beach as it deems reasonable and
54 P.D. 12.
proper. Public hearing is required and the department is to consider such
factors as the public advantage and the local interest therein as mani-
fested by municipal or other contributions therefor. The project con-
templated comes clearly within the pur\'iew of section 11 of chapter 91
and the town of Scituate is making the financial contribution required by
Item 2202-05 of St. 1954, c. 453, the general appropriation bill. I therefore
answer this question in the affirmative.
2. I answer question number 2 in the negative.
I find no authority in chapter 91 for construction of a seawall or stone
bank revetment on private property. Authority is vested in the depart-
ment, in the pursuance of work authorized by section 11 of chapter 91,
to take by eminent domain under chapter 79, or acquire by purchase or
othermse. No construction contemplated by this question should be
undertaken until after a taking or acquisition of interest in land as pro-
vided for in section 31 of chapter 91. I am mindful of the provisions con-
tained in the general appropriation bill (St. 1954, c. 453, Item 2202-05)
which purports to vest in the department authority to enter and constmct
on private land such works as may be necessary to secure and protect
seawalls already built.
3. I answer question number three in the affirmative with the qualifi-
cation that the department first determine that the proposed construction
is located within the limits of the public domain, ascertained beforehand,
as provided in section 2 of chapter 91.
Very truly yours,
George Fingold, Attorney General,
By Vincent J. Cella.,
Assistant Attorney General.
Physicians — Registration — Pre-medical Educational Requirements.
Nov. 4, 1954.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — You have inquired concerning the status of a phy-
sician who graduated from the Adam Mickiew^cz Gymnasium, Pruzany,
Poland, in 1938; who attended the Lyceum, Pruzany, Poland, from 1938
to 1940; who attended the University of Marburg, Germany, from 1945
to 1946 for one year of pre-medical work and the University of Georgia
for one year of pre-medical work from 1946 to 1947 and who then received
the degree of Bachelor of Science from the University of Georgia in 1947.
He then attended Emory University School of Medicine, Georgia, from
1947 to 1951, receiving the degree of Doctor of Medicine from Emory
University in 1951.
In addition to the facts related in your letter I have ascertained from
your department that the transcript of the doctor's record at the University
of Georgia shows that he took courses in physics, chemistry and biology
as part of his pre-medical work. I have also ascertained from your de-
partment that the University of Georgia is a college or university which
has been approved by the Approving Authority for Colleges and Medical
Schools for the Commonwealth of Massachusetts.
You have inquired as to whether the aforementioned physician comes
P.D. 12. 55
within the provisions of c. 112, § 2, requiring that an applicant for registra-
tion as a physician must have "completed two years of pre-medical
collegiate work including physics, chemistry and biology in a college or
university approved by a body constituted as provided in this section."
The word "body" in section 2 refers to the above-mentioned Approving
Authority for Colleges and Medical Schools of the Commonwealth.
In the opinion of this office the answer is in the affirmative.
The word "completed" in section 2 of chapter 112 is significant. The
verb " complete" in common usage means to bring to an end or to conclude.
In the opinion of this office the physician you mention has "brought to an
end" or "concluded" his pre-medical work in an approved college or
university within the meaning of the statute. The statute obviously does
not require that the student's entire pre-medical training necessarily be
obtained in only one pre-medical college or university.
Clearly, the Legislature was content to presume that any approved
college or university which gives a degree to a student covering pre-medical
work has satisfied itself mth that student's previous record before admitting
him, if he is a transfer student, and is further satisfied with his scholastic
achievements before giving him a degree.
Accordingly, not only the letter but the spirit of the law is compUed
with in the instant case; and the provisions of the above-quoted portion
of G. L. c. 112, § 2, have been satisfied.
Very truly yours,
George Fingold, Attorney General,
By Harris A. Reynolds,
Assistant Attorney General.
Division of the Blind — License to Raise Funds for Benefit of Blind —
Refusal on Ground License is "not for the Public Interest."
Nov. 16, 1954.
Mr. John F. Mongovan, Director, Division of the Blind.
Dear Sir: — You have requested an opinion concerning the powers of
the Director and the Advisory Board of the Division of the Blind with
reference to fund raising. Your inquiry relates to friends who soUcit and
raise funds for the benefit of the blind, and you call attention to G. L.
c. 69, § 25A, which provides for the issuance of a license to raise funds for
such purpose and which further provides as follows :
" . . . If the director has reasonable grounds for befie^'ing that a vi-
olation of law is intended, or that the granting of the license vnll not be
for the public interest, he may refuse to issue the same."
The facts which you state in your letter indicate that a group of indi-
viduals have formed a club w^hich is not an incorporated charity. They
have now appKed for a license to raise funds for the blind. With reference
to these plans you state :
"The way in which they purport to help the blind, however, is already
provided for the blind by an incorporated charity. Thus, the fund-
raising is for a ser\dce which, in the eyes of responsible community leaders,
is a dupHcation of effort and as such, wasteful of the pubhc's money."
56 P.D. 12.
Upon these facts you inquire whether or not the Director can deny a
license.
Under the provisions of section 25A you are authorized to issue Ucenses
in proper cases for the purpose of raising funds for the benefit of the bhnd.
You may refuse the Hcense if there is "a, violation of law" or if the is-
suance of a license "will not be for the pubhc interest." There would be
innumerable reasons why the granting of such a license might not be for
the public interest. The facts in the case concerning which you are in-
quiring, however, indicate that the only reason why the granting of a
license in this case might be against the public interest is that there is
already an organization raising money for this charitable purpose in the
same way.
It is my opinion that this single fact, standing alone, does not justify
you in refusing to grant a license under section 25A. I think that the
addition of another organization seeking to raise money for this charitable
purpose cannot be said to be against public interest. I think that if you
refuse the license on this single ground your decision might properly be
criticized, and it would be likely that your decision would be interpreted
as favoritism toward one organization as against another doing exactly
the same thing. Under all of the circumstances of this case it is my opin-
ion that upon this one ground (i.e., that another organization is now
soliciting funds for such purpose), standing alone, you are not entitled to
refuse the application for the license to raise funds.
You have not mentioned other grounds (which may or may not exist)
for a decision that the granting of the new license would "not be for the
public interest," and of course I have not considered any grounds other
than the one indicated above.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Extension of State Fish Pier in Gloucester — Absence of Specific Appropriation
— Use of Capital Outlay Funds.
Nov. 17, 1954.
Hon. John A. Volpe, Commissioner of Public Works.
Dear Sir: — Your recent letter to this department makes reference to
money which might be available for the study of the proposed pier ex-
tension at the State Fish Pier in Gloucester.
This matter arises under chapter 57 of the Resolves of 195-1 which
directs your department "to make an investigation and study relative to
a proposed pier extension at the state fish pier in the city of Gloucester."
Your problem arises because said resolve provides "for said purposes, said
department may expend such sums as may be appropriated therefor,"
and no specific appropriation was made.
Your inquiry to this department is whether or not the funds made
available to your department by the 1954 Capital Outlay Act (c. 471,
Item 8255-76) may be considered to "be appropriated therefor" to carry
out the purposes of chapter 57.
P.D. 12. ' 57
The answer to your inquiry is in the negative. There are four reasons
why we would be unable to advise you that the money allocated to you
under the Capital Outlay Act could be used for the investigation and
study directed to be made by chapter 57. These reasons are as follows:
1. The Capital Outlay Act covers construction rather than investigation
and study. There is one exception to this statement in Item 8255-84,
in which "the preparation of preliminary plans" is specifically covered.
The reading of this entire act (c. 471), including the Governor's message
and other House and Senate documents leading to the enactment of this
act, and including also the specific reference to "preliminary plans"
mentioned above, makes it extremely doubtful whether the money allocated
to you in this act can be used for an investigation and study.
2. Further doubt is created by the specific purposes enumerated in
Item 8255-76 which relates to services by your department. I consider
it doubtful that an investigation and study regarding an extension of the
State Pier at Gloucester is included either in the first clause which relates
to rivers and harbors, or in the clause making reference to G. L. c. 91, § 11.
You call my attention to the third clause in this item which relates to
"construction, reconstruction or repair of tow^n or city piers and wharves."
Since the pier concerning which you are making inquiry is a State pier,
not a town or city pier, this particular clause does not help you.
3. I understand from your letter "that funds for the Gloucester Fish
Pier have always in past years been made available by the Legislature,
either by special appropriation or bond issue." This past procedure does
not assist you in making use of funds under the Capital Outlay Act for
this particular project, but on the contrary throws more doubt on such
suggested use of the funds.
4. Finally, the reference in the resolve that you "may expend such
sums as may be appropriated therefor" seems to imply a direct and
specific appropriation. I understand from your letter that no such specific
appropriation has been made.
In conclusion, the answer to your inquiry is that the money allocated to
your department by Item 8255-76 of the Capital Outlay Act of 1954 may
not be used by you for the purposes of the investigation and study directed
to be made by chapter 57 of the Resolves of 1954.
Very tmly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Veteran — Eligibility for Hospitalization in Soldiers' Home — Meaning of
word "Service."
Dec. 14, 1954.
Mr. John F. Berry, Superintendent, Soldiers' Home, Holyoke, Mass.
Dear Sir: — You have recently requested an opinion relating to the
new chapter 115A of the General Laws.
You state that a question has arisen with regard to one of your patients
who served with the armed forces of the United States between October 30,
58 P.D. 12.
1929, and June 30, 1930. You inquire whether or not this man is eHgible
for hospitalization at the Holyoke Soldiers' Home.
The statute controlUng this matter is the new chapter 115A of the
General Laws, inserted by St. 1954, c. 627, § 42. Section 1 of this chapter
provides for hospitalization for two groups of veterans. I understand
from your letter that the person in question does not come wdthin sub-
division (a). The question is whether or not he comes within the pro-
visions of subdivision (6). This subdivision permits hospitalization if he
has performed "not less than ninety days' active service in any of the
campaigns or expeditions enumerated in section two." Subdi\dsion (g)
of section 2 of this new chapter makes reference to "China Expeditionary
Service, between October thirtieth, nineteen hundred and twenty-nine
and June thirtieth, nineteen hundred and thirty." This section 2 states
that the "service" referred to in subdivision (h) of section 1 "shall mean
service during any of the" periods enumerated, including subdi'vdsion (g),
but then states: "provided, in any case, that proof of service in the cam-
paign or expedition mentioned is made."
You state that the patient in question was in service in the armed forces
of the United States during the period of this campaign yet he did not
actually serve in the campaign itself. The mere fact that this veteran was
serving in the armed forces within these dates does not entitle him to
hospitahzation under the provisions of chapter 115A. It is essential, in
order to entitle him to the benefits of such chapter, that there must have
been active service "in the campaign or expedition" itself. Mere ser\'ice
in the armed forces is not enough.
Therefore, upon the facts stated in your letter, the man in question is
not eligible for hospitalization under the provisions of chapter lloA.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Veterans' Housing Project — Abandonment and Liquidation of such
Project — Necessity for Legislation.
Dec. 17, 1954.
Mr. Daniel Tyler, Jr., Chairman, State Housing Board.
Dear Sir: — Your recent communication requests me to advise you
on the various questions involved in the abandonment of the veterans'
housing project, Medford 200-2, and of the proper legal steps to be taken
to consummate the abandonment and liquidation of this project.
The current facts relative to this matter are as follows :
The Medford Housing Authority has voted, subject to the approval of
the State Housing Board, to abandon this project because the need for
such a project no longer exists.
The State Housing Board, after a thorough and independent investiga-
tion, has concurred with the Authority in its conclusion that this project
ought to be abandoned and that there no longer exists the need for this
project. In reply to the letter requesting approval of the abandonment,
P.D. 12. 59
the Chairman of the State Housing Board said: ". . . I am prepared to
approve your request for such abandonment subject to appropriation by
the Legislature of funds sufficient to liquidate your outstanding obliga-
tions on this project.
"I have taken the necessary steps to obtain such an appropriation and
should these funds be authorized final approval for abandonment will be
issued to you."
On these facts, there can be no question of the right as well as the duty
of the State Housing Board to proceed with the process of abandonment
of this project.
The remaining questions are therefore:
1. WTiether or not under the law, as it stands, the Commonwealth,
through the board as agent, may abandon a project without specific
legislation?
2. What legislation, if any, is necessary?
These two questions may be treated as one. Section 15 of the contract
for financial assistance pro\ades that "... None of the provisions of this
contract shall be modified or waived at any time after the sale of any of
the notes or bonds issued mth respect to this project to such extent or in
such manner as would impair or prejudice the rights of the holder or
holders of such notes or bonds." Since abandonment without any au-
thorization by way of an appropriation by the Legislature to pay off the
outstanding obligations issued for the construction of the project would
constitute an act which would "impair or prejudice the rights of the
holder or holders of such notes or bonds" — $100,000 in notes, uncon-
ditionally guaranteed by the Commonwealth, of which there remains
approximately $55,000 uncommitted, the balance ha\dng been spent or
committed for development of the project, having been issued — it there-
fore appears that any agreement to permit the abandonment of the proj-
ect without first securing sufficient funds to liquidate the outstanding ob-
hgations of this Authority in respect to this project would be a violation
of the duty of the board toward holders of such obligations. Therefore,
before giving final approval to the Authority for the abandonment, the
board should have an appropriation by the Legislature of funds sufficient
to liquidate the notes issued by the Authority for the construction of this
project.
Further, in the event the project should be abandoned ^^'ithout an appro-
priation of sufficient funds to pay the deficiency immediately, the Com-
monwealth, having unconditionally guaranteed the notes issued to finance
it, will, by proper legal action, be obliged to pay the deficiency. Should
such action on the part of holders be necessary, it is e\adent that the
buyers of such guaranteed obligations will be, in the future, less likely to
rely upon such a guarantee. This will not only endanger the credit of the
Commonwealth, but also result in an increase in the rates of interest which
the State will have to pay in the form of increased subsidy payments on
future projects, particularly the projects for housing the elderly.
As to the question of the legality of the guarantee by the State Housing
Board as agent for the Commonwealth under the provisions of G. L. c. 121,
§ 26NN, the Opinion of the Justices, 322 Mass. 745, 752 et seq., declares
this provision of the law constitutional. In view of this, there can be no
60 P.D. 12.
question of the obligation of the Commonwealth to make good its guar-
antee.
In view of the foregoing, it may be pointed out that the only alterna-
tive to an appropriation at this time is to continue refunding the out-
standing notes, thereby increasing the ultimate cost to the Common-
wealth by the amount of the additional interest charges.
The legal steps to be taken to accomplish the abandonment and liquida-
tion of the veterans' housing project, Medford 200-2, are therefore:
Special legislation or special provision in the regular appropriation act
appropriating sufficient funds to liquidate the outstanding notes. In this
respect, the appropriation should be made sufficiently large to cover all
possible contingencies. For example, it is understood that the amount
due the architect under his contract and amounts due him for extra work
are in dispute, the board taking the view that he has been overpaid, the
architect and Authorit}'^ claiming that there is still due him approximately
$8,500. Since the Authority appears to agree with the architect, the pos-
sibility that litigation relative to this claim will be decided in favor of the
board appears dim. Care should be taken that all such contingencies are
provided for.
This appropriation should also contain authorization of disposal of all
assets of the project by the Medford Housing Authority, subject to the
approval of the State Housing Board, with a provision that any surplus
remaining after settlement of all obligations and disposal of all assets be
returned to the Treasurer of the Commonwealth because there is no pro-
vision of section 26NN of chapter 121 for abandonment other than the
provision of subsection (/) authorizing the sale of land (not personal
property) no longer required for a veterans' housing project.
An examination of the land acquisition file also reveals one more item
that ought to be clarified by the legislative act appropriating funds for
this abandonment. The land was acquired by the Authority under the
provisions of G. L. c. 92, § 85. Neither the deed nor the vote of the grantor,
Metropolitan District Commission, set forth any specific condition as to
the use for which the land was sold. However, since the Park Commission
of the city of Medford refused to concur with the Metropolitan District
Commission in the sale of this land to the Authority, under said section 85
it was necessary to obtain the concurrence of the Governor and Council.
This concurrence was obtained. However, the concurrence was specifi-
cally "for veterans' housing." The act authorizing the sale of the assets
should also therefore clarify this condition, not only because of the specific
condition in the vote of the Governor and Council, but also because all
land acquired by a housing authority is subject to the implied condition
that it be used for housing. This land never having been used for hous-
ing, there exists the possibility that the grantor might claim a right to re-
conveyance. The Legislature may see fit to authorize outright disposal
or it may see fit to grant the Metropolitan District Commission an option
to repurchase the land for the same sum paid for it by the Housing Au-
thority.
Other provisions of section 26NN dealing with the sale of projects are
applicable only to the sale of completed projects. Also, provisions deal-
ing with the disposition of the funds received from such sales by payment
into the Housing Authority Sinking Fund and dispositioii of the proceeds
in excess of the total of all obligations of the Authorit.y with respect to
such project are applicable only to completed projects. The provision of
P.D. 12. 61
said section 26NN contains no authorization to sell an entire project ex-
cept for the amount of the total of the outstanding obligations with re-
spect to such project. These provisions are therefore not applicable to
the abandonment of a project. This appropriation, being for the purpose
of meeting a deficiency, should provide that the surplus, if any, after final
liquidation should be returned to the Treasurer of the Commonwealth for
the General Fund.
Finally, as to the mechanics of the provision for paj^ment of the amount
appropriated, it would seem proper that the same provision be made as for
payment of the annual contributions which is, under section 26NN, sub-
paragraph (b), by the Commonwealth upon approval and certification by
the State Housing Board to the State Comptroller.
Very truly yours,
George Fingold, Attorney General.
State Employee — Veteran — Protection under G. L. c. 30, ^ 9A —
Construction of Statutes.
Dec. 28, 1954.
Col. John J. Maginnis, Director, Civil Defense Agency.
Dear Sir: — Your recent letter inquires as to the protection against
removal given by G. L. c. 30, § 9A, to a veteran who has been employed
in your Agency for more than three years.
Your first question is as follows :
"Do the provisions of G. L. c. 30, § 9A, as presently in force, apply to a
person in the employ of this Agency, who is a veteran, as that term is
defined in G. L. c. 31, § 21, and who has held the same position in this
Agency for not less than three years?"
The Civil Defense Agency was created by St. 1950, c. 639. Section 2
of that act provides :
"The director may . . . appoint such experts, clerks and other assistants
as the work of the civil defense agency may require and may remove them.
. , . Such employees shall not be subject to chapter thirty-one of the
General Laws. . . ." (Chapter 31 contains the laws relating to civil
service.)
General Laws, c. 30, § 9A, as amended by St. 1947, c. 242, provides as
follows :
"A veteran, as defined in section twenty-one of chapter thirty-one, who
holds an office or position in the service of the commonwealth not classified
under said chapter thirty-one, other than an elective office, an appointive
office for a fixed term or an office or position under section seven of this
chapter and has held such office or position for not less than three years,
shall not be involvnitarily separated from such office or position except
subject to and in accordance with the provisions of sections fortj^-three and
forty-fiv^e of said chapter thirty-one to the same extent as if said office
or position were classified under said chapter. . . ."
I understand from your letter that the veteran in question comes within
the specific terms of section 9A and is not excluded by any of the express
62 P.D. 12.
exceptions set forth in section 9A itself. Nor is he impliedly excluded from
the protection of that section for either of the reasons stated in Sullivan v.
Committee on Rules, 331 Mass. 135, in which our court held that an em-
ployee holding a position in "the legislative branch" of the Common-
wealth was not protected by that section. The single problem to be con-
sidered, therefore, is whether such veteran loses the benefits of section 9A,
which section gives him protection against removal by making reference to
chapter 31 of the General Laws, because of the provision in St. 1950,
c, 639, § 2, that the employees of your Agency "shall not be subject to
chapter thirty-one of the General Laws."
The answer to your first question is that the veteran in question is pro-
tected by section 9A and can be removed only "subject to and in accord-
ance with the provisions" of sections 43 and 45 of chapter 31 in which are
found the removal procedures under our civil service laws.
The provisions of section 9A, which are positive and unequivocal, are
that a veteran coming within such section who has held his particular
position for not less than three years "shall not be involuntarily separated
from such office or position" except in accordance with the procedural re-
quirements of notice and hearing as specified in sections 43 and 45 of the
civil service law. This Legislative policy and mandate in section 9A must
be followed, except in the instances in which the Legislature has made a
contrary declaration. No such contrary declaration exists in the present
case.
The fact that the Legislature has stated that the employees of your
Agency are not subject to chapter 31 of the General Laws is not equivalent
to stating that such employees are not entitled to the protection of sec-
tion 9A. Section 9A has independent vitality. Its several references to
chapter 31 do not place section 9A in chapter 31. Its use of the removal
procedure spelled out in chapter 31 does not make section 9A a part of
chapter 31. This would appear clearly if, instead of the reference to chap-
ter 31, section 9A had in fact set forth in detail all of the provisions of
sections 43 and 45 of chapter 31. The technique of reference to sections 43
and 45, rather than repetition of all of the full provisions of those two
sections, does not alter the legal situation. Furthermore, a reading of
section 9A — especially such provisions as that it covers positions "not
classified under said chapter thirty-one," and that the specified removal
procedure is to be followed "to the same extent as if said office or position
were classified under said chapter" — makes it clear that section 9A should
not be construed to be a part of chapter 31. Therefore, the exclusion of
chapter 31 is not the exclusion of section 9A.
Many reasons can be assigned for the Legislature's decision to provide
that the employees of the Civil Defense Agency should not be subject to
the civil service laws but yet to give to three-year veterans in the service
of the Agency the protection furnished by section 9A and through such
section by the removal procedure of chapter 31. There are good reasons
why your Agency should not be delayed in ohtaining help in times of emer-
gencies because of the civil service requirements of examinations, classi-
fications, certifications, and the like. It is a very different thing to dis-
charge an employee who is a veteran and who has been serving your
Agency continuously for three years or more.
Compliance with the removal procedures of sections 43 and 45 does not
appear to be an unreasonable burden even upon an Agency whose prompt
work in an emergency is so vital to the public as yours is in our present
P.D. 12. 63
troubled times. Under these sections any emplo3^ee can be suspended
upon the instant, without assignment of cause, though not longer than for
a period of five days. (§ 43[e].) Any employee can be removed perma-
nently if there is cause for such removal. These sections merely provide
that such employee has the right to an assigimient of the reasons for his
discharge, and a hearing and a re\dew. Such protection to veterans who
have been continuously employed in the same position for more than three
years is not unreasonable.
At the time your Agency was created in 1950 the provisions of section
9A had been on our statute books for four years. It must be presumed
that the Legislature knew about section 9A when it declared that chapter
31 would not apply to your Agency but said nothing to indicate that sec-
tion 9A was not to apply. Walsh v. Commissioners of Civil Service, 300
Mass. 244. In that case, speaking with reference to the extension of the
civil service laws even to employment not stated to be under civil service
protection, the court stated, at page 246, as follows:
"The words 'employ and remove,' or other equivalent phrases stand-
ing alone "v^dthout qualification in statutes respecting pubhc employment,
do not ordinarily render inapplicable the civil service laws. It is to be
presumed that the General Court, in enacting said c. 134, was not unmind-
ful of the general civil service law. ... A statute is to be interpreted
•with reference to the preexisting law. ... If reasonably practicable, it is
to be explained in conjunction ■with other statutes to the end that there
may be an harmonious and consistent body of law. . . . The public pohcy
established by the ci^al service laws, the promotion of the general welfare
arising from the enforcement of those laws, and the advantage to indi-
viduals from securing protection in their tenure of employment, are so
significant that it would be difficult to reach the conclusion that employ-
ment and removal of employees of the Quincy City Hospital by the board
of managers were not subject to the civil service laws. ... If a result of
that nature had been intended, explicit words would naturally have been
used to make clear the meaning that such power was free from the opera-
tion of the ci\dl service laws."
The above words are exactly applicable to the Civil Defense Agency act,
wdth its specific exception of chapter 31, and its significant failure not to
except the protection given by section 9A to veterans who have served
three years or more.
Our State and legislative policy to prefer and to protect veterans in State
service is a clear and ancient one. Section 9A is an implementation of that
policy. Such a statute must be given a liberal interpretation in order to
carry out this accepted policy of preferment and protection of veterans.
Attorney General's Report, 1950, p. 71. See Opinion of the Justices, 322
Mass. 745, 751.
I have examined the entire statute under which your Ci\dl Defense
Agency was created (St. 1950, c. 639), and all amendments thereof, and I
do not find therein any reason for denying a veteran employee the protec-
tion given to him by section 9A. I realize the vital role your Agency Avill
play in the event of an emergency resulting from natural disaster or from
hostile attack. I note that you yourself are appointed bj'' the Governor to
serve only "during his pleasure" (§ 2); that it is the duty of other Com-
monwealth agencies "to co-operate" \Adth you (§§ 16, 20); that an execu-
tive order declaring a state of emergency may override existiiig provisions
64 P.D. 12.
of law (§§8, 8A); and that special civil service rules can be set up during
such an emergency (§9). I note also that your Agency, by the original
act, was to continue only for a period of two years (§ 22). These provi-
sions, however, do not, either expressly or by implication, indicate that
the protection of veterans given by c. 30, § 9A, is not to apply to such
employees in your Agency.
Finally, if the Legislature had intended to deprive the veterans who are
employed in the Civil Defense Agency, and who have been employed there
in the same position for three years or more, of their protection under § 9A,
the Legislature could have said so. There are numerous instances in our
statutes, in other acts, where the Legislature has specifically stated that
an employee is (or is not) protected both by § 9A and by chapter 31.
In these other cases the Legislature has answered the doubt which you
have raised in your case by coupling together these two specific statutory
references. See, for example, St. 1953, c. 409, § 1 (G. L. c. 23A, § 4), in
which it is stated that "the commissioner may appoint such experts as
the department [of commerce] may require who shall not be subject to
chapter thirty-one or section nine A of chapter thirty." This same double
reference is also made to both chapter 31 and section 9A in the following
acts: St. 1952, c. 585, § 26; St. 1952, c. 602, § 15; St. 1953, c. 612, § 11;
St. 1953, c. 654, § 1 (G. L. c. 14, § 3). When the Legislature in 1953 set
up a rent control act and provided for the appointment of "a temporary
state housing rent co-ordinator who shall serve at the pleasure of and
directly under the governor" (St. 1953, c. 434, § 3 (a)), with a provision
in the statute that it would expire in one year (§ 14), the Legislature never-
theless made the usual double reference to exempt the employees of the
"temporary" rent co-ordinator both from chapter 31 and from section 9A
of chapter 30. See § 3 (a). In St. 1954, c. 672, § 2, the Legislature made
reference to "employees . . . who hold positions classified under chapter
thirty-one of the General Laws or are subject to the provisions of section
nine A of chapter thirty."
In the act setting up the Civil Defense Agency the Legislature mentioned
only chapter 31 in its reference to the statutes to which your employees
would "not be subject." This indicates that the Legislature did not in-
tend to take away from your employees the protection which section 9A
of chapter 30 gives to veterans who have held positions for three years.
Therefore, the answer to your first question is in the affirmative.
The second question in your letter is as follows:
"If your answer to the foregoing question is in the affirmative, would
the provision of G. L. c. 30, § 9A, be violated by the involuntary separation
of such person from the service of this Agency by \drtue of the expiration
of the personnel requisition under which such person is presently employed,
there being no compliance with the provisions of G. L. c. 31, §§ 43 and 45,
and other persons who are non-veterans or veterans junior in ser\'ice con-
tinuing to be employed in the same or similar positions."
The answer to your second question is also in the affirmative. Section 9A
gives preference to a three-year veteran, with respect to the same or a
similar position, over non-veterans and also over veterans employed after
he was employed. This statute states, after providing for involuntary
separation only in accordance with sections 43 and 45 of chapter 31, as
follows :
P.D. 12. 65
". . . If the separation in the case of such unclassified ofiices or posi-
tions results from lack of work or lack of money, such a veteran shall not
be separated from his office or position while similar offices or positions in
the same group or grade, as defined in section forty-five of this chapter,
exist unless all such offices or positions are held by such veterans, in which
case such separation shall occur in the inverse order of their respective
original appointments."
I understand from the reference in your second question to other per-
sons who are employed "in the same or similar positions" that such per-
sons are employed in offices or positions which are, as stated in section 9A,
"in the same group or grade, as defined in section forty-five of" said chap-
ter 30.
The "expiration of the personnel requisition under which such person
is presently employed" does not end the protection to a veteran who has
held the same office or position in your Agency for not less than three
years. The veteran in your case was not appointed for a fixed term. Such
a veteran is not to be removed, except in accordance with, sections 43 and
45 of chapter 31, "while similar offices or positions . . . exist." Op. Atty.
Gen., 1952, p. 27. From your question it is clear that "other persons who
are non-veterans or veterans junior in ser\Tce" are continuing to be em-
ployed in your Agency "in the same or similar positions."
Accordingly, the veteran involved in this case cannot be removed except
in accordance with sections 43 and 45 of chapter 31, and therefore your
second question must also be answered in the affirmative.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
License to Distribute Milk — Non-resident Milk Dealer Interstate
Commerce — Validity of State Requirements.
Dec. 31, 1954.
Mr. Howard A. Kimball, Chairman, Milk Control Commission.
Dear Sir : — I have your recent letter requesting an opinion in con-
nection with the requirement of a license under the milk control statute
upon an out-of-State milk dealer.
Your question is predicated upon the following set of facts :
"A cooperative milk producers association incorporated in an adjoining
State and ha\dng a milk plant in that State, at such plant receives milk
from its member producers and others, which it pasteurizes and bottles or
otherwise packages for sale and distribution over a territory which in-
cludes many Massachusetts cities and towms in the Merrimac Valley area.
This distribution is said to be, and so far as we know, is confined to Massa-
chusetts licensed milk dealers. This milk is loaded on the cooperative's
trucks at the cooperative's out-of-State plant, and is transported on such
trucks to the several places of business of the cooperative's customers in
this Commonwealth, where the bottled or otherwise packaged milk is un-
66 P.D. 12.
loaded and delivered to the respective customers. The cooperative
contends that all milk placed on the truck on any day has always been
ordered by the customer in advance of loading on the truck, and is marked
for delivery to the particular customer; that no other, additional or un-
ordered milk is ever carried on the truck and that if a customer should
request of the truck driver delivery of a quantity in excess of the amount
of his prior order loaded and marked for delivery to him, the driver has no
milk on the truck from which he could give any such customer additional,
unordered milk, and never does deliver to any customer any amount of
milk in excess of the quantity ordered by him in advance of the loading on
the truck."
You request an opinion on the following question :
"Is this cooperative, doing business as stated above, required to be
licensed as a milk dealer under G. L. c. 94A, §§4 and 5?"
The statute in question is G. L. c. 94A, § 4 (a), which provides that
" no milk dealer . . . shall within the commonwealth . . . sell or distribute
milk . . . unless he is duly licensed as provided in this chapter. ..."
Instructions for the application of the license and the duration and renewal
of the Hcense are contained in section 5. Provisions as to fees and assess-
ments are contained in section 9. It is clear that the cooperative men-
tioned in your set of facts comes within the definition of "milk dealer"
contained in section 1 of this statute. Accordingly, he must obtain a
hcense if such provision can vahdly be applied to liim.
The facts set forth above present a problem within the field of inter-
state commerce. However, local regulation of interstate commerce is
permissible under certain circumstances. This field of the production and
delivery of milk to consumers in the Commonwealth involves matters of
health and is within the police power of our State. Federal legislation
covers some portions of this field, but there is no Federal regulation in-
consistent with the license requirements of section 4 of chapter 94A. It
has been recognized by the Supreme Court of the United States that State
regulations of this field of the production and distribution of milk are con-
stitutional if they are not inconsistent with any existing Federal law.
Milk Control Board v. Eisenberg Farms Products, 306 U. S. 346, 351.
Dean Milk Co. v. Madison, 340 U. S. 349, 353.
It is not unconstitutional for this State to compel a non-resident milk
dealer distributing milk within the Commonwealth to take out a license.
The obvious purpose of the license is to provide the eommission with a
record of milk dealers who are subject to the act. Supervision and en-
forcement are thus likely to be easier. Such a license requirement has
been held to be merely an incidental burden upon interstate commerce
and not forbidden by the Constitution of the United States. Highland
Farms Dairy v. Agnew, 300 U. S. 608, 616. Hood & Sons v. Du Mond,
336 U. S. 525, 530. There is no discrimination against a non-resident in-
volved in our statute, and therefore no objection can be made on that
basis. Breard v. Alexandria, 341 U. S. 622, 637.
Your question is therefore answered in the affirmative.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
P.D. 12. 67
Public Building Construction — Bid Statute — Sub-hid " Filed ^' with
Awarding Authority.
Jan. 5, 1955.
Mr. Hall Nichols, Director of Building Construction.
Dear Sir : — You have asked for an opinion concerning the award of
a contract to a siil^-contractor under the follo^^^ng circumstances. A con-
tract for the construction of the Worcester State Hospital was awarded
to Farina Brothers Co., Inc. as general contractor. The award is governed
by G. L. c. 149, §§ 44A through 44D, as it stood prior to the amendment
by chapter 645 of the Acts of 1954. The general contractor listed J. S.
Prunier and Sons, Inc. as the sub-contractor for furring, lathing and
plastering. Pmnier had filed a sub-bid with the Division of Building
Construction and was included on the list of sub-bidders sent to the general
contractor as required by G. L. c. 149, § 44C (C). After selection of the
general contractor, the sub-bids were opened at which time it appeared
that Prunier's bid was on the standard form prescribed bj^ chapter 149,
section 44C, that it was for the complete work, that it contained no ex-
ceptions or reservations, and that it corresponded exactly ^\dth the bid as
carried in the proposal of Farina, the general contractor. The bid as
filed was the lowest of all the sub-bids for furring, lathing and plastering.
One of the other sub-bidders objected to the bid of Prunier and
offered to prove that the bid filed by Prunier with the division was not a
copy of the bid given to the various general contractors, as required by
statute. The applicable statutory language is contained in G. L. c. 149,
§ 44C (B) , which provides in part as follows :
"All principal and such minor sub-contractors as are designated in the
proposal form shall deliver or mail to the awarding authority record copies
of all bids sent by them to the general contractor. . . . No sub-bids shall
be considered in the final selection of sub-bidders, as hereinafter described,
except those filed with the awarding authority as above provided. "
From the information supplied by you it appears that the sub-bidder
sent letters to the various general contractors, rather than sending bids
on the standard form, so that the bid as filed was not in fact a copy of the
bid sent to the general contractor.
It is our opinion that the bid of the sub-contractor as filed -with the
diidsion must be strictly adhered to and cannot be varied by any form of
extrinsic evidence. Gifford v. Commissioner of Public Health, 328 Mass.
608, 615.
An examination of the bids in the hands of the division, without resort
to other evidence, indicated that the provisions of chapter 149, sections
44A through 44D, had been complied with. Farina Brothers Co., Inc.
had filed the lowest bid of all the general contractors and such bid appeared
to be regular on its face. It listed J. S. Prunier and Sons, Inc. as the sub-
contractor for furring, lathing and plastering. Prunier was included on the
list of sub-bidders sent by the division to the general contractors as re-
quired by section 44C (2) (c). On these facts, the selection of Farina as
general contractor at that time appears to have been in order. There-
after the filed sub-bids were opened and it appeared that the sub-bid of
Prunier corresponded exactly ^vith its bid as listed in the proposal of
Farina, the general contractor. On this evidence, filed with the division
68 P.D. 12.
as required by law, it was proper to conclude that the bidding procedure
had been followed and that the award of the contract to the general con-
tractor was in accordance with law.
The division does not award sub-contracts. The sub-bidder's proposal
is addressed to the general contractor and when accepted the sub-bidder
becomes bound to the general contractor, not to the division. G. L. c. 149,
§ 44C. East Side Construction Co., Inc. v. Adams, 329 Mass. 347.
The general contractor is subject to the bid statute in his award of a
contract to the sub-contractor, and he should not enter into a contract
with a sub-bidder where the dealings between the two parties have not
been in accord with the bid statute. But defects which may exist in the
award of such sub-contract do not affect the validity of a pre-existing con-
tract between the general contractor and the division.
The division undoubtedly has a duty to determine that the bid statute
has been complied with but if its duty of investigating factual matters
existing between general contractors and sub-contractors requires it to
go beyond the records which have been filed with the division, there thus
might arise a stalemate of indefinite duration in the construction or repair
of public buildings. Cf. East Side Construction Co., Inc. v. Adams, supra,
at page 355.
It is noted that the bid statute does not give the division the unquali-
fied right to reject sub-bids. There is a limited right to control sub-bids
in the following circum^stances. By section 44C (D) the general contractor
and the awarding authority may jointly consider the substitution of sub-
bidders but any substitution must be based on an agreement to substitute.
Under section 44E a substitution of sub-bidders is required if the originally
selected sub- contractor fails to sign the sub-contract or fails to furnish a
performance bond. In addition the awarding authority is given a right
to 1 eject all sub-bids on any item provided the bidders agree that none
of the sub-bids are from persons competent to perform the work or that
only one sub-bid was received and such single bid is unreasonable.
The facts of the present case do not fall within any of the foregoing
exceptions. On the contrary, section 44C (B) states that "no sub-bids
shall be considered in the final selection of sub-bidders, as hereinafter
described, except those filed with the awarding authorit}'^ as above pro-
vided."
The foregoing provision makes it clear that filed bids are all that can be
considered by the awarding authority. As again stated by the court at
page 350 of the East Side Construction case :
"Only subbids filed with the awarding authority can be considered in
th final selection of subbidders. . . . The subbids as filed must be strictly
adhered to, and cannot be varied by a general contractor."
In conclusion, from the information which the division may consider as
provided by the bid statute, it appears that the award to Farina Brothers
Co., Inc. as general contractor was proper. It also appears that J. S.
Prunier & Sons, Inc. was a sub-bidder who had filed a bid and whose
name appeared on the list of sub-bidders sent out by the division. Since
there are no facts which would allow a rejection of such sub-bid under
section 44C (D) or 44C (E), the division is not in a position to object to
the award of a sub-contract by Farina to Prunier. We express no opinion
concerning any possible rights of a private nature which may be available
to other sub-contractors or to other general contractors because of any
RD. 12. 69
alleged violation of the bidding procedure in the private dealings between
any general contractor and any sub-bidder.
Very truly yours,
George Fingold, Attorney General,
By Joseph H. Elcock, Jr.,
Assistant Attorney General.
State Armories — Non-military Use — Possible Tort Liability of Military
Officers — Indemnify Bond.
Jan. 7, 1955.
Col. Ralph T. Noonan, State Quartermaster.
Dear Sir : — You have requested an opinion regarding certain non-
military use of State armories.
I understand from your letter that, under the authority of G. L. c. 33,
§122, as amended by St. 1954, c. 590, non-military use of State armories is
authorized and is in fact customary. I note that the permitted use in-
cludes "athletic contests and social or civic activities conducted by respon-
sible organizations or associations." § 122 (e) (1). Compensation for such
use is fixed by the same section, and such compensation is required to be
"at least sufficient to cover" lighting, heating, guarding, etc. You state
that such organizations, including schools, wall arrange for the erection of
portable bleachers on the armory floor. This creates the possibility of
danger of injury to those who occupy the bleachers. IMoreover, in the
event of such non-military use, there is always the possibility of an injury
occurring from other causes to some person coming upon the premises in
the course of such non-military use.
Section 15 (d) of chapter 33, as most recentty amended, imposes upon
you the care and control of the State armories. In this chapter there are
provisions placing certain responsibilities in connection with State armories
upon the Adjutant General and also upon the military custodian of a par-
ticular armory. §§1 and 123.
Upon this situation you request an opinion on the following matter:
"We are in doubt as to whether there is a possibility or probability
of suits in tort for 'personal injury being filed against any of the three
officers mentioned. Your opinion upon this point is requested."
The law is very clear that there is the legal possibility of a suit for tort.
There are many decisions of the courts and opinions of this office indicating
that an officer, employee or agent of the Commonwealth or of some division
of the Commonwealth msiy be held to be liable for his own affirmative act
of negligence. The liability would be based upon negligence, and if such
personal negligence were found by a court there would undoubtedly be a
personal judgment against such officer, employee or agent. Restatement of
Torts, § 888, comment c. VIII Op. Atty. Gen. 618. Opinion of the
Attorney General, dated 'Sisiy 8, 1920, to the Commissioner of Correction.
Opinion of the Attorney General, dated December 2, 1953, to the Boston
Arena Authority. Such liability would be based upon negligence, and in
the absence of negligence there would be no personal habilitv. IV Op.
Atty. Gen. 107.
70 P.D. 12.
I have answered your inquiry as to whether or not there is a possibihty
of such suits in tort. I cannot express an opinion upon the probability of
such suits being filed.
You also request an opinion as to whether or not, and if so in what man-
ner, your office can require insurance protection against such possibility
of suit.
It is pro\dded in section 122 (/) of chapter 33 that the organization
making non-military use of a State armory shall pay for damage and for
personal injury, and the section also provides that "rules and regulations
may also require that such organization shall file with, the adjutant general
a bond in such form and amount and containing such conditions as said
rules and regulations may prescribe."
Under this provision of the statute you have full authority to require
any school or organization or association making non-military use of a
State armory under section 122 to supply you with a "bond" which wdll
give you complete protection against the possibility of any liability in a
personal suit against any of the three officers you mentioned based upon
any occurrence during the period of such non-military use. Since the
statute specifically points out a "bond" as the method of obtaining such
protection you should use this method, rather than the method of the ordi-
nary general property liability insurance. I believe there will be no
technical difficulty in obtaining and making use of the "bond" form of
protection.
If you are going to adopt rules and regulations requiring this protection
in the form of a bond, I suggest that you consider whether or not the bond
should not also be framed in such a way as to protect, not only the three
officers you name, but the Commonwealth as well, all officers, employees
and agents of the Commonwealth and also the person or persons who maj''
suffer personal injury.
The requirement of such a bond or liability insurance is a frequent occur-
rence in other departments and divisions of the Commonwealth. Opinion
of the Attorney General, dated June 15, 1935, to the Commissioner of
Agriculture. Opinion of the Attorney General, dated December 2, 1953,
to the Boston Arena Authority.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
State Employees — Working on or Missing a Holiday — Rules as to Day
Off or Extra Pay.
Jan. 13, 1955.
Hon. Carl A. Sheridan, Ccmmissioner of Administration.
Dear Sir: — You have propounded ten questions, all but the last of
which are intended to present problems concerning the effect of G. L.
c. 30, § 24A, upon the rights of State employees. I as!?ume that these
problems actually exist, for, as you must know, it is the longstanding
policy of this department not to answer hypothetical questions.
P.D. 12. 71
Before proceeding to discuss your first nine questions, I feel that your
concluding inquiry should be disposed of, since it is concerned with the
general legislative policy established by said § 24A.
That statute provides
(1) That any "person employed by the commonwealth" (other than
certain ones enumerated in St. 1953, c. 400, the most recent amendment
to § 24A) who is required to work on anyone of certain named legal holi-
days "shall be given an additional day off, or, if such additional day off
cannot be given by reason of a personnel shortage or other cause, he shall
be entitled to an additional day's pay." (In the interests of brevitj'', I
shall hereinafter refer to all such persons as "employees," although "offi-
cers" are also included within the sweep of the statute; see 1946 Op.
A.G. 105). This policy was estabhshed by St. 1945, c. 565, which orig-
inally inserted § 24A in said c. 30, and has since remained unmodified ex-
cept by a minor change, presently immaterial, effected by St. 1948, c. 498.
It was apparently the intent of the Legislature to make good to a State
emploj^ee either by giving him a "replacement" holiday or an extra day's
pay, Siny of the designated holidays which he was not able to enjoy be-
cause of being required to work; it is completely immaterial, for the pur-
poses of this part of said § 24A, whether the holiday on which the employee
works falls on a Saturday or on some other day of the week.
(2) That in the case of a State employee (other than one of those ex-
cluded by the 1953 amendment referred to above) "who works five or more
days a week and whose regular day off falls on any of the aforementioned
holidays except when such holiday occurs on Saturday, an additional day off
shall be allowed, or payment in lieu of one day off shall be allowed." This
policy was established by St. 1946, c. 411, which added a clause to § 24A,
and has since remained unmodified except for the changes effected by
St. 1948, c. 498, which inserted the italicized exception relating to Satur-
day holidays, and which also made the privilege created by the statute
available to employees who work "five or more" days weekh' (theretofore
it had been available only to those who regularly worked six days weekly).
As expressed in the title of c. 411, as well as in the statute itself, this pro-
vision is intended to give an employee who "misses" a holiday because it
falls on his regular day off either a "replacement" holiday or an extra day's
pa,y. Thus, he is placed on a par with all his fellow emploj^ees who are
actually excused from a regular working day by the occurrence of a holi-
day, and who receives for any one week in which a holiday falls one day's
pay more than the actual number of days worked. Cf. Attorney Gen-
eral's Report, 1948, p. 65. The exception of Saturday holidays may be
justified upon the ground that most State employees have Saturday as a
regular day off. You will note that this clause of said § 24A becomes oper-
ative when an employee does not have to work on a particular holiday,
whereas the first clause of the statute, discussed above, deals "\Aith situa-
tions where an emploj^ee is called upon to work on a holiday. Again, cf.
Attorney General's Report, 1948, p. 65.
I believe that the foregoing constitutes a sufficient answer to your
tenth question. The answers to your others are as follows:
1. You state that an em.ployee whose regular work- week runs from
Tuesday through Saturda}'^ has been recjuired to work on a Saturday which
was one of the legal holidaj^s listed in § 24A. You inquire as to his rights
under said section.
72 P.D. 12.
Such an employee falls clearly within the scope of the first clause of
§ 24A: he has been required to work on a holiday. He must, therefore,
be given an additional daj^ off "or, if such additional day off cannot be
given by reason of a personnel shortage or other cause, he shall be entitled
to an additional day's pay." This ^^dll equalize his rights with those of
other employees whose regular work weeks are identical with his, who were
not required to work on the holiday in question, but who, nonetheless, re-
ceived a day's pay for that day.
2. You state that an emploj^ee whose regular work week runs from
Monday through Friday, and who has worked on those days for a total
of 40 hours, has been required to work "overtime" on the following
Saturday, which was also a legal holiday listed in § 24A. You inquire
as to his rights under that section.
You are referred to an informal opinion from this department to you
dated August 31, 1953, wherein this precise question was discussed at
length. As was stated therein, such an employee must, of course, be paid
for his overtime work on the holiday, and, in addition, he is entitled to the
benefits accorded to him by § 24A, Op. Atty. Gen., 1954, p. 31.
3. You inquire as to the effect of § 24A upon the above employee's
rights if he is not required to work on a Saturday hohday.
In this event, the employee would not be entitled to the benefits of the
first clause of the statute because he was not called upon to work on the
holiday. He would not be entitled to the benefits of the second clause
because the holiday in question fell on a Saturday.
4. You inquire as to the effect of § 24A upon the above employee's
rights if a holiday falls on a Saturday during his regular vacation.
Obviously the first clause of the statute has no application: he has not
been required to work on the holiday. Nor does the second clause have
any effect upon his rights, for two reasons: (1) it never applies where the
holiday falls on a Saturday, and (2) it has no appHcation to an employee
who does not work five or more days in the week during which the holiday
falls.
5. You inquire as to the effect of said § 24A upon the rights of an em-
ployee whose regular work week runs from Tuesday through Saturday,
but who is on vacation during a week in which a holiday falls on Saturday.
The answer to the preceding question is equally applicable here.
6. You inquire as to the effect of § 24A upon such an employee who is
absent on sick leave during a week in which a holiday falls on Saturday.
Again, the answer to your fourth question is applicable.
7. You state that an employee whose regular Avork week runs from
Monday through Friday is out on leave without pay preceding a holiday
which occurs on Wednesday. You inquire whether your Rule OE-5,
adopted under G. L. c. 7, § 7, conflicts with said § 24A in denying such an
employee a paid holiday in this case.
The first clause of § 24A has, obviously, no application, since the em-
ployee did no work on the holiday. The second clause never affects the
rights of an emploj'^ee whose "regular clay off" is on a day other than that
on which the holiday falls. The answer to your question, as I have restated
it above, must, therefore, be in the negative.
8. You state that an employee whose regular work week runs from
Tuesday through Saturday has been on sick leave during an entire week
in which a holiday fell on Monday. You inquire as to the effect of § 24A
upon his rights.
P.D. 12. 73
The first clause of the statute is inapplicable; the second clause relates
only to employees who work five or more days during the week in which
the holiday falls. Said § 24A, therefore, does not apply in this instance.
9, You state that an employee whose regular work week runs from
Tuesday through Saturday has worked the entire week, except Monday,
his regular day off, which was also a legal hohday. You inquire as to his
rights under § 24A.
The second clause is fully applicable, since all of the elements required
by it are present: (1) the employee has worked five days during the week;
(2) the holiday fell on his regular day off; and (3) the hohday did not
fall on a Saturday.
In conclusion, and in an effort to simplify the foregoing, I suggest the
following tests for you to apply in determining the effect of § 24A upon any
given set of facts :
I. // the employee has been required to work on a holiday listed in said
section, and if he does not fall mthin any of the classes of "employees"
exempted from the operation of the statute by its concluding clause,'[he
is entitled to the benefit of the first clause. ^
II. An employee who has not worked on a holiday is entitled to the bene-
fit of the second clause of the section only if each of the following inquiries
can be answered in the affirmative:
1. Is he an emploj^ee other than one of those listed in the concluding
clause of this section?
2. Did he work five or more days during the week in which the holiday
fell?
3. Was the holiday one of those hsted in said section?
4. Did it fall on his "regular day off?"
5. Did it fall on a day other than Saturday?
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
Hurricane Relief Fund (1954) — Overtime Pay for Policemen and Firemen.
Feb. 1, 1955.
Mr. Harry J. Talmadge, Executive Secretary, Hurricane Relief Board.
Dear Sir : — You have asked whether overtime payments made to
regular police and firemen of the town of Arlington for work performed as
a result of Hurricane Carol is a reimbursable item.
Section 4 of chapter 689 of the Acts of 1954 provides for the reimburse-
ment of political subdiWsions of the Commonwealth for expenditures
which were the result of an emergency created by the hurricane. In
regard to overtime payments, the Hurricane Relief Board issued a memo-
randum to pohtical subdivisions in September, 1954, which states in
section HA, subdivision 2, that such expenditures made in connection with
emergency work are reimbursable as follows :
"Overtime payments to regular employees for disaster work performed
outside of normal working hours, provided that such employees normally
receive overtime pay."
74 P.D. 12.
The memorandum appears to indicate a proper application of the law to
the question at hana. If the police and firemen would ordinarily be paid
overtime for work performed outside of their normal working hours, in
accordance with the then existing terms of employment, such overtime
payments caused by the hurricane would be reimbursable.
The information submitted by the town of Arlington, which you for-
warded to me, does not appear, however, to establish the fact that police
and firemen are normally entitled to overtime. Town Counsel refers to
Article 5 of the special town meeting of June 28, 1948, which authorizes
an additional day off or an additional day's pay for police officers required
to work on specified holidays. The article has application only on the
specified hoUdays and does not relate to the general question of overtime.
Town Counsel also indicates that the town may have authority to pay
overtime to police. We express no opinion as to the legal authority of the
town in this matter.
The problem is M^hether the town owes an obligation to the police and
firemen to pay overtime for such work. The obligation in turn depends
on the terms of employment existing between the town and the employees
in question. It makes no difference that the town might have authority
to arrange different terms of employment.
In view of the foregoing, it appears that the Hurricane Relief Board
should decline to approve the overtime payments to police and firemen
unless and until it is established that the town had an obligation to make
such payments because of the terms of employment in existence at the
time of the hurricane.
A similar problem arose as a result of the Worcester tornado in 1953.
In order to authorize payments of overtime to regular city and town
police performing overtime duties where such overtime might not other-
wise be authorized, the General Court found it necessary to enact special
'legislation. (See St. 1954, c. 430.) It is significant that there is not yet
any similar legislation applicable to the hurricanes of 1954.
Very truly yours,
George Fingold, Attorney General,
By Joseph H. Elcock, Jr.,
Assistant Attorney General.
Plumbers, Board of Examiners (J — Whether Person Holding Master's
License can he Appointed to Board as Journeyman.
Feb. 7, 1955.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir: — This is in answer to your letter of February 2, 1955, requesting
my opinion regarding an appointment to the Board of Examiners of
Plumbers.
The statute (G. L. c. 13, § 36) provides for three members on that
board, as follows: "... one shall have had at least ten years' continuous
practical experience as a master plumber"; "... one shall be a sanitary
engineer"; and "... one [shall be] a journeyman plumber of at least
ten years' practical experience, who is a wage earner."
I understand that the term of appointment of the person who has been i
P.D. 12. 75
serving as the "journeyman plumber" is now expiring, and that such per-
son, since his appointment to the board, "has acquired a master's h-
cense" but "he has not taken advantage of his master's hcense in his
trade."
Your question is:
"I would like to know if a man holding a master's license can legally
represent the journeyman appointment on this board."
Your question must be answered in the negative. The clear intent of
the Legislature is that the board shall be composed of a master plumber,
a journe3anan plumber and a sanitary engineer. In my opinion it is clear
that the requirement that there be a "journeyman plumber" on the board
is not met by the appointment of a "master plumber" even though the
latter "has not taken advantage of his master's license in his trade."
A master plumber, by definition (G. L. c. 142, § 1), is "a plumber hav-
ing a regular place of business and who, by himself or journeymen plumbers
in his employ, performs plumbing work." This definition requires only
"a regular place of business" and the performance of "plumbing work."
A master plumber is not required to work through employed journeyman
plumbers; he can do the work "by himself." Even wliile he is a master
plumber, he can do the work of a journeyman plumber. Burke v. Holyoke
Board of Health, 219 Mass. 219. Commonwealth v. McCarthy, 225 Mass.
192. Power v. Board of Examiners of Plumbers, 281 Mass. 1. Attorney
General v. Union Plumbing Co., Inc., 301 Mass. 86. Even though the
present incumbent "has not taken advantage of his master's license in
his trade," it seems clear that he is a master plumber both because of his
license as such and because of the above statutory definition of a master
plumber.
But even without consideration of the technical niceties of who is or
is not a "master plumber" by definition, it is clear that the Legislature's
requirement that one member of the board must be a "journeyman
plumber" is not met by the appointment of a "master plumber." For
this reason, your question is answered in the negative.
Very truly yours,
George Fingold, Attorney General.
Department of Public Works — Waterways — Protection of Rivers, Shores
and Harbors — Incidental Power to Reconstruct Bridges and Culverts.
Feb. 16, 1955.
Hon. John A. Volpe, Commissioner of Public Works.
Dear Sir : — You have requested my opinion concerning the authority
of the Department of Public Works under G. L. c. 91, § 11, as amended
by St. 1950, c. 516.
That section pro\'ides, so far as is material to the question presented by
you, that the Department of Public Works
"... shall undertake such work for the improvement, development,
maintenance and protection of tidal and non-tidal rivers and streams,
harbors, tide waters, foreshores and shores along a pubUc beach as it
deems reasonable and proper . . . ."
76 P.D. 12.
In your letter you state that "during the course of improving stream
channels it often becomes necessary to reconstruct bridges and culverts
because of the inadequacy of their waterways."
You request my opinion upon the following question :
''Does this department have the authority under G. L. c. 91, § 11, to
reconstruct such bridges and culverts and do work incidental thereto?"
I answer your question in the negative. The statute referred to does not
by its terms or by implication vest any such power in the department.
Legislative enactments cannot be presumed to go beyond purposes mani-
fested by their words.
Very truly yours,
George Fingold, Attorney General.
Department of Public Health — Standards for Human Habitation — Repeal
of Health Regulations by Later Amendment of Statute — Statutory Con-
struction.
Feb. 17, 1955.
Jerome Patrick Troy, Esq., Attorney, Department of Public Health.
Dear Sir : — This department has received your recent request for
an informal opinion regarding "Minimum Standards of Fitness for Human
Habitation."
I understand that the Department of Public Health in 1949 adopted
certain "Minimum Standards of Fitness for Human Habitation" under
the authority of G. L. c. HI, § 128, as amended by St. 1947, c. 631, and
that by the same authority such regulations were duly adopted in some
cities and towns in Massachusetts. This section 128 was repealed by
St. 1954, c. 209. The 1954 Legislature, by the same act, enacted new sec-
tions 128B, 128C, 128D, and 128F, all of which relate to the same general
subject. The 1954 Legislature, at a later date, also adopted penalties for
the violation of such new statutes and the penalties are set forth in new
section 128F. See St. 1954, c. 447.
The new statutes contain the substance of the provisions of former sec-
tion 128 which now has been repealed. The new statutes also contain
additional requirements, i.e.: a "mobile dwelling place" is now included;
certain specific and stated standards must be complied with until and
unless regulations are adopted; a local board of health can prepare its
own regulations; the scope of the regulations now includes "housing and
home safety practice"; the method of giving notice of the adoption of
regulations has been changed; and the penalty is now applicable specifi-
cally to violations of §§ 128B, 128C, 128D, and not of § 128.
On this situation you request an opinion as to two matters as follows :
1. Are the minimum standards as adopted by this department in 1949
under the provisions of section 128 still in effect or did they die with
the repeal of section 128?
2. Are minimum standards of fitness for human habitation adopted
locally by cities or towns under the provisions of section 128 still in effect
or did they die \^dth the repeal of section 128?
In my opinion the answer to your two questions is that the standards
adopted by your department and adopted by cities and towns under the
P.D. 12. 77
provisions of section 128, now repealed, are no longer in effect. I do not
believe that the rule of statutory construction — to the effect that an
amended statute containing substantially the same provisions as an
earlier statute, or a new statute enacted simultaneously with the repeal
of an earlier statute and re-enacting substantially the same provisions, is
to be construed as a continuation of the previous statute and not as new
enactments (see McCaffery, Statutory Construction, § 79, p. 159, and
Sutherland, Statutory Construction, § 1933, p. 426) — can be applied in
this case. Although the general subject matter of the new statute is the
same, and many of the provisions of the old law have been continued,
there are many differences between the original section 128 and the pro-
visions of the new section 128C and the other sections which were enacted
with section 128C. These differences are important and are of substance.
See above examples. The provision in section 128B for the automatic ap-
plication of certain standards is a new and different approach to the prob-
lem. This automatic application of specific standards, in all probability,
will cover the needs in this public health field until new standards can be
adopted by the department and by cities and towns.
For the reasons set forth above it is my opinion that the regulations
adopted under the authority of G. L. c. Ill, § 128, became of no effect
when that section was repealed. The same answer applies both to the
regulations adopted by the Department of Public Health and the ac-
ceptance of such regulations by cities and towns.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Department of Public Works — State Highways — Harbor Lines — En-
croachment upon Harbor Line under General Power to Build Highways.
Feb. 23, 1955.
Mr. H. G. Gray, Acting Commissioner of Public Works.
Dear Sir: — Your recent letter requests an opinion regarding the right
of your department to place an earth fill outside the Boston "Harbor
Line. "
You call attention to St. 1952, c. 556, § 6, which provides in part that
your department may "take by eminent domain under chapter seventy-
nine of the General Laws, or acquire by purchase or otherwise, such public
or private lands ... as it may deem necessary" for the carrying out of
the pro\dsions of this special act for the expenditure of bond proceeds in
the construction of pubUc highways.
You request an opinion as to whether or not the powers granted under
this act are broad enough to enable the department to place an earth fill
outside the Boston Harbor Line in connection wath the construction of the
proposed Southeast Expressway through a portion of Dorchester Bay.
The answer to your question is in the negative. The act mentioned
above, authorizing expenditure of certain bond proceeds for an extensive
program of highway construction, is not sufficiently specific to authorize
you, without more, to encroach upon the Boston Harbor Line for the
purpose of construction of roads which are authorized in general terms but
78 P.D. 12.
not by specific location. The protection of a harbor line is an important
concern of the Legislature. Absolute limits are set forth to prevent such
encroachment. Note the provision in G. L. c. 91, § 14, that Hcenses can
be issued by your department for construction below high water mark
"but not, except as to a structure authorized by law, beyond any estab-
hshed harbor line ..." This proposed Southeast Expressway is not
"a structure authorized by law" within the meaning of this statute. In
section 34 of the same chapter a procedure is established for prescribing
harbor lines. Your department may make a "report" relative to harbor
lines to the Legislature "for its action, thereon," This section indicates
clearly that harbor lines "are established by the general court." This sec-
tion also provides that no "structure shall thereafter be extended into
said harbor beyond such lines, except as provided by section fourteen."
As above mentioned, this section fourteen requires that such structure be
"authorized by law."
For the reasons stated above it is our opinion that St. 1952, c. 556,
§ 6, above referred to, does not give your department the right to place
an earth fill outside the harbor line upon which to constnict the proposed
Southeast Expressway. Specific legislative action would be needed for
such authority.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Veteran's Non-contributory Retirement — Creditable Service — Service as
Special Justice of District Court.
Feb. 23, 1955.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir: — You have requested my opinion with reference to the
"creditable service," under G. L. c. 32, § 60, which may be allowed to a
veteran who has applied for non-contributory retirement under section 57
of that chapter.
The provision under which this veteran seeks a non-contributory retire-
ment (§ 57) provides as follows:
"A veteran who has been in the service of the commonwealth, or of any
county, city, town or district thereof, for a total period of ten years in the
aggregate, may, upon petition to the retiring authority, be retired, in the
discretion of said authority, from active service . . . if he is found by said
authority to have become incapacitated for active service . . . ."
You inform me that the first public service of the veteran in question
was as a member of the Massachusetts House of Representatives from
1931 to 1936 — as to which, see Attorney General's Report, 1953, p. 29 —
and that his most recent service has been as Superintendent of the State
Prison Colony from 1950 to the present time. These two periods of
service meet the requirements of section 57 that there be service "for a
total period of ten years in the aggregate."
A further requirement as to the length of service for retirement under
section 57 was added by an amendment to section 60 of chapter 32 enacted
P.D. 12. 79
by the 1954 Special Session (St. 1954, c. 688). It is now provided by
section 60 that the retirement benefits under section 57 shall not be avail-
able to a veteran —
" . . . unless at the time of his retirement the total period of his creditable
service is at least equal to twice the time he was not in the employ of the
commonwealth or of a county, city, town or district subsequent to the
date when his employment by the commonwealth or by a county, city,
town or district first began."
In order to meet this new measure of "creditable service" under section
60 the veteran in question reciuests credit for a period of service, from
February of 1938 until May of 1950, during which period he was the duly
appointed and qualified and acting Special Justice of the District Court of
Western Norfolk.
Upon this state of facts you request an opinion on the foUomng question:
"Is the entire period during which the veteran held the position of
Special Justice, from February of 1938 to May of 1950, to be accepted as
'creditable service' under G. L. c. 32, § 00, as amended, or only those
dates on which the veteran actually sat as Special Justice?"
It is my opinion that the entire period shall be accepted as "creditable
service" under the provisions of section 60.
The provisions relating to the non-contributory retirement of veterans
under G. L. c. 32, §§ 56-60, stand together and they must be interpreted
as a uniform and consistent w^hole. They do not rely upon or take their
force from any other provisions of the General Laws. These sections make
references to "service," "employ," "employed," "employment" and
"creditable service." It is clear that these various words are intended to
refer to the same thing. All of these references must be considered in de-
termining whether or not the veteran is entitled to credit, as for "creditable
service," for the entire period he was a special justice, or only for those
days when he actually sat in court.
While it is true that a special justice receives compensation on a per diem
basis, and only for the days on which he sits as special justice, it is also
true that during the entire period he holds the office of special justice he
holds personal authority in himself by virtue of such position, even apart
from any designation to sit in court for a particular day. He is given
duties and privileges and responsibilities by our statutes, even for the days
he did not sit. Note the following provisions:
Waiver of five day notice of intention of marriage. G. L. c. 207, § 30.
As "conservator of the peace," with power to order arrests. G. L.
c. 220, § 3.
Administration of oath. G. L. c. 218, § 7.
A special justice "... may at any time receive complaints and issue
warrants and summonses, under his own hand and seal, and . . . may
fikewise issue search warrants." G. L. c. 218, § 35.
Process for \ntnesses and defendants, G. L. c. 218, § 37.
'^ Powers and Duties of Special Justice. — A special justice of a district
court shall at all times have and exercise all the powers and duties of a
justice of such court, so far as to render decisions, make orders, and per-
form such other acts as he may deem necessary or proper in connection
with or relating to matters which have been heard before him." G. L.
c. 218, § 41.
80 P.D. 12.
A special justice is required to hold himself available for active judicial
duties, upon request, or, automatically, upon the absence of the presiding
justice of his court. G. L. c. 218, § 40. Furthermore, G. L. c. 218, § 43A,
after stating that a special justice is subject to call by the administrative
committee, goes on to provide that —
" In the case of the refusal or failure of any . . . special justice ... to
comply \vith anj'- order of the committee in performance of its duties and
powers by this section establish ea, the committee shall report such per-
son or persons to the chief justice of the supreme judicial court . . . and,
upon a finaing . . . the supreme judicial court shall forthwith make an
appropriate order as to the matter involved."
The personal authority of a special justice is distinctly different from
the authority given to a member of a group composed of "three or more
public officers or other persons" who are given joint authority and who
can exercise that authority only by majority action. G. L. c. 4, §^6,
cl. Fifth.
The phrase "creditable service" as used in G. L. c. 32, § 60, is not re-
stricted by the meaning given to that phrase in sections 1 to 28 of that
chapter, which sections deal with contributory retirement systems. The
definition of that phrase in section 1 is specifically limited to sections 1 to
28. It was ruled by a former Attorney General that a State employee was
entitled to "creditable service" under sections 56 to 60, even though that
employee had been specifically excluded by statute from being entitled to
creditable service under sections 1 to 28. Attorney General's Report,
1953, p. 29.
Analogy for the present case is found in G. L. c. 32, § 65B, in which it
is provided that a special justice of the district court is entitled to a pen-
sion upon retirement after "having served as a special justice for at least
ten years." With reference to the presiding justice the words used are
" after having served . . . at least ten years continuously." Section 65A.
There can be no question but that the "service" under these two statutes
runs from the time of appointment until the time of resignation. It is my
opinion that the same interpretation must be given in the matter now under
consideration.
In conclusion, therefore, the answer to your question is that the veteran
who has applied for retirement under the provisions of G. L. c. 32, § 57,
under the circumstances of this particular case, is entitled to credit, as for
"creditable service" as that phrase is used in section 60 of chapter 32, for
the entire period during which he held the position of special justice.
Very truly yours,
George Fingold, Attorney General.
Veteran's Non-contributory Retirement — Creditable Service — Public Officer
— Service as Public Trustee of Boston Elevated Railway Company.
Feb. 25, 1955.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir: — You have requested my opinion with reference to the
"creditable service" which may be allowed, under G. L. c. 32, § 60, to a
P.D. 12. 81
veteran who has applied for non-contributory retirement under §§ 56-60
of that chapter.
You advise me that the veteran in question was formerly a member of
the Massachusetts House of Representatives for about twelve years — as
to which see Attorney General's Report, 1953, p. 29 — and that for the
past six years he has been in the service of the Massachusetts Division of
Employment Security. These two periods of service meet the ten-year
requirement of sections 56 and 57. Between these two periods of service,
however, the veteran served for about nine j'^ears (1938 to 1947) as one of
the Public Trustees of the Boston Elevated Railway Company under the
provisions of Sp. St. 1918, c. 159. Such service was full time, and the com-
pensation was on an annual basis.
You request my opinion as to whether the service as such tmstee can
be accepted as "creditable ser^dce" to meet the requirement of G. L.
c. 32, § 60, as amended by St. 1954, c. 688, that the period of service for
the Commonwealth must be "at least equal to t\A'ice" the time he was
not in such service.
On February 23, 1955, I sent you an opinion' on a similar question re-
lating to retirement credit under that same section for service as a Special
Justice of the District Court. I refer you to that opinion for a discussion
of the provisions of sections 56 to 60 of chapter 32, and particularly the
meaning of the phrase "creditable service" in section 60. Such dis-
cussion is not repeated in this opinion.
The acceptance of credit for the period during which this present vet-
eran was one of the Pubhc Ti-ustees of the Boston Elevated Railway Com-
pany depends upon the provisions and interpretation of Sp. St. 1918,
c. 159, which created such position. The purpose of that statute was to
provide for the "public management and operation" of the railway com-
pany. (Title, and §§ 12, 15.) "Its purpose is operation through pubhc
officers. ..." Boston v. Treasurer & Receiver General, 237 Mass. 403,
at p. 412. This purpose was accomplished by the appointment of five
Public Trustees who were to "manage and operate" the company and
its properties and were to "take and have possession of said properties in
behalf of the commonwealth" (§ 2). The trustees were "appointed by the
governor, with the ad\'ice and consent of the council," and were subject
to removal for cause in the same manner (§1). They were to be "sworn
before entering upon the performance of their duties" (§ 1). The trustees
were to regulate fares and ser\dces, and in these respects the authority of
the trustees was not subject to the approval or control "of any other state
board or commission" (§2). The statute also pro\dded that the trustees,
in their management and operation of the company, "shall be deemed to
be acting as agents of the company and not of the commonwealth," and
that the company was to be liable for the acts of the trustees "to the same
extent as if they were m the immediate employ of the company" (§ 2).
The statute also provided that a deficit caused by operations was to be
paid by the Commonwealth (§§ 11, 13), and that upon termination of pub-
lic management and control the company would "thereafter be subject
to public regulation and supervision" (§ 15).
The status of the company and of the Public Trustees has been dis-
cussed on numerous occasions by the Supreme Judicial Court.
iPage 78 of this Report.
82 P.D. 12.
"The Boston Elevated Railway Company is a public service corpora-
tion. . . . Its management and operation have been taken over by the
Commonwealth as a public enterprise and exercised through a board of
pubhc officers called trustees." {Opinion of the Justices, 261 Mass. 556,
at p. 594.)
"... such management and operation are carried on by the Public
Trustees in behalf of the Commonwealth, which contracted with the com-
pany for such management and operation upon certain specified terms and
conditions. . . . Moreover, it is provided expressly by the Public Control
Act that the Public Trustees 'shall take and have possession of said prop-
erties ... in behalf of the commonwealth during the period of public
operation.'" (Boston Elevated Railway v. Commonvjealth, 310 Mass. 528,
at p. 576.)
"The contract between the Commonwealth and the company, em-
bodied in the statute, provided that the Commonwealth, acting through
the Public Trustees — who undoubtedly are public officers — should take
such possession of the properties of the company and manage and oper-
ate them as therein provided. . . . Specific duties are imposed and specific
powers are conferred upon the Public Trustees as such." {Auditor of
Com. V. Trustees of Boston El. Rij., 312 Mass. 74, at p. 78.)
"The control act in effect was a lease by the company to the Common-
wealth whereby the possession and control of the company's property were
turned over to the trustees on behalf of the Commonwealth. . . ." {Air-
torney General v. Trustees of Boston El. Ry., 319 Mass. 642, at p. 661.)
Because of this judicial interpretation, the Circuit Court of Appeals
for the First Circuit held that the salary of the Public Trustees was salary
paid to public officers of the Commonwealth of Massachusetts and there-
fore was not taxable under the then form of the Federal income tax.
Powers V. Commissioner of Internal Revenue, 68 F. 2d 634.
Certain provisions of the 1918 statute, standing alone, might indicate
that the service of the Public Trustees was service for the company and
not for the Commonwealth. The provisions that the trustees shall be
"deemed to be acting as agents of the company" (§2), that they "shall not
be considered public officers" withm the meaning of St. 1909, c. 514, § 25
(§1), and that they shall not have the benefit of the legal services of the
Attorney General (§1), were considered and disposed of in the Opinion
of the Justices, 261 Mass. 523, at pp. 542-3:
"... the Boston Elevated Railway Company, although privately
owned, will not be privately managed. On the contrary, it is to be managed,
controlled and operated wholly by the board of trustees who are appointed
by the Governor, who constitute a public board, who are for all essential
purposes public officers although under said c. 159, § 2, 'deemed to be
acting as agents of the company and not of the commonwealth,' and whose
duties are prescribed by a public statute enacted by the General Court
pursuant to its constitutional prerogatives.
"The provision of § 1 of the proposed act, to the effect that the trustees
shall not be considered public officers within the meaning of G. L. c. 271,
§ 40, does not impair or affect the general nature of their duties as public
officers. The further provision exempting the trustees from the terms of
G. L. c. 12, § 3, has no bearing upon the character of their service as public
officers. For all other purposes they are public officers. They perform
public functions."
P.D. 12. 83
The provision in § 2 that the company shall be liable for the acts of the
Public Trustees "to the same extent as if they were in the immediate em-
ploy of the company" is itself an imphcation that the trustees are not in
such employ.
The provision in § 1 that the trustees are to receive their annual com-
pensation "from the company" does not change their status as pubhc
officers acting in behalf of and for the benefit of and in the service of the
Commonwealth. That provision for payment by the hand of the company
is merely one of the provisions in the contract for public management
between the Commonwealth and the company. Tliis was the conclusion
reached in the Federal case of Powers v. Commissioner of Internal Revenue,
above cited. The court there stated (p. 636) :
"That the salaries of the trustees were paid in the first mstance by the
railway company is not important .... Moreover, durmg and at the
close of the period under discussion, the railway company was heavily
indebted to the commonwealth for operating deficits which had been col-
lected out of taxation. The salaries increased the deficits, and may well be
regarded as having been paid by the public."
For certain details of the management of the company's operation the
Public Trustees have been treated as the agents of the company and not of
the Commonwealth. To discontinue use of the Atlantic Avenue location:
Boston Elevated Railway v. Coinmonwealth, 310 Mass. 528, at pp. 577-580.
To keep accounts of income and disbursements from and for operations:
Auditor of Com. v. Trustees of Boston El. Ry., 312 Mass. 74, at pp. 79-83.
To determine accounting methods for depreciation: Attorney General v.
Trustees of Boston El. Ry., 319 Mass. 642, at pp. 658-9, 670. But the gen-
eral purpose of the Public Control Act and the status of the Public Trustees
as public officers remain as shown by the quotations given above, some of
which come from the three cases cited in this paragraph.
The statute which created the position of the Public Trustees of the
Boston Elevated Railway Company must be considered as a whole, in
fight of the purpose for which it was enacted. That purpose was public
management and control. The trustees were the representatives of the
Commonwealth; they acted in behalf of the Commonwealth, and in order
to protect the Commonwealth, and in order to carry out the provisions
of public control; they were appointed by and were subject to removal by
the Governor; and they have judicially been held to be "public officers."
It cannot be doubted that they were in the service of the Commonwealth.
Under all the circumstances of this particular case, it is my opinion
that the veteran whose application for retirement is now being considered
must be given credit as for "creditable service," as that phrase is used in
G. L. c. 32, § 60, for the period of time he was one of the Public Trustees
of the Boston Elevated Railway Company upon appointment by the
Governor.
Very truly yours,
George Fingold, Attorney General.
84 P.D. 12.
Elevator Regulations — Conflict between General Statutes and Boston Build-
ing Code — Statutory Construction — Repeal by Implication.
March 3, 1955.
Board of Elevator Regulations.
In your recent letter you refer to an apparent conflict between the
provisions of G. L. c. 143, §§ 71A-71C, inclusive, and those of § 120 of
the Boston Building Code (St. 1938, c. 479), and inquire how it may be
resolved.
Said §§ 71A-71C, added to c. 143 by St. 1945, c. 626, § 1, provide that
no person shall engage in the construction, maintenance or repair of ele-
vators or escalators unless licensed to do so by the Commissioner of PubUc
Safety who is directed to hold "frequent examinations" in certain cities,
including Boston, for applicants for such licenses; a criminal penalty is
established for any person doing such work without a license.
Section 120 of the Boston Building Code (enacted some seven years
before the enactment of §§ 71A-71C) establishes a board of examiners
for the city of Boston, and requires it to hold examinations for persons
desiring to be registered as qualified "to have charge or control of the . . ,
installation or repair of elevators and escalators", and empowers it to
issue licenses to successful applicants who thereafter "shall be entitled to
have charge or control" of such work (emphasis supplied).
Your specific question is whether or not the provisions of the Boston
Building Code above referred to have been impliedly repealed by the
later legislative enactment which added §§ 71A-71C to c. 143 of the Gen-
eral Laws. My answer is in the negative.
It has long been the law that "acts in pari materia are to be taken
together as one law, and are so to be construed, that every provision in
them may (if possible) stand. Courts therefore should be scrupulous how
they give sanction to supposed repeals by implication." Haynes v. Jenks,
2 Pick. 172, 176. As was said in Brovm v. Lowell, 8 Mete. 172, 174-175,
"It may happen that acts of special legislation may be made in regard
to a place, growing out of its peculiar wants, condition, and circumstances.
. . . Afterwards, a general act may be passed, having some of the same
purposes in view, extending them generally to all the towns of the Com-
monwealth, with provisions adapted to the condition of all touais. It
would be a question depending upon a careful comparison of the two acts,
and the objects intended to be accomplished, whether the general act
must be deemed an implied repeal of the special prior act. In general,
we should think it would require pretty strong terms in the general act,
showing that it was intended to supersede the special acts, in order to hold
it to be such a repeal." Of course, if the two statutes are plainly incon-
sistent, the earlier is repealed by the later, even without an express re-
pealing clause. Commonwealth v. Kimball, 21 Pick. 373, 377; especially
is this true of a later statute the clear purpose of which was to cover the
whole subject to which it relates. Homer v. Fall River, 326 Mass. 673, 676.
The provisions of said §§ 71A-71C have a statewide apphcation, and
would supersede — would impliedly repeal — such portions of the Boston
Building Code as were wholly repugnant to them. But in my opinion,
the two statutes can stand without confUct. Under the general law,
every person, whether or not acting in a supervisory capacity, who works
upon the construction, maintenance or repair of elevators and escalators,
P.D. 12. 85
in'^Boston or elsewhere in the Commonwealth, must have been licensed
by the Commissioner of Public Safety. In Boston, a person who is to
act in a supervisory capacity in such work, must not only have the com-
missioner's license, but must also hold the license required by § 120 of
the Boston Building Code.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
Hurricane Relief Fund (9154) — Reimbursement to Toum for Repair of
Private Way in which Toum has Interest — Use of Public Money for
Private Purposes — Query as to "Emergency."
March 18, 1955.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir : — You have requested an opinion as to the right of the Hurri-
cane Relief Board to reimburse the town of Fairhaven for repairs on the
causeway leading to West Island, which causeway was damaged by the
1954 hurricanes. This request raises a question as to your authority
under St. 1954, c. 689, as amended by St. 1955, c. 46. I understand from
you that this causeway is a private way leading from that part of Fair-
haven which is on the mainland to West Island w^hich is also a part of the
town of Fairhaven, and that this causeway is the only connection between
the mainland and West Island.
The first question you present is whether or not the town of Fairhaven
has such an interest in this causeway that it can la^\^ully expend public
funds to repair hurricane damage to the causeway.
In my opinion the answer to this first question is in the affirmative.
The record title of the town includes ''the right to use" the causeway as
a means of "access" to West Island. This is contained in the taking by
eminent domain in 1941 by the town's predecessor in title. The town also
has of record the "right to maintain the causeway," in common ^dth all
other lando-umers on West Island. This is established by the decree of
1920 registering title to West Island. In 1953 the town acquired title to
beach property at the south end of West Island, under G. L. c. 40, § 5
(25 A), and this owTiership carries with it a duty to maintain access for
town inhabitants to the beach property. The above stated interests of
the towTi are permanent and cannot be taken away from the town \\dthout
its assent. Furthermore, you report to me that the town "has at all times
asserted a municipal interest in and a right on behalf of all persons claim-
ing through it to use the foregoing causeway" and that the town has
publicly announced "that all residents of the town of Fairhaven as a
matter of right were entitled to access to said town beach by way of said
causeway from Jacob's Neck to West Island."
In addition, I understand that the town has used the causeway for pubUc
purposes such as servicing a civil defense station on West Island, and fur-
nishing y^fire protection to the island. To^\ti police have patrolled the
causeway. Also, public utility services for electricity and telephone reach
86 P.D. 12.
West Island over the causeway. And a substantial number of town resi-
dents have built their dwellings on West Island.
The above facts and circumstances make it clear that the town has a
right to use public money to make repairs on this causeway. The rule
that money raised by taxation can be used only for public purposes and
not for the advantage of private individuals would not be violated by this
use. In the case which you present the expenditures are to "provide for
the accommodation of the public as to means of travel and transportation
. . . and are to be made concurrently with the use of ways by the public
. . . where the primary purpose of such (repairs) is the benefit of the
public to whose use the way is opened." This quotation comes from
Opinion of the Justices, 313 Mass. 779, at page 785, in a case which related
to removal of snow and ice from private ways open to pubhc use. The
circumstances in the case which you present, involving record easements
in the town as well as substantial and necessary use of the causeway by
the town inhabitants, applied under the law set forth in the decision cited,
in my opinion justify the expenditure of town money for necessary repairs
to the causeway.
Your general question as to the right of the Hurricane Relief Board to
reimburse the town of Fairhaven for repairs made to the causeway because
of damage caused by the hurricane presents a second problem, that is,
your right under the restricted provisions of the Hurricane Relief Act in
St. 1954, c. 689, to make such reimbursement. The statute raises a ques-
tion of fact to be decided at the "discretion" of the Commission on Admin-
istration and Finance (section 1) and by "approval" of the three-man
board estabhshed by section 4. In exercising such discretion and in issuing
such approval consideration must be given to the numerous statements in
the statute that the only payments which can be reimbursed are payments
made " as a result of an emergency created by said hurricanes." This emer-
gency character of the 1954 and 1955 acts is much narrower than the cor-
responding provisions of St. 1938, cc. 505, 506 and 507, which were en-
acted following the 1938 hurricane. The emergency characterization of
the present statute is emphasized by the memorandum of September 9,
1954, issued by the Hurricane Relief Board. This requirement of an
emergency raises a question of fact. The facts themselves have not been
presented to me, and therefore there is no question of law upon which I
can pass relative to the reimbursement within these restrictive terms of
the statute. However, I feel it my duty to call your attention to these
general restrictions.
Very truly yours,
George Fingold, Attorney General.
Elevators — Elevator and Building Inspectors — Right to Enter Private
Property to Inspect Elevators.
March 23, 1955.
Hon. Otis M. Whitney, Commissioner of Public Safety.
Dear Sir: — You have requested an opinion as to the necessity or
advisabihty of an amendment to § 62 of G. L. c. 143 providmg specifically
P.D. 12. 87
that inspectors of the division of inspection and local building inspectors
may enter upon private property to supervise the installation or altera-
tion of elevators therein pursuant to the provisions of said section.
In my opinion no such amendment is necessary.
Said § 62 imposes upon your inspectors or, in cities and towns having
them, upon local building inspectors, the duty of supervising all such
work. While the statute does not specifically provide that they may
enter private property in the performance of this statutory obligation,
there seems to be no doubt that they and their authorized representatives
have a legal privilege to do so "so far as may be necessary to discharge
properly such duty." Winslow v. Gifford, 6 Cush. 327, 330. See, also,
Restatement, Torts, § 211, and Comment c thereto.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
State Employee — Retirement — Tenure of Office of "Holdover" — Juris-
diction of State Board of Retirement upon "Removal" of Employee.
March 30, 1955.
Hon. Joseph A. Humphreys, Commissioner of Insurance.
Dear Sir : — In your recent letters you state that on September 30,
1954, you "suspended," for good and sufficient cause, a person (herein-
after referred to as the employee) who then held the position of Assistant
Chief Examiner in the Division of Insurance, and that thereafter, on
December 23, 1954, that position "was filled by vote of the Governor and
Council." (I assume that the employee's successor was appointed by
you, subject to the approval of the Governor and Council, in accordance
with the provisions of G. L. c. 26, § 7.) You have never filed with the
State Board of Retirement any written notice of your suspension (or
removal) of the employee under G. L. c. 32, § 16(2).
It appears that the employee was first appointed to said position on
January 6, 1949, by the Commissioner of Insurance then in ofiice; that
Commissioner's service ended in February, 1951, and none of his suc-
cessors, including yourself, ever reappointed the employee to serve as
Assistant Chief Examiner. At the time of his "suspension" by you, the
employee, a member of the State Employees' Retirement Sj'^stem in
Group A, had completed more than twenty years of creditable service.
After the appointment of his successor on December 23, 1954, the em-
ployee requested a hearing by the State Board of Retirement "under
G. L. c. 32, § 16," and on February 15, 1955, that board purported to
hold such a hearing, which culminated in a finding that "the removal or
discharge of the petitioner was not justified and . . . that the petitioner
should be restored to his position . . . without loss of compensation . . ."
Thereafter, yo\i purported to appeal from this fuiding to the Con-
tributory Retirement Appeal Board under G. L. c. 32, § 16(4); that
"appeal" has not as yet been passed upon by that board.
You inquire as to what action, if any, you should take in connection
88 P.D. 12.
with your said appeal, and as to the legal effect of the finding of the State
Retirement Board.
Said c. 26, § 7, pro\ddes that "The commissioner of insurance may
appoint and remove, with the approval of the governor and council, a
. . . chief examiner and such additional . . . examiners ... as the
service may require." Any person originally appointed under this pro-
vision is, in my opinion, subject to removal from his position in accord-
ance with its terms; it should be noted that there is no requirement that
such removal shall be "for cause," so that any kind of "hearing" thereon,
at the instance of such an appointee, would serve no purpose beneficial
to him. Indeed, the obvious purpose of the statute, which is to allow a
commissioner of insurance to surround himself with certain designated
assistants and agents of his own choosing (persons appointed under this
section are not protected by the civil service laws — see G. L. c. 31, § 5),
would be defeated if his removal of any of them were subject to the review
of any person or board other than the Governor and Council.
Moreover, the general rule of law is that no public officer can give one
of his appointees a tenure of office beyond his own, so that, at best, the
emploj^ee's right to his position continued only (1) during the term of the
commissioner who originally appointed him and (2) during the "period of
holdover" between the end of that term and the appointment and qualifi-
cation of his successor. Opinion of the Justices, 275 Mass. 575, 579-580.
Upon the happening of that event, at the latest, he no longer had any claim
to the position of Assistant Chief Examiner, and had no right to request
any hearing under G. L. c. 32, § 16(2). Howard v. State Board of Retire-
ment, 325 Mass. 211.
It follows, therefore, that your replacement of the employee, whether or
not for cause, was proper, and that the "hearing" held bj^ the State Board
of Retirement should not have taken place; indeed, said board was in-
formally advised by this department, prior to said "hearing," that it
lacked jurisdiction to entertain the employee's request therefor.
An additional reason for this lack of jurisdiction is to be found in the
very statute under which said "hearing" was requested. Said § 16(2) pro-
vides for a hearing as to the propriety of the discharge or removal of certain
members of the State Employees' Retirement System after a written notice
of said removal has been filed with the board by the employing unit; it does
not establish a procedure by which an employee may initiate a review in
the absence of such a notice. In cases where no notice has been given, the
statute provides that the discharge or removal "shall not become effective,"
thus affording complete protection to affected employees without the in-
tervention of the State Board of Retirement. One whose employment is so
protected can enforce such rights as the statute gives him by appropriate
proceedings in the courts, but he is given no recourse to the retirement
board, the only function of which, under said § 16(2), is to pass upon the
justifiability of a discharge based upon reasons set forth in the notice duly
filed with it. The purported "decision" of the board, in the instant case,
that "the removal or discharge of the petitioner was not justified," was
beyond its powers, since it did not have before it the "written notice . . .
containing a fair summary of the facts" required by the statute, and,
therefore, was not presented with the only issue which the statute em-
po\vers it to decide — whether the discharge or removal, upon the basis of
such fair summary, was justified.
In my opinion, the " hearing " held by the State Board of Retirement, and
P.D. 12. 89
its subsequent decision, were nullities, and you may properly take or con-
tinue any course of action which you would follow had no such hearing
been held or such decision rendered.
It follows that the "appeal" taken by you to the Contributory Retire-
ment Appeal Board under G. L. c. 32, § 16(4), is unnecessary, and in my
opinion you should withdraw it from the consideration of that board.
I do not mean to intimate that any such appeal would be proper, even if it
served any presently useful purpose.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attoiiriey General.
Hurricane Relief Fund (1934) — Restrictions upon Payments — Reimburse-
ment to Department of Public Works for Shore Protection Work Alutting
Private Property.
March 30, 1955.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir : — You have requested my opinion vnih. reference to reim-
bursements to towns and counties and to the Department of Public Works
under St. 1954, c. 689, as amended by St. 1955, c. 46, for the repair of
damage caused by the 1954 hurricanes.
Section 1 of the statute to which you refer pro\4des a fund of twelve
million dollars available for transfer by the Commission on Administra-
tion and Finance, at its discretion, for four specific purposes. Two of the
purposes for which you are authorized to make a transfer of a portion of
this fund are as follows :
" (1) To the director of civil defense such amounts as may be necessary
to provide for reimbursements and other expenses authorized by section
four of this act;
"(3) To reimburse the appropriation accounts" for the fiscal year 1955
of the Department of Public Works, and other departments, "such amounts
as, in the opinion of the commission are necessary and have been expended
therefrom for purposes of disaster relief or repair of hurricane damage. ..."
Section 4 of the act, as amended by St. 1955, c. 46, provides:
"The commonwealth shall reimburse . . . the political subdivisions of
the commonwealth affected by" said hurricanes "annually an amount
equal to their obligations of repayment of any indebtedness incurred"
under St. 1950, c. 639 (which establishes the Civil Defense Agency), or
under G. L. c. 35, § 36A, or c. 44, § 8 (9) ". . . and shall reimburse them
for any expenditures from available funds and from sums raised by taxa-
tion for the purposes authorized" under said St. 1950, c. 639, or under
G. L. c. 44, § 31. (Reimbursement under this section is "subject to the
approval of a" three-man board set up therein, and is limited to reimburse-
ment on account of "indebtedness" incurred or "expenditures" made
"as a result of an emergency created by said hurricanes.")
90 P.D. 12.
Your authority to make reimbursements to towns and counties is estab-
lished by § 1 (1) and by § 4 quoted above. Section 1 (3) spells out your
authority to make reimbursements to the Department of Public Works.
In your letter you state that the Department of Public Works, under
the authority of G. L. c. 91, has performed some shore protection work
abutting private property, and that hurricane damage to such shore pro-
tection work must now be repaired. You also state that in shore locations
where no such protection w^ork had been performed prior to the hurricanes
repairs must also be made because of hurricane damage.
Upon these facts you request an opinion on the following two questions :
"1. In locations where shore protection work abutting private property
had been performed under G. L. c. 91, §§ 11 and 31, prior to August 31,
1954, may the Department of Public Works be reimbursed by the Com-
mission on Administration and Finance under subdivision (3) of section 1
of St. 1954, c. 689, for its share of the cost of repairs of such damage, and
may reimbursement for the town and county shares of the cost be approved
by the Hurricane Relief Board under section 4 of said chapter?
''2. In locations where no such protection work abutting private prop-
erty had been performed prior to August 31, 1954, but where such work
is now essential because of the hurricane, may the same reimbursement
and approval for reimbursement be granted?"
In answering these questions a distinction must be m.ade between the
amount of damage caused by the hurricanes and the cost of repairs to be
made because of such damage. The statute in question gives you no
authority to transfer money on account of the damage caused, but only on
account of the repairs actually made because of hurricane damage. The
Hurricane Relief Fund cannot be used to repay the cost of work performed
prior to the hurricanes. It can be used only to reimburse actual expenses
paid out after the hurricanes in order to repair damage caused by the
hurricanes. And such reimbursement, of course, is limited to the repair
of hurricane damage and cannot be enlarged to include additional and
more extensive construction which it may be advisable to make at the
same time.
There is the additional restriction upon you that the Hurricane Relief
Fund can be disbursed only for the emergency purposes stated in the law.
This restriction as to reimbursement to cities and towns is set forth in
detail in the last paragraph of my opinion to j^ou dated j\larch 18, 1955
(regarding the tpwn of Fairhaven matter).^ There are somewhat similar
restrictions as to reimbursement by you to the Department of Public
Works. See § 1 (3) of the 1954 act. This act permits a transfer in 3'our
"discretion" to the Department of Public Works, in such amounts as your
commission deems "are necessary and have been expended . . . for pur-
poses of disaster relief or repair of hurricane damage." These require-
ments — i.e., "approval," determination of "emergency," a decision in
your "discretion," and the formation of an opinion that certain amounts
are "necessary" for disaster relief or repair of hurricane damage — raise
questions of fact. The facts as to the nature of the repair work which may
be deemed necessary have not been presented to me and, therefore, there
is no question of law upon which I can pass relative to the validity' of
reimbursement within these emergency and restrictive terms of the statute.
1 Page 85 of this Report.
P.D. 12. 91
This problem is one for your determination and decision as a matter of
fact.
Subject to the above distinctions and restrictions, and subject to the
several approvals which are required by the 1954 statute, the answers to
both of your questions, in my opinion, are in the afhrmative. It is imma-
terial that under Question 1 some shore protection work had been done
prior to the hurricanes, and that no such prior work had been done under
Question 2. The only material issue is the cost of repairs made after the
hurricanes and solely beca^use of the damage caused by the hurricanes.
This opinion is limited to shore protection work "abutting" private
property, and it does not cover shore protection work "on" private
property.
Very truly yours,
George Fingold, Attorney General.
Search Warra?its for Records Belonging to Subversive Organizations —
G. L. c. 276, § lA.
April 7, 1955.
His Excellency, Christian A. Herter, Governor of the Commonwealth.
Sir: — You have submitted to me for examination and report enacted
bill numbered House 2617, entitled "An Act providing for the Issuance
of Search Warrants for Books, Eecords and Material belonging to Sub-
versive Organizations." ^
This bill inserts a new section lA in chapter 276 of the General Laws.
This chapter deals generally with, search warrants, and the new section
which it is proposed to insert provides specific authority to the Superior
Court, upon application of the Attorney General or a district attorney,
to issue a search warrant for certain property or articles which are de-
scribed in detail in the sections dealing with subversive organizations, the
Communist Party, and the crime of inciting the overthrow of the Govern-
ment b\' force or violence. G. L. c. 264, §§ 11, 18, and 21. The present
statutes regarding search warrants do not permit a search warrant for the
property' or articles described in these sections. The special commission
on Communism recommended (House No. 2910 of 1954) that the enforce-
ment problems of the statutes against subversive activities, and particu-
larly the issuance of search warrants, be studied and clarified. The bill
which has been presented to you for signature has been formulated by the
Judicial Council wdth care that it does not violate the constitutional pro-
tections against any unauthorized or unreasonable search warrants. 1950
Report of the Judicial Council, pages 23-28. The act provides that it
shall take effect on October 1, 1955.
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.
I Approved by the Governor on April 11, 1955, to become chapter 272 of the Acts of 1955.
92 P.D. 12.
Hospitalization Costs — Rates set hy Commission on Administration and
Finance not Applicable to Uniformed Police of Department of Public
Safety or Metropolitan District Commission.
April 26, 1955.
Hon. Carl A. Sheridan, Commissioner of Administration.
Dear Sir: — You have requested an opinion, in connection wdth the
provisions of G. L. c. 7, § 30Iv, concerning the rates of payment by the
Commonwealth for hospitahzation of members of the uniformed pohce
in the Department of Pubhc Safety and in the Metropolitan District Com-
mission.
Section 30K of chapter 7 of the General Laws was added to our statutes
by St. 1953, c. 636. This section provides in part that the Director of
Hospital Costs and Finances in your department shall determine and shall
certify to you certain information regarding hospital costs, and the statute
then provides that you
*'. . . shall certify annually to each of the various departments, boards
or commissions of the commonwealth purchasing care in such "hospitals,
sanatoria and infirmaries, or reimbursing cities or to\\ms for such care
purchased by them, such rates •with respect to each such hospital, sana-
torium and infirmary as will reflect reasonable hospital costs or charges
made to the general public, whichever is the lower."
The statute then states that
"All departments, boards or commissions of the commonwealth purchas-
ing such service shall pay the rates so certified."
You make inquiry, under the above-quoted statute, with respect to the
amount of payment which can be made by the Department of Public
Safety under G. L. c. 22, § 7A, or by the Metropolitan District Commis-
sion under G. L. c. 92, § 63A, for hospitalization of the uniformed officers
of such departments.
It is provided by c. 22, § 7A, with reference to the Department of Pub-
lic Safety, as follows :
''The commissioner may authorize the payment, out of anj- appro-
priation made for traveling or other expenses of the department, of the
reasonable hospital, medical and surgical expenses incurred by any trainee,
officer or inspector of the department when temporarily or permanently
disabled by reason of injuries sustained through no fault of his own while
actually performing police service, or while in training."
It is provided by c. 92, § 63A, with reference to the Metropolitan Dis-
trict Commission, as follows :
"The commission may authorize the payment, out of the metropolitan
parks or boulevard maintenance funds, of the reasonable hospital, medical
and surgical expenses of any permanent member of its police department
or of any call officer thereof disabled, either mentally or physically, by in-
juries sustained through no fault of his own in the actual performance of
RD. 12. 93
his duty, for useful service in the department either temporarily or per-
manently."
Upon the above statutes and facts j'-ou request an opinion as to the
following two questions:
"1. Does the Commissioner of Administration have the authority, under
St. 1953, c. 636, to set rates for hospitalization of uniformed police in the
Department of Public Safety?
"2. Does the Commissioner of Administration have the authority, un-
der St. 1953, c. 636, to set the rates for hospitaHzation of uniformed police
in the Metropolitan District Commission?"
In my opinion, the answer to each question is in the negative. I do not
believe that the proper interpretation of § 30K, added by St. 1953, c. 636,
includes the hospital services which maj^ be required for the uniformed
police of either the Department of Public Safety or the Metropolitan Dis-
trict Commission. The new statute requires that departments and com-
missions of the Commonwealth ''purchasing such service" shall pay the
hospitalization rates certified by you. The phrase "purchasing such serv-
ice" is not the most appropriate for the kind of payment which is made by
the department and the commission under the statutes cited above. In
c. 22, § 7A, there is authorization to the Commissioner of Public Safety,
in his discretion, to pay reasonable hospital expenses "incurred" by an
officer of his department. This is clear indication that the hospital ex-
penses have been incurred and purchased by the officer, not by the de-
partment. The same interpretation, in my opinion, is required with re-
gard to the discretionary power in the Metropolitan District Commission
to pay hospital expenses "of" any member of its police department. This
kind of reimbursement is not a "purchase" of hospital service by the de-
partment or commission.
An examination of the new § 30K, and of the other statutes adopted at
the same time, gives rise to a definite conclusion that these new statutes
refer to the support of public welfare and other public assistance patients.
In fact, this is the exact title of the statute. This conclusion is reinforced
by an examination of the Report of the Joint Standing Committee on
Public Welfare Sitting in Recess, 1953 House Document No. 2400, which is
the report by which these new acts were proposed and recommended to
the Legislature. The report, the title of the act, and the specific language
of § 30K, lead to the conclusion that hospitalization services paid for by
the Department of Public Safety or the Metropolitan District Commission
under the statutes above cited are not included within the provisions of
§ 30K and are not affected by such pro\'isions.
Because of the above reasons you are informed that, in my opinion, you
have no authority, under G. L. c. 7, § 30K, as added by St. 1953, c. 636,
to set rates for hospitalization of the uniformed police of the Department
of Public Safety or of the Metropolitan District Commission.
Very truly yours,
George Fingold, Attorney General.
94 P.D. 12.
Public Building Construction — Bid Statute — Addition by Awarding
Authority of Addendum to Bid — Authority of Department of Labor and
Industries to Investigate.
April 27, 1955.
Hon. Ernest A. Johnson, Commissioner of Labor and Industries.
Dear Sir: — You have asked this department for an opinion concerning
the award of contract by the city of Cambridge to the Lawrence Plate &
Window Glass Company.
You state that the Lawrence Plate & Window Glass Company contends
that its bid was improper by virtue of the fact that an addendum to the
bid was issued by the city of Cambridge and that such addendum did not
come to the attention of the contractor until after its bid was submitted.
You state further that the city solicitor for the city of Cambridge has
ruled that the bid was complete and unconditional and that therefore the
Lawrence Plate & Window Glass Company should be held to its bid as
submitted. You have asked whether your department has jurisdiction
under G. L. c. 149, § 44E, to investigate the matter as to whether or not
the bid is complete.
Under the aforementioned section 44E of chapter 149 the department
is given authority to enforce and require compliance with the bid statute
relating to the construction of public buildings as embodied in G. L.
c. 149, §§ 44A, through 44D. Section 44C (A) provides in part that —
"Bid forms shall be completely filled in. Bids which are incomplete,
conditional or obscure, or which contain additions not called for, shall be
rejected."
The bid form for general contractors is likewise set out in section 44C,
and it contains a space to be filled in whereby the contractor lists addenda,
by number, on which he has bid.
In accordance with the foregoing, your department has authority to
examine the bid form submitted by the general contractor. Such an
examination should indicate whether the contractor's bid was based upon
the addendum issued by the city of Cambridge. If the form lists the
addendum, then the city of Cambridge was correct in awarding the con-
tract to the Lawrence Plate & Window Glass Company. If the bid form
does not list the addendum, then the form is incomplete and should be
rejected.
Very truly yours,
George Fingold, Attorney General,
By Joseph H. Elcock, Jr.,
Assistant Attorney General.
P.D. 12. 95
Appeals in Certain Criminal Cases — Transcripts of Evidence and Filing of
Appeals — G. L. c. 278, %%33A, 33B.
May 9, 1955.
His Excellenc}^ Christian A. Herter, Governor of the Commonwealth.
Sir : — You have submitted to me for examination and report enacted
bill numbered House 2742, entitled "An Act relative to the Transcripts of
Evidence and the filing of Appeals in Certain Criminal Cases. "^
This bill amends sections 33A and 33B of chapter 278 of the General
Laws which have reference to the preparation of transcripts of evidence
and the fihng of claims of appeals in certain criminal cases. These particular
sections permit claims of appeals in certain criminal cases by means of a
typewritten transcript of the evidence rather than the usual bill of ex-
ceptions. (See §§ 33C, 33E and 33G.) Prior to 1954 the right of an appeal
upon a typewi'itten transcript was limited to cases of murder or manslaugh-
ter, A\ith such a privilege being given in other felony cases only if an order
to that effect was given by a justice of the Superior Court. In 1954 these
two sections were amended (St. 1954, c. 187) to provide that defendants in
all felony cases had such a right, and no order of a justice was required.
The bill which has now been submitted to you for signature again amends
these two sections, retaining the provisions that in every felony case a
transcript wall be available and that it is a matter of right to obtain^a
copy of this transcript and to appeal upon the typewritten transcript in a
murder or manslaughter case, but providing that the privilege of obtaining
such a transcript and of claiming appeal upon the typewritten transcript in
other felony cases could be had only by express order of the court. This
change has been recommended by the Judicial Council. See its report for
1954, contained in 1955 Public Document No. 144, pages 7-9. The reasons
advanced by the Judicial Council for the present recommended change are
that it is unwise to extend this "right" to appeal on a typewTitten trans-
cript to every felony case (it should be limited to murder and manslaughter
and other felony cases in which the court gives permission), and that it is
not fair to force a defendant in every criminal felony case to pay for a
transcript of the whole evidence if he is willing to accept the more in-
expensive procedure of the familiar bill of exceptions. See also a criticism
of the 1954 amendment and a recommendation of the bill which has now
been submitted to you in "A Serious Change in the Method of Review in
Criminal Cases," 39 M.L.Q. No. 2, p. 12 (June, 1954).
The bill before you also makes some changes in phraseology relative to
appeals from interlocutory orders and relative to misdemeanor cases which
are tried with a felony case, but these provisions do not appear to make
any substantive change in the law.
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,
By Lowell S. Nicholson,
Assistant Attorney General.
•Approved by the Governor on May 9, 1955, to become chapter 352 of the Acts of 1955.
96 P.D. 12.
"Firearms" — Definition — 22-Caliher Conversion Unit.
May 10, 1955.
Hon. Otis M. Whitney, Commissioner of Public Safety.
Dear Sir : — You have asked this department for an opinion concern-
ing the appHcation of the law to 22-caUber Conversion Units and the
necessity of a purchase permit for the purchase thereof under the provi-
sions of G. L. c. 140.
A 22-caHber Conversion Unit consists of a shde containing a firing pin
and a firing pin spring, a 22-canber barrel, a barrel lock and slide lock, a
recoil spring and barrel bushing.
A 22-caliber Conversion Unit as sold over the counter does not contain
the necessary mechanism for firing a shot and, in my opinion, does not
come within the definition of a firearm found in G. L. c. 140, § 121, which
I quote:
". . .'firearms' includes a pistol, revolver or other weapon of any de-
scription loaded or unloaded, from which a shot or bullet can be discharged
and of which the length of barrel, not including any revolving, detachable
or magazine breech, is less than eighteen inches, and a machine gun, irre-
spective of the length of the barrel. ..."
Very truly yours,
George Fingold, Attorney General,
By James F. Mahan,
Assistant Attorney General.
Service of Process on Non-residents doing Business in Commonwealth — ■
G. L. c. 221, ■§ 5.
May 12, 1955.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir : — You have submitted to me for examination and report enacted
bill numbered House 834, entitled "An Act relative to the Service of Process
on Certain Non-Residents doing Business in this Commonwealth. " ^
This bill amends chapter 227 of the General Laws, which chapter relates
to judicial proceedings against persons not inhabitants of the Common-
wealth who do business here. The bill amends section 5 of that chapter
which section provides that such non-residents, before they carry on busi-
ness here, shall appoint an agent in the Commonwealth upon whom legal
process can be served. At the present time this section 5 provides that if
an individual or partner refuses to appoint such an agent upon whom
process can be served, such person "shall forfeit ten dollars, to the use
of the commonwealth, for each day during which such person has so
acted." The bill which has been presented to you for signature strikes
out this sentence regarding forfeiture of ten dollars and inserts in place
thereof the provision that if a person or partner fails to appoint an agent
as required by this section and thereafter does business in this Common-
wealth, in such case "service of process may be made upon the state
'Approved by the Governor on May 13, 19r)5, to become chapter 360 of the Acts of 1955.
P.D. 12. 97
secretary. " That is, instead of providing a penalty for failure to appoint
an agent for service of process, the new bill supplies an agent in the per-
son of the State Secretary upon whom process can be served as it could
have been served upon an appointed agent. Such a provision has been
held constitutional. Hess v. Pawloski, 274 U. S. 352. There are other
similar provisions in our Massachusetts statutes which have been on the
books for a great many years. For example, see G. L. c. 90, § 3A; c. 181,
§ 3A; c. 227, § 5A.
The bill appears to be in proper form, and if enacted into law would,
in my opinion, be constitutional.
Very truly yours,
George Fingold, Attorneij General,
By Lowell S. Nicholson,
Assistant Attorney General.
Special Commission to Investigate Subversive Activities — Reporting Names
of Individuals.
May 13, 1955.
His Excellency Christl\n A. Herter, Governc r of the Commonwealth.
Sir : — You have submitted to me for examination and report resolve
entitled "Resolve reviving and continuing and increasing the Scope of the
Special Commission established to study and investigate Communism and
Subversive Acti\'ities and Related Matters in the Commonwealth. " '
This resolve revives and continues the special commission which is
studying Communism. This commission was established by chapter 89
of the Pi.esolves of 1953, approved July 2, 1953. That resolve directed
that the commission file its final report not later than June 30, 1954. The
special commission was revived and continued in 1954 by chapter 123 of
the Resolves of 1954, approved June 10, 1954. The 1954 resolve called
for a final report not later than May 15, 1955. The resolve which has
now been submitted to you for signature continues the substance of these
two previous resolves, and calls for a final report not later than February
1, 1956.
All three resolves call for an investigation and study —
"of the extent, character and objects of communism and subversive activi-
ties and related matters within the commonwealth; the diffusion within
the commonwealth of subversive and un-American propaganda that is
instigated from foreign countries, or of a domestic origin, and attacks the
principle of the form of government as guaranteed by our constitution
and all other questions in relation thereto that would aid the general court
in enacting any necessary remedial legislation."
The only change made in the resolve which has now been presented to
you is the inclusion of a provision that "said commission shall, in the course
of its investigation and study, consider the subject matter" of the four
current House documents numbered 140, 459, 1571 and 1802, each one
of which relates to the general problems being studied by this special
'Approved by the Governor on May 13, 1955, to become chapter 52 of the Resolves of 1955.
98 P.D. 12.
commission. Except for this reference to these four current House docu-
ments, and except for the date when the final report is due, the resolve
now before you is identical with the resolve approved in 1954.
Both the 1954 resolve and the one which is now before you contain the
following provision :
"Such report shall include the name and all other identifying data
available to the commission, of any individual, concerning whom, the
commission, during the course of the investigation, has received creditable
evidence that such individual was or is a member of the communist party,
a communist or a subversive."
The power and the propriety of a study by the Legislature through a
special commission such as the present cannot be questioned. In the case
of Attorney General v. Brissenden, 271 Mass. 172, the Supreme Judicial
Court stated, at page 177, as follows:
"In the performance of its legislative functions manifestly the General
Court may find it needful to acquire information not possessed by its
individual members. Investigations of various subjects by legislative
committees are often made to the end that facts relating to the enactment
of proposed, or the amendment of existing, statutes may be ascertained
and presented in available form for the enlightenment of members of the
General Court as a basis for legislation. This method of procedure has
been so common as not to require the citation of illustrations. "
The question of the identity of individuals who believe in Communism
was discussed by the United States Court of Appeals for the District of
Columbia, in the matter of Barsky v. United States, 167 F.2d 241 (cer-
tiorari denied, 334 U. S. 843). That case involved House Resolution
No. 5 of the 79th Congress which related to an investigation of subversive
and un-American propaganda. The court, at page 246, stated as follows:
"If Congress has power to inquire into the subjects of Communism
and the Communist Party, it has power to identify the individuals who
believe in Communism and those who belong to the party. The nature
and scope of the program and activities depend in large measure upon
the character and number of their adherents. Personnel is part of the
subject."
A New Hampshire legislative resolution, very similar to the one now
before you, was held constitutional in Nelson v. Wyman, 99 N. H. 33, 37
(1954).
The resolve appears to be in proper form, and if approved by you
would, in my opinion, be constitutional.
Very truly yours,
George Fingold, Attorney General.
Special Legislative Commission — Tim£ at which Commission Ceases to
Exist — Certification of Bills for Payment after Expiration of Commission.
May 17, 1955.
Mr. Fred A. Moncewicz, Comptroller.
Dear Sir: — You have asked my opniion regarding payment of the
expenses of a special commission under the circumstances referred to in
P.D. 12. 99
your letter. I note your statement that the Legislature annually by re-
solves establishes special commissions to make studies and investigations,
and provides for their filing a final report by a certain date. Appropriar-
tions generally are made separately for the purposes of such special com-
missions. You further state that after filing their final report or after
their expiration, whether or not their work is completed, members of such
special commissions occasionally certify to your bureau for payment bills
which were incurred before the fifing of their final report or before the ex-
piration of their special commission.
In this Commonwealth a special commission is established by a resolve
passed by both houses of the Legislature and approved by the Governor.
The resolve is in effect a statute. Cabot v. Corcoran, 332 Mass. 44, 46 (De-
cember 16, 1954). The resolve specifies the number of members of the
special commission and the persons who appoint these members. Such
special commission is directed to make a study and investigation of a cer-
tain designated matter. The special commission, under the usual resolve,
is authorized to "expend for expenses and clerical and other assistance
such sums as may be appropriated therefor." The sum which can thus
be expended is usually fixed by an item in the supplementary appropria-
tion act. The special commission is also directed by the resolve to "re-
port to the general court the results of said study and investigation, to-
gether \\4th recommendations, if any, and drafts of legislation necessary to
carry such recommendations into effect, by filing the same with the clerk
of the senate (or of the house) on or before the last Wednesday of De-
cember in the current year" (or at some other specified time).
The life and authority of a special commission continues until the date
set forth in the resolve for the fifing of its final report or until the date it
actually files its final report, whichever date occurs first. In each of these
instances the special commission ceases to exist and its authority to go
forward in the matters referred to it is completely dissolved at such date.
Cahot V. Corcoran, supra, pages 46-48. This is the practice which has been
accepted and followed for many years. Upon the adoption of a legislative
order authorizing the filing of the final report at a date later than the date
for filing set forth in the original resolve the only authority remaining in
the commission is that which relates to the filing of its final report.
Upon these facts and principles you make the f ollo^^'ing request :
"Your opinion is respectfully requested as to whether members of a
special commission which has expired can subsequently, after the expira-
tion date of such commission, certify for payment under their signatures
invoices covering expenses incurred prior to the expiration date of such
commission."
The answer to your question, in my opinion, is in the affirmative, but
subject to three obvious qualifications. These qualifications are (1) that
the expenses must have been reasonable and proper in connection with
the work of the special commission, (2) that the authority to make and
incur such expenses must have been exercised by a proper act of the special
commission prior to the expiration of the life of the special commission,
and (3) that money is available for the payment of such expenses of such
special commission.
The fact that certification is made by members of the special commission
after the date of the filing of the final report does not prevent payment of
such expenses. The crucial test is whether the commission had the power
100 P.D. 12.
to spend the money at the time such expenditure was authorized. The
date of certification is subsidiary and incidental. The purpose of certifi-
cation is to give assurance or proof to the Comptroller that the expenses
were within the scope of the resolve and were authorized by the commis-
sion and that they are proper. The commission is not spending money by
its certification. This is a mere bookkeeping matter. It amounts to an
affidavit "made by the person authorized to incur such obligation" which
may be required by the Comptroller under G. L. c. 7, § 13. Certification
might be delayed because of illness, absence from the Commonwealth, or
on account of other sufficient reasons. For the purpose of such certifica-
tion the members of the special commission may act and sign the necessary
invoice after the date of the filing of the final report by the special com-
mission.
Nor does G. L. c. 29, § 20, prevent payment of such expenses. That
section calls for an appropriation which has been "authorized and ap-
proved " by the head of the commission. One of the qualifications to my
affirmative answer to your question is that the incurring of the expenses
certified to you had been authorized and approved by a majority of the
members of the special commission while they had power to give such
authorization. It is my opinion that such prior authorization and ap-
proval furnishes compliance with the provision to which you refer. Cer-
tification to you at a later time made by a majority of the members of the
special commission and payment upon the authority thereof do not con-
stitute a violation of the provisions of this section.
The claim of a person who has furnished a service or act or material to
such a special commission, if based upon an authorized request of the
special commission, is a claim under a valid contract authorized by the
Commonwealth. There is nothing in the situation outlined above which
prevents payment of such a claim.
This conclusion is in accord with the opinion of Attorney General
J. Weston Allen, dated January 8, 1921, reported in VI Op. Atty. Gen. 8.
Very truly yours,
George Fingold, Attorney General.
Commonwealth not Bound by Usual License Requirements — Storage of
Explosives, Blasting Bond, etc.
May 25, 1955.
Hon. Otis M. Whitney, Commissioner of Public Safety.
Dear Sir: — You have inquired whether the provisions of G. L. c. 148,
§ 13, relative to the granting, by local licensing authorities, of licenses for
the keeping, storage, manufacture or sale of explosives and inflammable
materials, require the Commonwealth itself to apply for such a license for
premises owned by it Avithin a particular municipality.
The answer to this question is in the negative. "There is a well-settled
presumption of law that such an exercise of the police power by the Legis-
lature does not apply to property of the Commonwealth, unless the Legis-
lature has clearly manifested an intent that it should do so." Attorney
General's Report, 1941, p. 118 (hot water tank requirements). "It is a
general principle of law that statutes are not to be interpreted as impos-
ing burdens on the sovereign, the Commonwealth, unless a clear legisla-
P.D. 12. 101
tive intent that they should do so is apparent," ibid, 1942, p. 88 (land
takings by county commissioners). See, also I Op. A.G. 290, 297 (local
board of health cannot regulate plumbing and drainage facilities within
State Reformatory) ; II ibid. 56 (MetropoUtan Park Commission need not
obtain local building permit) ; II ibid. 300 (Boston building commissioner
has no jurisdiction over State House elevators); IV ibid. 537 (no local
amusement license necessaiy for entertainment in armory); Attorney
General's Report, 1932, p. 86 (no local plumbing and wiring licenses re-
quired for State-owned buildings); ibid. 1933, p. 38 (no license required
for inmate of state prison colony assigned to operation of steam shovel);
ibid. 1933, p. 47 (no local amusement license necessary for entertainment
in armory); ibid. 1933, p. 65 (no approval by county commissioners re-
quired for construction of a dam in a State forest) ; ibid. 1934, p. 75 (plumb-
ing at Reformatory for Women not subject to local inspection; ibid. 1935,
p. 38 (State-owned buildings not subject to general laws relating to the
licensi]ig of plumbers); ibid. 1939, p. 42 (national giaard need not obtain
local permit to maintain fires on State land used for military purposes).
You inquire, further, whether the Commonwealth itself is bound by
such rules and regulations as may be promulgated by the Board of Fire
Prevention Regulations under §§ 9 and 10 of said chapter 148. This ques-
tion, like your first, and for the same reasons, must have a negative answer.
You inquire, further, as to the Commonwealth's obligation to file a
blasting bond under the provisions of § 19 of chapter 148. The answer to
this question, also, is in the negative, not only upon the basis of the au-
thorities referred to above, but also because the Commonwealth, in the
absence of specific legislation imposing such liability upon it, would not
be ci\'illy responsible for damage caused by blasting carried on upon
State-owned land, Burroughs v. Commonwealth, 224 Mass. 28, and there-
fore cannot be expected to bond itself against such liability.
You inquire, also, as to whether sections 9, 10, 13 and 19 apply to private
contractors doing work for the Commonwealth upon State-owned land.
The answers to these questions are likeTvise in the negative. A private
contractor acting for the Commonwealth, and in accordance with the pro-
visions of a contract between them, is no more required to secure local
permits or be subject to local regulation than is his principal, the Common-
M^ealth. Teasdale v. Newell, etc. Construction Co., 192 Mass. 440. However,
it is competent for the Commonwealth, in its contract with such a person,
to provide that he shall comply with all State and local laws, rules and
regulations in any way affecting the work to be done; for example, such
a provision is one of the Standard Specifications for Highways and Bridges
promulgated by the Department of Public Works (Article 43).
Your remaining questions relate to the applicability of the foregoing
statutes to counties and municipalities. I do not see that your depart-
ment has any direct official interest i)i these questions, and therefore will
refrain from commenting upon them.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
102 P.D. 12.
Teacher's Certificate — Requirement of "Bachelor's Degree" — Statutory
Construction — Specific Requirement does not Mean ''or its Equiva-
lent. "
May 31, 1955.
John J, Desmond, Jr., Commissioner of Education.
Dear Sir: — You have recently requested an opinion from the At-
torney General with reference to certain requirements relative to standards
of certification of teachers.
Section 38G of chapter 71 of the General Laws, added by St. 1951,
c. 278, and amended by St. 1952, c. 530, and St. 1953, c. 264, provides
that the Board of Education shall grant certificates to teachers and others
who furnish the board with satisfactory proof that they, among other
things, " (4) possess a bachelor's degree or are graduates of a normal school
approved by the board. "
In connection with this requirement you request an opinion on the
following two questions :
"1. Does the requirement 'possess a bachelor's degree' confine the in-
terpretation to a degree so designated or may the Board of Education
accept as this requirement a master's degree from an apphcant who does
not possess a bachelor's degree? The master's degree is a degree more
advanced than the bachelor's degree.
"2. May the Board of Education accept the degree 'M.D.', Doctor of
Medicine, from an applicant who does not possess a bachelor's degree?"
The statute expresses a clear requirement that an apphcant for certifica-
tion, who is not a graduate of an approved normal school, must "possess
a bachelor's degree." As to each of the applicants you mention you state
that he "does not possess a bachelor's degree." However, one applicant
possesses a master's degree and the other possesses a doctor's degree. Do
these advance degrees meet the requirement of G. L. c. 71, § 38G, for a
"bachelor's degree"? In my opinion, they do not.
If the Legislature had required "a bachelor's degree or its equivalent,"
or "a bachelor's degree or more," or "at least a bachelor's degree," these
advance degrees probably would be acceptable. But the Legislature did
not use such words. The Legislature has set forth a clear and simple and
reasonable test. To insert other words, where the Legislature did not use
them, would be to draft a different test. Statutes must be accepted and
interpreted as they are written. All words must be considered and given
some meaning. New words cannot be added.
The requirement of a "bachelor's degree" does not mean a "bachelor's
degree or its equivalent." The words "or its equivalent" have not been
used by the Legislature. Where the Massachusetts Legislature has meant
a particular degree or its equivalent it Has so stated. For a physician's
license the requirement is "the degree of doctor of medicine, or its equiva-
lent." G. L, c. 112, § 2. For a veterinarian's Hcense the requirement is
"the degree of doctor of veterinary medicine or its equivalent." id. § 55.
In our statute for teachers' certificates the Legislature specified a "bache-
lor's degree" or graduation from an approved normal school. The Legis-
lature has thus permitted one modification of its requirement of a bache-
lor's degree. Further modification should be made only by the Legislature,
not by executive interpretation. If the words "or its equivalent" M-ere
RD. 12. 103
to be added by interpretation, what should be deemed to be equivalent,
and who should make that determination? Such addition would change
a simple and exact test to an uncertain and changing fact-finding function
by some board, subject always to court review. The stated requirement of
a "bachelor's degree" is reasonable. There is no doubt as to what the
statute means. It should not be broadened by interpretation.
These same reasons forbid an interpretation of ''bachelor's degree"
which would make it read "at least a bachelor's degree" or "a bachelor's
degree or more. "
Furthermore, if an applicant has an advance degree why did he fail to
obtain the usual bachelor's degree? Was there something lacking or
abnormal in the character or extent or quality of his previous education?
Is the so called advance degree not one in fact? These uncertain factual
problems do not arise when the requirement of a "bachelor's degree" is
applied according to the simple and clear language used by the Legis-
lature. If an applicant for certification has the qualifications for a "bache-
lor's degree, " let him obtain it. If he is not so qualified, then the judgment
of the Legislature in forbidding a certificate to such a person seems justified.
This requirement mil cause no hardships to any city or town because in
hardship cases an exemption can be given. See last paragraph of the
section in question.
My conclusion that the phrase "bachelor's degree" should not be ex-
tended beyond its exact words is confirmed by a study of the legislative
history of this statute. When the matter originally came up in 1951 the
Legislature had before it several bills among which was one (H. 249)
which required merely that the applicant be "a graduate of a college,
normal school, or other teacher-preparation institution approved by the
department." The Legislature, instead of adopting the provision that an
applicant be " a graduate of a college, normal school, or other teacher-
preparation institution approved by the department," dropped the refer-
ence to "other teacher-preparation institution," included a graduate
of an approved normal school, and provided that instead of including
college graduates generally the test would be the possession of a " bache-
or's degree." This history is confirmatory evidence that the Legislature
intended what is technically known as a "bachelor's degree" and that
nothing else, even an equivalent or better, will suffice.
After examination of this matter, it is my opinion that the ruhng must
be that a "bachelor's degree" is required, and that neither a master's
degree nor a doctor's degree can be accepted in heu of the technical
"bachelor's degree."
You also request an interpretation of the clause in St. 1951, c. 278,
§ 2, which states that this act "shall not apply to persons employed or
formerly employed by Massachusetts school committees on the effective
date of this act." As to this matter you request an opinion on the follow-
ing question :
"3. May the phrase imply employment or former employment only as
'teachers, principals, supervisors, directors, superintendents and assistant
superintendents of schools' as specified in the first paragraph of section
38G; or does the phrase mean employment in any capacity or work?"
In my opinion this paragraph preventing the application of the act to
"persons employed or formerly employed" is a protection only to a person
employed or formerly employed as a teacher, principal, supervisor, di-
104 P.D. 12.
rector, superintendent or assistant superintendent of schools. Each of
the six separate bills which were considered by the 1951 Legislature con-
tained a provision protecting present employees. Three of these bills
(H. 50, H. 253, H. 737) described this protection in such a w^ay as clearly
and specifically to refer only to persons employed as teachers and the Hke.
The phrasing finally adopted, to protect "persons employed or formerly
employed by Massachusetts school committees," though much shorter in
form, does not necessarily indicate an extension of this protection to per-
sons not teachers. In my opinion it would be an unreasonable interpreta-
tion to say that a person formerly employed in any capacity, for example,
as a fireman or janitor, would not be required to obtain certification in
order to be quaUfied for a teaching position. The legislative history of
this part of the law is entirely consistent with an interpretation hmiting
the application of this protective provision to persons having been em-
ployed as teachers or the hke. In my opinion this is the correct interpre-
tation.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
Retirement — Member of General Court — Right of Widow of Legislator to
Death Benefit notwithstanding 1952 Repeal — Statutory Construction.
June 14, 1955.
State Board of Retirement.
Gentlemen : — You have requested an opinion concerning the right of
a widow of a former member of the General Court to receive the acci-
dental death benefit provided by G. L. c. 32, § 9, notwithstanding the re-
peal of legislators' pensions by St. 1952, c. 634,
You report that the facts are as follows:
In 1952 the widow of a State senator and member of the General Court,
who had attained membership in the State Employees' Retirement Sys-
tem, was granted an accidental death benefit by this Board on account of
the accidental death of her husband. The accidental death benefit was
paid to the wddow beginning April 24, 1952, the date of her husband's
death, through September 15, 1952. Chapter 634 of the Acts of 1952,
approved September 16, 1952, in the opinion of this Board, canceled the
pension payable to the widow. Section 8 of this chapter reads that no
member or former member of the General Court or present or former
elected constitutional officer shall receive any pension or retirement allow-
ance for his services performed in discharging the duties of the office to
which he was elected; nor shall the term or terms served by such person
in the General Court or in any such State office be computed as creditable
service in any retirement system in which such person may be a member.
The widow contends that chapter 634 does not cancel out the pension
payable to her as approved by the State Board of Retirement, and she
P.D. 12. 105
further claims that she has a vested right as the widow of a former senator
who died as a result of injuries incurred in the performance of his duties.
I assume, from the fact that in 1952 you granted an accidental death
benefit to the widow, that the facts in the present case met all of the tests
and requirements of G. L. c. 32, § 9. Accordingly, the only question which
is presented for inquiry now is whether or not St. 1952, c. 634, deprived
the widow of her right to continue to receive such accidental death benefit.
The first seven sections of St. 1952, c. 634, repeal certain specific provi-
sions of law. None of these repealed provisions relates in any way to the
accidental death benefit under c. 32, § 9. Therefore, if the widow has
lost her right to continue to receive the accidental death benefit, it is be-
cause of the general prohibition of § 8 of c. 634. This section reads as
follows :
"No member or former member of the general court or present or
former elected constitutional officer shall receive any pension or retirement
allowance for his services performed as a member of the general court or
for ser\ices performed in discharging the duties of the office to which he
was elected; nor shall the term or terms served by such person in the
general court or in such state office be computed as creditable service in
any retirement system in which such person may be a member."
The answer to the question presented by you depends upon whether
the above § 8 means only that "no member or former member of the
general court . . . shall receive any pension," or whether, on the other
hand, it forbids payment of any kind which is in any way based upon the
service of a member of the General Court or which exists because a person
was such a member.
It is clear that § 8, hterally, provides only that "no member or former
member of the general court . . . shall receive any pension." There is
no express repeal of c. 32, § 9, nor of any part thereof. There is no express
suggestion that payment of an accidental death benefit to the widow of a
former member would be a violation of the prohibition that no "former
member . . . shall receive" any payment. Nor is there any express
prohibition of payment to a person other than a former member of a
pension which, in a sense, derives its validity through such a former mem-
ber. The question, then, is whether such implied prohibitions or implied
partial repeal of c. 32, § 9, are required by the terms of St. 1952, c. 634,
§ 8, which is quoted above.
For several reasons, it is my opinion that § 8 does not prevent pa3nnent
of the accidental death benefit under c. 32, § 9, to the widow of a former
member of the General Court. The first reason for this conclusion is, of
course, the fact that the statute does not so provide. If a contrary con-
clusion is to be drawn from the repeal provisions of § 8 such conclusion
can be supported only by an imphcation deduced from the words actually
used. A right to an accidental death benefit is clearly established by c. 32,
§ 9, even as to the widow of a former member of the General Court. That
right is not expressly taken away by section 8. Has the right been taken
away by implication? Such an implied deprivation of right is not favored
by law. "As there is no express repeal, it is contended that there is a
repeal by imphcation. Such repeals have never been favored by our law.
Unless the prior statute is so repugnant to and inconsistent with the later
enactment that both cannot stand, then the former is not deemed to have
106 P.D. 12.
been repealed." Comnwmvealth v. Bloomberg, 302 Mass. 349, 352. In
my opinion, there is no implied repeal in the situation you present because
the continuance of a right in the widow of a former member of the General
Court to receive an accidental death benefit is not necessarily inconsistent
with a prohibition on the member himself, while hving, to receive a retire-
ment allowance.
Furthermore, the Legislature could have covered this situation specifi-
cally, but it failed to do so. If the Legislature had stated, not only that
" no member or former member of the general court . . . shall receive any
pension," but also that no beneficiary or dependent of such member
should receive any payment based upon the service or the position of
such member, the answer would be clear. Where the Legislature failed to
include words to this effect, we should not add such words. "Statutes
must be interpreted as enacted. Omissions cannot be supplied ..."
Morse v. Boston, 253 Mass. 247, 252. The repealing provisions of § 8 must
be accepted and interpreted exactly as they are. Even though it were
believed that a widow should be deprived of the continuance of such acci-
dental death benefit we cannot cure the omission of such a pro\dsion by
interpretation. "Whether that omission was by intention or by oversight
we cannot know. We can only interpret according to the common and
approved usage of the language the words of the statute vvithout enlarge-
ment or restriction and without regard to our own ideas of expediency. "
See V. Building Corn'r of Springfield, 246 Mass. 340, 343. "We cannot
supply a casus omissus. We can only interpret the law as it was promul-
gated ..." Arruda v. Director General of Railroads, 251 Mass. 255, 263.
The intention of the Legislature is shown by the words used. The words
clearly do not take away the widow's right.
Finally, there is nothing inherently unreasonable or illogical in continu-
ing an accidental death benefit to the widow of a deceased former member
of the Genera] Court and at the same time forbidding a pension or retire-
ment allowance to a hving former member. The one is based upon acci-
dental death of a former member in fine of duty; the other exists only
during the life of a member after he has completed his services as a mem-
ber of the General Court. The one belongs to the widow ; the other belongs
to the member while alive. The right of the widow is different from the
right of the member while hving. In commenting upon the right given
by the Workmen's Compensation Act (St. 1911, c. 751, Part II, § 6) to/
the widow upon the death of the workman, our court, in Cripp's Case,
216 Mass. 586, 589, stated: "The right of recovery expressly given to
his widow cannot accrue until his death. Having been created for her
benefit, it is independent of his control, and under § 22 can be discharged
only by herself where she is the sole dependent, or by those authorized to
act in her behalf."
I do not express any opinion as to whether or not the widow's right to the
accidental death benefit under G. L. c. 32, § 9, is a vested or a contractual
right which cannot be taken away by the Legislature. This question,
whether the rights created by §§ 1-28 of c. 32 are made contractual rights
by § 25 (4) and (5), has not yet been decided by the Supreme Judicial
Court. Kinney v. Contributory Betirement Appeal Board, 330 Mass. 302,
at 307. The question considered in the present case is whether, assuming
that it has the power to take away the rights created by § 9, the Legislature
has done so. For the reasons set forth above, in my opinion, the Legisla-
ture has not annulled or repealed these rights. Therefore, the ans\s'er to
P.D. 12. 107
your question is that the accidental death benefit granted by you in 1952
to the widow of a former member of the General Court is still a valid
right notwithstanding the repeal provisions of St. 1952, c. 634.
Very truly yours,
George Fingold, Attorney General.
Conditional Sales of Personal Property — Payment before Maturity —
G. L. c. 255, % 12A — Statutory Construction.
June 16, 1955.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir : — You have submitted to me for examination and report enacted
bill numbered House 2894, entitled "An Act relative to the Prepayment
of Contracts of Conditional Sale of Personal Property."^
This bill adds new section 12A to chapter 255 of the General Laws.
This chapter deals generally with mortgages, conditional sales and pledges.
The new section, which is being inserted by the bill awaiting your signa-
ture, gives to the vendee under a conditional sale contract and to the
mortgagor of a chattel mortgage the right to pay off the obligation before
maturity. The bill applies only to conditional sales and chattel mortgages
which cover "a sale of personal property for any use other than a com-
mercial or business use (but including all passenger motor vehicles)."
Many such contracts provide for specfiic dates of payment or of maturity
without the pri\ilege of prepayment. This proposed bill provides that
every such conditional sale contract or chattel mortgage, to the extent
covered by the bill, shall be subject to the right of prepayment. The bill
also provides that, in case of such prepayment, a credit shall be given to
the debtor for such anticipation of payments. The amount of this credit
is established by a formula which is described in the bill.
It is clear that as to contracts entered into after this law takes effect its
provisions are constitutional. But to apply the right of anticipation of
payments to a contract now existing, in violation of or in addition to the
provisions of such contract, would be unconstitutional in that it would
violate Article 1, Section 10 of the Constitution of the United States for-
bidding any State to pass a law impairing the obligation of contracts.
However, under accepted canons for the interpretation of statutes, that
interpretation will be adopted which will make the statute constitutional,
and the interpretation which will make it unconstitutional will be avoided
if that is possible. This rule is applied in many instances by declaring
that a statute has only prospective operation, and is not retroactive. Our
court, in Price v. Railway Ex-press Agency, Inc., 322 Mass. 476, 483-4,
stated :
"Statutes dealing with substantive rights are commonly to be construed
to deal only with transactions occurring after their enactment unless the
legislative intent that thej'- should be applied to past transactions is clearly
expressed. ... To give to § 2 A the interpretation that ... [it is retro-
active in effect] would lead to serious constitutional questions. . . .
Statutes are to be construed, if reasonably possible, to avoid constitu-
tional objections."
1 Approved by the Governor on June 20, 1955, to become chapter 455 of the Acts of 1955.
108 P.D. 12.
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,
By Lowell S. Nicholson,
Assistant Attorney General.
Public Highways ■ — Use of Highway Funds for Research — Federal Grant
— Payment of Grant other than to Treasurer.
June 16, 1955.
Hon. John A. Volpe, Commissioner of Public Works.
Dear Sir: — You have requested an opinion relative to use of Federal
Highway Aid money for research purposes.
You submit the following statement of facts :
The Federal Highway Aid apportionment available to Massachusetts
for the fiscal year beginning in 1956 amounts to $16,356,341. Of this
total, under the provisions of Federal law, 13^% must be devoted to plan-
ning and research in connection with highway construction and main-
tenance. This 13^% amounts to $245,345. The Federal Government,
through its Bureau of Pubhc Roads, and with the co-operation of all the
States, and also aided by the automotive industry, is planning to conduct
a cooperative road testing project in the State of Bhnois. The State of
Illinois will pay for all permanent features of the road such as location,
right of way, structures, etc. The money contributed by the Federal Gov-
ernment and by the automotive industry and by the other States will be
spent for special research aspects in connection with construction and oper-
ation and engineering. The results of the entire test will be fully available
to Massachusetts, as well as to the Federal Government and to all other
States.
The share of Massachusetts for this road test, including similar but
very minor tests designated as the "One-Md." and "Washo" tests, will
be $87,652. Incidentally, the deduction of this contribution for this
special research project will leave a balance available to Massachusetts
for its own special planning and research in the amount of $157,693, which
sum is a net increase to Massachusetts, after this special contribution, of
$4,322 in excess of our gross apportionment for planning and research
under the 1952 Federal Aid Act.
You have requested an opinion of this department in connection with
two questions presented by the above state of facts. The first question
is whether or not the Commonwealth is authorized to spend money for
such a research project.
In my opinion, the answer to this question is in the affirmative. The
Commonwealth is authorized to spend money available for highway pur-
poses for planning and research in connection with construction and main-
tenance of highways. The restrictions upon the use of the highway fund
permit use of highway fund money for planning and necessary research.
Mass. Const. Amend. LXXVIII. G. L. c. 90, §34. Money obtainedby
highway bond issues may also be used for such planning and research
purposes. See, for example, St. 1954, c. 403, §§ 1 and 9. You advise us
P.D. 12. 109
that it has been a current and extended practice of the Department of
Public Works to expend money appropriated for highway purposes for
planning and research, and that this plan has been specifically approved
by the language of legislative appropriation items. See, for example,
Item 2900-38 in the general appropriations act of 1954, St. 1954, c. 453,
p. 358. In fact, you inform me it has been the practice of the Department
of PubUc Works to pay $2700 annually to the Highway Research Board
for Massachusetts' share of the operation of such agency. This is the same
agency which will carry on the road test in Illinois.
It is not only reasonable but it is necessary to spend money for planning
and research in connection with the construction and maintenance of
highways. Our statutes contain authority for such expenditures. We
have a history of spending money for such research. For these reasons,
in my opinion, the Department of Public Works is authorized to spend
money for the planning and research project described in the facts which
you have submitted to us.
You also request an opinion as to the validity of the method which has
been suggested by the Federal Government for meeting our share of the
costs of the road test in IlUnois. This method, as reported by you, is as
follows :
There is now in the hands of the Federal Government the sum of $245,345
available to Massachusetts for research. This sum of money is held sub-
ject to payment for the account of Massachusetts as a reimbursement on
account of actual expenditures by Massachusetts for highway purposes,
and also subject to the restriction that this money can be used only for
planning and research. The method which has been recommended to us
b}^ the Federal Government for use of a portion of this money (S87,652, our
share of these various road test projects) is that, instead of Massachusetts
using and disbursing mone}'' now in our own treasury, and then requesting
reimbursement from the Federal Government, we authorize the Federal
Government to transfer the amount of our allotment for this research
project from the Federal Aid Highway funds now available to us for such
purposes direct from the Federal Government to the Highway Research
Board. There are numerous advantages to this method. The principal
advantage is that if we adopt this method the entire contribution of
Massachusetts for this road test project, the full $87,652, will be covered
bj'' Federal funds without the use of an equal amount of State funds to
match. On the other hand, if the ordinary method of financial transaction
is followed, that is, an initial expenditure by us from our own funds, fol-
lowed by a reimbursement from the Federal Government, we will receive
reimbursement only in the amount of half of the money disbursed by us.
That is, under the usual method of financing, our allotment in the Illinois
test road project will be covered by the use of $87,652 of Massachusetts
funds, on account of which we will be reimbursed by the Federal Govern-
ment only to the extent of $43,826. It will be seen that the adoption of
the method suggested by the Federal Bureau of Roads will result in a net
saving to Massachusetts of $43,826.
Ordinarily, money belonging to the Commonwealth is deposited by the
Treasurer in one of our general or special funds, and when the money is
spent it is disbursed by check of the Treasurer. However, I can see no
legal obstacle to the adoption of the different method which has been
suggested by the Federal Bureau of Roads. I have made a careful exami-
110 P.D. 12.
nation of the statutes relating to our acceptance and use of Federal aid
money for highway purposes, and I can find no statute which prohibits
your adoption of the method which has been suggested by the Federal
Government and which is being acted upon by other States. The general
statute contained in G. L. c. 81, § 30, specifies that the Department of
Public Works "may make all contracts and agreements and do all other
things necessary to co-operate with the United States in the construction
and maintenance of highways, under an act of congress approved on July
eleventh, nineteen hundred and sixteen, entitled 'An Act to provide that
the United States shall aid the states in the construction of rural post
roads, and for other purposes,' as amended and supplemented." The
money which is available to Massachusetts in the fiscal year 1956 is avail-
able to us under the Federal act of 1954 which is an amendment of the
act of 1916 cited in the Massachusetts statute just quoted. This statute
also provides that the Department of Public Works "may make any
agreements or contracts that may be required to secure federal aid in the
construction of highways under the provisions of the act of congress afore-
said, and of all other acts in amendment thereof, or in addition thereto."
There is no statute which I can find which states that the Common-
wealth of Massachusetts, or our Department of Public Works, cannot
make such an agreement with the National Bureau of Roads. Such an
agreement is not forbidden by the provisions of the bond issue of 1954
(St. 1954, c. 403) in which it is provided that the Department of Public
Works "shall accept any federal funds available for such projects, and
such federal funds when received shall be credited to the Highway Fund. "
This does not purport to mean that every dollar of Federal funds for high-
way aid must be received under this particular act adopted in 1954.
The language is limited to "such federal funds" which are available for
the specific highvfay projects covered by the 1954 highway bond issue.
Of course, there are many other highway projects nov/ going foi-ward and
contemplated for the future in this Commonwealth. In fact, these identical
words appear in the three preceding highwaj^ bond issue statutes. See
St. 1949, c. 306; St. 1950, c. 685; St. 1952, c. 556. It is physically im-
possible to devote all Federal funds received to each of these bond issue
acts. Therefore, each bond issue must refer only to the Federal funds
which are received for the specific projects covered by that bond issue.
This inference is strengthened by the use of the word "such" ["federal
funds available for such projects"] in indicating that the funds to be so
accepted and received and credited are only such funds as are to be used
for the particular highway projects covered by that bond issue.
In the absence of some statute forbidding the suggested method of
taking advantage of these Federal highway aid funds, it is my opinion
that the method suggested by the Federal Bureau of Roads is valid. The
broad authorization under the provisions of G. L. c. 81, § 30, seems to
require this ruling. The ordinary procedure of having mone}^ placed in
Commonwealth accounts and then checked out does not seem to apply to
this situation, especially where such procedure would cost us the sum of
$43,826.
Very truly yours,
George Fingold, Attorney General,
By Lowell S. Nicholson,
Assistant Attorney General.
P.D. 12. Ill
State Employee — Amounts due on Death of Employee — No Payment
without Probate Proceedings.
June 22, 1955.
Jack R. Ewalt, M.D., Commissioner of Mental Health.
Dear Sir: — You have inquired whether sums due for services per-
formed by a deceased employee of your department may properly be paid
to the spouse or next of kin of such employee if no probate proceedings
relative to his estate have been instituted.
Prior to 1953, G. L. c. 149, § 178A, permitted any employer to pay wages
or salary due a deceased employee directly to the spouse, or to an adult
child, or to the father or mother of such employee, provided that the sum
so paid was less than one hundred dollars, that the employee had died
intestate, and that no petition for administration had been filed. However,
§ 4, St. 1953, c. 436, amending said § 178A, specifically exempted from its
operation any "officer or emploj^ee of the commonwealth or of any political
subdivision thereof."
This exemption still exists: see St. 1954, c. 562, § 4, most recently
amending said § 178 A.
Under G. L. c. 35, § 19B, counties are specifically authorized to make
similar payments on account of the services of a deceased employee, cities
and towns are given specific authority to do so by G. L. c. 41, § 1111,
and all "political subdivisions" of the Commonwealth other than counties,
cities or towns may do so by virtue of G. L. c. 149, § 178C. But there is
presently no statute permitting or requiring such a payment by the Com-
monwealth itself, and the answer to your question must therefore be in
the negative. I advise you that no sums due as salary or wages of a
deceased employee of your department should be made to any person
other than his dul}^ qualified legal representative. Compare G. L. c. 29,
§ 31 A, which provides for payment "to the estate of the deceased" of
vacation allowances accumulated by a State employee before his death.
Very truly yours,
George Fingold, Attorney General,
By Arnold H. Salisbury,
Assistant Attorney General.
INDEX TO OPINIONS
Agriculture, Assistant Commissioner of; term or tenure of office; procedure
for removal 48
Appeals in certain criminal cases; transcripts of evidence and filing of
appeals; G. L. c. 278, §§ 33A, 33B 95
Armories, State; non-military use; possible tort liability of military officers;
indemnity bond 69
"Bachelor's degree," requirement of; teacher's certificate; statutory con-
struction; specific requirement does not mean "or its equivalent" . 102
Ballot:
Names to be printed on; absence of certificate that candidate is registered
voter 50
Question on; pensions to aged citizens is question of public policy .■> 51
BUnd, Division of the; license to raise funds for benefit of blind; refusal on |. f- .
ground Ucense is " not for the public interest " 55
Boston Building Code; conflict with general statutes; statutory construc-
tion; elevator regulations ; repeal by im, plication 84
Boston Elevated Railway Company, service as Public Trustee of; veterans'
non-contributory retirement; creditable service 80
Boston retirement system; effect of St. 1954, c. 627; credit under State
retirement system; veterans' benefits; definition of "veteran" . . 49
Capital outlay funds, use of; extension of State Fish Pier in Gloucester;
absence of specific appropriation 56
Commonwealth not bound by usual license requirements for storage of
explosives, etc 100
Communism :
Search warrants for records belonging to subversive organizations; G. L.
c. 276, § lA . . . •. • . • • •.-.•..• • -91
Special legislative commission to investigate subversive activities; report-
ing names of individuals 97
Conditional sales of personal property; payment before matuiity; G. L.
c. 255, § 12A . . . . . . . . . . . .107
Criminal cases; appeals; transcripts of evidence and filing of appeals:
G. L. c. 278, §§ 33A, 33B .95
Education; requirement of " bachelor's degree " ; teacher's certificate; statu-
tory construction; specific requirement does not mean "or its
equivalent" 102
Election :
Primary; names to be printed on ballot; absence of certificate that candi-
date is registered voter 50
Question on ballot; pensions to aged citizen,'? is question of public policy 51
Elevator regulations; conflict between general statutes and Boston Building
Code; statutory construction; repeal by implication .... 84
Elevators ; elevator and building inspectors ; right to enter private property
to inspect elevators 86
Employee, State :
Amounts due on death of employee; no payment without probate pro-
ceedings Ill
Retirement; tenure of office of "holdover"; jurisdiction of State Board
of Retirement upon "removal" of employee 87
Veteran; protection under G. L. c. 30, § 9A; construction of statutes . 61
Veteran's non-conti ibutory retirement ; University of Massachusetts ; pay-
ment from " revolving trust fund " 44
P.D. 12. 113
Working on or missing a holiday; rules as to day off or extra pay . 70
Explosives, storage of; blasting bond, etc.; Commonwealth not bound by
usual license requirements 100
Federal grant: public highways; use of highway funds for research; pay-
ment of grant other than to Treasurer 108
"Firearms"; definition; 22-caliber Conversion Unit 96
Firemen and policemen, overtime pay for; Hurricane Relief Fund (1954) . 73
Fish Pier in Gloucester, extension of; absence of specific appropriation; use of
capital outlay funds 56
General Court, widow of member of; right to death benefit notwithstanding
1952 repeal 104
Gloucester, extension of State Fish Pier in; absence of s'pecific appropriation;
use of capital outlay funds 56
Harbor lines; encroachment upon under general power to build highways . 77
Harbors and shores :
Authority of Department of PubUc Works to protect 53
Protection of; Department of Public Works; incidental power to recon-
struct bridges and culverts 75
Highway Fund, use of, for research; public highways; Federal grant; pay-
ment of grant other than to Treasurer 108
Highways:
PubUc; use of highway funds for research; Federal grant; payment of
grant other than to Treasurer 108
State; encroachment upon harbor lines under general power to build . 77
Holiday; State employee working on or missing a holiday; rules as to day off
or extra pay 70
Hospitahzation costs; rates set by Commission on Administration and
Finance not appUcable to uniformed police of Department of Public
Safetj^ or Metropolitan District Commission 92
Housing project, veterans'; abandonment and liquidation of such project;
necessity of legislation 58
Human habitation; Department of Public Health; repeal of health regula-
tions by later amendment of statute; statutory construction . 76
Hurricane Relief Fund (1954) :
Overtime pay for poUcemen and firemen 73
Reimbursement to to"mi for repair of private way in which town has in-
terest; use of pubUc money for private purposes; query as to "emer-
gency" 85
Restrictions upon payments; reimbursement to Department of Public
Works for shore protection work abutting private property ... 89
Interstate commerce; license to distribute milk; non-resident milk dealer;
validity of State requirements 65
Labor and Industries, Department of; authority to investigate addition by
awarding authority of addendum to bid ; public building construction 94
Legislative commission to investigate subversive activities; reporting names
of individuals 97
Legislative commission, special; time at which commission ceases to exist;
certification of bills for payment after expiration of commission . . 98
License :
Commonwealth not bound by usual license requirements for storage of ex-
plosives, etc 100
For charter ser\'ice ; motor vehicles 52
To distribute milk; non-resident milk dealer; interstate commerce; valid-
ity of State requirement? 65
To raise funds for benefit of blind; refusal on ground license is "not for the
pubUc interest " 55
Massachusetts, University of; veteran's non-contributory retirement; State
employee; payment from "revolving trust fund" 44
114 P.D. 12.
PAGE
Metropolitan District Commission; rates set by Commission on Adminis-
tration and Finance for hospitalization costs not applicable to uni-
formed police of 92
Military officers; possible tort liability of ; State armories; non-military use 69
Milk, license to distribute; non-resident milk dealer; interstate commerce;
validity of State requirements 65
Motor vehicles; license for chartet service; issuance of restricted charter
licenses 52
Non-residents doing business in Commonwealth, service of process on . .96
Outdoor Advertising Authority ; " public records " 45
Overtime pay for policemen and firemen; Hurricane Relief Fund (1954) . 73
Pensions to aged citizens is question of public pohcy; question on ballot . 51
Personal property, conditional sales of; payment before maturity; G. L.
c. 255, § 12A 107
Physicians; registration; pre-medical educational requirements ... 54
Plumbers, Board of Examiners of; whether person holding master's license
can be appointed to board as journeyman 74
Policemen and firemen, overtime pay for; Hurricane Relief Fund (1954) . 73
Primary; names to be printed on ballot; absence of certificate that candi-
date is registered voter 50
Private property, right of elevator and building inspectors to enter to inspect
elevators 86
Private way in which town has interest, reimbursement to town for repair
of; use of pubhc money for private purposes; Hurricane Relief Fund
(1954) 85
Process, service of, on non-residents doing business in Commonwealth; G. L.
c. 227, § 5 96
Public building construction ; bid statute :
Addition by awarding authority of addendum to bid; authority of De-
partment of Labor and Industries to investigate 94
Sub-bid " filed " with awarding authority 67
Public Health, Department of; standards for human habitation; repeal of
health regulations by later amendment of statute; statutory con-
struction 76
" Public records " ; Outdoor Advertising Authority 45
Public Safety, Department of; rates set by Commission on Administration
and Finance for hospitalization costs not apphcable to unifoimed po-
lice of 92
Public Works, Department of:
Authority of, to protect shores and harbor,-,; private property ... 53
Reimbursement to, for shore protection work abutting private property;
restrictions upon payments; Hurricane Relief Fund (1954) ... 89
State highways; harbor lines; encroachment upon harbor line under gen-
eral power to build highways 77
Waterways; protection of rivers, shores and harbors; incidental power to
reconstruct bridges and culverts 75
Rent control; State Housing Rent Co-ordinator; when his duties terminate 41
Retirement :
Member of General Court; right of widow of legislator to death benefit
notwithstanding 1952 repeal 104
State employee; tenure of office of "holdover"; jurisdiction of State
Board of Retirement upon "removal" of employee .... 87
State retirement system; effect of St. 1954, c. 627 on Boston's retirement
system; veterans' benefits; definition of "veteran" .... 49
Retirement, veteran's non-contributory:
Creditable service; pubhc officer; service as Public Trustee of Boston
Elevated Railway Company 80
Creditable service; service as special justice of district court ... 78
P.D. 12. 115
University of Massachusetts; State employee; payment from "revolving
trust fund" 44
Revocation by city of acceptance act; Tenement House Act .... 42
Search warrants for records belonging to subversive organizations; G. L.
c. 276, § lA . 91
Shores and harbors, authoritj' of Department of Public Works to protect . 53
Shore protection work; reimbursement to Department of Pubhc Works for
work abutting private property; restrictions upon payments; Hurri-
cane Relief Fund (1954) _ 89
Soldiers' Horpe, eligibihty of veteran for hospitalization in .... 57
Special justice of district court, service as; veteran's non-contributory re-
tirement; creditable service 78
State officer :
Possible tort liability of ; State armories; non-miUtary use .... 69
Procedure foi removal; Assistant Commissioner of Agriculture; term or
tenure of office 48
Statutory construction :
Department of PubUc Health ; standards for human habitation ; repeal of
health regulations by later amendment of statute 76
Elevator regulations; conflict between general statutes and Boston Build-
ing Code; repeal by implication 84
Requirement of " bachelor's degree " ; teacher's, certificate; specific require-
ment does not mean "or its equivalent" 102
Retirement; death benefit; repeal by implication 104
Prospective interpretation to avoid unconstitutionality .... 107
Veteran; exemption from G. L. c. 31 does not also carry exemption from
c. 30, § 9A . . . . . . . . . . 61
Subversive activities, special commission to investigate; reporting names of
indi\iduals 97
Subversive organizations, search warrants for records belonging to; G. L.
c. 276, § lA 91
Teacher's certificate; requirement of "bachelor's degree"; statutory con-
struction; specific requirement does not mean " or its equivalent " . 102
Tenement House Act; revocation by city of its acceptance act ... 42
Tornado Relief Fund; continuing right of Commission on Administration
and Finance to make payments 47
Veteran :
Eligibility for hospitaUzation in Soldiers' Home; meaning of word "serv-
ice" 57
State employee; protection under G. L. c. 30, § 9A; construction of
statutes 61
Veterans' benefits; effect of St. 1954, c. 627 on Boston's retirement system;
credit under State retirement system ; definition of " veteran " . . 49
Veterans' housing project; abandonment and Uquidation of such project;
necessity of legislation 58
Veteran's non-contributory retirement :
Creditable servdce; public officer; service as Public Trustee of Boston
Elevated Railwaj' Company 80
Creditable service ; service as special justice of district court ... 78
University of Massachusetts; State employee; payment from "revolving
trust fund" 44
Waterways :
Authority' of Department of Public Works to protect shores and harbors;
private property 53
Protection of; Department of Public Works; incidental power to recon-
struct bridges and culverts 75
MASSACHUSETTS STATUTES CITED.
Constitution.
Amend. 78
108
Statutes.
1863, c. 220 44
1882, c. 212 45
1909, c. 514, § 25 82
1911, c. 751, Pt. II, § 6 . . . . 106
§ 22 . . . . 106
1918, c. 262 44
§3 45
(Sp. St.) c. 159 81
§§ 1, 2, 11, 12, 13, 15 81
1925, c. 97 51
1938, c. 479, § 120 84
c. 505 86
■ c. 506 86
c. 507 86
1943, c. 20 43
1945, c. 565 71
c. 626, § 1 84
1946, c. 411 71
1947, c. 7 43
C.242 61
C.631 76
1948, c. 498 71
1949, c. 13, § 41 43
, c. 306 110
1950, c. 516 75
C.639 63,89
§2 61
• c. 685 110
1951, c. 278 102
§ 2 103
c. 406, § 21 43
1952, c. 530 102
c. 556 110
§ 6 77
c. 585, § 26 64
c. 602, § 15 64
c. 634 104, 107
§§1-7
105
105
1953, c. 264 102
c. 400
c. 409,
c.
1
434
§3 (a) 64
§ 12 43
§ 14 64
c. 436, §4 Ill
c. 612, § 11 64
C.636 92
c. 651 47
c. 654, § 1 64
1953 (Res.) c. 89
1954, c. 187
c. 209
c. 403
c. 430
c. 447
c. 453
c. 471
c. 496
c. 562, §
c. 590
c. 618
c. 627, § 8
§14
§41
§42
c. 645 .
c. 672, § 2
c. 674, §§ 1,
c. 688 .
c. 689 .
§1
§4
§11A
(Res.) c. 57
c. 123
1955, c. 46 . .
c. 272 .
c. 352 .
c. 360 .
c. 455 .
c. 706 .
1955 (Res.), c. 52
4,
(2)
PAGE
97
95
76
110
108
74
76
54, 109
56
41
111
69
47
50
49
50
58
67
64
48
79,81
85, 89
89
73,89
73
56
97
85,89
91
95
96
107
42
97
General Laws.
c. 4, § 6 (5) 80
— §7(26) 45
§7(43 6) 50
c. 6, § 60 46
C.7, §7 72
— § 13 100
— §30K 92
C.12, §3 82
c. 13, § 36 74
c. 14, §3 64
c. 22, § 7A 92
c. 23, § 16 (2) 87
c. 23A, § 4 64
C.26, §7 87
c. 29, § 20 100
§31A Ill
C.30, §9 48
§ 9A 49, 61
P.D. 12.
117
c. 30, § 24A 70
§37 46
c. 31 61
§5 88
§21 61
§§43, 45 61
c. 32, §§ 1-28 80, 106
§4(l)(;i) 60
§9 104
§ 16 87
§ 16 (2) 88
§ 16 (4) 87
§ 25 (4) (5) 106
§§56-60. . . . 49,79,80,81
§§ 56, 57 80, 81
§57 78
§58 44
§60 78,80,81
§65A 80
§65B 80
c. 33, § 1 69
§ 15 (d) 69
§122 69
§122 (e)(1) 69
§122(/) 70
§ 123 69
c. 35, § 19B Ill
§36A 89
c. 40, I 5 (25A) 85
c. 41, §1111 Ill
c. 44, § 8 (9) 89
§31 89
c. 53, § 19 51
§48 51
c. 66, § 6 46
§ 10 46
c. 69, §25A 55
c. 71, § 38G 102
c. 75, §§ 7, 18 45
c. 79 54
c. 81, §30 110
c. 90, § 3A 97
§34 108
c. 91 53, 90
§2 54
§11 53,57,75,90
§14 78
§ 31 54, 90
§34 78
c. 92, § 63A 92
PAGE
c. 92, § 85 60
c. 93, § 29 46
c. 94.4, §§1,4, 4(a), 5,9 . ... 66
c. Ill, § 128 76
§§ 128B, 128C, 128D, 128F . 76
c. 112, §2 55, 102
§55 102
c. 115A, §§ 1, 2 57
c. 121, § 26NN 59
c. 134 63
c. 140 96
§121 96
c. 142, § 1 75
c. 143, § 62 86
§§71A-71C 84
c. 144, § 1 42
§4 43
c. 145 43
c. 148, § 9 101
§10 101
§ 13 100, 101
§19 101
c. 149, §§44A-44D .... 67,94
§ 44C (A) 94
§440 (B) 67,68
§ 44C (C) 67, 68
§ 44C (D) 68
§ 44C (E) 68
§ 44E 68, 94
§ 178A Ill
§ 178C Ill
c. 159A, § 7 53
§ llA 52
c. 181, § 3A 97
c. 207, § 30 79
c. 218, § 7 79
§35 79
§37 79
§40 80
§41 79
§43A 80
c. 220, § 3 79
c. 227, § 5 96
§5A 97
c. 255, § 12A 107
c. 264, §§11, 18,21 91
c. 271, § 40 82
c. 276, § lA 91
c. 278, §§ 33 A, 33B, 33C, 33E, 33G 95
^^
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