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

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 



^^