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

Public Document No. 12 



€.\it CommonUiealtl) oC ^a00ac|)ui8iettsi 



REPORT y 



ATTORNEY GENERAL 



Year ending June 30, 1956 




Public Document No. 12 



Cl)e Commontoealtl) of q^a00acj)usett0 



REPORT 

OF THE 

ATTORNEY" GENERAL.. 

/ 

FOR THE 

Year ending June 30, 1956 



Publication of this Document Approved by Qeorqe J. Ceonin, State Purchasing Agent 
1100-6-57-020551. 



.aU LIC-AM Of MASSa^HySLliS 

OCT 31 1957 

STATE HOUSE, BOSTON 

WASS OfVicJAi - 



A 



Ci)e Commontoeaitt) of Q^assntbuetttit 

Boston, December 5, 1956. 
To the Honorable Senate and HoiLse of Representatives. 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1956. 

Respectfully submitted, 

GEORGE FINGOLD, 

Attorney General. 



Ci)e CommonUieaIti) of ^a00aci)ui8iett0 

DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
GEORGE FINGOLD 



First Assistant Attorney General 
Fred Winslow Fisher 



Assistant Attorneys General 
Samuel H. Cohen James F. Mahan- 

Malcolm M. Donahue Edward F. Mahony 

Joseph H. Elcock, Jr. Charles F. Marsland, Jr. 

Daniel J. Finn George Michaels ^ 

Samuel W. Gaffer^ Lowell S. Nicholson 

DoRicE S. Grace Harris A. Reynolds * 

Saul Gurvitz Arnold H. Salisbury 

Matthew S. Heaphy Barnet Smola 

Edward J, Kimball 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 

Floyd H. Gilbert Charles V. Statuti 

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 Stephen F. LoPiano, Jr. 

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

Assistant Attorney General assigned to Vetera^is' Division 
Fred L. True, Jr. 

Chief Clerk to the Attorney General 
Harold J. Welch 

Assistant Chief Clerk 
Russell F. Landrigan 

Adtninislralive Legal Consultant to the Attorney General 
James J. Kelleher 

1 Appointed, Dec. 14, 1955. * Resigned, Jan. 31, 1956. 

2 Resigned, Nov. 30, 1955. 6 Resigned, Apr. 30, 1956. 
^ Appointed, Mar. 1, 1956. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1955, to June 30, 1956 

ApTproTpriations. 

Attorney General's Salary $15,000 00 

Administration, Personal Services and Expenses .... 298,150 00 

Claims, Damages by State Owned Cars ...... 50,000 00 

Small Claims 15,000 00 

Veterans' Legal Assistance ........ 18,940 00 

Total $397,090 00 

Expenditures. 

Attorney General's Salary $15,000 00 

Administration, Personal Services and Expenses .... 293,756 03 

Claims, Damages by State Owned Cars ...... 50,000 00 

Small Claims 15,000 00 

Veterans' Legal Assistance ........ 18,792 94 

Total $392,548 97 

Approved for publishing. 

FRED A. MONCEWICZ, 

Comptroller. 



Cl)e Commcntoealt!) of Q^a00acbu0ett0 



Department of the Attorney General, 
Boston, December 5, 1956. 



To the Honorable Senate and House of Representatives. 

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

The cases requiring the attention of this department during the fiscal 
year ending June 30, 1956, totaling 17,444, are tabulated as follows: 



Extradition and interstate rendition 

Land Court petitions ..... 

Land damage cases arising from the taking of land 

Department of Public Works 

Metropolitan District Commission 

Department of Mental Health 

Department of Natural Resources 

Department of Public Utilities 

Massachusetts Turnpike Authority 
Miscellaneous cases, including suits for the collection of money due the Common 
wealth ......... 

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

Investigations and recommendations in accordance with G. 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 



137 
212 

1,084 
215 
3 
9 
1 
2 

4,560 

1,312 

30 



155 
967 

5,382 
362 

3,013 



Introduction. 

As the complexity of the administration of the pubUc affairs of the 
people of the Commonwealth increases, there is necessarily a correspond- 
ing increase in the number of legal matters annually referred to the De- 
partment of the Attorney General. Each succeeding report to the Legis- 
lature shows an increase in the number of cases handled for, and opinions 
given to, the various agencies, commissions and other sub-divisions of the 
State government. The steadily rising arc of the administration of law in 
Massachusetts is readily evident in a comparison between 1946, when the 
department handled 10,976 items, and 1956, when the total was 17,384. 
The fact that this increased load has been disposed of expeditiously, and 
with no instance of complaint by anyone involved, can be traced directly 
to the energy and devotion to duty of the members of my staff, including 
the administrative and professional personnel attached to this department 



8 P.D. 12. 

as well as to the several Assistant Attorneys General, all of whom have 
performed their duties in a manner which merits the attention and com- 
mendation of the people of the Commonwealth. 

Essentially, and in practical terms, the government of the Common- 
wealth comprises a large number of elected and appointed officials charged 
with the honest and prudent administration of a multi-billion dollar busi- 
ness. As its legal advisor, the responsibiUty of my department to this 
huge public enterprise falls into roughly 150 separate but integrated cate- 
gories, including every conceivable field of the law. Obviously, it would 
be impractical to cover in detail in this report the many hundreds of routine 
matters which have passed through this department during the past fiscal 
year. However, as has been my custom in previous reports, there follows 
a brief discussion of certain matters of general pubHc interest with which 
this department has concerned itself during the twelve-month period since 
my last report. 

Criminal Division. 

While it continues to be true that the vast majority of the problems 
with which the department must deal fall on the "civil" side of the law, 
it likewise has continued to be necessary to devote time, and qualified 
personnel to prevent Massachusetts from being threatened with the rising 
crime rate now confronting most of the Nation. Even since my last report 
to you, the national crime rate has shown an alarming rise of 18 per cent. 

Our part in the continuing campaign to rid Massachusetts of crime has 
largely been in the form of frequent communication, formally or informally, 
individually and collectively, with all law-enforcement agencies, to ex- 
change information and ideas. 

I am happy to report that this practice has resulted in mutual confidence 
and assistance and an integration of crime-prevention programs. It is 
presently rare indeed when this office has occasion to assert its authority 
over any other law-enforcement agency. 

The following are some of the highlights in the activities of the Criminal 
Division during the period of this report. Of necessity, they do not reflect 
all phases of the operation because many cases are still under investigation 
or in a stage where it is not in the public interest to include them in this 
report. 

Armed Invasion of Homes. — The protection of the home and family is 
the primary concern of us all. As a result of the flagrant invasion by armed 
men, intent upon robbery, of a peaceful family group, and the brutal 
pistol whipping and slaying of a fine young man who attempted to protect 
his loved ones, I asked for emergency legislation increasing the maximum 
penalty for crimes of this type from 20 years to life. The General Court 
approved this measure and on May 28, 1956, it was signed into law. I 
anticipate a marked drop in crimes of this nature as the result of the in- 
creased penalty now in effect. 

The "Brinks Case". — During the period covered by this report, eleven 
men who allegedly committed the multi-million dollar robbery of the 
Brinks counting house in Boston on January 17, 1951, were captured. 



P.D. 12. 9 

Prior to their apprehension, the Federal statute of Hmitations had expired, 
and the Massachusetts statute was due to run out a comparatively short 
time afterward. In anticipation of the eventual arrest of persons suspected 
of this crime, I initiated legislation extending the Massachusetts statute 
from 6 to 10 years. This law, by virtue of an emergency preamble, became 
effective in September of 1955, the same month in which it was introduced. 
Due to exemplary diligence on the part of cooperating law-enforcement 
agencies, the chief suspects in the Brinks case were rounded up shortly 
before the old statute expired. Nevertheless, the new law will remain on 
the books to serve in future cases involving holdups of banks or armored 
vehicles. 

Forfeiture of Lottery Prize. — Following the conviction for perjury for a 
person who had won a prize in an illegal lottery, this office successfully 
invoked a long-forgotten statute (G. L. c. 271, § 14), on September 31, 
1955, to accomphsh the forfeiture of $6,000 of his illegal winnings. This 
money was turned over to the Treasurer and Receiver General of the 
Commonwealth. 

Springfield Gaming Raids. — As a result of numerous complaints by 
citizens of Springfield, on April 5, 1956, following a long, painstaking in- 
vestigation, simultaneous raids were conducted at a large number of loca- 
tions where gambling activities were reported to exist. Fifty-nine persons 
were arrested, and 125 criminal complaints secured. 

Public Health. — The widening ilhcit use of barbiturates, so called 
"tranquilizers" and "goof balls," may in the near future constitute a 
serious menace to pubhc health and safety, especially when used in con- 
junction mth alcohol, which is the case with increasing frequency. Our 
stud}^ of the situation shows that many highway deaths can be traced to 
the use of barbiturates. 

In an effort to minimize the hazard, and in cooperation wdth police 
officers, I supported legislation to add four inspectors, a laboratory tech- 
nician and a radio car to the Department of Pubhc Health in order that 
they might cope more effectively with illegal activities in this sphere. 

On the brighter side of this problem, I am happy to report that very 
recent advices from Federal agencies make it clear that the narcotics 
problem as it presently exists in this Commonwealth is minimal; our con- 
cern should be to keep it under continuing control. 

Communism and Subversion. — Although seemingly dormant and im- 
potent, international Communism continues to remain a major threat to 
the future of the Nation and the Commonwealth. 

A United States Supreme Court decision of May 11, 1956 {Pennsyl- 
vania V. Nelson, 350 U. S. 497), effectively ended any prosecutions by the 
several States of persons accused of subversive activities, by its holding 
that the Smith Act, and similar legislation, had resulted in a Federal pre- 
emption of this field of law enforcement. This decision required the quash- 
ing of indictments pending in our Courts. Commonwealth v. Gilbert, 334 
Mass. 71 and Commonwealth v. Hood, 334 Mass. 76. 

Acting not only as Attorney General of Massachusetts, but also as 
Chairman of the Committee on Subversion of the National Association of 



10 P.D. 12. 

Attorneys General, I went to Washington to plead for legislation which 
would restore to Massachusetts and her sister States the fundamental 
right of self-protection against those who would overthrow estabUshed 
government by force and violence. The outcome of our efforts is con- 
jectural at this writing. But, while our local Communist sympathizers 
are presently immune from prosecution in our own State courts, they will 
not be free from the searching spothght of investigation and the referral 
of evidence so obtained to appropriate Federal authorities. 

Censorship of Moving Pictures. — In the cases of Brattle Films, Inc. v. 
Commissioner of Public Safety, 333 Mass. 58, and Times Film Corporation 
V. Commissioner of Public Safety, 333 Mass. 62, the Supreme Judicial Court 
declared that the Commissioner of Public Safety could no longer withhold 
his approval of the Sunday showing of motion pictures, holding that 
G. L. c. 136, § 4, purportedly allowing such censorship, was void on its 
face as a prior restraint on the freedom of speech and the press, guaran- 
teed by the First and Fourteenth Amendments of the United States Con- 
stitution . 

Wiretap Bill. — In the interest of effective law enforcement at all levels 
of our State government, I caused my opposition to be recorded in the 
matter of proposed legislation which would curb the discretionary powers 
of the Attorney General and of the district attorneys to "tap" telephone 
wires in the course of criminal investigations. This perennial attempt to 
hamstring prosecuting officers in the performance of their duties has not 
yet been successful. 

Public Defenders. — A basic tenet of the American code of justice is that 
every person accused of crime must have a fair trial; in many instances, 
in order for his trial to be completely fair, he must have competent legal 
counsel. Under our present Massachusetts statutes the courts are re- 
quired to appoint counsel only in capital cases, G. L. c. 277, §§ 47, 55, 
and the Federal and State Constitutions require such appointment only 
in extraordinary circumstances. See Allen v. Commonwealth, 324 Mass. 
558. 

In order to close this gap, where justified and feasible, I sponsored pro- 
posed legislation calling for the appointment of pubhc defenders in each 
county. 

Extraordinary Writs and Similar Matters: Renditions: Pardon Recom- 
mendations. — A major part of the duties of the Criminal Division falls 
into the fields suggested above. Following is a brief statistical table show- 
ing its activities in such matters: 

Defective delinquent cases .......... 24 

(This figure includes habeas corpus proceedings in Superior Court and peti- 
tions for discharge in the Probate Court.) 

Petitions for adjudication of sanity ........ 5 

Writs of mandamus ........... 17 

Writs of error ............ 21 

Writs of habeas corpus 23 

(In addition to cases involving defective delinquents.) 

Writ of certiorari ............ 1 



P.D. 12. 11 

Appeals (U. S.) 2 

Extradition cases . . . . . . . . . . . .137 

(This figure includes demands from other States and requisitions by the Gov- 
ernor's office upon other States.) 
Recommendations on pardon petitions ........ 155 

Forms for charitable solicitations . . . . . . . . .71 



Eminent Domain. 

The duties of the Eminent Domain (or Land Damage) Division of this 
department have continued to expand enormously. 

AVhen I first assumed office, a tremendous backlog of cases had been 
built up — to the detriment of the prestige of the Comaiionwealth and of 
the harmonious relationship which should exist between the Common- 
wealth and its citizens, many of whom were incurring financial loss and 
material discomforts as a result of dilatory practices. 

Shortly after I assumed office and following consultation with affected 
and interested groups, I initiated an immediate overhaul of the staff and 
procedures, which, I am pleased to report, broke the log jam. However, 
the increased tempo of both State and Federal highway programs makes 
it mandatory that there be no let-up in the division's effort to effect the 
quickest, most efficient settlements or judicial dispositions of land damage 
claims which may be most consistent with the best interests of the Com- 
monwealth and its taxpayers. 

As a guide to future planning, it might be well to point out that while 
the average dollar figure for pre-trial settlements has not risen unduly, 
there has been a sharp increase in awards to plaintiffs by juries. 

This department has since January 23, 1953, to date processed, either 
through trial or settlement, 1,600 cases throughout the Commonwealth. 
The petitioners in these cases had claimed a total of $25,965,384.29. 
Awards to them totalled $13,560,544.88. The difference of $12,404,839.41 
reflects the substantial savings effected; and for a truer picture there should 
be added to this amount an additional sum of $1,138,383.29, which repre- 
sents interest payable if these cases had all gone to trial. 

In full comphance with our responsibihties in this field of law, the Divi- 
sion of Eminent Domain follows the following procedures, enlarging upon 
them when necessary: 

1. Investigation, processing, settlement or trial of these claims, includ- 
ing the fifing of carefully prepared interrogatories, and conferences with 
employees and officials of the Department of Pubfic Works and wdth real 
estate experts. 

2. The determination of a settlement figure by a panel of Assistant 
Attorneys General. 

3. The holding of conferences with attorneys for the landowners in an 
effort to effect equitable settlements. 

4. The attendance by members of the division at numerous pre-trial 
conferences held by judges of the Superior Court in many counties of the 
Commonwealth, resulting in the disposition of many cases by settlement. 



12 P.D. 12. 

5. The recording in the pubhc records of the Superior Court for each 
county of the dollar amount of the settlement reached in each case. 

The most gratifying result of the more expeditious handhng of land 
damage claims has been the renewal of the confidence of our citizens in 
our laws, our Legislature, our courts and our executive departments. 

Youth Division. 

The special Youth Division created by me in 1954 because of the prob- 
lems of juvenile delinquency continues to be one of the most important 
activities of this office. 

During the past year we have continued our policy of calhng frequent 
meetings with district attorneys, police chiefs and juvenile authorities in 
an attempt to better understand the many factors which contribute to 
and complicate the lives of our future citizens. 

A special meeting was held with the safety committee concerning the 
part that automobiles play in teen-age "gang wars" which occasionally 
flare up in Massachusetts. This committee consisted of Public Safety 
Commissioner Otis Whitney, Public Works Commissioner John Volpe, 
Registrar of Motor Vehicles Rudolph King, and the members of the Pohce 
Chiefs Executive Committee — together with members of the staff of this 
department. Plans were formulated which, it is hoped, will effect a marked 
reduction in such occurrences. 

This year the division also aided in compiling a special report written 
by the special legislative commission studying the relationship between 
juvenile delinquency and the distribution and sales of pubhcations por- 
traying crime, obscenity and horror. 

This year's annual Youth Conference, held in Springfield, brought to- 
gether superintendents of schools, headmasters and principals and scores 
of teachers from all sections of the Commonwealth. It was known as the 
Educators Conference on Juvenile Delinquency. Renowned authorities 
on youth guidance from all parts of the nation were speakers and expressed 
their views on the youth problem. 

Mr. James Bobo, chief counsel for the U. S. Senate Sub-Committee on 
Juvenile Definquency, conferred with me on the problem as it relates to 
Massachusetts. 

Also during the period of this report members of the District Court 
Judges Administrative Committee and various pohce chiefs met with me 
to study the problem of handling juveniles who are brought into court. 
As a result of this meeting, and with the full approval of all concerned, I 
have prepared and will sponsor legislation permitting judges to have a 
wider scope in handhng the youthful offenders who are brought into court 
on minor charges. 

Veterans' Division. 

Although the memories of recent conflicts — World War II and the 
Korean action — are receding, there is no less need for this department's 
Veterans' Division which was as active this year as in any other since the 
peace was achieved. 



P.D. 12. 13 

During the fiscal year the Veterans' Division handled a total of 3,013 
matters. This involved advice to veterans, their dependents, or survivors 
in matters relating to retirement, civil service, tax exemptions, pensions, 
education, and loans. 

In addition, where appropriate and within our jurisdiction, assistance 
also was given to various veterans' organizations and State and local 
officials relative to their mutual problems. 

An Assistant Attorney General also regularly sits with the Veterans* 
Bonus Appeal Board. 



Division of Public Charities. 

The proper and intended apphcation of funds or property given or appro- 
priated to pubUc charities and the prevention of breaches of trust in their 
administration is a traditional function of the x\ttorney General, as well as 
being one of his duties under G. L. c. 12, § 8. Under the Division of PubUc 
Charities created by the General Court in 1954 (St. 1954, c. 529) on the 
basis of proposals made by me, this important function has been coordi- 
nated and centrahzed so that it may be handled in a modern, efficient and 
orderly manner. 

The volume of the work is extremely large, and is increasing, due to the 
more exacting supervision made possible by this division. During the year 
the number of probate accounts filed by estates and trusts in which pubUc 
charities were interested parties, and hence represented by the Attorney 
General, amounted to somewhat in excess of 2,200. In addition, there 
were petitions for appointment of trustees, for license to sell land, for in- 
structions, for compromise, allowance of wills, the apphcation of cy pres 
and other matters relating to the judicial process to which pubhc charities 
were parties. 

While the majority of these were matters of routine, many important 
cases involving large interests were carried through the courts. 

A problem of bringing charitable funds forward from the past to the 
present was represented by a petition for cy pres in the trust created by 
Samuel A. Hitchcock of Brimfield, who died more than 100 years ago. 
The school founded by Mr. Hitchcock, due to changed conditions, had for 
some time been unable to function, but under a judicial decree dated 
January 3, 1956, a sum in excess of $400,000 will be put to work to help 
educate present-day boys and girls. 

A case carried to the Supreme Judicial Court and decided December 1, 
1955, was that of Peakes v. Blakely, 333 Mass. 281, in which this depart- 
ment, cooperating with counsel for the testator, was successful in persuad- 
ing the court to sustain as a public charity a bequest of more than $250,000 
to be used in trust to purchase and preserve wooded areas in the Charles 
River Watershed. 

The department was likewise successful, in the matter of the estate of 
Mary L. Kirkman, who died a resident of New York State, in assuring 
that the town of Barnstable would receive the residue of that estate, 
estimated in excess of $1,500,000. 



14 P.D. 12. 

No small part of the usefulness of this division Ues in the assistance and 
advice that it can offer to members of the bar in deaUng with the problems 
presented to them in the handhng of pubhc charities. An indication of 
this is the increase in application for cy pres, to the end that idle funds are 
put to productive use. 

Once again, I wish to express my very deep appreciation to the members 
of the bench and bar and those who handle public charities for their out- 
standing cooperation. Their aid and assistance has been invaluable. 



Civil Defense. 

Civil defense, even though no immediate threat to us exists, looms large. 
We still have powerful international enemies who view with envious eyes 
the peace and prosperity which prevails among us. This office acts expedi- 
tiously upon the requests of the Director of Civil Defense and his staff, 
functioning under St. 1950, c. 639, for the advice and assistance and upon 
the various executive and administrative orders relating to civil defense 
referred to us for approval. 

Motor Tort Cases. 

Under G. L. c. 12, § 3B, where any officer or employee of the Coirunon- 
wealth, or of the Metropohtan District Commission, makes a written re- 
quest that he be defended in an action for damages for bodily injuries or 
property damage arising out of his operation of a State-owned motor 
vehicle, this department takes over the management and defence of such 
suit. 

During the past fiscal year 145 motor tort cases were disposed of either 
by settlement or trial. 

Under the statute, a claim for personal injuries can be settled for a sum 
no greater than $5,000 per person for injuries or death, and a sum no 
greater than $1,000 for property damage. Of course, if there is no liability, 
the case goes to trial, as it also must where the demands of plaintiffs' 
counsel exceed the statutory hmits. 

Natural Disasters. 

During recent years, Massachusetts has been struck with a series of 
brutal natural disasters in the form of hurricanes, tornadoes and floods. 
Usually, the waters had not started receding nor the wind to die down 
before the stricken area was subjected to another type of "flood" — that 
of swindlers out to exploit human misery and tragedy. 

A striking example of this occurred during the floods of August, 1955. 
Hampering the superhuman and often heroic work of legitimate pubhc 
and private relief agencies were spurious "rescuers" whose main objec- 
tive was their personal enrichment. This department cooperated to the 
fullest possible extent with the local pohce in clearing them out of the dis- 
aster areas. We rapidly ehminated one operator before he even got 



P.D. 12. 15 

started. His scheme was found to be rounding up skid row derelicts, pro- 
viding them with a bath, shave and clean clothes and then sending them 
around the streets and into offices with canisters to collect "flood relief" 
donations. Later it was conservatively estimated that the people of 
Connecticut and of other New England States lost over $1,000,000 through 
this technique. 

Another racket was practiced by human vultures who descended on 
stricken communities to "repair" flood damage to chimneys and roofs at 
inflated prices which, in some cases, were 800 per cent over normal rates. 

The lessons learned in dealing with this type of racketeer during the 
Worcester tornado were applied during the floods. To more effectively 
thwart the swindlers, and also to advise and assist wherever possible in 
such matters as evictions, sudden rent hikes, the moving of condemned 
structures, and the loss of mortgaged dwelling places, Assistant Attorneys 
General were dispatched to stricken areas with orders to remain as long as 
they were needed to protect the rights and property of citizens. 

In addition, working with the Governor's office, the Civil Defense 
Agency and the Flood Relief Board, this department helped in the prepa- 
ration of the necessary proclamations, legislation and regulations for 
prompt relief to the stricken municipahties. 

Port of Boston. 

This office drafted and helped negotiate a long-term lease with the 
United States of America for the wharves and piers of the Boston Army 
Base whereby $11,000,000 will be spent modernizing the facihty, 90 per 
cent of which cost is to be financed by the Federal Government. When 
the renovations are completed, Boston will have one more major faciUty 
to help re-estabhsh its prominence as a great world port. 

Mental Health. 

Under G. L. c. 123, § 96, suits for care, maintenance and support of 
patients in the State mental health institutions are commenced by the 
Attorney General and brought in the name of the Treasurer and Receiver 
General. During the last fiscal year, a total of 24 cases (most of which 
were suits that had been started) were settled and tried and the sum of 
$44,974.73 was collected in behalf of the Commonwealth. Numerous other 
similar cases are in the process of being settled or tried. 

Workmen's Compensation. 

This department, through an Assistant Attorney General, appeared be- 
fore the Industrial Accident Board in approximately 350 cases during the 
past fiscal year. In addition to appearances on claims made by employees, 
this department pressed, where necessary for contributions under sec- 
tions 65 and 65N of the Workmen's Compensation Act. Tjiis procedure 
has resulted m carrying out the intent of the Legislature in enacting these 



16 P.D. 12. 

sections, so that on June 30, 1956, there were balances of $86,396.73, in 
the "Second Injury Fund" (estabUshed by said § 65), and of $291,910.75 
in the "Veterans' Second Injury Fund" (§ 65N). 

The department also processed the following : Employer's First Reports 
of Injury, 5,832; Agreements for Compensation, 567. 

In the payment of workmen's compensation benefits to injured State 
employees, there was expended under the provisions of G. L. c. 152, 
$557,882.57; payments to hospitals, $114,911.85; payments to doctors 
and nurses, $86,185.07. 

Insurance and Motor Vehicle Appeal Board. 

An Assistant Attorney General was assigned to attend all hearings of 
the Insurance Appeal Board and the Board of Appeal on Motor Vehicles 
Liability PoUcies and Bonds. 

During the last fiscal year a total of 5,594 cases came before the boards. 
Types of appeals included cancellations and refusals, 5,118; registrar's 
decisions, 171; points, 305. 



Actions against Justices of the Supreme Judicial, Superior and 

District Courts. 

One of the duties of this department is that of acting as legal counsel 
for justices of the various State courts when so requested. 

The unquestioned excellence of our courts makes such occasions ex- 
tremely rare. When they do occur, and suits are brought on the civil 
side against one or more of the justices, reasons for the suits are usually 
ill-founded and intemperate. 

During the period covered by this report, and for the first time in many 
years, a number of extraordinary actions, stemming out of a single basic 
factual situation and all handled by one lawyer, were brought against 
various justices, either in higher State courts or in the Federal courts. 
Two Assistant Attorneys General were assigned to these suits. 

At the end of the fiscal year, most of these cases had been initially ad- 
judicated favorably to the respondents. A few still remain to be dis- 
posed of. 

Inland Marine Insurance. 

During the past year two insurance companies incorporated in Penn-. 
sylvania, but Ucensed to write inland marine insurance here, attempted to 
issue, as such insurance, new policies insuring only certain dealers against 
risks. 

The Commissioner of Insurance ordered that the policies be not issued, 
and the companies took the matter to the Supreme Judicial Court. An 
Assistant Attorney General was assigned to defend the commissioner and 
his order. 

Because of statutory limitations placed upon each of the different char- 
ter types of insurance companies doing business in Massachusetts, the 



P.D. 12. 17 

effect of the policies which the two companies sought to issue would have 
been to give them an unfair competitive advantage over fire and casualty 
companies in the broad area of overlapping statutory authorization. The 
original order of the commissioner was affirmed by the Court. Insurance 
Company of North America and another v. Commissioner of Insurance, 
334 Mass. 108. 



The Highway Safety Act. 

G. L. c. 90A provides for the assessment of "points" against the motor 
vehicle owners and operators found to be at fault in the operation of such 
vehicles on public ways. As originally enacted, it also provided for the 
application of "appropriate" premium surcharges based on points as- 
sessed against motor vehicles within the "private passenger" or "motor- 
cycles, skoot-mo-biles and other similar vehicles" classifications. 

Under the statute the Registrar of Motor Vehicles estabhshed a point 
system and the Commissioner of Insurance set a premium surcharge of 
$6 per point. The effect of the surcharge premium was the reduction on 
an average of SO. 50 of the 1956 compulsory insurance rates. 

The legislation proved unpopular although it had been designed to place 
the burden of the ever-increasing cost of compulsory insurance more ap- 
propriately upon the careless operator and/or owner and to give the 
prudent operator and/or owner some deserved rehef. Several suits were 
brought against the registrar and the commissioner, some against only 
one or the other and some joining both. 

An Assistant Attorney General was assigned to defend these suits. The 
main basis for these actions was the alleged unconstitutionahty of the 
statute and the alleged abuse of discretion by the registrar and/or the 
commissioner. 

Finallj^, two of these actions reached the full bench of the Supreme 
Judicial Court. Winch v. Registrar of Motor Vehicles and Commissioner of 
Insurance, 334 Mass. 271; Gilmore v. Registrar of Motor Vehicles, 334 
Mass. 275. 

Prior to the handing down of these decisions, the General Court had 
repealed those portions of the statute concerning surcharge premiums, 
leaving open in the cases only the allegations directed against the regis- 
trar. In each case, the court ruled in favor of the statute and of the ac- 
tions of the registrar. 



Judicial Survey Commission. 

The report of the Judicial Survey Commission recommending sweeping 
modernization of our court system and its practices bids well rapidly to 
free the Commonwealth from the quicksand of an enormous backlog of 
untried cases — some of them going back over a period of four years. 

I heartily endorsed and supported the court reform bill recommended 
by the commission — especially the proviso for the appointment of an 



18 P.D. 12. 

Executive Secretary to relieve the justices of the Supreme Court from ad- 
ministrative detail, and permitting them, for the first time in history, to 
devote the major portion of their time, energy and talent to clearing 
crowded dockets. 

Discussion of this matter cannot be closed without expressing my behef 
that Massachusetts citizens now have a finer judicial system as a result 
of the wisdom and hard work of former Supreme Court Justice Louis S. Cox 
and those who served with him on the Judicial Survey Commission. 



Contributory Retirement Appeal Board. 

This board as provided by G. L. c. 32, § 16 (4), has continued the hearing 
and adjudication during the year of the appeals from decisions of the vari- 
ous retirement boards coming before it. These very often involve difficult 
questions both of law and fact, some of which eventually find their way into 
the courts which have, almost without exception, supported the action 
of the board. 

State Contracts. 

Pursuant to the provisions of G. L. c. 12, § 3, this department has scruti- 
nized and approved, as to form, when proper, innumerable contracts for 
the construction of public works and otherwise for the various depart- 
ments. This work is most vital, inasmuch as the contracts often involve 
the expenditure of millions of dollars and requires the patience and pro- 
fessional skill of more than one Assistant. 



Springfield Branch Office, Department of 
Attorney General. 

This office was officially opened on November 15, 1955, to serve the 
general public, attorneys, law enforcement officers and public officials of 
Western Massachusetts. 

There have been permanently assigned to the office, two Assistant 
Attorneys General, one civil investigator, one State trooper for criminal 
investigations, and a secretary. 

This office has served as a headquarters for Assistant Attorneys General 
from the Boston office who are in charge of specialized work. One of its 
most important functions involves the settling and trying of eminent 
domain cases in the geographical area which it serves. 

The Assistant Attorneys General assigned in Springfield are members 
of the Motor Vehicle Insurance Appeal Board in Springfield and Worcester. 

Town By-laws. 

Under G. L. c. 40, § 32, before a town by-law takes effect it must be 
approved by the Attorney General. By this provision, which has been 
on the statute books for more than two centuries in one form or another, 
the benefit of trained, expert assistance is given the towns of the Common- 



P.D. 12. 19 

wealth to the end that unwise and unsound local legislation shall not 
become law. 

It is my constant endeavor to see that prompt action is taken on pro- 
posed by-laws received by this office, in order that the townspeople may, 
without undue delay, conduct their municipal business. 

An Assistant Attorney General is assigned to this work and during the 
year ending June 30, 1956, a total of 279 town by-laws were processed, 
representing a substantial increase over the previous fiscal year. 



State Housing Board. 

The functions of the Assistant Attorneys General assigned to the State 
Housing Board fall under seven general categories. 

1. Rendering written opinions on general legal problems confronting 
the board. 

2. Review for approval of title abstracts and other problems involving 
purchase or sale of land. 

3. Administration of Organization Transcripts of approximately 92 ac- 
tive authorities. 

4. Review for approval of original and refunding note and bond issues. 

5. Attendance at or conducting hearings involving contract disputes, 
making findings and writing decisions. 

6. Litigation and trial work. 

7. Review for approval of contracts for financial assistance. 

During the last fiscal year, 26 opinions on general legal problems con- 
fronting it were submitted in writing to the State Housing Board; in 
addition, some 45 "legal advice memoranda" were so submitted. 

In connection with various questions involving the purchase or sale of 
land, 64 memoranda were prepared, and 57 note issues, both original and 
refunding, involving borrowing of a cumulative total of $92,521,000, were 
reviewed and approved. 

More than 300 hearings were attended or conducted involving contract 
disputes and otherwise, and in many, if not most, of these instances assist- 
ance was given in making findings in behalf of the board and writing de- 
cisions in conformity therewith. Some 18 contracts for financial assistance 
under St. 1954, c. 667, were reviewed and approved. 



Employment Security. 

This year the Assistant Attorneys General assigned to the Division of 
Employment Security, in addition to their regular duties, were called upon 
to handle all of the fraud cases in the legal department — these fraud 
cases stem from individuals who were drawdng benefit checks while gain- 
fully employed. 

The Assistant Attorneys General reviewed all of the cases with a view 
toward establishing a fraudulent intent. After having estabhshed such 
intent, the violators were summoned, interviewed and given an oppor- 



20 P.D. 12. 

tunity to make restitution to the Division of Employment Security. As 
to those violators who refused to cooperate with this office, their files were 
prepared for criminal prosecution. Six such cases were so prepared and, 
of this number, three were in Middlesex County and the remaining three 
were in Worcester County. 

The cases brought in Middlesex County were presented to the grand 
jury in June of 1955 and true bills were returned against all three de- 
fendants. They were arraigned on November 7, 1955, and all pleaded 
guilty. The court placed them on probation for one year and ordered 
them to make restitution. One of the defendants has paid his indebted- 
ness in full, the remaining two are making payments to the probation 
officer of Middlesex County. 

As to the cases brought in Worcester County, complaints were sought 
and obtained from the District Court of Worcester on October 14, 1955, 
and all three defendants pleaded guilty. They were sentenced to one 
month in the house of correction, suspended, and placed on probation 
and ordered to make full restitution on or before April 23, 1956. 

The Assistant Attorneys General are now in the process of completing 
their investigation concerning the remaining violators in Worcester 
County and are commencing to interview violators from Essex County. 
When this work is completed, it is their intention to proceed as we have 
done in the cases above mentioned. 



I and my staff have held many conferences with the various State offi- 
cers, department heads and employees as occasion required and furnished 
advice where necessary. 

As usual, I have, upon request of His Excellency the Governor, exam- 
ined as to form and substance the various proposed legislative acts coming 
before him for action and have rendered my opinions relating to the same. 
This work is important and of necessity is given the most careful atten- 
tion by me and my staff. 

Conclusion. 

As before stated, I have not attempted in this report to set forth in de- 
tail many of the activities of the department. It is sufficient to say that 
I have personally and with the help of my Assistants acted as the people's 
attorney throughout my administration. It is my sincere belief that the 
Assistant Attorneys General and the other members of the department 
have carried out their duties with dignity, abiUty and loyalty, not only 
to myself, but to the Commonwealth of Massachusetts. 

Respectfully submitted, 

GEORGE FINGOLD, 

Attorney General. 



INDEX TO REPORT FOR 1955-56 
DEPARTMENT OF THE ATTORNEY GENERAL 



Subject page 

Copy of Covering Letter 3 

Departmental Staff 5 

Appropriations and Expenditures 6 

Introduction 7 

Criminal Division 8 

Armed Invasion of Homes 8 

Brinks Case 8 

Forfeiture of Lottery Prize 9 

Springfield Gaming Raids 9 

Public Health 9 

Barbituates, Use of 9 

Communism and Subversion 9 

Smith Act 9 

Censorship of Moving Pictures 10 

Wiretap Bill 10 

Public Defenders 10 

Extraordinary Writs and Similar Matters 10 

Renditions 10 

Pardon Recommendations . 10 

Eminent Domain 11 

Youth Di\asion 12 

Annual Conference 12 

Veterans' Division 12 

Division of Public Charities 13 

Civil Defense 14 

Motor Tort Cases 14 

Natural Disasters, Protection against Illegal Activities following ... 14 

Port of Boston 15 

Mental Health 15 

Workmen's Ccrapensation 15 

Insurance and Motor Vehicle Appeal Board 16 

Actions against Justices of the Supreme Judicial, Superior and District Courts 16 

Inland Marine Insurance 16 

Highway Safety Act 17 

Judicial Survey Commission 17 

Contributory Retirement Appeal Board 18 

State Contracts 18 

Springfield Office 18 

Town By-laws 18 

State Housing Board 19 

Employment Security 19 

Opinions and Advice to Governor and State OflScers 20 

Conclusion 20 



OPINIONS. 



Employment Security — Effect of Guaranteed Annual Wage Plan upon 
Right to Unemploym,ent Benefits. 

Aug. 1, 1955. 
His Excellency Christian A. Herter, Governor of the Commonwealth. 

Sir: — You have requested an opinion regarding the so-called guar- 
anteed wage plan of the kind recently adopted by the Ford Motor Com- 
pany and the effect of such a plan upon our owti unemployment com- 
pensation law. Your first question is: 

"1. Does the receipt of benefits under the so-called Guaranteed An- 
nual Wage Plan, of the kind recently adopted by the Ford Motor Com- 
pany for payment of supplemental unemployment benefits to certain of 
its employees, prevent the receipt by such employees, while unemployed, 
of benefits under Massachusetts Employment Security provisions in 
0. L. c. 151A?" 

In my opinion, and for the reasons set forth in detail below, the answer 
to the above question is in the negative. 

The Ford Plan, commonly called a "guaranteed annual wage" plan, is 
entitled "Supplemental Unemployment Benefit Plan." This is an ac- 
curate title because the Plan provides for payment of benefits only if the 
applicant had theretofore "received a state system unemployment bene- 
fit." Art. V, § 2 (b) (3). The supplemental payments under the Plan are 
made by two trusts estabhshed under the Plan for such purpose. Art. II. 
The funds in the trusts come from contributions by the company at the 
rate of five cents per hour for which the company has paid its employees. 
Art. IV. The trust funds can be paid only to persons ehgible under the 
Plan (Art. V), or for expenses of administration of the Plan (Art. XII), 
and can in no event revert to the companJ^ Art. XI, § 8 (6). Although 
the company's contributions to the trusts are figured upon five cents per 
hour for all paid time, the emploj^ees whose hours of pay have been counted 
will not receive benefits in proportion to their pay, and in fact may never 
receive any benefits at all. The Plan gives them a right in the future to 
receive certain possible benefits, in varying amounts, and in exchange for 
certain "credit units" they have accumulated (Art. VI), but only if they 
meet the rigid standards of eligibility set forth in Art. V. The; "Status of 
Person Receiving Benefits" is set forth in Art. XI, § 9, as follows: 

"Neither the Company's contributions nor any Benefit paid under the 
Plan shall be considered a part of any employee's wages for any purpose. 
No person who receives any Benefit shall for that reason be deemed an 
employee of the Company during such period, and he shall not thereby 
accrue any greater right to participate in, accrue credits or receive bene- 
fits under anj^ other employee benefit plan to which the Company con- 
tributes than he would if he were not receiving such Benefit." 

Your question presents the problem whether a person otherwise eligible 
for unemployment benefits under the Massachusetts Employment Se- 



24 P.D. 12. 

curity law, G. L. c. 151A, loses such entitlement because of his right to the 
supplemental unemployment benefits under the Plan described above. 

The Massachusetts law provides for payment of benefits to eligible 
persons who are "in total unemployment." § 29 (a). Section 1 (r) (2) 
states that a person — • 

"shall be deemed to be in total unemployment in any week in which he 
performs no wage-earning services whatever, and for which he receives no 
remuneration. ..." 

It is clear, since the Ford supplemental benefit is paid only during unem- 
ployment, that the individual "performs no wage-earning services" for 
that period. 

Nor can it be said that the week of unemployment is a week "for which" 
the individual receives "remuneration." It is true that he is entitled to 
a supplemental benefit during that week under the Plan, but there is con- 
siderable doubt as to whether such benefit is "remuneration" or "con- 
sideration" as defined in our statute; and even if it were so included it 
was "remuneration" or "consideration" earned at some earlier period 
during which the individual was working. The statute covers this situa- 
tion by the definition in § 1 (r) (3) : 

"For the purpose of this subsection, 'Remuneration', any considera- 
tion . , . received by an individual . . . for services rendered. . . . 
Remuneration shall be deemed to have been received in such week or weeks 
in which it was earned or for such week or weeks, including any fractions 
thereof, to which it can reasonably be considered to apply. . . ." 

The second alternative, that the "remuneration shall be deemed to 
have been received . . . for such week or weeks ... to which it can 
reasonably be considered to apply," is not an alternative to be used, in 
the discretion of an administrative officer, if the week or weeks in which 
such remuneration was earned is in fact known. Kerr v. Director of the 
Division of Employment Security, 332 Mass. 78. In re Public Ledger, Inc., 
161 F. 2d 762, 773, and note. Our court stated in the Kerr case (p. 81): 

"If the sum paid was 'consideration' received from his employing unit 
at all it would seem that it must have been 'earned' during the many 
weeks while Kerr was at work for the company and not after he ceased 
work, and must be 'deemed to have been received' in the 'weeks in which 
it was earned.'" 

By definition in § 1 (r) (3) ," remuneration" also includes "any con- 
sideration . . . received ... as severance payments, dismissal pay, or 
vacation allowances." In my opinion, the supplemental unemployment 
benefits provided under the Plan do not come within any of these three 
terms. There is no "severance," no "dismissal," no "vacation." The 
Plan itself uses the phrase "on layoff," and this is one of the requirements 
for eligibility. Art. V. The benefit provided for is called an "unem- 
ployment" benefit. Such a payment is not one covered by the above- 
quoted provision in § 1 (r) (3). 

Accordingly, the right of a person otherwise eligible for Massachusetts 
benefits to receive supplemental unemployment benefits under the Ford 
Plan does not establish that such person is not "in total unemployment." 

Another reason why entitlement to such supplemental benefits does 
not prevent payment under our Massachusetts Employment Security Act 



P.D. 12. 25 

is that such benefits are payment to the unemployed person "of his money 
to which he was entitled as a beneficiary of the trust." Kerr case, p. 81. 
The payments under the Ford Plan are from trusts. The funds in the 
trusts are contributed in the first instance by the company. The em- 
ployees are the beneficiaries of such trust. The company is not a bene- 
ficiary. The company can receive no benefit in any way from such funds. 
An unemployed person's claim to payment from the trusts is a claim as a 
beneficiary, not as an employee. At no time was the money which is now 
in the trusts in the hands of the employee, nor was he ever entitled to such 
money. The money was never payment to him as wages, nor can the 
money be considered to be wages even though based upon an amount of 
five cents per hour of work. The description in the Kerr case, p. 81, of 
the trust passed upon there, is equally applicable to the trust in the pres- 
ent case. The conclusion in the present case is similar, that the payment 
of supplemental unemployment benefits to an unemployed person is 
merely the payment to him "of his money to which he was entitled as a 
beneficiary of the trust." And, again, "The case is not so greatly different 
from one in which an employee through a series of years makes regular 
deposits out of his wages in a savings bank and then withdraws the sum 
deposited when his employment ceases." 

For the above reasons, the right to receive supplemental unemployment 
benefits under the Ford Plan, during a week in which an individual is in 
fact unemployed and while he is otherwise eligible for Massachusetts 
benefits, does not prevent the receipt by such person of the benefits pro- 
vided by G. L. c. 151 A. Your first question is therefore answered in the 
negative. 

The above answer is based upon the exact language appearing in our 
Massachusetts statute. Similar conclusions, that the Plan does not pre- 
vent payment of State unemployment benefits, have been reached in 
Michigan and in Connecticut by rulings of their Attorneys General. See 
full opinions in 36 Labor Relations Reporter, July 18, 1955, pages 439- 
452. Those rulings, of course, were based upon statutes which differ in 
language and coverage from the Massachusetts law, and the reasons as- 
signed for those two conclusions cannot be used to support the similar con- 
clusion which I have set forth above. Other ruUngs in the same general 
field are collected in the Benefit Series Service published by the U. S. Bu- 
reau of Employment Securit}^; but in each instance the decision is based 
upon language not identical with the language in the Massachusetts 
statute. 

You also request an opinion upon two other questions, as follows: 

"2. What effect, if any, do the provisions for payment of supplemental 
unemployment benefits under the so-called Guaranteed Annual Wage 
Plan have upon the payment of benefits under G. L. c. 151A?" 

"3. Is new legislation necessary in Massachusetts in connection with 
such Guaranteed Annual Wage Plan?" 

As to your second question, I answer "None." I cannot see, upon the 
facts which have been made known to me, how the Ford Plan, or any 
similar plan, can affect the payment of benefits under G. L. c. 151A. One 
situation is covered by your first question, which I have answered at length 
above. If questions presenting radically different situations should arise, 
I will be pleased to rule on them at such time. 



26 , P.D. 12 

My answer to your third question is "No." New legislation certainly 
is not "necessary." However, such legislation would not be inappropri- 
ate, and even would fit in logically with the present scheme of our statute. 
For example, see § 1 (s) (4) which excludes from "wages" payments to 
employees as beneficiaries under certain stock bonus trusts. But as to 
possible new legislation I would suggest the matter be further studied by 
the persons who are responsible for the direct administration of our own 
statute. Payments under the Ford Plan will not begin until July, 1956. 
Prior to such date new legislation, if advisable, could be considered and 
framed to meet all necessary situations, including similar plans by other 
companies, without Kmiting it to the one matter which you have pre- 
sented to me. 

Very truly yours, 

George Fingold, Attorney General. 



Tidewater Lands — Right of Department of Public Works to license Con- 
struction where Title to Land is in Question. 

Aug. 10, 1955. 
Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — You have recently asked my opinion as to the power of 
your department, acting under G. L. c. 91, to grant a license to an indi- 
vidual in Nantucket to dredge and construct certain structures in tide- 
water on land as to which the ownership "is in question." 

General Laws, c. 91, § 14, provides: 

"The department of public works may license and prescribe the terms 
for the construction or extension of a wharf, pier, dam, sea wall, road, 
bridge or other structure, or for the filling of land or flats, or the driving of 
piles in or over tide water below high water mark, but not, except as to 
a structure authorized by law, beyond any established harbor line, nor, 
unless with the approval of the governor and council, beyond the Une of 
riparian ownership. ..." 

The right of the department to issue a license under § 14 is based upon 
the implied assumption that the land either is owned by the Common- 
wealth, i.e., it is "beyond the line of riparian ownership," in which event 
the statute requires "the approval of the governor and council," or it is 
owned by the appUcant or at least the applicant has a right, if a license 
is granted, to place the structure on such land. Two conclusions follow 
from this interpretation. First, the section does not give the department 
power to license one person to place a structure on land of another person. 
Such a license would necessarily lead to friction, trespass and litigation. 
The issuance of a license under such circumstances would be unreasonable. 
If such a structure is essential, the result could be reached laAvfully by 
purchase, or by a public taking. Secondly, the section does not forbid 
the issuance of a license merely because the applicant has not had his 
land registered, or because he has not presented a conveyancer's certifi- 
cate of perfect title, or because there is some frivolous claim to the land 
made by another person. In other words, the assumption that the appU- 
cant is the owner or has a right to use the land does not require the depart- 
ment to "adjudicate" title, nor does it mean that the issuance of a license 



P.D. 12. 27 

is in effect an adjudication or guarantee of good title. See Chelsea Yacht 
Club V. Mystic River Bridge Authority, IV30 Mass. 566. 

The above two conclusions or interpretations cover the two extremes, 
and are required as a matter of common sense. But a whole array of 
situations exists between these extremes. Section 14 gives the depart- 
ment discretion whether or not to issue a hcense. The department "may 
license" the work which the applicant desires to do. The exercise of this 
discretionary power should be based, among other things, upon the na- 
ture of the applicant's title or right. If the applicant's title or right turns 
out to be good, the exercise of discretion by issuing a license would be 
confirmed. If the applicant's title or right turns out not to be sufficient, 
the adverse claimant has his remedy in a petition to enjoin trespass. See 
Scullin V. Cities Service Oil Co., 304 Mass. 75. 

Under the circumstances of the present case, and for the reasons above 
set forth, it is my opinion that your department has discretionary power 
to issue the Ucense in question to the appHcant. Whether or not you 
should exercise your discretionary power to issue such license is an ad- 
ministrative decision which you must render. No question of law is pre- 
sented. The matter calls for an administrative decision, based upon your 
experience and judgment and upon your evaluation of all the circum- 
stances, including the question of the title or right of the apphcant. 

Furthermore, a Ucense could properly be issued by the department 
under § 14, notwithstanding a dispute in title, if all persons claiming a 
possible interest consented. As pointed out above, the existence of some 
other claim to the land is not an absolute bar to the issuance of a Ucense, 
it merely presents a question whether or not your discretionary power 
should be exercised. If the consent of aU claimants is given it would seem 
that there would be no basis upon which the department, solely from the 
point of view of disputed ownership of the land, could exercise its dis- 
cretion against the applicant. 

Very truly yours, 

George Fingold, Attorney General. 



Public Building Construction — Bid Statute — Notice of Intention — Unit 
Prices — "Extra Work" or "Alteration." 

Aug. 12, 1955. 

Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — You have requested my opinion on questions relating to 
proposed payments to V. Barletta Co. for certain work on the John F. 
Fitzgerald Expressway as foUows: 

"1. If a contract contains unit prices, may the department which exe- 
cuted the contract using such unit prices authorize additional work not 
included in the original contract without filing a Notice of Intention as 
required by G. L. c. 29, § 20A, provided the additional work is based on 
the same unit prices?" 

"2. Does the extension of the substructures and surface roads by 
V. Barletta Co. come mthin the provisions of extra work as set forth in 
G. L. c. 29, §20A?" 



28 P.D. 12. 

"3. May payment be made to V. Barletta Co. for work done between 
High Street and Oliver Street when the Department of Public Works has 
not filed a Notice of Intention as set forth in G. L. c. 29, § 20A?" 

From information contained in your letter and from other sources, in- 
cluding an examination of Contract No. 5071, Alteration Order No. 2, 
Extra Work Order No. 14 and related plans and specifications, it appears 
that in the opinion of the Department of Public Works it became neces- 
sary and expedient to redesign the southerly end of this project. The 
change involved eliminating a portion of the work as originally planned 
and substituting therefor a ramp and related structures not called for at 
this location under the original plans. The change was made necessary 
by a change in the proposed layout further to the south where the Ex- 
pressway was to be placed under ground rather than continued as an 
overhead structure. The final structure extended a relatively short dis- 
tance beyond the original southerly end of the project as originally planned. 
The contract price for the entire project was $3,647,577.45. The work 
involved in the change is covered by Alteration Order No. 2 in the sum 
of $318,459.85 and by Extra Work Order No. 14 in the sum of $24,552.50, 
both dated December 6, 1954. 

It is my understanding that Notice of Intention as required by G. L. 
c. 29, § 20A, was duly filed by the Department of Pubhc Works on Extra 
Work Order No. 14, but that no Notice of Intention was filed as to Al- 
teration Order No. 2, it being the contention of the department that all 
of the items of work covered by Alteration Order No. 2, being covered 
by unit price items in the basic contract, constitute alterations as to which 
a Notice of Intention is not required. 

As the question has not been expressly raised in your request, it is as- 
sumed but not decided, that the work here in question either fell within 
the scope of the contract, or was necessary for the proper completion of 
the project as originally planned, and was not a change so complete in 
nature and so substantial in amount that it amounted to a new contract 
which would require advertising and bids under the Fair Bid Statute. 
See Morse v. City of Boston, 253 Mass. 247, 254. 

If the work here in question is within the general scope of the contract, 
it must be either an "alteration" or "extra work." As between the Com- 
monwealth and V. Barletta Co., this question should be determined by 
reference to the contract which is found to contain the following general 
definitions in Article 1 of the "Standard Specifications for Highways and 
Bridges, 1941 Ed." incorporated in this contract by reference. 

"Alteration" — "Change in the form or character of any of the work 
done or to be done." 

"Extra Work" — "Work or materials for which no price agreement is 
contained in the contract and which is deemed necessary for the proper 
completion of the improvement." 

The definition of "alteration" quoted above must be taken to refer to 
"any of the work done or to be done" as described and limited by the 
special provisions, plans and detailed specifications. Broadly, this would 
restrict "alterations" to those things which lie within the original scope 
of the work "done or to be done" as defined in the particular contract 
under consideration. 

By contrast, the definition of "extra work" carries the implication that 



P.D. 12. 29 

the work in question was not anticipated and was not called for by the 
plans and specifications, but was deemed necessary to complete the project. 

Articles 22, 23 and 80 of the Standard Specifications also refer to altera- 
tions and extra work but relate to the general subject of payment therefor 
and not to the definition or classification of the work involved. 

However, it has been held that parties to a contract may not by pro- 
visions such as Article 22 avoid the consequences of statutory provisions 
designed to limit and control the authority of public officers to enlarge 
contracts without compljdng with statutory requirements. Morse v. 
City of Boston, 253 Mass. 247, 254. 

Consequently, recourse must be had to general definitions of the words 
"alteration" and "extra work." In a case involving a statute dealing 
with "alterations" as distinguished from "repairs," the word "altera- 
tion" was defined by the Massachusetts Supreme Judicial Court in Boston 
& Albany R.R. v. Department of Public Utilities, 314 Mass. 634, at page 
637, as follows: 

"An alteration when used in reference to a structure usually denotes a 
change or substitution made in a particular part of a structure of such a 
substantial nature as to make the structure itself or an important part 
thereof materially different from what it formerly was." 

Cases from other jurisdictions agree in the general definition of an 
"alteration" as a modification in some details, leaving the general pur- 
pose and effect of the original contract unchanged. 

On the other hand, an "extra" is generally defined as work not con- 
templated or required by the original contract and which the Common- 
wealth could not require the contractor to perform without additional 
compensation, as in Russo v. Charles I. Hosmer, Inc. 312 Mass. 231, 234, 
or United States v. Matthew Cummings Co. 27 F. Supp. 405 (U. S. Dist. 
Ct., Mass.). And further, such "extra work" must be necessary to the 
satisfactory completion of the basic contract, but cannot amount to new 
work not awarded under the bid statute. See Morse v. City of Boston, 
253 Mass. 247, 254. 

Question No. 1, because of its broad assumptions, is here treated as a 
general question not hmited to the facts of Contract 5071 with V. Bar- 
letta Co. The words "additional work not included in the original con- 
tract" are here understood to relate to work beyond the scope of the 
original contract and not to mere changes in detail in accomphshing work 
to be done as limited by the contract. In that sense, "additional work not 
included in the original contract" is "extra work," provided also that it 
was in fact necessary to the completion of the original project in a satis- 
factory form. For such work, a Notice of Intention would be necessary. 
However, the fact that the contract contains unit prices, and that the 
"additional work" is based on the same unit prices is not controlling in 
determining whether "additional work" is an "alteration" or "extra 
work," and in some instances may not even be material, as where the 
"additional work" constitutes such a change in the contract as to be be- 
yond the scope of the contract as originally written. See Morse v. Bos- 
ton, 253 Mass. 247, 254. As so construed, the answer to Question No. 1 
is "No." 

Question No. 2 is construed as asking whether in my opinion "the ex- 



30 P.D. 12. 

tension of the substructures and surface roads by V. Barletta Co." under 
Contract No. 5071 was "extra work" so that Notice of Intention would be 
required under G. L. c. 29, § 20A. In the first place, I am of the opinion 
that the work here in question must be treated as a whole and is not 
properly divisible into separate parts depending solely upon whether the 
various items of work were or were not, by chance, covered by unit price 
items in the contract. Each single item was but a part of a single major 
change in the design of the southerly end of the project. Consequently, 
the entire change must be treated either as an "alteration" or as an 
"extra" for the purposes of G. L. c. 29, § 20A. If the change was merely 
one of detail in performing the work, within the scope of the contract, then 
it is an "alteration;" but if the work amounts to something which the 
contractor could not have been required to do under the terms of the con- 
tract as originally written, but was necessary to the satisfactory com- 
pletion of the project, then it is "extra work." 

However, whether the "extension" here involved, treated as a whole, 
is an "alteration" or "extra work", remains a technical question of fact 
to be determined by the department having administrative jurisdiction 
over performance of the contract, although such determination should be 
made within the bounds of the legal principles hereinbefore set forth. The 
function of this department is to advise on questions of law and not to 
make findings of fact on matters of an administrative nature lying within 
the jurisdiction of another department. 

Consequently, the answer to Question No. 2 is that Notice of Intention 
under G. L. c. 29 § 20A, must be given if the Department of Public Works 
determines that the entire change here involved was "extra work," but 
need not be given if that department finds that such change was an "altera- 
tion" as defined above. 

Question No. 3 relates to the validity of making payment to V. Barletta 
Co. for work done on the "extension" here involved. Whether a Notice 
of Intention must be filed depends on the answer to Question No. 2, As 
indicated therein, a Notice of Intention would be required only if the work 
is found to be an "extra." The fact that part of the work was between 
High Street and Oliver Street, beyond the original southerly terminal point 
specified in the contract, is not controlling, but is merely one of the facts 
to be considered in making the ultimate finding of fact. 

It also appears to be established that, in the absence of specific statutory 
authority giving the Comptroller the right of review on questions of fact, 
he has no power to review or reverse findings of fact within the jurisdiction 
of another administrative department. See Lenox v. Medford, 330 Mass. 
593, where the court said at page 595: 

"But we think that the powers of a city auditor do not extend to revis- 
ing the findings of fact of other administrative officers on the ground that 
they were not warranted by the evidence." 

The duties of the Comptroller in regard to the payment here involved 
are defined in G. L. c. 7, § 13, so far as here material, as follows: 

"The comptroller shall examine all accounts and demands against the 
commonwealth. . . . He may require affidavits that articles have been 
furnished, services rendered and obligations incurred, as claimed. Such 
affidavit for any office, department, commission and institution shall be 
made by the person authorized to incur such obligation. ... if it appears 



P.D. 12 31 

to him that there are improper charges in said accounts or demands he 
shall report the same to the governor and council, with a separate certifi- 
cate therefor. ..." 

It would appear from said § 13, that, in the event the Comptroller does 
not concur in the finding which may be made by the department, and be- 
Ueves that the charges are improper in any regard, he must report that 
fact to the Governor and Council, presumably for their final scrutiny and 
determination. 

Very truly yours, 

George Fingold, Attorney General. 



Debt Pooling Plans — Legislative Declaration of what constitutes "Practice 

of Law." 

Aug. 18, 1955. 

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

Sir : — You have submitted to me for examination and report enacted 
bill numbered House 2717, as amended, entitled "An Act relative to Debt 
Pooling Plans. "1 

The present bill is an amended form of this same numbered bill as to 
which I advised you, under date of June 1, 1955, that the bill was uncon- 
stitutional. The bill now appears in an entirely new form. In my opin- 
ion, the change in form has cured the objections which I pointed out in 
my former letter. 

The new bill amends that portion of G. L. c. 221 which relates to at- 
torneys at law. The amendment is made by adding a new section num- 
bered § 46C after the present § 46B. The present bill relates to "debt 
pooling plans," so called, whereby a debtor deposits funds with another 
person under an agreement with the other person that the latter will ar- 
range payments or other distributions to the creditors, to the end that the 
debtor will not continue to be subject to suits, demands, attachments and 
the Hke. The bill which has been presented to you for signature states 
that "the furnishing of advice or services for and in behalf of a debtor" 
in connection with such a debt pooling plan "shall be deemed to be the 
practice of law." The section then provides that any person other than a 
lawj'-er who "furnishes or offers to furnish any such advice or services" 
shall be punished by a fine or imprisonment or both. 

The statement of the Legislature that the furnishing of such advice or 
services "shall be deemed to be the practice of law" does not estabhsh 
this as a fact if such a declaration is itself contrary to fact. However, 
such declaration by the Legislature that the furnishing of such advice or 
services constitutes the practice of law is a reasonable one. It is m}'' opin- 
ion, having in mind the exact nature of the services which are necessary 
to a debtor who is pursued by creditors and their lawyers, and who de- 
sires to have such claimants call off their legal actions and accept pro rata 
payments, that furnishing such services and advice probably does con- 
stitute the practice of law both as a matter of fact and as a matter of law. 
Furthermore, this conclusion is the one which has been adopted and acted 

1 Approved by the Governor on August 22, 1955, to become chapter 697 of the Acts of 1955. The act 
was declared constitutional in Home Budget Service, Inc. v. Boston Bar .Association, Mass. Adv. Sh. (1957) 
23. 



32 P.D. 12. 

upon for some years by bar association committees which have studied 
into the matter, and is supported by the positive opinion of numerous 
leaders of the bar. Although the Legislature cannot make something a 
fact if it is not so, the members of the Legislature must always base their 
new statutes upon an assumption that certain facts exist, and I believe 
that the assumption made in this proposed bill is a reasonable one. Cer- 
tainly, it is not within the province of the executive branch of the govern- 
ment to deny this statement of fact. 

"The judicial department is necessarily the sole arbiter of what con- 
stitutes the practice of law." Lowell Bar Assn. v. Loeb, 315 Mass. 176, 180, 
citing Opinion of the Justices, 289 Mass. 607, 614. Nevertheless, the Legis- 
lature, while it may not permit non-lawyers to practice law, may enact 
laws convenient "to enable the judicial department properly to perform" 
its duty. Opinion of the Justices, 279 Mass. 607, 611. Such assistance is 
rendered by this proposed law in that it will enable the Attorney Gen- 
eral and others to call to the court's attention debt pooling arrangements 
that may be found to involve the practice of 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. 



Lord's Day — Licensing by Commissioner of Public Safety of Motion Pictures 

and Entertainments.* 

Aug. 22, 1955. 

Hon. Otis M. Whitney, Commissioner of Public Safety. 

Dear Sir: — You have requested an opinion as to the effect upon cer- 
tain sections of G. L. c. 136 of the recent decision of the Supreme Judicial 
Court in Brattle Films, Inc. v. Commissioner of Public Safety, 333 Mass. 58. 

That decision establishes only the two following basic propositions: 

1. That motion pictures fall within the protection of the free-speech, 
free-press guaranties of the First and Fourteenth Amendments to the 
Federal Constitution. 

2. That, therefore, G. L. c. 136, § 4, is unconstitutional and void "as 
applied to the plaintiff in the circumstances set forth in the bill of com- 
plaint," since it purports to require "advance scrutiny by governmental 
authority" as a prerequisite to the effectiveness of a license for a public 
Sunday showing of a motion picture. 

It does not definitively decide that said § 4 is invalid for any reason other 
than because its provisions constitute a "prior restraint on the freedom of 
speech and of the press"; indeed, the court expressly refuses to make any 
determination as to "whether § 4 is also void for indefiniteness." While, 
at one point in the opinion, the court says that the statute is "void on its 
face" (p. 811), the rescript declares explicitly that it is unconstitutional 
only "as apphed to the plaintiff in the circumstances set forth in the biU 

* See related opinion, on page 94 of this report. 



P.D. 12. 33 

of complaint." Moreover, in Times Film Corporation v. Commissioner of 
Public Safety, 333 Mass. 62, the same justice who wrote the Brattle de- 
cision refers to it as determining only that " § 4 is unconstitutional as 
applied to the facts in that case." 

Hence, in ni}'' opinion, the Brattle case invalidates said § 4 only as it 
makes "advance scrutiny by governmental authority" a prerequisite to 
the exhibition on Sunday of motion pictures and, by necessary implica- 
tion, of such other forms of entertainment as may also fall within the free- 
speech, free-press area protected by our Constitutions. The statute has 
to no extent been challenged in its applicability to entertainments which 
cannot be seriously thought of as entitled to that protection; it remains 
upon our books, and still has full effect, for example, as to musical enter- 
tainments required to be licensed under its terms, and there is no question 
that you still have the duty of approving or disapproving such entertain- 
ments thereunder. 

However, I am of the opinion that you now have no duties to perform 
under said § 4 as to motion pictures and the like. The court has clearly 
stated that you may not constitutionally withhold your approval and so 
prevent the showing of motion pictures on Sundays, and it would seem 
necessarily to follow that, whatever other procedures exhibitors must 
follow in order legally to make such showings, they need no longer make 
an}"" application to you. 

The foregoing sufficiently answers your first two questions. 

You inquire also whether the Brattle decision in any way affects § 4A of 
said c. 136. That section provides for the granting of licenses by municipal 
authorities for certain Sunday activities at amusement parks or beach 
resorts, and contains the proviso that such licenses shall not be effective 
without your written approval "as provided in the case of public enter- 
tainments under section four." Since none of the activities required to be 
licensed and approved by § 4A can be considered as falling within the area 
of free-speech or free-press, my answer to this question is in the negative. 
As above stated, the Brattle decision does not purport to invalidate said 
§ 4 for any purpose other than to protect First Amendment rights. 

Your final question is as follows: 

"4. If §§ 3 and 5 of c. 136 are still in effect, does the decision of the 
Supreme Court in the case of Brattle Films, Inc. v. Commissioner of Public 
Safety mean that at the present time it is illegal to hold on the Lord's 
day any of the entertainments which were provided for in § 4?" 

In my opinion, § 5 of said c. 136 does not prohibit the Sunday enter- 
tainments regulated by §§ 2 through 4B, inclusive, of said chapter; there- 
fore, so far as said § 5 is concerned, I advise you that none of "the enter- 
tainments which were provided for in section 4" is prohibited thereby. 

Section 3 of said chapter provides that "Whoever . . . maintains . . . 
any public entertainment on the Lord's day . . . unless such public en- 
tertainment shall be in keeping with the character of the day and not in- 
consistent with its due observance and duly licensed as provided in the 
following section . . . shall be punished. . . ." Even if it be assumed that 
the effect of the Brattle decision, invalidating § 4 as to motion pictures, is 
to strike down, also, the words of said § 3 which are italicized, what would 
then be left of the statute would exempt from any prosecution thereunder 
a person who exhibits a motion picture which is "in keeping \vith the 



34 P.D. 12. 

character of the day and not inconsistent with its due observance." Most 
motion pictures would, of course, meet this test, and, if they did, could 
"legally" be shown. If local licenses are still required for Sunday motion 
pictures, said § 3 would, of course, not bar their exhibition under such a 
license. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Public Health — Standards of Purity of Foods — Administrative Decision 
made Five Years after Public Hearing. 

Aug. 24, 1955. 
Samuel B. Kirkwood, M.D., Commissioner of Public Health. 

Dear Sir : — You have requested an opinion in connection with the 
issuance of rules and regulations under G. L. c, 94, § 192. 
It is provided in said § 192 that your department 

". . . after public hearing . . . may adopt standards, tolerances and 
definitions of purity or quality or identity." 

You inform me that a public hearing was held on November 8, 1950, 
with regard to standards, tolerances and definitions of purity, quaUty and 
identity for so-called still juices, such as nectars, fruit drinks, fruit ades 
and imitation fruit drinks as opposed to carbonated drinks. You also 
advise me that "the definitions for nectars, fruit drinks, fruit ades and 
imitation fruit drinks were quite controversial," and you further state that 
such problems are "as yet unsolvable." 

Upon the above facts you request an opinion on the following question : 

"The question is whether or not the department, that is the Commis- 
sioner and Public Health Council, may at this date, take final action of 
adoption based on those hearings held on November 8, 1950." 

In my opinion the answer to the above question is in the negative. The 
statute makes it clear that the adoption of such standards, tolerances and 
definitions would be unauthorized if there were no public hearing. I think 
it is equally clear that the adoption of such standards, tolerances and defi- 
nitions, based upon a public hearing duly held, say, some thirty years ago, 
would also be unauthorized. After such an undue lapse of time it could 
not be said that the regulations adopted had any reasonable relation to 
the earlier public hearing. The question presented in your case is a more 
difficult one, that is, whether a delay of five years between the public hear- 
ing and the adoption of regulations would make the regulations unlawful. 
I am inclined to think that such a delay is too much. From the informa- 
tion contained in your letter and enclosed material I understand that the 
definitions in this field are controversial, that various new juice mixtures 
are being brought into the Commonwealth, and that the parties now in- 
terested in these standards, tolerances and definitions would be entirely 
different parties from those who had an opportunity to attend your hear- 
ing five years ago. 



P.D. 12. 35 

It is possible, if you now adopt regulations based upon the 1950 hear- 
ings, and if you succeeded in establishing in probable future litigation at- 
tacking the validity of such regulations that the circumstances existing 
today are the same as those which existed at the time of your 1950 hear- 
ing, that such regulations would be upheld. On the other hand, and based 
upon the information contained in your letter and enclosures, it seems to 
me unhkely that you could establish that the present situation is the 
same as it was five years ago. Certainly you could not establish that the 
parties interested in the matter today are the same as the parties who could 
have attended your hearing five years ago. 

The requirement of a "pubhc hearing" is basic. What constitutes a 
pubhc hearing is a matter of interpretation, and the question of a long de- 
lay between the hearing and the regulations flowing therefrom would be 
an element for consideration. Upon the facts as you have presented them 
to me, it is my opinion that regulations in this field issued five years after 
a public hearing, would be held, in case of attack in the courts, to be in- 
vaUd because of the unreasonable lapse of time between the hearing and 
the regulations. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Municipality — Right to appropriate Money for Land for Armory. 

Sept. 8, 1955. 
Mr. Herman B. Dine, Director, Division of Accounts. 

Dear Sir: — In your recent letter you pose the following question: 

"Do Massachusetts municipalities have authority to appropriate money 
for the acquisition of land for an armory?" 

I answer your question in the afiirmative. 

It is true, as you state, that in G. L. c. 33, § 28, aldermen or selectmen 
shall provide in certain instances an armory. It is further provided in 
§ 30 of said chapter that the aldermen or selectmen shall provide, under 
certain conditions, suitable grounds for parade, drill and small arms 
practice. Later in § 30, it is stated that cities or towns where head- 
quarters, command or detachments of the organized militia are per- 
manently stationed may raise money by taxation or otherwise for the 
acquisition of land for drill and parade grounds or ranges for small arms 
practice and for complying with that section and § 28. These provisions 
were repealed by St. 1954, c. 590, entitled "an act revising the military 
laws of the commonwealth." 

Section 1 provides as follows: "The general laws are hereby amended 
by striking out chapter 33 and inserting in place thereof the following 
chapter: — " 

It is a well estabhshed rule of statutory construction that where there 
is a general revision of the laws relating to a given subject the provisions 
of the new act will be construed as continuations of the previous legisla- 



36 P.D. 12. 

tion so far as consistent therewith. See v. Building Com'r. of Springfield, 
246 Mass. 340. Carter v. Burgess, 323 Mass. 295. 

Chapter 590 inserts 135 sections in c. 33 in place of the earlier provisions, 
12 of which deal with the subject of "armories, air installations and armory 
commissions." 

The new § 117 provides that "cities and towns shall provide for units 
of the armed forces of the commonwealth not provided with a state armory 
or air installation and permanently stationed within their limits, adequate 
facilities including a suitable hall for the purpose of drill and suitable rooms 
properly equipped . . . for administrative work and for the safe keeping 
of military property. They shall provide for such facihties necessary 
fuel, hghts, water, janitor service and necessary repairs . . ." 

Section 117 further provides for a forfeiture to the Commonwealth of a 
sum not exceeding $5,000 for each year of failure to comply with this 
section. 

Section 118 provides for the payment by the Commonwealth of an 
agreed rental for each armory maintained by the city or town. 

Section 119 provides for the presentation by the municipal authorities 
of a city or town to the State Quartermaster of an annual bill for the rent 
of an armory, air installation or adequate facihties furnished. Section 119 
also provides that such bills shall give the designation and location of each 
armory. 

Section 120 provides that when any armory is furnished by the Com- 
monwealth in any city or town the adjutant general shall notify such city 
or town where such armory Ues "and thereupon all obligations of said city 
or town as to said armory . . . shall cease . . ." 

Section 121 requires cities and towns to provide suitable outdoor ranges 
for small arms practice under penalty of a heavy annual forfeiture to the 
Commonwealth. Said section authorizes the accjuisition by cities and 
towns of land for ranges by purchase for eminent domain and the raising 
of money for this purpose by taxation and otherwise. 

Section 122 (a) contains innumerable provisions regulating the use of 
armories provided for the armed forces of the Commonwealth. 

Sections 123 and 124 also deal with the subject of the use of armories. 

Section 127 authorizes the Armory Commission to acquire from the 
municipality by purchase a municipally owned armory. 

It is readily seen from the foregoing that there is a serious responsibility 
upon the municipalities of the Commonwealth in certain cases to provide 
armories for the use of the armed forces of the Commonwealth. There is 
no other conclusion possible from a scrutiny of the provisions above 
referred to. 

It is clear to me that implied, at least, in the obligation of the munici- 
palities to provide armories is the power to acquire the land upon which 
the armory must of necessity rest. It is familiar law that municipalities 
have not only the powers expressl}'' granted to them but also such implied 
powers as may be necessary to perform their statutory duties. Berube v. 
Selectmen of Edgartown, 331 Mass. 72, 74. 

While I have no doubt that the municipalities of the Commonwealth 
have the implied power to accpire and pay for land necessary to perform 
their mandatory duty to provide armories, § 14 of G. L. c. 40 removes any 
doubt of the existence of such power. Further reference may be made to 
G. L. c. 40, § 5, providing that "a town may at any towm meeting ap- 



P.D. 12. 37 

propriate money for the exercise of any of its corporate powers, including 
the following purposes: . . ." As you are aware, of course, the word 
"town" when applied to the towns or officers or employees thereof shall 
include city. G. L. c. 4, § 7, cl. thirty-fourth. It is unfortunate, of course, 
that specific reference to the acquisition of, and payment for, land for 
municipally owned armories is omitted in c. 590. However, in view of the 
heavy obligation directly placed upon the shoulders of the municipalities 
by virtue of the foregoing provisions, it is not to be supposed that the 
General Court intended to deprive the municipalities of the right to ac- 
quire and pay for land for armories which it by direct mandate under 
heavy penalty has required them to construct and maintain. It is more 
reasonable to assume that the General Court intended and expected that 
municipalities by virtue of their implied powers resulting from the new 
legislation and their expressed general powers found in c. 40 were already 
adequately equipped to deal with the situation you refer to without 
further specific authority. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Commissioner of Insurance — Right to review Decisions of Local Retirement 
Boards upon Applications for Retirement. 

Sept. 19, 1955. 

Hon. Joseph A. Humphreys, Commissioner of Insurance. 

Dear Sir : — Your letter of recent date poses the following three ques- 
tions: 

"(1) In connection with retirement allowances to be granted under 
G. L. c. 32, has the Insurance Commissioner the authority to review or 
overrule a decision of a local retirement board on the merits of a case? 

"(2) Has the Insurance Department any duties to perform in connec- 
tion with specific applications for retirement allowances other than to 
check the arithmetical computation of the same? 

"(3) Has the Insurance Department any authority or anj'- obhgation 
to make any comments or recommendations to a local retirement board 
or to disapprove an action of a local retirement board if the supporting 
docimients in connection with a retirement allowance are obviously in 
error or have not been fully filled out?" 

At the outset I should call your attention to the fact that, as stated in 
the opinion of former Attorney General Dever (Attorney General's Re- 
port, 1935, p. 31): 

"The long-continued practice of this department and the precedents 
set by my predecessors in office indicate, what is undoubtedly the correct 
i-ule of law, that it is not within the province of the Attorney General to 
determine hypothetical questions which may arise, as distinguished from 
questions relative to actual states of fact set before the Attorney General, 



38 P.D. 12. 

upon which states of fact public officials are presently required to act; 
nor is it the duty of the Attorney General to attempt to make general 
interpretations of statutes or of the duties of officials thereunder, except 
as such interpretations may be necessary to guide them in the perform- 
ance of some immediate duty." 

You can, of course, readily see that in the total absence of any knowledge 
of the facts relative to the questions you have in mind, it would not only 
be unwise but dangerous for this office to attempt to state the law rela- 
tive to probably numerous different causes involving different facts and 
incidentally perhaps involving serious questions of law based on the facts 
involved. 

However, it is obvious that something must be done to clarify the gen- 
eral situation about which you write. As you know, since your request 
was made three petitions for writs of certiorari against you have been 
brought because of the rulings of your department relative to the mat- 
ters in question. With this word of caution I proceed to discuss, so far 
as it seems safe to do, the broad aspects of the three questions you pose, 
doing no more at the present time than to point out the difference between 
the adjudication by you of questions of fact and questions of law. 

As you of course are aware, in 1945 the General Court attempted to 
harmonize as far as possible the provisions of law applicable to the mu- 
nicipal, county and the State and teachers' contributory retirement sys- 
tems. St. 1945, c. 658. As you also are well aware, there are several differ- 
ent types of retirement allowances: section 5 of G. L. c. 32 providing 
for superannuation retirements; § 6 for ordinary disability retirements; 
§ 7 for accidental disability retirements ; § 9 providing for accidental death 
benefits. As to each, it is apparent from an examination of those sections 
that the General Court intended to set up the standards and conditions 
under which such retirements might be allowed. This it had a right to 
do because, as stated in the case of Attorney General v. Brissenden, 271 
Mass. 179: "The just administration of any pension system directly af- 
fects also the public treasury. . . ." 

Passing to the subject of disability retirement allowances, it is seen, as 
stated in § 6 (3) (a) of c. 32 that no member "shall be retired for dis- 
abifity under the provisions of this section or of section seven unless he 
has first been examined by a medical panel and unless a majority of the 
physicians on such medical panel shall, after such examination and after 
a review of all the pertinent facts in the case, certify to the board in writ- 
ing that such member is mentally or physically incapacitated for further 
duty and that such incapacity is likely to be permanent ..." The 
Supreme Court in the recent case of Hunt v. Contributory Retirement Ap- 
peal Board, 332 Mass. 625, 627, said: 

"These provisions make it abundantly clear that there can be no re- 
tirement 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 provided for in section 6 (3). Such cer- 
tification, it is true, is not binding on the local board . . . but without it 
the board cannot make a finding that the appficant is 'totally and per- 
manently incapacitated'; it is, in other words, a condition precedent to 
an accidental disability retirement allowance." 



P.D. 12. 39 

Under the provisions of c. 32, § 7 — 

"Any member in service classified in either Group A or Group B . . . 
who becomes totally and permanently incapacitated for further duty . . . 
by reason of a personal injury sustained or a hazard undergone as a result 
of, and while in the performance of, his duties at some definite place and 
at some definite time . . . No such retirement shall be allowed unless 
the board, after such proof as it may require . . . shall find that such 
member is mentally or physically incapacitated for further duty to the 
extent and under the circumstances set forth in this section, that such 
incapacity is hkely to be permanent, and that he should be so retired." 

Section 9, deahng with accidental death benefits, provides that: 

"If the hoard, upon receipt of proper proof, finds that any member in 
service died as a natural and proximate result of a personal injury sus- 
tained or a hazard undergone . . . the payments and allowances herein- 
after referred to in this section shall be granted to his beneficiary or bene- 
ficiaries, in the sum or sums, and upon the terms and conditions, specified 
in this section. . . ." 

The General Court apparently envisioned the fact that those applying 
for retirement allowances might from time to time be dissatisfied wdth 
the decisions of the retirement boards. Having this in mind, it provided 
in § 16 (4) for a contributory retirement appeal board consisting of re- 
sponsible officials from the fiscal, actuarial and legal departments of the 
government to which 

"... any person aggrieved by any action taken or decision of a board 
rendered, or by the failure of a board to act, may appeal . . . The con- 
tributory retirement appeal board, after giving due notice, shall hold a 
hearing not less than ten nor more than sixtj^ days after the filing of any 
such claim of appeal. The contributory retirement appeal board shall 
pass upon the appeal, and its decision shall be final and binding upon the 
board involved and upon all other parties in interest, and shall be complied 
with by such board and by such parties." 

It seems clear from a reading of the foregoing provisions that the proper 
adjudication of applications for accidental disability and death retirement 
allowances was reposed by the General Court in the various retirement 
boards, subject to rights of appeal by aggrieved persons to the Contribu- 
tory Retirement Appeal Board under § 16 of c. 32, and that the decision 
of the Contributory Retirement Appeal Board "shall be final and binding 
upon the board involved and upon all other parties in interest, and shall be 
complied ^-ith by such board and by such parties." Both the retirement 
boards and the applicants have a right to review the decisions of the Con- 
tributor}' Retirement Appeal Board for errors of law by a petition for a 
writ of certiorari. Hough v. Contributory Retirement Appeal Board, 309 
Mass. 534. 

It is readily seen from an examination of the provisions of G. L. c. 32, 
particular!}^ §§ 1 to 28, inclusive, that many intricate and detailed com- 
putations requiring expert actuarial experience are involved in the com- 
putation of the various retirement allowances and death benefits. Ac- 
cordingly, the General Court has incorporated a number of provisions con- 
templating a general supervision over the operations of the various retire- 



40 P.D. 12. 

ment systems covered by §§ 1 to 28. For example, § 21 (1) (a) provides for 
the supervision of methods of accounting and for regular examinations of 
the affairs of each system "... to ascertain its financial condition, its 
ability to fulfill its obligations, whether all parties in interest have complied 
with the laws applicable thereto, and whether the transactions of the board 
have been in accordance with the rights and equities of those in interest." 
Subsection (6) covers the subject of the supervision of investments, and 
subsection (c) provides the Commissioner of Insurance with the right of 
access to the securities, books and papers of each system and the right to 
summon and administer oath to, and examine any person relative to, the 
financial affairs, transactions and conditions of the system. Subsection 
(c) further provides for preservation by the commissioner in a permanent 
form of a full record of the proceedings of his examinations and for a report 
in writing of his findings to the board and to the Governor, State Treasurer, 
the county commissioners, the mayor or the board of selectmen, as the 
case may be. 

Section 21 (4) provides that the commissioner shall promulgate such 
rules and regulations as may be necessary from time to time to effectuate 
the purposes of §§ 1 to 28, inclusive, and he, or the actuary ^vith his ap- 
proval, may approve any by-laws, rules, regulations, prescribed forms or 
determinations of any board in order to effectuate such purposes. 

Section 21 (3) (a), (b), (c) and (d) refer to and define the responsibilities 
of the actuary. In subdivision (3) (a) it is provided that: "The actuary 
shall check the calculation and amount of each annuity, pension or retire- 
ment allowance granted under the provisions of sections one to twenty- 
eight, inclusive, and all such calculations and amounts shall be subject to 
his approval." 

Section 24 of c. 32 provides: 

"If the commissioner of insurance is of the opinion that any govern- 
mental unit or any officer or employee thereof, or the state board of retire- 
ment, the teachers' retirement board or any other retirement board subject 
to the provisions of sections one to twenty-eight, inclusive, or any member 
or employee of any such board, has violated or neglected to comply with 
any provision of such sections, or the rules and regulations established 
thereunder, he shall give notice thereof to the governor, county commis- 
sioners, the mayor or the board of selectmen, as the case may be, and to 
the retirement board, and thereafter, if such violation or neglect continues, 
shall forthwith present the facts to the attorney general who shall take 
appropriate action." 

Section 24 also provides the Superior Court with jurisdiction in equity on 
the petition of the commissioner or any interested party to compel the 
observance and restram the violations of any of the provisions of §§ 1 to 28, 
inclusive. Subsection (2) of § 24 provides for a fine of not more than one 
thousand dollars or imprisonment for not more than one year, or both, 
for any person who wilfully refuses or neglects to comply with any of the 
provisions of such sections. 

Your three questions point out what might be considered as conflicting 
provisions in the sections of c. 32 dealing with retirement allowances and 
death benefits, and the sections vesting in the Commissioner of Insurance 
and the actuary more or less general supervisory control of some features 



P.D. 12. 41 

of the retirement laws. It should be noted in passing that a complete 
right of appeal from adjudication on the merits in these matters is pro- 
vided as to questions of fact by § IG (4) creating a Contributory Retire- 
ment Appeal Board, from whence a further right of appeal by any ag- 
grieved party to the courts for errors of law is provided by a writ of cer- 
tiorari. It is also obvious that no right of appeal, so far at least as the 
General Court was concerned, was provided from any decision of either 
the actuary or the Commissioner of Insurance. It does not seem to me a 
proper construction of the sections to which I have referred to say that 
the General Court intended to provide for the adjudication on the merits 
of applications for accidental disability retirement allowances and acci- 
dental disability death benefits by the local boards w^ith a complete right 
of appeal and a hearing de novo before the State Contributory Retirement 
Appeal Board, one of the members of which is an assistant to the Com- 
missioner of Insurance, and at the same time say that it was the intention 
of the General Court to vest the commissioner or the actuary with power 
to prevent, by a disapproval of the decision of the local board, these mat- 
ters from ever reaching the Contributory Retirement Appeal Board for 
adjudication. The provisions of § 24 relative to violations of the con- 
tributory retirement laws may also be borne in mind. The General Court 
has apparently laid down a uniform course of action for the commissioner 
to pursue in the event of improprieties in the administration by local 
boards of §§ 1 to 28. It should be further noticed that § 24 contains heavy 
penalties for violations of the provisions of §§ 1 to 28. 

In view of the foregoing, and reserving all rights to rule upon individual 
cases as, if and when they may be referred to this office for rulings of law, 
I answer your question 1 in the negative, hmiting this answer with the 
further statement that neither the Insurance Commissioner nor the ac- 
tuary has the authority to refuse to approve a decision of the local retire- 
ment board if the calculations and amounts are accurate and if on the 
information furnished by the local board it appears that the applicable 
provisions of law relative thereto have been complied with. Except as to 
calculations and amounts, neither the commissioner nor the actuary has 
a right to withhold his approval if the local board has found the apphcant 
entitled to accidental disability or death benefits unless from the informa- 
tion furnished it is apparent that as a matter of law the local board was 
in error. 

Your questions 2 and 3 are the type of questions which Attorney Gen- 
eral Dever doubtless had in mind in the opinion to which I have heretofore 
referred. It would be unwise and dangerous, I think, to attempt to make 
any general statement relative to these two general questions. It is clear 
to me that, reading the sections hereinbefore referred to as an harmonious 
whole, favorable action by the local boards on applications for accidental 
disability retirement allowances under § 7 and accidental death benefits 
under § 9, with proper calculations and amounts, is entitled to be respected 
by you and the actuary, provided the information supplied you does not 
show as a matter of law that the local board Avas in error. It is not your 
duty, obviously, nor that of your department, to become a party by ap- 
proval to illegal retirements. Nor is it j^our duty, as I view it, to withhold 
your approval to retirement allowances duly approved by a local board 
because you do not agree with the conclusions to which the local board 



42 P.D. 12. 

has come. If you feel that improprieties occur from time to time in the 
administration of §§ 1 to 28, the General Court has outUned a com-se of 
action for you to pursue. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



State Employee — Right to Salary, when also Otherwise Publicly Employed. 

Sept. 21, 1955. 
Hon. Ralph Lerche, Chairman, Legislative Research Council. 

Dear Sir: — In a recent letter you state that the legislative research 
bureau established by St. 1954, c. 607, § 2 (G. L. c. 3, §§ 56-61) may from 
time to time find it necessary to employ "on a paid basis," persons regu- 
larly employed by the Commonwealth, or by one of its political subdivi- 
sions, who have specialized knowledge not elsewhere available to the 
bureau. You inquire whether this may be done "without any conflict 
with the statutory prohibition against individuals drawing two or more 
salaries from the State's treasury." 

I can advise you at once that G. L. c. 30, § 21, to which you refer, would 
not stand in the way of employment by the bureau of a person regularly 
receiving a salary from some pohtical subdivision of the Commonwealth, 
and not from the Commonwealth itself; its prohibition, as your question 
correctly indicates, is against the payment to one person of "more than 
one salary from the treasury of the Commonwealth." (Emphasis supplied.) 
Cf. Attorney General's Report, 1942, p. 65. 

If the person whom the bureau wishes to employ is already receiving 
compensation of some kind from the Commonwealth itself, the first mat- 
ter for determination is whether or not he is presently receiving a "salary." 
For this purpose, it would be proper to test his compensation agamst the 
definition to be found in V Op. Atty. Gen. 699, 700 (1920) : 

"[Salary] is limited to compensation established on an annual or peri- 
odical basis and paid usually in installments, at stated mtervals, upon the 
stipulated per annum compensation. It differs from the payment of a 
wage in that in the usual case wages are established upon the basis of em- 
ployment for a shorter term, usually by the day or week, or on the so-called 
'piece work' basis, and are more frequently subject to deductions for loss 
of time." 

If, as so tested, his compensation is a "salary," G. L. c. 30, § 21, would 
prohibit the bureau's payment of a second "salary" to him, VIII Op. 
Atty. Gen. 604 (1929), "even though the work of the second office might 
be done outside of the usual working hours of employment of the first 
office." VII Op. Atty. Gen. 326, 330 (1924). I assume from your letter 
that the compensation to be paid by the bureau to such a person would 
not be in the nature of a salary, but would be in the nature of "wages" for 
special services from time to time performed. In such event, said § 21 



P.D. 12. 43 

would not prevent such casual employment of a salaried State employee; 
a series of opinions from this department has established that principle. 
II Op. Atty. Gen. 21 (1899); II Op. Atty. Gen. 309 (1902); VII Op. 
Atty. Gen. 437, 439 (1924); cj. Attorney General's Report, 1937, p. 120. 

However, G. L. c. 29, § 31, which provides that salaries paid by the 
Commonwealth "shall be in full for all services rendered," would prohibit 
such a person "from receiving compensation for any other services ren- 
dered during the usual hours of employment in the salaried position which 
he occupies." V Op. Atty. Gen. 699, 701, supra; Attorney General's Re- 
port, 1936, pp. 66, 67-68. He may only "receive from the Commonwealth 
additional compensation for special services performed outside of the usual 
working hours of his position and not required in the performance of the du- 
ties of his position." (Emphasis supphed.) VII Op. Atty. Gen. 326, 330, 
supra. 

Of course, if the person whose employment is contemplated already re- 
ceived compensation other than a "salary" from the Commonwealth, 
neither said c. 29, § 31, nor c. 30, § 21, has any application. 

Employment by the bureau of members of the General Court would, of 
course, be governed by the foregoing principles. The compensation of a 
member of the House of Representatives is a "salary", so that he cannot 
be paid another "salary" by the Commonwealth, VII Op. Atty. Gen. 448 
(1924), at least while the Legislature is in session, VI Op. Atty. Gen. 220 
(1921); he must elect, in such circumstances, to waive one of the two 
salaries. Attorney General's Report, 1936, p. 20; cf. ibid. p. 48. How- 
ever, even while the Legislature is sitting, a member of the General Court 
could properly be paid for special services performed for the Common- 
wealth, but only if they were "in the nature of overtime work." VII Op. 
Atty. Gen. 448, 449, supra. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Administrative Procedure Act — Applicability to Proceedings in Division 

of Civil Service. 

Sept. 22, 1955. 

Mr. James E. O'brien, Chairman, Civil Service Commission. 

Dear Sir: — Your recent letter inquires as to the applicability of St. 
1954, c. 681, to "the procedure of the Civil Service Commission under the 
provisions of G. L. c. 31." 

Said c. 681, which adds a new chapter (c. 30A) to the General Laws, took 
effect on July 1, 1955. It deals with "State Administrative Procedure" 
in the matter of (1) the adoption and promulgation of certain regulations 
by State agencies, and (2) the conduct and review of certain "adjudicatory 
proceedings" before State agencies. 

Section 1 of the new chapter defines a State "agency" as "any depart- 
ment, board, commission, division or authority of the state government, 
or subdivision of any of the foregomg, or official of the state government, 



44 P.D. 12. 

authorized by law to make regulations or to conduct adjudicatory pro- 
ceedings." Certain State authorities are expressly excluded from the 
operation of the statute, but your commission is not. Hence, since it is 
authorized to make regulations (G. L. c. 31, §§ 3 ff.) and also to conduct 
proceedings which determine the rights of specifically named persons 
(G. L. c. 31, §§ 43 ff.), I must advise you that its procedures must hereafter 
conform to the apphcable provisions of the new chapter. 

As to the adoption and promulgation of rules and regulations, your 
attention is called generally to the provisions of §§ 2 through 6, inclusive, 
of said c. 30A, which deal with the requirements of notice of pubhc hear- 
ings on the proposed adoption or amendment of regulations ''as to which 
a hearing is required by any law," and with the filing and compilation of 
all currently effective regulations by each agency. You should have an 
interest, also, in §§ 8 and 9 of the new chapter, which authorize agencies 
to give "advisory rulings" interpretive of the statutes and regulations 
administered by them, and which require each agency to "adopt regula- 
tions governing the procedures prescribed by this chapter." 

As to the conduct of "adjudicatory proceedings," your attention is 
called to §§ 10 through 13, inclusive, of c. 30A, which outline the powers 
and duties of your commission during such proceedings. Hearings pres- 
ently conducted by your commission under G. L. c. 31, § 43, are "ad- 
judicatory" within the meaning of these new sections, and are not ex- 
cluded from the operation of c. 30A by § 1 (1) thereof. In so far as your 
present procedures differ from those required by c. 30A, therefore, they 
must be changed. 

You specifically inquire as to the necessity of transcribing hearings be- 
fore your commission. Section 11 (6) of the new chapter governs this 
matter, and provides that an agency "need not arrange to transcribe 
shorthand notes or sound recordings unless requested by a party," and 
may then "require the party to pay the reasonable costs of the transcript." 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salibury, 

Assistant Attorney General. 



Public Contract — Right of Contractor to permit Use of Foreign Steel. 

Sept. 22, 1955. 

Hon. Charles W. Greenough, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir : — You have requested an opinion relating to the use of 
foreign steel sheet piling. You state that a contractor has asked permis- 
sion to use such foreign steel sheet piUng on a contract awarded to it by 
the commission for construction of the South Charles Rehef Sewer. 
General Laws, c. 7, § 23A, provides in part as follows: 

"Rules, regulations and orders adopted under clause (17) of section 
twenty-two shall, so far as may be approved by the governor and council, 
apply to the purchase by contractors of supplies and materials in the exe- 
cution of any contract to which the commonwealth is a party for the con- 



P.D. 12. 45 

struction, reconstruction or repair of any public work; and there shall be 
inserted in any such contract a stipulation to such effect ..." 

It appears that such a clause was inserted in the contract. Rule 16 of 
the rules and regulations referred to by the statute contains the following 
pertinent language: 

"The Purchasing Bureau shall give preference in the purchase of sup- 
plies and materials, other considerations being equal, in favor, first, of 
supplies and materials manufactured and sold within the Commonwealth, 
and, second, of supplies and materials manufactured and sold elsewhere 
within the United States." 

The rule c' early creates a preference in favor of domestic steel in the 
event that other considerations are equal. There is, however, no prohibi- 
tion against the use of foreign steel provided you determine as a question 
of fact that other considerations are not equal and that use of such foreign 
steel would be more beneficial to the Commonwealth. In reaching this 
conclusion it should be determined first of all, as an engineeiing question, 
whether the foreign steel is at least the equivalent of domestic steel. 

Secondly, it should be determined that the use of such foreign steel would 
be more beneficial to the Commonwealth than domestic steel. Since the 
cost of steel to the Commonwealth has already been determined by the 
award of the contract, and since it does not appear that the original bid 
was made on the basis of using foreign steel, price differentials to the con- 
tractor in purchasing foreign steel are not necessarily an element to be 
considered by your commission. 

On the other hand, if the scarcity of domestic steel would delay the per- 
formance of the contract to the detriment of the Commonwealth, or if the 
scarcit}'' of domestic steel would impose any undue hardship on the con- 
tractor, then your commission would undoubtedly be justified in reach- 
ing the conclusion that "other considerations were not equal." 

The letter from the contractor requesting permission to use foreign 
steel does not appear to answer these questions. Before assenting to the 
use of such foreign steel, it is suggested that you obtain additional informa- 
tion on which you can make a proper determination as to "other consid- 
erations being equal." 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Motor Vehicles — Coynyulsory Liability Insurance — Demerit Points — 
Surcharges as "Premiums" rather than as '^Penalties." 

Sept. 23, 1955. 

Hon. Joseph A. Humphreys, Commissioner of Insurance, Department of 

Banking and Insurance. 

Dear Sir: — You have recently requested my opinion with reference 
to the "premium surcharges or penalties" which must be paid for com- 
pulsory motor vehicle liability insurance by car owners who have been 



46 P.D. 12. 

charged with demerit points under G. L. c. 90A, added to our laws by St. 
1953, c. 570. 

No motor vehicle can be registered in this Commonwealth unless it is 
insured under the provisions of our compulsory motor vehicle liability 
statute. G. L. c. 90, § lA and §§ 34A-34J. Under this law "fair and 
reasonable classification of risks" and "adequate, just, reasonable and 
non-discriminatory premium charges" for such compulsory insurance 
coverage are to be fixed and established by you annually. G. L. c» 175, 
§ 113B. The Legislature in 1953 made an important change in this com- 
pulsory liability coverage by providing a so-called system of "merit 
rating" which would increase the cost of compulsory insurance for owners 
of motor vehicles charged with demerit points. G. L. c. 90A, added by St. 
1953, c. 570. Your letter states: 

"In promulgating rates for the year 1956, the Commissioner is required 
under the provisions of St. 1953, c. 570, § 15, to 'fix and establish a schedule 
of premium surcharges' or penalties to be appUed to premium charges for 
compulsory automobile liabihty insurance. The last sentence of said § 15 
provides 'The commissioner of insurance in fixing and establishing pre- 
mium charges' in accordance with § 113B of c. 175 'shall give considera- 
tion to the additional premiums developed by the application of such 
premium surcharges or penalties in each zone.' 

"In giving consideration to the additional amounts collected by the 
application of surcharges, a question arises as to whether such additional 
amount is an insurance premium or a penalty. The words 'premium sur- 
charge' or 'penalties' seem to be used synonymously in this statute. 

"As a practical matter, however, if the additional amounts which are to 
be collected are considered to be insurance premiums, said amounts are 
subject to taxes, commissions, dividend declarations and other expenses 
of the insurance industry. If the amounts to be collected are considered 
to be 'penalties,' no allowance would be made in rate calculations for the 
items specified above which amount in the aggregate to approximately 
one-third of the premium dollar. 

"Therefore, I ask your advice on the following question: — 

"Are the amounts which are proposed to be collected under the pro- 
visions of St. 1953, c. 570, to be considered additional insurance premiums 
or penalties?" 

The law to be interpreted is section 15 of new chapter 90A. This sec- 
tion provides that, in fixing "premium charges" under § 113B of c. 175, 
you must "give consideration to the points charged . . . against the op- 
erating records of the owners of motor vehicles," and that you must estab- 
lish a schedule of "premium surcharges or penalties" to be applied to 
ordinary premium charges for compulsory insurance, which schedule shall 
be "graduated according to the point accumulation records of the owners." 
The section further provides that, in fixing premium charges under said 
§ 113B, you must consider "the additional premiums developed by the 
application of such premium surcharges or penalties." 

In my opinion, the additional amounts collected from owners of motor 
vehicles by virtue of the above statute must be considered to be and must 
be treated as insurance premiums. 

An insurance "premium" is the consideration paid for a contract of 
insurance. Under our compulsory liability statutes this premium includes 



i 



P.D. 12. 47 

not only an amount equal to incurred and covered losses, but it also in- 
cludes something additional to pay the insurance companies' expenses and 
reasonable profits. American Employers' Insurance Co. v. Commissioner of 
Insurance, 298 Mass. 161, 164-165. Massachusetts Bonding & Insurance 
Co. V. Cominissioner of Insurance, 329 Mass. 265, 279. Under the merit 
rating plan the consideration which must be paid by the owner of a motor 
vehicle in order to obtain the compulsory liability insurance includes the 
additional surcharge provided for by section 15. From an insurance 
company's point of view the consideration received b^ it for the risk 
assumed likewise includes the required additional surcharge. Considered 
practical 1}% this additional payment or surcharge can only be construed 
to be a premium. 

This interpretation is confirmed by the technical language of § 15. You 
are required by G. L. c. 175, § 113 B, to fix "premium charges" for com- 
pulsory liabihty insurance. The merit rating surcharges provided by § 15 
are "to be applied to premium charges" under § 113B. In establishing the 
full premium under § 113B, you must consider "the additional premiums" 
developed through the merit rating plan and § 15. 

The use of the word "penalties" in § 15 does not indicate that the added 
surcharge is something other than or different from an insurance premium. 
In § 6 of the same chapter the word "penalties" is used in its technical 
sense of a punishment by the Commonwealth for a crime or offense. But 
this penal meaning of the word is not the one used in § 15. That technical 
sense of the word could not correctly be used to describe an additional 
pajaiient by an insured based upon an evaluation of an added element in 
the risk covered, especially where such additional payment is retained and 
used by the insurer as a source of funds to meet its expenses and insured 
losses. In § 15 the word "penalties" is used only in its lay or non-legal 
sense of a "disadvantage" resulting from the accumulation of demerit 
points. 

Accordingly, you are advised that the surcharges to be collected under 
the provisions of G. L. c. 90A, § 15, are to be considered to be additional 
insurance premiums. 

Very truly yours, 

George Fingold, Attorney General. 



Statutes — Effective Date of Act relative to Mentally III — Act subject to 

Referendum. 

Sept. 29, 1955. 

Jack R. Ewalt, M.D., Commissioner, Department of Mental Health. 

Dear Sir: — In a recent letter you state that "because of mechanical 
problems and administrative problems which arise under the new pro- 
visions," 5^ou must be advised as to the effective date of St. 1955, c. 637. 

That statute, approved last August 4, effects amendments to §§ 1, 10, 
11, 13A, 20, 45, 50, 51, 52, 53, 54, 55, 77 and 86 of c. 123 of the General 
Laws, and repeals §§ 57, 58, 59, 60 and 61 of said chapter. It imposes new 
duties upon and grants new powers to your department relative to "the 
procedures for the hospitalization and commitment of the mentally ill, and 
relating to the care of such persons." I assume from your letter that you 



48 P.D. 12. 

have no present difficulty in the interpretation of the new provisions as 
they apply to your department, and, accordingly, I shall not attempt any 
analysis of them in this communication. 

The Constitution of the Commonwealth provides that no law shall take 
effect earlier than 90 days after it has become a law, "excepting laws de- 
clared to be emergency laws and laws which may not be made the subject 
of a referendum petition. ..." Mass. Const. Amend. XL VIII, The 
Referendum, I. Said c. 637 does not contain any emergency preamble. 
Therefore, since it "became a law" on August 4, 1955, the date of its ap- 
proval (Mass. Const., pt. 2d, c. I, § I, art. II), it will become effective 
on November 2, 1955, unless it may not be made the subject of a refer- 
endum petition, in which event, no different time for its effectiveness hav- 
ing been specified by the Legislature, it took effect on September 3, 1955. 
G. L. c. 4, § 1. 

In my opinion, the statute is a referable law. It is true that one of 
the matters expressly excluded from the referendum is any law "that re- 
lates to . . . the powers ... of courts" (Mass. Const. Amend. XLVIII, 
The Referendum, III, § 2), but this pro\dsion concerns only laws the sole 
or principal substance of which has to do with increasing or decreasing the 
powers of the judicial department. See, for example, St. 1922, c. 508, 
declared non-referable in Commonwealth v. Sacco, 255 Mass. 369, 410-411. 
The fact that said c. 637 incidentally includes provisions having to do 
with court procedures does not place it in the excluded category. 

I therefore advise you that c. 637 will take effect on November 2, 1955. 

Very trul}^ yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



State Treasurer — Right to remove Third Deputy Treasurer. 

Oct. 10, 1955. 
Hon. John F. Kennedy, State Treasurer. 

Dear Sir: — I have your letter of October 7, 1955, requesting "a legal 
opinion on this letter from the Council"; you have attached to your let- 
ter the original communication of which the following is a copy: 

"The Commonwealth of Massachusetts, 
Council Chamber, 

State House, Boston. 
October 6, 1955. 
"Hon. John F. Kennedy, Treasurer and Receiver General, State House. 

"Dear Sir: — At a meeting of the Governor and Council held Thurs- 
day, October 6, 1955, consideration was given to your request for approval 
of your action in removing John F. Lawler as Third Deputy Treasurer 
and Receiver General, and it was voted that your request be denied, and 
the same was denied accordingly. 

Very truly yours, 

(Signed) Clarence R. Elam, 

Executive Secretary." 



P.D. 12. 49 

General Laws, c. 10, § 5, as most recently amended by St. 1945, c. 489, 
provides that "the state treasurer, with the consent of the governor and 
council, may appoint, and, with such consent, may for cause remove, a first, 
second and third deputy treasurer and shall prescribe their respective 
duties" (emphasis supplied). 

I take it from the letter to you from the Executive Secretary that you 
desire to remove from office the present Third Deputy Treasurer, and that 
the Governor and Council have voted not to consent thereto. In these 
circumstances, since such consent is specifically required by the statute, 
I advise you that the Third Deputy Treasurer has not been removed from 
his office. Ygj.y ^^.^jy ^^^^^^ 

George Fingold, Attorney General. 

State Treasurer — Right to suspend Third Deputy Treasurer. 

Oct. 10, 1955. 
Hon. JoHx F. Kennedy, State Treasurer. 

Dear Sir: — You have inquired whether you have "the legal right to 
suspend John F. Lawder, without pay for the balance of his appointment." 

I have today advised you, in answer to another inquiry made by you, 
that Mr. Lawler has not been removed from his office as Third Deputy 
Treasurer. I pointed out to you that G. L. c. 10, § 5, as amended, does 
not permit you to remove him from office ^\dthout the consent of the Gov- 
ernor and Council. 

I answer your present question in the negative. Your suspension of a 
man for whose removal from office no cause has been found to exist by the 
Governor and Executive Council would, in my opinion, be a legally im- 
proper attempt to circumvent the intent of the statute, which is to leave 
the deputy treasurers undisturbed in office unless the Governor and Coun- 
cil consent to their removal for cause. 

Very truly yours, 

George Fixgold, Attorney General. 

State Purchasing Agent — Right to supervise Printing of State Bonds. 

Oct. 17, 1955. 
Hon. John F. Kennedy, State Treasurer. 

Dear Sir: — You request an opinion "as to whether contracts for the 
printing of State bonds must be channeled through the State printing 
office or whether the Treasurer may handle the matter directly with the 
bidders." 

General Laws, c. 5. § 1, provides that the State Purchasing Agent "shall 
supervise the state printing'^ except for certain maps, legislative printing, 
and certain pubUcations issued by the State Secretary. There is no ques- 
tion that the printing of State bonds falls within his supervision under the 
provisions quoted, and I so advise you. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



50 P.D. 12. 

Effect of Resignation of State Employee on Military Leave of Absence. 

Oct. 17, 1955. 
Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir : — In your recent communication you enclose a copy of a 
letter of resignation from an employee of the Taunton State Hospital now 
on military leave of absence under St. 1941, c. 708, as amended. Said 
letter is as follows : 

"Dr. W. Everett Glass, M.D., Superintendent, Taunton State Hospital, 

Taunton, Mass. 

"Dear Dr. Glass: — I hereby tender my resignation as Poultryman, 
effective immediately upon your acceptance. My reason is that I do not 
desire to return to my present office or position or to any other office or 
position in the service of the Commonwealth, or any of its poHtical sub- 
divisions in the future. 

"I am not resigning for the purpose of serving in the Armed Forces of 
the United States during the period of time that Statute 1941, Chapter 708 
remained in effect. I understand that by resigning I waive all rights of 
Statute 1941, Chapter 708 as amended, and as it might be amended in the 
future and I specifically waive the right to reinstatement in my office or 
position or any similar office or position in the future. 

"I agree that my office or position is herewith made vacant and may 
be filled by a permanent appointment of some other person. 

Very truly yours, 

(Signed) Kermit F. Gaines. 

Posted Sept. 23, 1955, Denver, Colorado." 

You inquire as to the legal effect of this letter. 

Section 1 of c. 708, as amended, now provides that "any person, who, 
on or after January first, nineteen hundred and forty, shall have ten- 
dered his resignation from . . . the service of the commonwealth . . . , 
or otherwise terminated such service, for the purpose of serving in the mili- 
tary or naval forces of the United States . . . shall ... be deemed to be 
... on leave of absence; and no such person shall be deemed to have re- 
signed from . . . the service of the commonwealth ... or to have ter- 
minated such service, until the expiration of two years from the termina- 
tion of said military or naval service by him. When a person ... in 
the service of the commonwealth . . . enters the military or naval service 
. . . and files a resignation in writing stating his reason for such resignation, 
the resignation shall he considered a final determination of the reason for leav- 
ing the service of the commonivealth. ... If no written resignation is filed, 
entrance into the military or naval ser\dce of the United States by a per- 
son ... in the service of the commonwealth . . . shall be prima facie 
evidence that his service to the commonwealth ... is terminated for the 
purpose of entering said military or naval service ..." (emphasis sup- 
plied). 

It is only when the employee's reason for resigning is for the purpose 
of entering the armed forces that he falls within the protection of said 
c. 708. If he fails to give any reason for leaving the service, but there- 



P.D. 12. 51 

after enters the armed forces, the statute creates the presumption that 
his reason for terminating his service was for such a purpose; but, as you 
can see, it also clearly provides that if he resigns in writing and gives his 
reason for resigning, his statement of his reason shall be conclusive. 

In two opinions interpreting c. 708, Attorney General Bushncll ruled 
that "if some reason other than entering the military or naval service of 
the United States is advanced in writing for the resignation, such ex- 
planation shall be conclusive and, as to such person, the provisions of 
chapter 708, as amended, shall have no application" (Attorney General's 
Report, 1942-194-1, p. 65), and that "one who files a resignation from the 
service of the Commonwealth . . . stating therein a reason for the same 
other than a purpose to enter the military or naval forces of the United 
States, is not to be deemed to be on leave of absence from the service 
of the Commonwealth. . . ." Attorney General's Report, 1942-1944, 
pp. 109, 111. These rulings were, and are, clearly right. Under them, 
the written resignation filed by Mr. Gaines may properly be accepted 
forthwith without conflict with any provision of c. 708. The fact that it 
follows, rather than precedes, his entry into the armed forces is of no 
moment; while, prior to the filing of his resignation, the statute required 
the presumption that his reason for terminating his service was for the 
purpose of such entry, his true reason is now a matter of record, and the 
statutory presumption no longer exists. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Hurricane Relief Board — Xse of Public Funds — Right to approve Over- 
time Pay for Municipal Policemen and Firemen. 

Oct. 26, 1955. 
Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — You have asked for an opinion concerning the constitu- 
tionality of St. 1955, c. 752, which authorizes and directs the Hurricane 
Relief Board to approve overtime pay rather than time off for police and 
fire fighters who performed overtime duties during the emergency periods 
caused by the hurricanes of 1954. 

I cannot undertake to answer the question of constitutionality in refer- 
ence to every conceivable application of it. 

Statutes of the type here involved have on occasion been challenged on 
the ground that they violate the State Constitution by providing for the 
expenditure of pubhc funds for the benefit of private individuals. It is 
inferred that you desire my opinion on this question. Our court has 
stated consistently that such statutes are valid provided that the purpose 
of the expenditure is a public purpose even though individuals, as such, 
may receive a direct benefit therefrom. 

In the present case the Legislature has not specifically set forth the pur- 
pose of the proposed payments. It is a matter of general knowledge, how- 
ever, that the police and fire fighters rendered meritorious and outstanding 



52 P.D. 12. 

services during the hurricane disasters. It may be inferred that such con- 
siderations actuated the Legislature. Opinion of the Justices, 240 Mass. 616. 
In a case relating to bounties for Civil War veterans, the court said : 

"The power to reward distinguished public service, with a view to the 
promotion of loyalty and patriotism, has long been regarded as one of the 
attributes of organized government." 

Opinion of the Justices, 190 Mass. 611, 615. Payments or other prefer- 
ences to those who have served in the armed services in recognition of such 
services have been recognized as payments for a public purpose in that 
thereby the spirit of loyalty and patriotism is encouraged and the military 
service is made more honorable and attractive. Opinions of the Justices, 
211 Mass. 608, 611; 320 Mass. 773, 781; 322 Mass. 745, 749-750. At 
page 781 of the opinion appearing in 320 Mass. the court said: 

"That the expenditure of public money in recognition of military serv- 
ices, even long after such services have been rendered, though such ex- 
penditure of money is directly for the private benefit of the persons ren- 
dering such services, is a public purpose has been held or stated in de- 
cisions of this court or in opinions of its Justices." 

Such payments are by no means limited to the military. In Opinion of 
the Justices, 175 Mass. 599, the court recognized the power of the Legisla- 
ture to make, or to authorize municipalities to make, payments of un- 
earned salaries of deceased public officials to the widows of such officials, 
stating at page 602: 

"The power to give rewards after the event for conspicuous public 
service, if it exists at all, cannot be limited to military service. If a man 
has deserved greatly of the Commonwealth by civil services, the public 
advantage of recognizing his merit may stand on ground as strong as that 
for rewarding a general. We cannot foresee the possibilities of genius or 
distinguished worth and settle in advance the tariff at which its action 
shall be paid." 

Such payments promote the public good by inducing persons of ability, 
character and lofty aspirations to enter public service and by stimulating 
an unselfish devotion to public service. Opinion of the Justices, 240 Mass. 
616 (payment of an unearned salary to the widow of a deceased clerk of the 
Senate) . 

Similarly, a statute imposing an obligation on a municipality to rein- 
state a police officer and to pay him an unearned back salary was justified 
on the ground that it helped strengthen the civil service laws which have 
the public purpose of selecting employees by merit. Horrigan v. Mayor of 
Pittsfield, 298 Mass. 492. 

In the case of Allydonn Realty Corporation v. Holyoke Housing Au- 
thority, 304 Mass. 288, the court analyzed the various considerations which 
determine whether a public purpose is involved and stated at page 293 
that, among other factors, it may be considered "whether a special emer- 
gency exists, such as may be brought about by war or public calamity." 

The present enactment which you question is not the first time that the 
Legislature has recognized services of the type here involved. As the 
result of the severe tornado which devastated areas in Worcester and 
vicinit}'' on June 9, 1953, payments to police for overtime services then per- 



P.D. 12. 53 

formed were authorized by St. 1954, c. 430. Said c. 430 is substantially 
similar to the enactment here in question. 

In view of the foregoing discussion it is my opinion that the payments to 
police and fire fighters for overtime work performed during the hurricanes 
of 1954, as authorized by St. 1955, c. 752, are payments for a pubhc pur- 
pose and are not prohibited by the Constitution of Massachusetts. In 
reaching this conclusion, I have in mind the familiar principles of law that 
every rational presumption will be made in favor of the constitutionality 
of a legislative enactment; Mansfield Beauty Academy, Inc. v. Board of 
Registration of Hairdressers, 326 Mass. 624, 627, and that "one assaihng a 
statute on constitutional grounds has the burden of proving the absence of 
any conceivable grounds upon which the statute may be supported," 
Wright v. Peabody, 331 Mass. 161, 164. 

Very truly yours, 

George Fingold, Attorney General. 



Massachusetts Turnpike Authority — As a ^'Political Subdivision" of the 
Commonwealth — Exemption from G. L. c. 159B of Truck Owners hired 
by the Authority. 

Oct. 31, 1955. 

Hon. David IVI. Brackman, Chairman, Department of Public Utilities. 

Dear Sir: — You have requested my opinion whether "the owner of a 
single dump truck who is carrying property for hire for the Massachusetts 
Turnpike Authority (is) exempted from the requirements of G. L. c. 159B 
by ... § 13 thereof." 

Said § 13, most recently amended by St. 1951, c. 262, provides that any 
vehicle owned by a person having no interest in any other motor vehicle 
shall, while transporting property for (1) the Commonwealth or (2) for 
any of the political subdi\dsions of the Commonwealth, be exempt from all 
of the provisions of said c. 159B except § 18 thereof. 

It is ob\dous that the answer to your question must turn upon whether 
or not the Massachusetts Turnpike Authority is a "political subdivision" 
of the Commonwealth. 

Section 3 of St. 1952, c. 354, creates said authority as a "body politic 
and corporate" and constitutes it a "public instrumentality." These 
phrases are in no way synonymous with the term, "political subdivision," 
the meaning of which is to some extent clarified by its use in § 15 of said 
c. 354, where certain authority is specifically given to "all counties, cities, 
towns and other political subdivisions." A "political subdi\asion" usually 
embraces a defined territory and its inhabitants, organized for the public 
advantage and exercising some governmental functions. State v. Corker, 
67 N. J. L. 596. Counties and municipalities are obvious examples. Fire, 
water, light, improvement and regional school districts come immediately 
to mind as perhaps falling within the meaning of the term. The Massa- 
chusetts Turnpike Authority, which embraces no inhabited territorial 
area and exercises no true governmental functions, is analogous to none 
of these. 

That the Legislature did not regard the x\uthority as a "political sub- 
division" is clear for another reason. Under said c. 354, the Authority is 



54 - P.D. 12. 

empowered to issue bonds, upon which it is, of course, Uable in accordance 
with their terms. However, § 2 of c. 354 specifically provides that "turn- 
pike revenue bonds . . . shall not constitute a debt of the commonwealth 
or of any political subdivision thereof." 

Accordingly, I answer your inquiry in the negative. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury. 

Assistant Atiorney General. 



Floods — Expenditure hy Commonwealth for Repair of Flood Damage to 
Dams now Municipally Owned hut formerly Privately Owned. 

Oct. 31, 1955. 
Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir : — In your recent letter you inquire whether the special four- 
man board established by § 4 of c. 699 of the acts of the current year may 
properly approve the expenditure of funds made available by § 1 of said 
chapter ''for the repair or reconstruction of dams damaged or destroyed 
by the floods (of August, 1955), which dams were privately owned prior 
to the effective date of c. 699 but which have subsequently become the 
property of political subdivisions of the Commonwealth." 

No question of reimbursing political subdivisions for sums borrowed or 
expended by them for emergency repairs appears to be raised by your in- 
quiry. Accordingly, the only provisions of § 4 with which you need con- 
cern yourself are: "the commonwealth may expend amounts [subject to 
the approval of said board] ... for purposes of . . . repair of flood dam- 
age, for the benefit of the political subdivisions . . ." (emphasis supplied). 

It is clear that the repair of a dam presently owned by a pohtical sub- 
division would be "for the benefit of" the subdivision regardless of the 
time when it acquired title to the dam. While, when the damage was 
actually occasioned, the dam may have been privately owned, it is now 
public property, and it is its present and not its former owner which will 
be benefited by its repairs at this time. General Laws, c. 253, §§ 33-38, 
inclusive, to which you specifically call my attention, and which impose 
certain obligations upon the private owner of a dam who requests the 
alteration, change of grade or other changes in a public way so that he 
may maintain his dam at a higher level, have no bearing whatever upon 
the problem concerning which you have inquired. 

Accordingly, I answer the narrow question presented by your letter in 
the affirmative. 

Very truly yours, 

George Fingold, Attorney General. 



P.D. 12. 55 



Retirement — Veterans — Creditable Service for Members of the General 
Court in the Armed Forces. 

Nov. 1, 1955. 

Hon. John F. Kennedy, Chairman, State Board of Retirement. 

Dear Sir : — You have requested an opinion relative to creditable 
service of members of the General Court in the armed forces. Your let- 
ter proceeds as follows: 

"The question before the Board is whether or not the period of time 
spent in the Armed Forces by an elected official, whose service is subject 
to re-election at certain intervals, is such as may be considered MiUtary 
Leave and creditable for retirement purposes. Your opinion on tliis ques- 
tion is respectfully requested." 

In my opinion the answer to your question must be in the affirmative. 
General Laws, c. 32, § 4 (1) (/i), contains the follo^\nng paragraphs: 

"The period or periods during which any member who is a veteran as 
defined in section one was on leave of absence from the governmental unit 
to which the system of which he is a member pertains, for the purpose of 
serving in such campaign and until he was discharged or released from such 
service in the armed forces, shall be allowed as creditable service. 

"Any such period of leave of absence which is subsequent to his be- 
coming a member of such system shall be counted as membership service, 
and any such period prior thereto shall be counted as prior service; pro- 
vided, that he would have been entitled to such credit in the event he had 
continued in the active service of such governmental unit during the 
period of time covered by such leave of absence. 

"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. The pro- 
visions of sections nine and nine A of chapter seven hundred and eight of 
the acts of nineteen hundred and forty-one, as amended, and as may be 
further amended, shall be applicable to any such veteran referred to 
therein." 

This section obviously was designed to protect members of the State 
Retirement System while serving in the armed forces. "Member" is 
defined by G. L. c. 32, § 1, as any employee included in the State Em- 
ployees' Retirement System. "Employee" is defined as applying to per- 
sons whose regular compensation is paid by the Commonwealth to include 
"members of the General Court or other persons elected by popular vote." 

Returning to the third paragraph of § 4 (1) (h) inserted by St. 1954, 
e. 627, § 8, it will be noticed that "any member who served in the armed 
forces . . ." is covered. The word "any" is often construed to mean 
"all," "each" or "every." Such a construction is imperative, in my 
opinion, in order to effectuate the beneficent and humane purpose of this 
legislation. 

While it may be said that the words "... when reinstated or re- 
employed in his former position or in a similar position ..." are inapt 



56 P.D. 12. 

to describe members of the General Court who have been re-elected, yet 
that is the only way they may be "reinstated" or "re-employed" unless 
their military service consisted of less than the length of their term exist- 
ing at the time of their entry into the military service. To give creditable 
service to members of the General Court who returned from military 
service before the expiration of their term, while denying it to senators 
and representatives who served longer in the military seiTice, is to im- 
pute an intention to the General Court that should not be lightly assumed. 
This opinion is confined to the cases of members of the General Court 
re-elected within two years of their discharge from mihtary service. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Legislators — Retirement — Amount of Make-up Payments of Members of 
the General Court under St. 1955, c. 554' 

Dec. 14, 1955. 
Hon. John F. Kennedy, Chairman, State Board of Retirement. 

Dear Sir: — You request an interpretation of the provisions of St. 
1955, c. 554, which restore certain pension rights to the members of the 
General Court. 

Certain pension and retirement rights were given to members of the 
General Court by St. 1947, c. 660. Section 7 of that chapter had reference 
to membership in the State Employees' Retirement System, and provided 
for credit for service prior to July 1, 1947, upon payment of a maximum 
sum of $1000. Said § 7 was repealed by St. 1952, c. 634. This latter 
statute, by § 8, also provided that no member of the General Court should 
receive any pension or retirement allowance. During the recent legislative 
session, certain pension rights were restored to members of the General 
Court by St. 1955, c. 554. By this act, § 8 of St. 1952, c. 634, is repealed. 
By § 2 of the 1955 act provision is made that members of the General 
Court'shall be credited for services rendered prior to July 1, 1947, upon 
the payment of a specified sum of money. 

You request an opinion as to whether or not the amount to be paid under 
the 1955 act is the maximum of $1000 specified in the 1947 act, and also 
whether the amount to be paid is to be paid with or without interest. 

The provision to be construed, in order to answer your question, is the 
first sentence of § 2 of c. 554 of the acts of the current year. This sentence 
contains three clauses: The first clause relates to credit for services ren- 
dered prior to July 1, 1947; the second clause relates to credit for services 
rendered subsequent to July 1, 1947; and the third clause relates to the 
amount of retirement allowance upon retirement. Your question, which 
relates to the amount of money to be paid to obtain credit for service 
prior to July 1, 1947, involves an interpretation of the first clause of this 
sentence. 

The credit for services rendered by a member of the General Court prior 
to July 1, 1947, as provided by § 2 of the chapter above referred to, may 



P.D. 12. 57 

be obtained upon payment of money as set forth in said section. Three 
amounts are referred to, as follows : 

1. A member of the General Court "who became a member of the state 
employees' retirement system under the provisions of" St. 1947, c. 660, 
and "who has paid . . . the full amount specified in said chapter," shall be 
credited with such prior service. 

2. Such a member of the General Court (i.e., one "who became a mem- 
ber of the state employees' retirement system under the provisions of" 
St. 1947, c. 660), who pays, on or before January 1, 1956, "an amount 
equal to the amount required when he became a member for service ren- 
dered by him . . . prior to the time he became eligible for membership in 
said system or entitled to credit for such service," is entitled to be credited 
for such prior service. 

3. "Any present member of the general court" who, prior to January 1, 
1956, "pays in full for such service," shall be credited with such prior 
service. 

Your questions relate to the payments required under items 2 and 3 
above. The first item is not involved because that relates only to the 
members of the State Emploj^ees' Retirement System who have already 
paid "the full amount specified" in St. 1947, c. 660. The 1955 act restores 
to such persons credit for services prior to July 1, 1947. 

The second item above, which permits payment on or before January 1, 
1956, applies only to a member of the General Court "who became a mem- 
ber of the state employees' retirement system under the provisions of" 
St. 1947, c. 660. As to such a person, the payment specified is "the amount 
required when he became a member for service rendered by him . . . prior 
to the time he became eligible for membership in said system or entitled 
to credit for such service." You inquire how much is this "amount re- 
quired when he became a member. . . ." 

The payment specified by item 2 above is the amount required under 
St. 1947, c. 660. Item 2 relates only to a member of the General Court 
who became a member of the retirement system under the provisions of 
c. 660. The payment required by the 1955 act is "an amount equal to 
the amount required when he became a member." Since he became a 
member under c. 660, the payment to be made is limited by the provisions 
of that statute. Such statute provides, in § 7, that the payment required 
of a member of the General Court "shall not exceed one thousand dollars 
in the aggregate." No provision for interest is made if that interest would 
increase the aggregate payment to an amount larger than the $1000 maxi- 
mum. 

Accordingly, it is my opinion that the 1955 statute, with reference to 
the persons included in item 2 above, calls for payment of the amount 
specified in St. 1947, c. 660, which, by § 7, provides a maximimi of $1000, 
which maximum is not to be increased by interest. 

Your questions also relate to item 3 above. That item applies to "any 
present member of the general court," but excluding, impliedly, a present 
member who had become a member of the retirement system under the 
1947 statute and who is included in item 2. As to such a person the 1955 
statute provides that he shall be credited ^vith service prior to July 1, 1947, 
if he "pays in full for such service" prior to January 1, 1956. The payment 
by such a person is not payment of the "amount specified" in c. 660, nor 



58 P.D. 12. 

payment equal to "the amount required when he became a member" 
under c. 660. Such person did not become a member of the retirement 
system under c. 660, and the 1955 act does not purport to give him the pref- 
erential rights provided for in St. 1947, c. 660. 

In my opinion, the maximum specified in the 1947 act does not apply to 
present members of the General Court who did not become members of 
the State Employees' Retirement System under the provisions of that act. 
Note, in this connection, that this item 3 in the 1955 act, which calls for 
payment "in full," applies not only to "any present member of the general 
court" but a] so to any "present constitutional officer," and that the maxi- 
mum in c. 660, § 7, is restricted specifically to "a member of the general 
court" and does not apply to a constitutional officer although all other 
provisions in § 7 apply to constitutional officers. The 1955 provision that 
"any present member of the general court or present constitutional officer" 
must pay "in full" cannot be interpreted to provide a maximum of $1000 
for a member of the General Court but no maximum for a constitutional 
officer. 

Accordingly, it is my opinion that, as to the persons included in item 3, 
and who are not covered by item 2, the payment "in full" required by the 
1955 act is the payment calculated under all of the provisions of G. L. c. 32, 
without the benefit of the maximum specified in St. 1947, c. 660, § 7. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Retirement — Workmen's Compensation Benefits — Setoff against Veteran's 
Non-contributory Pension. 

Dec. 16, 1955. 

Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — In your recent letter you pose the following question: 

"Your formal opinion is therefore respectfully requested as to whether 
an employee, to be retired under G. L. c. 32, §§ 56 to 60 as a veteran, shall 
have his lump sum workmen's compensation settlement, allocable to the 
period following his retirement, offset against his pension allowance granted 
under these sections." 

To begin with, the pensions referred to in those sections are permissive 
and not mandatory, as you are doubtless aware. Moreover, the pensions 
referred to in §§ 56 and 57 may be granted if the applicant "has a total 
income from all sources . . . not exceeding one thousand dollars." While 
§ 14, it is true, provides for setoff against the benefits provided by §§6, 
7 and 9 of c. 32, which deal with benefits deriving from the contributory 
retirement system law, any doubt about the subject is removed by the 
first sentence of § 73 of c. 152 in its present form. This section reads as 
follows : 

"Any person entitled under section sixty-nine to receive compensation 
from the commonwealth or from such county, city, town or district, and 
who is also entitled to a pension by reason of the same injury, shall elect 



P.D. 12. 59 

whether he will receive such compensation or such pension, and shall not 
receive both, except in the manner and to the extent provided by section 
fourteen of chapter thirty-two." 

It will be noted that this language does not limit the offset of workmen's 
compensation benefits to contributory retirement system pensions under 
the provisions of §§ 6, 7 and 9 of c. 32. I find a general legislative intent 
not to have public servants benefit from workmen's compensation pay- 
mentf= for injuries under G. L. c. 152 and at the same time receive pensions 
for disabilities originating from the same source. This intent is evinced 
again in § 3 (7) (g) of c. 32 which provides that "any person retired under 
the provisions of this chapter or under corresponding provisions of earlier 
laws or any other general or special law shall receive oiily such benefits 
as are allowed or granted by the particular provisions of the law under 
which he is retired." 

This purpose is further evidenced in § 25 (3) (a) of c. 32 providing that 
veterans who are members of the contributory retirement systems who 
were employed prior to July 1, 1939 "shall have full and complete rights 
either under the system of which he is a member or under the provisions 
of sections fifty-six to sixtj'' A inclusive, whether or not he may have signed 
a waiver of his rights under such sections upon becoming a member of 
such system, anything to the contrary in the provisions of this chapter or 
in similar provisions of earlier laws notwithstanding. Such rights shall be 
in the alternative and shall be exercised only at the time of his retirement. 
If a member is retired under the provisions of sections fifty-six to sixty A 
inclusive, he shall, upon his written application on a prescribed form filed 
vnih the board in which he waives all his rights under sections one to 
twenty-eight inclusive, be paid the amount of the accumulated total de- 
ductions credited to his account in the annuity savings fund of the system 
on the date of his retirement. . . ." 

Accordingly, it is my opinion that a veteran receiving a pension under 
the sections you refer to is subject to the provisions of § 73 of c. 152 here- 
inbefore referred to. 

Very truly yours, 

George Fingold, Attorney General. 



Retirement — Veteran — Right to Return of Accumulated Deductions upon 
Retirement under Non-contributory Provisions. 

Dec. 30, 1955. 

Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — You have requested my opinion concerning the retire- 
ment of a veteran under the provisions of G. L. c, 32, §§ 56-60A, inclusive. 

Your problem relates to a veteran who is an official of the Common- 
wealth, is a member of the State Employees' Retirement System and is 
classified in Group A under § 3 (2) (g). You inform me that the official 
in question is a veteran as that word is used in § 58, that he has more than 
thirty years of creditable service as is required by said section, and that 
he is asking for retirement under the provisions of that section. You 
also advise me that the official \\'ill attain age seventy in the middle of 



60 P.D. 12. 

January, 1956, that he will be kept on the regular payroll until the end of 
that month and that he has requested that his rights under § 58 become 
effective at the end of said month. 

Upon this set of facts you present the following inquiry: 

"If the veteran continues on the payroll beyond his seventieth birth- 
day and up to the end of January, will he then be eligible to retire under 
section 58 of chapter 32 allowing him to be paid his total accumulated 
deductions in accordance with the provisions of c. 32, § 25 (3)?" 

The above inquiry presents two questions. Both are answered in the 
affirmative. Upon the facts as you have stated them in your letter, the 
official in question, in my opinion, will be eligible to retire under § 58 at 
the end of January, with the approval of the retiring authority. Further- 
more, it is my opinion that such official will also be entitled to be paid the 
amount of the accumulated total deductions credited to his account in the 
annuity savings fund of the State Employees' Retirement System as of 
the date of his retirement. G. L. c. 32, § 25 (3) (a). • 

Although the official in question is subject to the provisions of § 3 (2) (e), 
which forbid him to "remain in service after attaining the maximum age 
for his group," which "maximum age" is seventy years and will be effec- 
tive for him on the last day of next January, these questions of maximum 
age and its effective date are immaterial in so far as concerns his retire- 
ment under § 58. The facts stated in your letter indicate his eligibility un- 
der § 58, and also that he is complying with the mandatory provisions of 
§ 3 (2) (e) by not remaining in service after attaining the maximum age. 
The alternative date for leaving the service does not change the situation 
since "the date any retirement allowance becomes effective for him" is 
also the end of the month of January. 

I have examined the other provisions of c. 32 to which you make refer- 
ence, and I find nothing which in any way deprives this official of his right 
to retire under § 58, if he obtams the approval of the retiring authority, 
nor of his right to be paid his accumulated deductions under § 3. 

Very truly yours, 

George Fingold, Attorney General. 



Administrative Procedure Act — Board of Elevator Regulations — Effective 

Date of Regidations. 

Jan. 10, 1956. 

Mr. Edward L. Schwartz, Clerk, Board of Elevator Regulations, Depart- 
ment of Public Safety. 

Dear Sir : — You have requested an opinion with reference to the effec- 
tive date of a new set of Elevator and Escalator Regulations, under G. L. 
c. 143, § 69. 

You state that your board has revised the Elevator and Escalator Regu- 
lations, and 5''ou inquire as to the date such revised regulations may be 
made effective. This matter is now governed by the new chapter on State 
Administrative Procedure, G. L. c. 30A, adopted by St. 1954, c. 681, and 
effective on July 1, 1955. Your board is controlled by this new statute in 



P.D. 12. 61 

the adoption of regulations. G. L. c. BOA, § 1 (2) (5). The effective date 
of new regulations is governed by § 5 of that chapter, which provides as 
follows: 

"Regulations made in accordance with the provisions of this chapter 
shall be filed with the state secretary under the requirements of section 
thirty-seven of chapter thirty. Regulations shall become effective upon 
fihng, unless a later date is required by any law or is specified by the agency 
in the regulation." 

The above provision makes it clear that j^our revised regulations may be 
made effective (i.e., operative or appUcable) as of any date "specified by 
the agency in the regulation," if that date is later than the date of filing 
the regulations wdth the State Secretary. 

The above statute is not inconsistent wdth G. L. c. 148, § 69, in which it 
is provided that your regulations must be deposited with the State Secre- 
tary and that they "shall become effective when so deposited." This does 
not mean that the regulations must become operative and appUcable at 
the exact time of deposit, if the regulations themselves provide a later 
effective or operative date. The policy of making a statute or an adminis- 
trative regulation operative at some specified date subsequent to the date 
it becomes a valid law or regulation is a policy frequently adopted in this 
Commonwealth. An interpretation that a set of regulations, and al' parts 
of it, must become fully operative and appUcable immediately upon deposit 
with the State Secretary, notwithstanding a contrary provision in the regu- 
lations themselves, is unnecessary and would be unreasonable. 

Accordingly, in my opinion, it is possible for your board to provide in 
the revised regulations that they shall become effective and operative on 
some specified date, which date, of course, must be subsequent to the date 
of filing with the State Secretary. 

Very truly yours, 

George Fingold, Attorney General, 

By Low^ELL S. Nicholson, 

Assistant Attorney General. 



Mentally III Person — Effect of Escape of Patient upon Term of Commitment. 

Jan. 10, 1956. 
Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir: — You have requested an opinion of this department rela- 
tive to the discharge of a patient who has been committed to one of your 
institutions and w^ho has escaped and has not been returned to j'ou for 
more than one year. You present two questions: 

"1. If a patient escapes from an institution, does his commitment lapse 
at the end of twelve months if he is not apprehended and returned in the 
interval, provided that his commitment has not been under one of the 
statutes for commitment of those faced wdth some type of criminal charge? 

"2. If the answ^er to the above is 'no' is there any statutory limit on 
the time after escape at which the commitment w^ould no longer be valid?" 



62 P.D. 12. 

In my opinion, the answer to each of the above questions is in the nega- 
tive. This matter was covered by the opinion of this department dated 
January 27, 1900 (II Op. Atty. Gen. 122), by the first two questions an- 
swered in that opinion. The last sentence of G. L. c. 123, § 88, to which 
you refer, covers only temporary absence on leave, and does not apply to 
escapees from an institution. 

You further state that "institutions routinely discharge patients on 
escape after one year" and that your predecessor "had made a regulation 
that at the expiration of twelve months escapees not returned should be 
discharged and any subsequent admission made as though it were a re- 
admission of a patient regularly discharged." It seems to me that the 
above regulation covers the situation which you present in your letter, and 
I see no reason to consider such regulation to be invalid if its appHcation 
is limited to cases in which it is found that the patient "will be sufficiently 
provided for by himself, his guardian, relatives or friends, or that his 
detention in such institution is no longer necessary for his own welfare or 
the safety of the public." G. L. c. 123, § 89. A discharge can be given 
under this statute even though the patient is not in actual custody but 
has escaped. II Op. Atty. Gen. 122, 123. Relying upon P. S. c. 87, § 40, 
the Attorney General there stated "that, if the facts required by the 
statute are found to be true, the person who has been committed may be 
discharged, whether at the time he is actually in custody or has escaped." 
This statute is now found in G. L. c. 123, § 89, in substantially the same 
phraseology as it existed in the Public Statutes. This interpretation of the 
statute relating to discharge of an escapee has been a matter of pubhc 
record for 55 years and, notwithstanding that the Legislature has examined 
and amended this section many times, no change has been made in the 
words upon which the 1900 opinion was based. See also I Op. Atty. Gen. 
487. 

However, in my opinion, said § 89, in its present form, does not permit 
the discharge of an escapee as to whom the facts required by the statute 
do not apply. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

State Employee — Right to Pay, during Military Training Duties. 

Jan. 10, 1956. 
Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir: — You have inquired concerning the continuance of State 
pay to an employee who has been ordered to Fort Penning, Georgia, for 
training duty. 

This matter is now covered by G. L. c. 33, § 59, adopted in 1954 as an 
entire rewriting of c. 33 on militia. St. 1954, c. 590. Under the provisions 
of § 59 an employee of the Commonwealth shall suffer no loss of pay "dur- 
ing the time of his service in the armed forces of the commonwealth, under" 
§§ 38, 40, 41, 42 or 60. In my opinion, the service of your employee, as 



P.D. 12. 63 

covered specifically by the copy of the "special orders" attached to your 
letter, is not service under any of the sections enumerated in § 59. Ac- 
cordingly, the provision that there shall be no loss of his ordinary pay is 
not applicable to this particular person for his present training duty. 

The statutes relating to this matter, prior to the new legislation in 1954, 
have been carried forward in substance to the new statute, although with 
different section numbers. The three opinions of this department which 
construe these earlier provisions are not controlling because the nature of 
the service covered by the special orders under which your employee is 
now absent is diiferent in kind. Attorney General's Report, 1939, p. 124; 
Attorney General's Report, 1940, p. 33; Attorney General's Report, 1951, 
p. 14. You will notice from the orders that the authority for this particu- 
lar service is § 99 of the National Defense Act. See U. S. Code, Title 32, 
§65. 

Accordingly, since the present service is not under any of the sections 
enumerated in G. L. c. 33, § 59, the provision in that section that there 
shall be no loss of ordinary remuneration is not applicable. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Food — Right of Local Boards of Health to regulate Keeping and Serving of 

Food. 

Jan. 19, 1956. 

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

Dear Sir : — In your recent letter you inquire as to the powers of local 
boards of health to make regulations "controlling the handling, storing, 
keeping and serving of food, especially in restaurants" under G. L. c. Ill, 
§ 31, and G. L. c. 94, § 146. 

Under the latter statute, local boards of health, subject to the approval of 
your department, are empowered to make and enforce "reasonable rules 
and regulations" governing the conditions under which foodstuffs are 
kept or exposed for sale. The authority thereby conferred has been held 
to be narrowly Umited to the "exhibition and exposure of food," which 
it was the object of the legislation to control for the protection of the pub- 
lic health. Commonwealth v. Rivkin, 329 Mass. 586, 588-589. Accord- 
ingly, while restaurant owners, like other sellers of food, may be controlled 
in their keeping and exposing of foodstuffs by regulations under this statute, 
in my opinion local boards of health cannot properly attempt to control, 
by such regulations, the method used by such sellers in "handling" or 
"serving" food. 

However, such control can be exercised by local boards under the broad 
authority which is theirs under G. L. c. 111,§31, which empowers them to 
"make reasonable health regulations." This grant of power is very broad, 
Brielman v. Commissioner of Public Health, 301 Mass. 407, 409, and per- 
mits the making of regulations governing matters other than the keeping 



64 P.D. 12. 

and exposing of foodstuffs. Commonwealth v. Rivkin, 329 Mass. 586, 589. 
Of course, such regulations must have some reasonable relation to the 
public health, and must be duly pubUshed under the provisions of the 
statute. 

Very truly yours, 

George Fingold, Attorney General, 

By Arxold H. Salisbury, 

Assistant Attorney General. 

Employer — Employee' s Right to Weekly Payment of Wages — Inclusion 
of Sunday in Six-Day Period. 

Jan. 19, 1956. 

Ernest A. Johnson, Commissioner of Labor and Industries. 

Dear Sir: — In your recent letter you call the attention of the Attorney 
General to the fact that G. L. c. 149, § 148, as most recently amended by 
St. 1955, c. 506, requires employers to ''pay weekly . . . the wages earned 
by (an employee) to within six days of the date of said payment if employed 
for five . . . days in the week." You state that certain employers "are 
paying wages to their employees on Friday for the payroll week ending on 
the previous Friday, the employees being employed five days a week." 

You inquire whether or not a Sunday is to be counted in the six-day 
period prescribed by the statute; if so, as you point out, such employers 
are not complying with the legislative mandate. 

As a general rule, "in computing the time within which an act may be 
done, if the period is less than one week, a Sunday is excluded." Daley v. 
District Court of Western Hampden, 304 Mass. 86, 94. However, where it 
appears that the Legislature did not intend that Sundays should be ex- 
cluded from such computation, this rule does not apply. lannelle v. Fire 
Commissioner of Boston, 331 Mass. 250, 252. In my opinion, it does not 
apply here. 

Said § 148, as amended, provides for a six-day wage-payment period 
for persons employed for five or six days a week, and a seven-day period 
for seven-day employees. If Sundays were to be excluded from the com- 
putation of the six-day period, the practical effect would be to extend that 
period, as to five- and six-day employees, to seven days. 

It was the clear and obvious intent of the Legislature to differentiate 
between seven-day employees and those regularly employed for a lesser 
period, and the exclusion of Sundays from the computation of the six-day 
period specified in § 148 would frustrate that purpose. 

Accordingly, I advise you that a Sunday is to be counted in computing 
the six-day period prescribed by § 148. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H, Salisbury, 

Assistant Attorney General. 



P.D. 12. 65 



Legislative Commission — Appropriation — Right of State Office Building 
Commission to Balance of Appropriation. 

Jan. 31, 1956. 

Hon. Ralph Lerche, Chairman, State Offiice Building Commission. 

Dear Sir: — Your recent letter to the Attorney General requests an 
opinion as to whether a balance of $9,200 left from the preceding year may 
be used by your commission during the present fiscal year. 

I have examined chapter 94 of the Resolves of 1955, to which you refer, 
which on July 18, 1955, revived and continued the State Office Building 
Commission. I note the direction in that resolve that " the balance avail- 
able in Item 0270-00" of St. 1953, c. 675, § 2, may be expended by your 
revived commission. 

Two matters occurred before Resolve 94 became effective, and it appears 
to me that these two matters will prevent the carrying out of the intention 
expressed by the General Court to make the sum of about $9200 available 
to the revived commission. One of these occurrences is that there was no 
"State Office Building Commission" in existence after January 12, 1955, 
and prior to July 18, 1955. Under the 1954 resolve (c. Ill) your commis- 
sion was to file its final report not later than January 12, 1955. The Su- 
preme Judicial Court has ruled that a commission such as yours "is dead 
when the time fixed for its report has expired." Cabot v. Corcoran, 332 
Mass. 44-47. 

The second occurrence is that the balance of the appropriation made 
for your commission on Juty 4, 1953, by St. 1953, c. 675, § 2, Item 0270-00, 
and " reappropriated " by the 1954 Resolve, automatically reverted to the 
general unappropriated funds of the Commonwealth at the end of June 30, 
1955. This takes place automatically under G. L. c. 29, §§ 12 and 13. 
Section 13 states specifically as follows: 

". . . . The unencumbered balance of an appropriation for ordinary 
maintenance shall revert to the commonwealth at the close of the desig- 
nated fiscal year." 

The appropriation for your commission was for "ordinary maintenance" 
and was for the fiscal year which ended on June 30, 1955. G. L. c. 29, 
§ 12. 

The intent clearly expressed in the 1955 Resolve, that this balance of 
about $9200 would remain available to your commission, was not reflected 
in St. 1955, cc. 496 and 497. In those two chapters the General Court on 
June 28, 1955, specifically identified appropriations which were not to 
revert. The appropriation for your commission, inadvertently, was omitted 
from these acts. 

Unfortunately, the only conclusion which can be drawn from these 
various statutes is that the expressed intent of the General Court to have 
this amount of money remain available to you was not carried out. Be- 
cause of the failure of the General Court to prevent reversion, this balance 
automatically went into the unappropriated funds by reason of the specific 
direction of the General Court in § 13 of c. 29. 



66 P.D. 12. 

Under these circumstances, I would assume that the General Court 
would make a new appropriation for the work of your commission. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



City of Quincy — Right of School Committee to grant Use of Veterans Mem- 
orial Field to Charitable, Historical or Veterans Organizations. 

Feb. 2, 1956. 

His Excellency Christla.n A. Herter, Governor of the Commonwealth. 

Sir: — You have submitted to me for examination and report enacted 
bill numbered House 115, entitled "An Act authorizing the school 

COMMITTEE OP THE CITY OF QUINCY TO GRANT THE USE OF VETERANS 
MEMORIAL FIELD TO CHARITABLE, HISTORICAL AND VETERANS ORGANIZA- 
TIONS AND PERMIT THE CHARGING OF CERTAIN FEES." ^ 

Veterans Memorial Field, in Quincy, was acquired under St. 1936, c. 
266, for "educational, recreational and public playground purposes." 
The school committee has "full and exclusive control and direction 
thereof." Under the 1936 statute the school committee can permit certain 
athletic contests or other exhibitions on such land and can charge an ad- 
mission fee. The power of the school committee was extended by St. 
1953, c. 182, to permit the school committee to provide and to charge for 
"programs, light refreshments and other customary conveniences." The 
bill which has been presented to you for signature again increases the 
power of the school committee, this time to enable the school committee 
to "grant to any charitable, historical or veterans organization the use of 
such land" and to authorize such organization "to charge reasonable 
fees and such other charges for programs, refreshments and other con- 
veniences as the committee may approve." 

The present bill gives to the school committee power similar in kind to 
the power given school committees for the use of "pubUc school property" 
under G. L. c. 71, § 71, and also similar in kind to the power given to cer- 
tain school committees in control of buildings on playgrounds under G. L. 
c. 45, § 14. There may be some doubts whether or not Veterans Memorial 
Field in Quincy is "public school property" under c. 71, § 71, and also 
whether the power under c. 45, § 14, extends beyond buildings on play- 
grounds. Because of these doubts the present special act has been pre- 
sented to the Legislature. 

The power given to the school committee by the bill now before you to 
"grant to any charitable, historical or veterans organization the use of 
such land" is phrased in very broad language. If given a broad and 
literal interpretation it might be in conflict with Amendment 46 of the 
Massachusetts Constitution which forbids, among other things, the "grant 
... or use of pubhc . . . property" for the purpose of aiding private 

J Approved by the Governor on February 2, 1956, to become chapter 42 of the Acts of 1956. 



P.D. 12. 67 

organizations. Such a broad interpretation might also bring tlie proposed 
statute in conflict with the rule that pubHc property should continue to 
be used for public purposes and should not be withdrawn from free public 
access to make the propert}^ a source of pecuniary profit. This latter ob- 
jection was the one advanced by a former Attorney General (opinion to 
the Chairman of the Joint Committee on Education, dated February 13, 
193G, Attorney General's Report, 1936, p. 38) against the original pe- 
tition to the 1936 Legislature, following wliicli such propo.sed bill was 
amended to the form now appearing in St. 1936, c. 266, But I beUeve that 
the correct interpretation of the authority to the school committee to 
"grant . . . the use of such land" does not bring this proposed act in 
conflict with the Constitution, nor is it subject to the objection advanced 
by the opinion of the Attorney General above cited. The statutes of 1936 
and 1953 relating to Veterans Memorial Field, and the whole of the 
amendment which is now proposed, make it clear that what is intended 
is occasional permission to a proper charitable or historical or veterans 
organization for temporary use of the land, in a way not to conflict with 
the public purposes for which the land was taken and has been developed. 
This restricted interpretation will not make the proposed act uncon- 
stitutional. "Where a statute is fairty open to either of two constructions, 
one of which will make it constitutional and the other unconstitutional, 
that construction will be adopted w^hich will reconcile the statute with the 
Constitution." McCaffrej^, Statutory Construction, p. 130. Nor does 
the fact that there might be particular instances in the future of uncon- 
stitutional apphcations of this proposed act render the act itself uncon- 
stitutional. Opinion of the Justices, 333 Mass. 773, 781. 

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

Very truly yours, 

Qeorge Fingold, Attorney General, 
By Lowell S. Nicholson, 

Assistant Attorney General. 

Wire Tapping — Right of General Court to prohibit Wire Tapping of Juries 

or Jury Rooms. 

Feb. 3, 1956. 

His Excellencj'' Christian A. Herter, Governor of the Commonwealth. 

Sir: — You have submitted to me for examination and report enacted 
bill numbered Senate 30, entitled "An Act prohibiting Wire Tapping 
OF Juries or Jury Rooms." ' 

Senate Bill No. 30, now pending before you for approval, makes it a 
felony for any person secretly to overhear the deliberations of a jury by 
means of a dictaphone or similar device. This change in the General Laws 
is made by adding a new section in c. 272, which chapter covers "Crimes 
against Chastity, JMorality, Decency and Good Order," such new section 
to read as follows: 

''Section 99 A. Wlioever secretty overhears or attempts secretly to over- 
hear or to have any other person overhear the deliberations of a jury by 

' Approved by the Governor on February 6, 1956, to become chapter 48 of the Acts of 1956. 



68 P.D. 12. 

use of a device commonly known as a dictograph or dictaphone, or how- 
ever otherwise described, or by any similar device or arrangement with 
intent to procure any information relative to the conduct of such jury or 
any of its members, shall be punished by imprisonment for not more than 
five years or by a fine of not more than five thousand dollars, or both." 

The bill also makes technical corrections of numbering in the three follow- 
ing sections. 

The right to trial by jury, centuries old even when our American colonies 
were first settled, is one of the sacred cornerstones which protect our per- 
sonal rights, civil liberties, and even the worth and dignity of mankind; 
and secrecy of the deliberations of the jury is woven into the very fabric 
of the jury system itself. For more than five hundred years the basic 
idea that jurors should be protected from all outside influences, both 
during the trial and in the course of their deliberations until they reach a 
verdict, runs through the history of trial by jury. This freedom from out- 
side disturbances has always accompanied the willingness of the American 
people to entrust their private disputes and even their lives and liberties 
to the decision of twelve of their neighbors and fellow citizens. The mere 
suspicion that a dictaphone may be in the jury room and that their de- 
liberations may be observed and studied by persons critical of the jury 
system, who desire to "procure any information relative to the conduct of 
such jury or any of its members," is enough to destroy the calmness of 
the average jurors and render impossible the exercise of patient considera- 
tion and honest judgment. If prospective jurors understand that they 
may be made guinea pigs for experimentation by "reformers" they will 
either avoid the burdens of jury service or perform it with uneasiness. 
Trial by capable jurors might become an impossibility. 

The evil effects of tapping jury deliberations have been clearly stated 
by United States Attorney General Brownell : 

"Such practices, however well intentioned, obviously and inevitably 
stifle the discussion and free exchange of ideas between jurors. They tend 
to destroy the very basis for common judgment among the jurors, upon 
which the institution of trial by jury is based. . ." 

The practice of tapping jury deliberations, if permitted, would effec- 
tively nullify our Massachusetts constitutional guarantee that trial by 
jurj'- shall be preserved. 

Massachusetts has always protected the complete right to trial by jury; 
and it could not be expected that danger to that constitutional right existed 
within the Commonwealth. But the "Wichita incidents" of last year, 
with the tapping of five civil trials in the Federal court, in pursuance of a 
plan to do the same in five hundred to a thousand jury trials all over the 
United States, make clear the danger from so-called "reformers" of our 
jury system. Senate Bill No. 30 protects us in our traditional rights, and I 
urge that it be approved. 

This 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 



P.D. 12. 69 

Physician — Right of Registered Physician to extract Teeth. 

Feb. 16, 1956. 
Robert C. Cochrane, M.D., Secretary, Board of Registration in Medicine, 
Dear Sir: — Your recent letter poses the following question: 
"Does the extraction of teeth by a registered physician violate the law?" 

The answer to your query may be found in the provisions of G. L. c. 112, 
§§ 52 and 53. 

Section 52 of c. 112 provides that "any person . . . who, except as per- 
mitted by section fifty-three, directly or indirectly practices or attempts 
to practice dentistry or dental hygiene without being registered under 
sections forty-five to fifty-one, inclusive, or corresponding provisions of 
earlier laws . . . shall ... be punished . . ." 

Practicing dentistry is defined in § 50 of c. 112 as follows: "A person 
shall be deemed to be practicing dentistry , . . if he either offers or under- 
takes by any method to diagnose, treat, operate or prescribe for any disease, 
pain, injury, deficiency, deformity or other condition of . . ." human teeth. 

As has been stated, the penalty section (§ 52) exempts from its operation 
activities permitted by § 53. 

Section 53 provides that "nothing in sections forty-three to fifty-two, 
inclusive, shall apply to treatment by a registered physician not practicing 
dentistry, in cases where he deems treatment necessary for the relief of his 
patients. . . ." 

So it will be seen that the penalty provisions for practicing dentistry by 
unregistered persons do not apply to cases of "treatment by a registered 
physician not practicing dentistry, in cases where he deems treatment 
necessary for the relief of his patients. ..." The penalty provisions 
apply except as above stated. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 

Old Age Assistance — Right of Local Boards of Welfare to furnish Informa- 
tion relative to Statutory Liens for Assistance granted. 

Feb. 21, 1956. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 

Dear Sir: — Your recent letter requests an opinion in connection with 
including old age assistance liens on the revised form for the certificate of 
municipal liens. 

You request my opinion on three questions: 

"1. May this information on liens for Old Age Assistance granted, re- 
corded in accordance with the provisions of G. L. c. 118A, § 4, be furnished 
by local boards of welfare to collectors without violation of law as con- 
tained in c. 66, § 17A, c. 121, § 4A, and c. 271, § 43? 

"2. May such information be furnished by collectors to persons request- 
ing certificate of lien under G. L. c. 60, § 23, without violation of law as 
contained in c. 66, § 17A, c. 121, § 4 A, and c. 271, § 43? 



70 P.D. 12. 

"3. Is a lien for Old Age Assistance granted, recorded in accordance 
with the provisions of G. L. c. 118A, § 4, of such a nature as to be included 
in the provisions of G. L. c. 60, § 23?" 

It is the general policy that information as to the recipients of old age 
assistance shall not be made public. G. L. c. 66, § 17A; c. 121, § 4A; 
c. 271, § 43. In fact, the last cited statute provides, in substance, that 
any one who discloses information concerning the recipients of old age 
assistance shall be punished by a fine. 

But the above policy of withholding information seems to come in con- 
flict with the provision in c. 118A, § 4, that a person who owns certain real 
estate can obtain old age assistance only if the city or town granting such 
assistance "shall take a lien on such property as a condition of granting 
old age assistance," and the specific recjuirement in that same section that 
the city or town "shall place on record in the proper registry of deeds . . . 
an instrument in writing . . . creating a lien upon such real estate." This 
requirement that a lien must be obtained and recorded is a condition of 
granting old age assistance to certain persons and is a part of the adminis- 
tration of c. 118A which covers assistance to aged citizens. This provision 
in c. USA, § 4, requiring the creation of a recorded lien on real estate, must 
be construed in connection with G. L. c. 60, § 23, which requires that the 
collector of taxes in a city or town shall furnish, upon written application, 
a certificate of all taxes and charges "which at the time constitute liens on 
the parcel of real estate specified in such application," and especially the 
further provision in said section that the omission of a lien from such tax 
certificate "shall operate to discharge the parcel of real estate specified 
from the liens . . . which do not appear." 

The two provisions, that information as to old age assistance is confi- 
dential and that a recorded lien must be obtained on real estate in connec- 
tion with the giving of old age assistance, must both be given effect if that 
is possible. In my opinion the reasonable interpretation requires the re- 
cording of the hen upon real estate even if such record, to that extent, gives 
publicity to the identity of a recipient of old age assistance. There are 
two grounds upon which this interpretation appears to be the one which 
should be adopted. In the first place, the requirement that the city or 
town shall record a hen first appeared in St. 1951, c. 801, § 4, which was 
several years after the initial appearance (St. 1945, c. 240) of the policy 
making such old age assistance records confidential. Furthermore, the 
provision in c. 271, § 43, providing for punishment by a fine of a person 
disclosing such old age assistance information specifically excludes such 
disclosure "for purposes directly connected with the administration of . . . 
old age assistance." I think it is clear that the requirement to record a hen 
for certain old age assistance is part of the administration of the granting 
of old age assistance, and accordingly it is not forbidden by the last cited 
statute. For the same reason, it is my opinion that it is not forbidden by 
the other statutes (c. 66, § 17A; c. 121, § 4A) which were adopted at the 
same time. 

Each of your questions is answered in the affirmative. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



P.D. 12. 71 



Mentally III Person — Commitment for Observation — Right to hold Com- 
mitted Escapee. 

Feb. 23, 1956. 

Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir: — In your recent letter you request an opinion regarding 
the escape of an inmate committed under G. L. c. 123, § 77. 

You advise us tliat the patient in question was committed under said 
§ 77 for forty days' observation and treatment, that within said forty-day 
period it was duly determined that the inmate was in need of further 
treatment and accordingly an application was made for prolonged judicial 
commitment under § 51. After such application was made but before no- 
tice under § 51 was given to the inmate he escaped and went into another 
State. A few days after the forty days had elapsed the inmate was appre- 
hended in the other State, and his return has been requested. 

Under this state of facts you present two questions upon which you 
would hke the opinion of this office. 

"1. Is the fact that an application for commitment under § 51 had been 
submitted sufficient to consider that the hospital had a right to hold the 
patient even when he had escaped and was apprehended in another State 
after the expiration of the forty days, and would the Department of Mental 
Health have a right to authorize his return as an escaped patient? 

"2. Should the request for his return be considered as a new commit- 
ment?" 

Your first question is answered in the affirmative, and your second ques- 
tion in the negative. 

For the purposes of the present question, commitment under § 77 is 
similar to commitment under § 51. Mezullo v. Maletz, 331 Mass. 233, 234. 
During a commitment under § 77 the inmate is in the custody of the super- 
intendent or manager of the institution, and his unauthorized escape from 
the institution subjects him to the arrest after escape provided by § 95, 
and also to the provisions for extradition set forth in § 106. Even after 
the forty-day period has elapsed, § 77 authorizes his detention in your 
institution if there has been filed an application for prolonged commit- 
ment under § 51. Under such circumstances "the person may be de- 
tained at the institution." § 77. 

The request for the return of the escaped inmate should not be con- 
sidered as a new commitment. He was originally committed under § 77 
for a forty-day period and, in view of the apphcation for prolonged com- 
mitment, said section gives authority for continued detention under the 
original commitment. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



72 P.D. 12. 



Highways — Right of Department of Public Works to transfer Unneeded 
Highway Land to Another State Department. 

Feb. 23, 1956. 
Hon. John A. Volpb, Commissioner of Public Works. 

Dear Sir: — In your recent letter you state that your department 
presently holds certain land originally acquired, but no longer needed, for 
State highway purposes, and that the Department of Public Safety would 
like to acquire control of the parcel as a site for a State poUce substation. 

You inquire whether your department "has the authority to transfer 
title or control of this parcel of land to the Department of Public Safety 
without a special act of the Legislature." 

I answer your question in the negative. The provisions of G. L. c. 81, 
§ 7E, afford the only means whereby your department can rid itself of 
responsibihty for such land: it may sell such a parcel and, with the ap- 
proval of the Governor and Council, may execute a deed thereof. Obviously, 
such a transfer of control as that concerning which you inquire would not 
involve any actual change of ownership, since the Commonwealth would 
remain the record owner of the area; it therefore could not be accom- 
pHshed by the execution of a deed under said § 7E. The provisions of 
G. L. c. 30, § 44A, under which your department may "transfer (certain 
lands of the commonwealth) to the control of another state department" 
have no application here, of course, since the proposed transfer is not "for 
the laying out or relocation of any highway." 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Highways — Duty of Department of Public Works to compensate for Public 
Land taken for State Highways — Prohibition of Such Payment in Bond 
Issue Act. 

Feb. 29, 1956. 

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

Dear Sir: — In your recent letter you request an opinion regarding the 
payment for public lands taken by you for highway purposes. The facts 
and questions which you present are as follows: 

"At the present time the department is operating, for the most part, 
with funds set up by the so-called bond issues, the latest one of which was 
established by St. 1954, c. 403. Section 6 of this act authorizes the de- 
partment to take land by eminent domain and the first paragraph of § 6 
contains the following phrase: 'Provided, that no damages shall be paid 
for public lands or parks, parkways, or reservations.' We have up to now 
not made payments for such lands. 

"On August 18, 1955, St. 1955, c. 693, was approved. This act states 



P.D. 12. 73 

that 'Notwithstanding any provisions of law . . . authorizing the taking 
by eminent domain or otherwise of certain public lands . . . without the 
payment of damages therefor, the state department of public works . . . 
is hereby authorized and directed to pay to the city, town, department, 
authority or agency in possession of lands so taken, transferred or used an 
amount to be mutually agreed upon.' This act does not specif}'- out of what 
funds such amounts are to be paid. 

"In order to determine in what manner our allotments should be pre- 
pared, it is requested that the Attorney General advise this department 
on the following questions: 

"1. Do the provisions of St. 1955, c. 693, supersede the provisions of 
St. 1954, c. 408, and thereby require the department to pay money out of 
the bond issue for public lands, parks, parkways or reservations? 

"2. On the assumption that a new bond issue will be authorized by the 
current Legislature, will the provisions of St. 1955, c. 693, be applicable to 
such new bond issue, if such new bond issue contains language similar to 
that in St. 1954, c. 403, § 6? 

"3. Is there established procedure for arbitration in the event that the 
amount required to be paid by c. 693 cannot be mutually agreed upon?" 

Answer to Question 1. — The provisions of the special 1955 act supersede 
the provisions of the 1954 bond issue to the extent that you are now re- 
quired to pay for public lands taken, contrary to the provisions in § 6 of 
the 1954 bond issue. But the 1955 provision does not permit use of the 
proceeds of the 1954 bond issue for the payment for such public land. Such 
proceeds were obtained under the provisions of the 1954 act, and such 
proceeds, under our Massachusetts Constitution, "shall not be expended 
for any other purpose." Mass. Const. Amend. 62. 

Answer to Question 2. — If there is a new bond issue enacted by the 1956 
Legislature its provisions will be controlling even though they may be in- 
consistent with the 1955 act cited above. That is, a later provision of the 
Legislature controls. If the 1956 provision directs that no damages be 
paid for public lands, such requirement must be followed until changed. 
In any event, money obtained by a new 1956 bond issue must, of course, 
be spent only in accordance with the provisions of such issue. An official 
opinion on this matter cannot be given until the terms of the 1956 act are 
examined. 

Answer to Question 3. — I know of no procedure for arbitration in the 
event that the amount you are authorized and directed to pay for public 
property cannot be mutually agreed upon. The 1955 act gives you au- 
thority only to pay "an amount to be mutually agreed upon." If there is 
no such agreement, then there is no authority for payment. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



74 P.D. 12. 



Probation — Effect of Conviction and Probation for Attempted Escape of 
Confined Prisoner — Meaning of '^Sentence." 

Feb. 29, 1956. 
Mr. Frederick J. Bradlee, Chairman, Parole Board. 

Dear Sir: — In your recent request for an opinion you state that a 
certain prisoner was duly sentenced on January 15, 1951, to the Massa- 
chusetts Reformatory for a term of five years, that he attempted to escape 
therefrom on May 12, 1951, and that he pleaded guilty to an indictment 
charging him with that attempt, as a consequence of which he was placed 
ou probation on September 17, 1951, the "probation [to] begin from and 
after his release from the Reformatory." 

You inquire whether this probation "should be considered a sentence" 
under the provisions of G. L. c. 127, § 129, as they existed on said Septem- 
ber 17, 1951 (see, now, St. 1955, c. 770, § 66). 

The provisions to which you make reference are as follows: 

"If, during the term of imprisonment of a prisoner confined in a state 
. . . institution, such prisoner shall commit any offence of which he shall 
be convicted and sentenced, all deductions [for good conduct and for 
satisfactory work] . . . from the former sentence . . . shall be thereby 
forfeited" (emphasis supplied). 

A sentence, which inflicts some form of direct punishment upon a con- 
vict, is only one method of disposing of a criminal prosecution. See, for 
example, G. L. c. 279, § 4A, which speaks of disposition "by sentence or 
placing on file or probation." Neither of the latter two dispositions has 
the same finality as does the imposition of a sentence or the dismissal of 
the indictment or complaint. Marks v. Wentworth, 199 Mass. 44. It is 
perfectly clear that probation may or may not be accompanied by a sen- 
tence. See G. L. c. 279, § 3. In the case which you put, it appears that no 
sentence was imposed at the time the convict was placed on probation, 
and that none has since been imposed. 

Accordingly, I advise you that the provision of said c. 127, § 129, to 
which you refer has no application to the specific case concerning which 
you inquire. This would seem to afford an answer, also, to your second 
inquiry, which is "whether or not the subject should forfeit all deductions 
... on his original sentences." 

Your third and final question is "what would be the effect of (said pro- 
vision of c. 127, § 129) . . . when the case was disposed of by placing the 
conviction on file." Since nothing indicates that you have any present 
problem involving such an actual state of facts, the long and well-estab- 
lished policy of this department prohibits any direct answer to this ques- 
tion ; perhaps, however, an answer has already inf erentially been given by 
what is said above. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



P.D. 12. 75 



State Board of Examiners of Electricians — Right to requisition and ap- 
point Civil Service EmploTjees. 

March 9, 1956. 

Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam: — In your recent request for an opinion you pose the 
following question: 

"Whether the Board of State Examiners of Electricians has appointing 
or requisitioning power in connection with employment or promotion of 
civil sei"vice employees in the Division of Registration, assigned to the 
Board of State Examiners of Electricians, with the exception of the Execu- 
tive Secretary." 

The Board of State Examiners of Electricians is created by G. L. c. 13, 
§ 32. In this section it is provided that "the board shall appoint an execu- 
tive secretary. ..." I am unaware of any other or further appointing 
authority in this board. The sentence at the end of § 32 reading "The 
board may expend for the salaries of the appointive members and of the 
secretary and other employees and for necessary traveling and other ex- 
penses for themselves and their employees such sums as are annually ap- 
propriated therefor" does not, in view of the legislative pattern covering 
the Division of Registration and the various boards therein, extend or 
ampUfy the appointive power of this board. Section 9 of c. 13 makes it 
clear that the various boards of registration referred to in c. 13 serve in the 
Division of Registration. 

Moreover, G, L. c. 112, § 1, provides that the Director of Registration 
shall supervise the work of the several boards of registration and examina- 
tion included in the Division of Registration of the Department of Civil 
Service and Registration. Furthermore, by the provisions of § 8 of c. 13, 
"the division of registration shall be under the supervision of a director, 
to be known as the director of registration. ..." Whenever the General 
Court has intended to provide general appointing authority in the vari- 
ous boards, that intention has been made clear. 

In § 3 of c. 13 it is provided that the Director of Civil Service may ap- 
point and remove in accordance vnth c. 31, such officers and employees 
as the work of the Division of Civil Service may require. 

Board of Registration in Pharmacy: § 25 of c. 13 provides that the 
board shall appoint not more than four agents who shall be allowed neces- 
sary traveUng expenses. 

Board of Registration in Embalming and Funeral Directing: § 85 of 
c. 112 provides that "the board is authorized ... to employ inspectors 
who shall investigate and report to the board the results of their investi- 
gations; to employ such other employees as the work of the board may re- 
quire. ..." 

Section 40 of c. 13, dealing wdth the powers of the Board of Registra- 
tion of Barbers, provides that "the board may appoint hi vestigators. . . ." 

Section 43 of c. 13, in setting up the Board of Registration of Hair- 
dressers, provides that "the board may appoint such agents and employees 
as the work of the board may require. . . ." 

Section 44D of c. 13, in defining the powers of the Board of Registra- 
tion of Architects, provides that "the board may appoint such clerks as 
may be necessary. . . ." 



76 P.D. 12. 

Board of Registration of Professional Engineers and Land Surveyors: 
§ 81G of c. 112 provides that "the board may employ such clerical and 
other assistance as may be necessary for the proper performance of its 
work. , . ." 

In view of the foregoing, the Legislature appears to have expressed it- 
self plainly whenever it intended to confer upon one of the various groups 
which is a part of the Division of Registration the power to appoint em- 
ployees for itself. Omission of any such provision in § 32 of c. 13 dealing 
with the appointing power of the Board of State Examiners of Electricians 
is significant. 

I am of the opinion, therefore, that the appointing power you refer to 
is in the Director of Registration. I see no reason for overruling the opin- 
ion relative to this subject matter of Attorney General Dever given to the 
then Director of Registration. Attorney General's Report, 1940, p. 49. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Interest — Obligation of City to pay Interest on Debt due State Commission. 

March 12, 1956. 

Hon. Charles W. Greenough, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — Your recent letter requests an opinion relative to the 
hability of the city of Fitchburg for interest upon moneys paid to the 
metropohtan water district under § llA of St. 1951, c. 732. 

Said c. 732 authorized Fitchburg to acquire certain properties for the 
purpose of increasing its water supply; under § 11 A, it was required to pay 
to the district, as full reimbursement for loss of property, water and water 
rights, "the sum of one hundred thousand dollars . . . full payment to be 
made before commencement of actual construction work." You state that 
actual construction work was commenced on June 15, 1954, but that the 
city did not make the payment required by § 11 A until May 20, 1955. 
You inquire, upon the basis of these facts, "whether or not the commission 
is entitled to interest on the $100,000 payment from June 15, 1954 . . . 
to May 20, 1955. . . ." 

The usual rules relative to the liability of a debtor for interest have long 
been well settled. "If. . . one should promise in writing to pay money to 
another on a day certain, and fail to do so, interest would be added to the 
amount of damages, notwithstanding the writing did not express it. It 
would be added as a compensation for the non-performance of the con- 
tract. . . . The great inquiry is, whether the party has done all that the 
law required of him in the particular case ... If he has, he is not account- 
able for interest ; if he has not, he is accountable for it . . . [because] where 
the law requires the party to pay over money . . . without waiting for 
any demand . . . the promise which the law implies, extends as well to the 
interest as to the principal sum . . ." Dodge v. Perkins, 9 Pick. 368, 
384-386. "By the law as settled in this Commonwealth, interest is to be 



P.D. 12. 77 

allowed in all cases where either by express contract or by implication it is 
the duty of a party to pay over money due without any previous demand 
by the creditor. When a definite time is fixed for the payment of a sum of 
money, the law raises a promise to pay damages, by way of interest at the 
legal rate, for the detention of the money after the breach of contract for 
its payment." Foote v. Blanchard, 6 Allen 221, 222. Where, as here, the 
principal sum has already been paid, these general principles require the 
debtor to make an additional payment representing interest during the 
period beginning when the money should have been paid and ending at 
the date of actual payment. Vaughan v. Lemoine, 330 Mass. 83, 86-87. 

However, the decisions above cited are not conclusive upon your precise 
question, which is one of municipal liability. The authorities in other 
jurisdictions are divided as to whether or not municipal corporations should, 
with reference to their liabihty for interest, be treated hke any other debtor, 
or be free of such responsibility except where a specific undertaking to pay 
interest charges has been made. See 38 Am. Jur. 380. In this Common- 
wealth, the law apparently does not accord to municipalities any special 
right to escape liabihty for interest upon moneys justly due. Jackson v. 
Brockton, 182 Mass. 26; Goldman v. Worcester, 236 Mass. 319. When the 
debt arises out of the "business of supplying water," of which the city of 
Fitchburg is "the owner and proprietor," it seems clear that the rights of 
the city should be no more nor less than those of a private water company. 
Commonwealth v. Hudson, 315 Mass. 335, 339. 

On the other hand, it is well settled that, even where municipalities may 
be held responsible for interest, a demand for the payment of the principal 
claim must be made before interest starts to run. This rule is based "on 
the consideration that it would be inconvenient and burdensome for the 
officials of a municipality to seek its creditors and tender payment of their 
claims, and also that it would be oppressive and unjust to permit creditors 
of a municipality with good credit to turn claims into investments through 
omitting to present them and then collecting interest thereon." Smith v. 
Board of Education, 208 N. Y. 84, 86. I assume from your letter that the 
commission made no such demand prior to its receipt of the $100,000 from 
the city of Fitchburg. In these circumstances, I advise you that the city 
is not responsible for interest thereon during the period in question. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Retirement — Legislators — Duty of State Retirement Board to supply Names 
of Retired Members of General Court — Public Records. 

March 15, 1956. 

Hon. John F. Kennedy, Chairman, State Board of Retirement. 

Dear Sir : — In your recent letter you state that your office has been 
requested by the ^Massachusetts Federation of Taxpayers Associations, Inc., 
to "furnish . . . the names of former members of the General Court who 
are currently receiving retirement allowances . . . and also the amounts 



78 P.D. 12. 

of such retirement allowances." You further state that your "monthly 
pension warrant" lists the names of all recipients of retirement allowances, 
together with the amounts of their pensions, but does not indicate which 
of them are former legislators. 

You inquire, first, whether you are under any obhgation to prepare a 
separate hst of the names concerning which the Federation has requested 
information. 

I answer your question in the negative. There is no doubt that the 
pension warrant is a "public record" within the definition found in G. L. 
c. 4, § 7, Twenty-sixth. Attorney General's Report, 1953, p. 23. Accord- 
ingly, it may be inspected, at any reasonable time, by any person. G. L. 
c. 66, § 10. Since the right of inspection would otherwise be of Uttle 
value, copies may be made. Direct Mail Service v. Registrar of Motor 
Vehicles, 296 Mass. 353, 356-357. However, no person can require you to 
rearrange your official records or to compile data from them for his con- 
venience alone. In other words, while he may inspect and copy such 
official records as you now have, he cannot demand that you prepare other 
records, unnecessary to the proper functioning of your board, so that he 
may inspect and copy them as well. 

You inquire, further, whether the "detailed records which are assembled 
in the act of retiring former members of the General Court," constitute 
"pubhc records" which may be inspected and copied under said c. 66, § 10. 

I answer this question in the affirmative, but only in so far as it relates 
to papers filed with your board pursuant to law and to papers or other 
materials upon which are recorded your official determinations relative to 
the amounts of retirement allowances. Such records, essential to the 
proper performance of the duties of your board, are required to be kept by 
G. L. c. 66, § 6, and may therefore be inspected under § 10 of the same 
chapter. See, also, G. L. c. 32, § 20 (5) (a). 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Veterans' Hospitals — Cession by State to United States — Right of State 
Court to commit Mentally III Veteran to Federal Hospital — Jurisdiction 
over Person in Federal Hospital. 

March 29, 1956. 
Jack R. Ewalt, M.D., Commissioner, Department of Mental Health. 

Dear Sir : — You have requested an opinion in connection with the 
court commitment of certain veterans who are mentally ill and who are 
now in the Federal veterans' hospitals in Massachusetts. 

By the provisions of G. L. c. 123, you are charged with many responsi- 
bilities for the care of the mentally ill in Massachusetts. These respon- 
sibilities include the duties to prescribe forms for court commitments, to 
"secure compliance with the laws" relative to the commitment of the 
mentally ill and their admission to institutions, and to "investigate the 
propriety of any commitment or admission." G. L. c. 123, § 24. These 



P.D. 12. 79 

responsibilities include court commitments of persons to veterans' hos- 
pitals maintained by the United States in Massachusetts. G. L. c. 123, 
§§ 10, 20A, 34A, 77. 

You state that each year hinidreds of patients in Federal veterans' hos- 
pitals in Massachusetts arc committed by our State courts, and you re- 
quest an opinion with respect to the "compliance with the laws" and the 
"propriety" of these commitments. You particularly ask concerning the 
provision in G. L. c. 123, § 51, as amended by St. 1955, c. 637, § 8, that the 
court may hold a "private hearing" in these cases "at a place convenient" 
for the patient, and concerning the practice that such hearings, as a mat- 
ter of convenience, are held at the Federal hospitals. 

Your inquiry raises serious problems of jurisdiction. A preliminary 
problem concerns the jurisdiction of the Massachusetts courts under our 
own statutes. More difficult problems are presented by the fact that, for 
many purposes, the jurisdiction over the Federal hospitals is in the United 
States, to the exclusion of Massachusetts, and the corollary rule of law, 
stated by some courts, that the land or reservation on which such a hos- 
pital is located is not a part of the State within which the land hes. 

Considermg the situation, first, only from the point of view of our Massa- 
chusetts statutes, it is clear that the courts designated in G. L. c. 123, § 50, 
have power to make such commitments, and that such a court also has 
statutory power to hold a "private hearing" upon premises of a Federal 
hospital, if that is a place convenient for the patient. The procedure for 
commitment of a person mentally ill, outUned in § 51, requires that a 
written notice be personally served upon such person, and provides for a 
hearing if requested by such person. The statute then provides: "The 
court may at its discretion hold a private hearing at a place convenient 
for the person served." This 1955 version is slightly different in language 
from earUer forms of this section, but for many years a substantially sim- 
ilar provision has been in our statutes. Since 1879, the statutes have pro- 
vided: "The hearing, except when a jury is summoned, shall be at such 
place as the judge or justice shall appoint." St. 1879, c. 195, § 2. For the 
purpose of commitment of persons mentally ill each court exercises its 
jurisdiction within its own county. G. L. c. 123, § 50. There is nothing 
in the Massachusetts statutes or Constitution which forbids a court from 
holding such a private hearing at a Federal hospital within its county. 

But apart from the Massachusetts statutes, difficult questions are pre- 
sented because of the cession of jurisdiction by Massachusetts to the 
United States. The acquisition by the United States of lands in Massa- 
chusetts for the construction of veterans' hospitals is authorized by the 
Federal Constitution. Art. 1, § 8, cl. 17. The first part of this clause con- 
tains the authority under which the United States acquired and now con- 
trols the District of Columbia. The second part of the clause permits the 
acquisition of other land in the States for purposes which include hospitals. 
As to the land acquired to become "the Seat of the Government," the 
United States is given power "To exercise exclusive Legislation in all Cases 
whatsoever." As to the property acquired under the second part of this 
clause, the United States is given power "to exercise like Authority." The 
word "legislation" in this clause means both "legislation" and "juris- 
diction." In its acquisition of the properties on which the four veterans' 
hospitals in Massachusetts have been built, the United States obtained the 
consent of Massachusetts, and also obtained a cession of jurisdiction. This 



80 P.D. 12. 

consent and cession were obtained, in each instance, by the enactment 
of a statute by the General Court which provided that "jurisdiction over 
said area shall be granted and ceded to the said United States," except for 
the specific retention of concurrent jurisdiction for the service of all civil 
and some criminal processes. Northampton, St. 1926, c. 386, § 2. Bed- 
ford, St. 1937, c. 361, § 2. Brockton, St. 1949, c. 497, § 4. Boston, 
St. 1952, c. 564, § 2. 

The above situation poses three questions of jurisdiction in connection 
with the commitment by Massachusetts courts of patients in such Fed- 
eral hospitals: (1) a question of the jurisdiction of the Massachusetts court 
over the person of the patient alleged to be mentally ill; (2) a question of 
the court's jurisdiction to alter the status (as competent or incompetent) 
of such a person; and (3) a question of the jurisdictional effect of holding 
a "private hearing" on such Federal property. These questions require 
an analysis of the nature of the rights of the United States over such 
ceded territory. 

In an early Massachusetts case it was stated, in connection with a 
similar cession of jurisdiction to the United States, that "the government 
of the United States have the sole and exclusive jurisdiction over such 
territory, for all purposes of legislation and jurisprudence, with the single 
exception expressed." Opinion of the Justices, 1 Mete. 580, 583. The 
exception mentioned was the service of process. In Employers' Liability 
Assurance Corp., Ltd. v. DiLeo, 298 Mass. 401, the court appUed this prin- 
ciple to the veterans' hospital in Rutland, as to which there had been a 
similar cession of jurisdiction (St. 1922, c. 409). The court stated, at 
page 404, as follows : 

"It results that, for the purposes of this case [i.e., the application of the 
Massachusetts workmen's compensation act of 1932 to the Federal reserva- 
tion], the land on which the Veterans' Hospital was located was not a part 
of this Commonwealth, and neither our administrative officers and boards 
nor our courts had any jurisdiction over it. . . . The exclusive power of 
legislation granted by the Constitution carries with it exclusive jurisdic- 
tion." 

But such cession does not mean that there is a vacuum within such 
territory as to municipal laws relating to health and the fike. In the last 
cited case, at the same page, our court stated: 

"It is true that after a cession of jurisdiction over territory from one 
sovereign to another the existing municipal laws, including statutes, relat- 
ing to the title to property or intended for the protection of private rights, 
continue in force until changed by the new sovereign." 

This continuation in force of municipal laws ^ which are needed to pre- 
serve good order and to promote health and safety, to the extent that they 
are not inconsistent with existing Federal laws or with the purposes of 
Federal acquisition of the property, is stated in many Federal cases. The 
Supreme Court of the United States, in Chicago cfc Pacific Railway Co. v. 
McGlinn, 114 U. S. 542, at 546-47, stated as follows: 

' In this connection, the term "municipal laws" means the internal law of the State, and is used in 
contradistinction to "international law." The term is not confined to the law of a city only. See Words 
and Phrases, Vol. 27, and cases there cited. 



P.D. 12. 81 

"But with respect to other laws affecting the possession, use and transfer 
of property, and designed to secure good order and peace in the community, 
and promote its health and prosperity, which are strictly of a municipal 
character, the rule is general, that a change of government leaves them in 
force until, by direct action of the new government, they are altered or 
repealed." 

A recent statement of the Supreme Court of the United States on this 
subject, in Howard y.' Commissioners, 344 U. S. 624, at 627, is as follows: 

"The fiction of a state within a state can have no validity to prevent the 
state from exercising its power over the federal area within its boundaries, 
so long as there is no interference with the jurisdiction asserted by the 
Federal Government. The sovereign rights in this dual relationship are 
not antagonistic. Accommodation and cooperation are their aim. It is 
friction, not fiction, to which we must give heed." 

In Stewart & Co. v. Sadrakula, 309 U. S. 94 at 99, the court said: 

"The Constitution does not command that every vestige of the laws of 
the former sovereignty must vanish. On the contrary its language has 
long been interpreted so as to permit the continuance until abrogated of 
those rules existing at the time of the surrender of sovereignty which govern 
the rights of the occupants of the territory transferred. This assures that 
no area however small will be left without a developed legal system for 
private rights." 

As a practical matter, such Federal reservation must be treated, at 
least geographically, as within the boundaries of the Commonwealth. 
This is especially so because of the many powers over Federal land recently 
returned to the individual States by Congress. Workmen's compensation 
laws (40 IJSCA § 290), State unemployment insurance acts (26 USCA 
§ 3305d [1954 Code]), taxes on motor fuel (4 USCA § 104), local sales 
taxes (4 USCA § 105), and income tax requirements (4 USCA § 106) are 
some of the examples of recession of jurisdiction in substantial particulars. 
These matters were considered in Arapajolu v. McMenamin, 113 Cal. 
App. 2d 824, 249 P2d 318, 34 ALR2d 1185, in which the Cahfornia court 
determined that residence upon Federal land was sufficient to meet the 
Cahfornia statutory requirements for voting. The Cahfornia court stated, 
at pages 1191-92 (in 34 ALR2d), as follows: 

"The jurisdiction over these lands is no longer full or complete or exclu- 
sive. A substantial portion of such jurisdiction now resides in the States 
and such territory can no longer be said with any support in logic to be 
foreign to California or outside of California or without the jurisdiction of 
California or within the exclusive jurisdiction of the United States. It is 
our conclusion that since the State of California now has jurisdiction over 
the areas in question in the substantial particulars above noted residence 
in such areas is residence within the State of Cahfornia entitling such resi- 
dents to the right to vote given by sec. 1, Art. II of our Constitution." 

Many other cases on the above, points are contained in the lengthy 
annotation in USCA covering the second part of cl. 17 of Art. 1, § 8, of the 
Constitution of the United States. See also: States, 12 U. S. Sup. Ct. 
Digest, § 30; United States, 54 Am. Jur. § 84; United States, 91 C. J. S. 
§ 7; Anno., 34 ALR2d 1193. 



82 P.D. 12. 

Necessity requires that the local law relating to insane persons continue 
in force in the ceded territory. The United States has covered this field 
only in regard to Federal prisoners (18 USCA §§ 4241-4248), and in certain 
other minor particulars (24 USCA § 161 and § 191 et seq.). The United 
States does not have any legislation providing for the commitment of 
insane persons who are inmates of its veterans' hospitals. The Federal 
courts have stated that this field is within the general power of the States. 
In Wells V. Attorney General of the United States, 201 F2d 556 (C. A. 10th), 
the court stated, at page 559, as follows: 

"The several states in their character as parens patriae have general 
power and are under the general duty of caring for insane persons. The 
prerogative is a segment of police power. In the exercise of such power, 
insane persons may be restrained and confined both for the welfare of 
themselves and for the protection of the public. And if the exactions of 
due process are met, such restraint and confinement do not violate any 
constitutional right of the individual." 

The application of Massachusetts law and procedure to the Federal 
hospitals in Massachusetts, in this field of the care of the mentally ill, 
would not be inconsistent with any Federal statutes or regulations or 
practices. In fact, since there is no Federal statute under which a com- 
mitment can be made, the practical needs of the Federal administrators 
require the cooperation of the Commonwealth in the matter of commit- 
ment of persons mentally ill. 

Considering the status of Federal property within the Commonwealth 
of Massachusetts as explained in many cases, some of which are mentioned 
above, it is my opinion that the mere holding of a "private hearing" on 
such Federal property does not render void the order of commitment en- 
tered by a Massachusetts court in a proceeding in which such a private 
hearing was held. The private hearing, itself, is not a commitment. It is 
only one part in the procedure required by the statute. Section 51 calls 
for (1) application for commitment, (2) notice to the person named and 
copy of notice to the nearest relative or guardian, (3) certificate by two 
physicians, (4) a hearing, if requested, (5) a recital of jurisdictional findings 
in the order itself, and (6) the official and final order of commitment. 
The hearing, which is optional with the person alleged to be mentally ill, 
is only one of the steps leading to the final order of commitment. The 
holding of a "private hearing" on the premises where the patient resides, 
for his convenience, as authorized by § 51, does not affect the validity of 
the final order of commitment which is entered by the court at its usual 
place of sitting. 

The situation here is entirely different from that in Commonwealth v. 
Handren, 261 Mass. 294, where the outside hearings were determined to be 
"null and void" on the ground that they went beyond the statutory 
authority given to the trial court. 

It is also my opinion that, in the absence of Federal legislation, the 
Massachusetts courts have undoubted jurisdiction to commit persons 
mentally ill who are patients at veterans' hospitals in this Commonwealth. 
In Massachusetts, the entire commitment proceeding from original ap- 
plication to final order is "a judicial proceeding." Mezidlo v. Maletz, 331 
Mass. 233, 234. All of the essential elements of jurisdiction are present 
for the commitment of veterans who are held as patients in Federal hos- 



P.D. 12. 83 

pitals. The courts mentioned in G. L. c. 123, § 50, have statutory juris- 
diction of a proceeding of that nature. Jurisdiction of the person of the 
patient in question is properly acquired by service in hand of the notice 
or process required by § 51. See Courts, 14 Am. Jur. § 183. This service 
of process on the patient at the Federal hospital is specifically authorized 
by the provision in the usual act of cession to the United States that such 
cession is made upon the express condition "that all civil processes [and 
also all criminal processes against persons charged with crimes committed 
outside the area] may be executed thereon in the same manner as though 
this cession had not been made." See St. 1952, c. 564, § 2. (If no cession 
had been made, all of the problems existing in the present case would be 
answered, without question or argument, in favor of the validity of the 
commitment.) Accordingly, in my opinion, all jurisdictional requirements 
are met. 

Furthermore, since the care and commitment of the mentally ill are 
duties of each State under its police power, such power and regulation, 
even in the absence of any express reservation of jurisdiction, continue in 
force in the ceded territorJ^ 

"Even in the absence of such reservations in the State's consent, how- 
ever, state laws in effect at the time of Federal acquisition not incon- 
sistent with federal law, and not detrimental to the purposes for which the 
enclave was estabhshed, have been held to remain in effect on the enclave 
until abrogated by Congress." (Hughes Transp. v. United States, 121 F. 
Supp. 212, at 218-19.) 

In fact, commitment under State law is and for many years has been 
the administrative practice in all of our States in connection with insane 
patients in Federal hospitals. The impropriety of the only other possible 
alternative — of carrying the patient out of the hospital and off the 
reservation, in order to obtain a legal commitment — indicates that no 
conclusion other than that of full State jurisdiction should be reached. 

Although there are no Federal statutes expressly authorizing such com- 
mitments by State courts, the existing practice is essential for the proper 
care of veterans, and it is needed and desired by the administrators of the 
Veterans' Administration. Furthermore, this practice is recognized and 
adopted by the Regulations of the United States Veterans' Administra- 
tion (VA Regulations, §§ 14.223 to 14.277, Code of Federal Regulations, 
Title 38, 1949 Edition; and Vet. Reg. No. 10 (XIV), 38 USCA, chap. 
12A), which regulations have been accepted by our court as having the 
force of law. Keating v. Director of U. S. Veterans' Bureau, 272 Mass. 
212, 215. 

In conclusion, for the reasons set forth above, it is my opinion that our 
State courts have full jurisdiction in the matter of the commitment of 
mentally ill veterans in Federal hospitals, and that you are acting properly 
in arranging for "private hearings" on such reservations. Such proceed- 
ings and procedure are authorized by State legislation, and they do not 
violate any Federal rights. 

Very truly yours, 

George Fingold, Attorney General. 

/ 



84 P.D. 12. 



Cuttyhunk Harbor — Liability of Commonwealth to pay for Extra Dredging 
— "Extra Work" or "Alteration." 

April 2, 1956. 

Mr. RoDOLPHE G. Bessette, Director, Division of Waterways, Depart- 
ment of Public Works. 

Dear Sir: — Your recent letter concerns the claim of New England 
Dredge and Dock Company for payment for work in excess of that con- 
templated mider Contract 1415, covering dredging in Cuttyhunk Harbor, 
and you request an opinion as to whether the department may pay the 
additional sum of $34,779.69 representing work in excess of the original 
contract price. 

The voucher dated December 21, 1955, indicates that on Item 1 for 
"material dredged and disposed of" estimated at 40,000 cubic yards, the 
ultimate quantity came to 66,961 cubic yards. The Comptroller has de- 
cUned to approve payment of the excess hsted in the voucher as "Altera- 
tion No. 1." 

The amount of the excess (26,961 cu. yds.) over the contract quantity 
(40,000 cu. yds.) is so great that there can be no doubt that payment could 
not be justified as an overrun of a unit price item, even though involving 
work of the same nature as that contemplated by the contract. Similarly, 
the excess was so great that it could not be justified either as an alteration 
or as extra work. See Morse v. City of Boston, 253 Mass. 247. Being be- 
yond the scope of the original contract, your department would have no 
power to undertake or approve the work, and make payment therefor, 
without prior compliance with the bid statute. 

Even if it is assumed that the Federal engineer, who was present in con- 
nection with that portion of the work being done under a Federal contract, 
had been orally designated by your department as the person to whom the 
contractor should look for directions, that fact does not aid the con- 
tractor for the basic reason that the department itself did not have, and 
hence could not delegate, the power to approve the additional work. 

While the fact that the Commonwealth had the benefit of the work pro- 
vides some moral justification for payment of this claim, it does not pro- 
vide any legal justification. It has been settled that no recovery can be 
had against the Commonwealth on a quantum meruit basis. Lewis v. 
Commonwealth, 332 Mass. 4. 

It also is my understanding that the contractor was fully aware when 
he undertook the additional work that he had no departmental approval 
therefor and that he undertook it at a real risk it might not be approved. 

Consequently, I am of the opinion that there is no basis upon which 
payment of this claim could be legally justified. It is possible, of course, 
that the courts, on a petition brought by the contractor under G. L. c. 258 
might reach a contrary conclusion or that the Legislature might approve 
a special bill for payment of this claim. 

Very truly yours, 

George Fingold, Attorney General, 

By John V. Phelan, 

Assistant Attorney General. 



P.D. 12. 85 



Land Court — Jurisdiction of Division of Personnel and Standardization 
over Employees of Land Court — Separation of Three Branches of Govern- 
ment. 

April 24, 1956. 

Hon Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — You have recently asked my opinion regarding the 
responsibilities of the Division of Personnel and Standardization in con- 
nection with the employees of the Land Court. 

You present four questions, as follows: 

(1) "Do the provisions of G. L. c. 30, §§ 45 and 46 as amended by 
St. 1954, c. 680 and St. 1955, c. 643, which exempt offices and positions in 
the judicial branch, include the offices and positions of the Land Court? 

(2) "Does the Division of Personnel and Standardization have any 
obligation to classify such positions in the Land Court? 

(3) "Do the officers and employees of the Land Court come under the 
provisions of the rules and regulations of the Division of Personnel and 
Standardization authorized by G. L. c. 7, § 28, as amended by St. 1954, 
c. 680 and St. 1955, c. 643? 

(4) "Do the officers and employees of the Land Court come under the 
provisions of c. 149, § 30A, as amended by St. 1955, c. 643, and any rules 
pertaining to overtime pay?" 

The answer to each question is in the negative. 

Your questions all relate to the personnel system of the Common- 
wealth. References to this system, and to the responsibilities of the 
Division of Personnel and Standardization, are found in many sections of 
the General Laws, including c. 7, §§ 28, 28A; c. 30, §§ 38, 45, 46; c. 149, 
§ 30A; and, with particular reference to the Land Court, in c. 185, §§1, 
7, 12 and 14. The general matter of personnel administration in the 
Commonwealth was covered in detail by the Fourteenth Report of the 
Special Commission on the Structure of the State Government, filed in 
December, 1953, numbered House 2352 of 1954. Numerous and com- 
prehensive changes were made by the Legislature during 1954, as a result 
of the recommendations of the Special Commission, and these are set 
forth in St. 1954, c. 680. Further changes with reference to the personnel 
system of the Commonwealth were made by St. 1955, c. 643. 

Your first question relates to G. L. c. 30, §§45 and 46, as amended. 
You inquire whether these sections "include the offices and positions of 
the Land Court." It is specifically stated in subdivision (1) of § 45 that 
"offices and positions in the judicial and legislative branches" are ex- 
cepted. This exclusion, in my opinion, carries through all of the sub- 
divisions of § 45, and also carries through all of the provisions of § 46. 
Although there is no express exclusion set forth in § 46, the rules and 
regulations of salary grades under § 46 are based upon the classifications of 
positions under § 45. These two sections stand together. Because of 
the specific exclusion in § 45 of judicial offices, and because of the inter- 
relationship of these two sections, this exclusion must be interpreted to 
apph^ to both sections in full. Accordingly, the provisions of these two 
sections do not include the offices and positions of the Land Court. 

Your second question is answered in the negative for the reasons set 



86 P.D. 12. 

forth above. The duty of the Division of Personnel and Standardization 
to classify positions is a duty under G. L. c. 30, § 45. Since judicial offices 
and positions are excluded from § 45, it is my opinion that the Division of 
Personnel and Standardization has no obhgation to classify positions in 
the Land Court. 

In your third question you inquire whether or not the rules and regu- 
lations of the Division of Personnel and Standardization, issued under 
the authority of the second paragraph of G. L. c. 7, § 28, apply to the 
officers and employees of the Land Court. In my opinion, such rules and 
regulations do not apply to the officers and employees of the Land Court. 
Although there is no express exclusion of judicial officers in § 28, I beheve 
that such an exclusion must be impfied. The first paragraph of § 28 
makes reference to "departmental research." This particular phrase is 
not appropriate to the judicial branch. In the third paragraph of this 
section, reference is made to a "determination of the hours of work of 
any class" of employees. However, the Land Court is specifically given 
the power to fix the hours during which court is open, to make its own 
rules, to employ necessary assistants, to assign duties to title examiners, 
and the compensation for all such employees is to be fixed by the Governor 
and Council, rather than the Division of Personnel and Standardization. 
G. L. c. 185, §§ 1, 7, 12, 14. Rule 1 of the Land Court, approved by the 
Supreme Judicial Court on April 30, 1935. Furthermore, said third para- 
graph of § 28 makes reference to a "class" of employees, thereby in- 
corporating the provisions of c. 30, § 45, relating to classification, which 
section expressly excludes the judicial branch. This third paragraph of 
§ 28 also makes reference to action by the Division of Personnel and 
Standardization "under authority of" c. 149, § 30A. This section also 
excludes offices and positions in the judicial branch, as is explained in the 
following paragraph. For these various reasons, and also because of the 
general content of the rules and regulations issued under the authority of 
I 28, it is my opinion that the officers and employees of the Land Court do 
not come under the rules and regulations of the Division of Personnel 
and Standardization issued under the authority of G. L. c. 7, § 28. 

In your fourth question you inquire whether or not the officers and 
employees of the Land Court come under the provisions of G. L. c. 149, 
§ 30A. This section, added in 1947, was rewritten in 1955. It now states 
that "the service of all persons employed by the commonwealth" is re- 
stricted "to five tours of duty in any one work week," and to "not less 
than thirty-seven and one hah hours . . . nor more than forty hours" in 
any one week. Although the first two fines of § 30A start with the phrase 
"notwithstanding any other provision of this chapter or other general or 
special law," reference is made to deternfinations "by the director of 
personnel and standardization, in accordance with section forty-five of 
chapter thirty." I have stated above, in answer to your first question, 
that in my opinion c. 30, § 45, does not apply to officers and employees of 
the Land Court. Furthermore, this § 30A does not apply to almost two 
score groups of employees, all in the executive branch of the Common- 
wealth's service, who are expressly named and excepted. It is not reason- 
able to befieve, if this section were intended to be applied fully to "all 
persons employed by the commonwealth," including the legislative and the 
judicial branches, that no exceptions would have been made in either of 
these branches of service. For these reasons, I do not befieve that the 
provisions of c. 149, § 30A, apply to such officers and employees. 



P.D. 12. 87 

The fourth question contains another incjuiry, at the very end, relating 
to "rules pertaining to overtime pay." The answer to this question is 
also in the negative, for the reasons set forth more fully above. 

The requirement of negative answers to all of your questions is confirmed 
by other considerations. The separation of governmental powers into 
three branches is a fundamental principle (Mass. Const., pt. 1st, art. XXX), 
and detailed employee regulations enacted by the Legislature and en- 
forced by the executive branch should not be applied to the judicial branch 
if there is any doubt as to such apphcation. The facts that the Legislature 
has given to the Land Court specific powers to fix hours, to hold sessions 
on six days of the week, and to provide in other details for the work of the 
court, all indicate a probabiUty that the Legislature does not intend that 
a general regulation regarding State employees shall interfere with the 
freedom and decision of the judges of the Land Court. Another important 
consideration is that the Legislature has clearly provided in c. 30, § 38, 
that the duty of the Division of Personnel and Standardization to maintain 
a central personnel register for all employees of the Commonwealth shall 
include the legislative and the judicial branches; thus indicating clearly 
that the Legislature can show its intention to include the judicial branch 
if that is its actual intention. A matter somewhat similar to the present 
inquiries was considered by the Attorney General in an opinion to one of 
your predecessors (VI Op. Atty. Gen. 360), and in that opinion the then 
Attorney General stated that the words "every state officer, department 
or head thereof" are clearly hmited to the executive branch of the govern- 
ment and do not include the judicial branch. Furthermore, there is no 
suggestion of any khid in the Fourteenth Report of the Special Commission 
on the Structure of the State Government, referred to above, to indicate 
that the recommendations therein contained, which were used as a basis 
of the substantial revisions in 1954 and 1955, covered employees in the 
judicial branch. 

Very truly yours, 

George Fingold, Attorney General. 



Retirement — Accidental Disability Retirement — Effect of remaining on 

Sick Leave. 

April 25, 1956. 

Hon. John F. Kennedy, Chairman, State Board of Retirement. 

Dear Sir: — You request an opinion regarding the rights of a State 
employee to accidental disability retirement, under the circumstances 
referred to below. 

You present the following facts : 

"An employee of the Commonwealth, and a member of the State Em- 
ployees' Retirement System, made application for Accidental DisabiUty 
retirement, under § 7, on September 16, 1954. In his application, he re- 
quested that his retirement become effective on September 26, 1954, at 
which time, he would attain age sixty-eight. His apphcation was filed in 
this office on September 20, 1954. He was examined by the required 
Medical Panel on November 12, 1954, and the report of the Medical Panel 
was forwarded to this office on November 29, 1954. 



88 P.D. 12. 

"The Medical Panel was of the opinion that the employee is physically 
incapacitated for further duty in his present position ; that such disability 
is likely to be permanent; and it was the unanimous opinion of the members 
of the Panel that the disability was the natural and proximate result of an 
accident or hazard undergone by the employee [in June, 1950] during the 
course of his employment. 

"On December 30, 1954, the State Board of Retirement considered the 
application and, after consideration, voted to approve the application. 
On December 31, 1954, the Department of Public Works was notified that 
the employee's appKcation had been approved and the department was 
instructed to remove his name from the payroll and also furnish the Board 
of Retirement with certain necessary information as to the date on which 
the employee's name last appeared on the payroll and information as to the 
rates of compensation which were being paid to this employee. For some 
unknown reason this employee was retained on the payroll on a sick leave 
basis until October 31, 1955." 

Upon the above facts you request an opinion as follows: 

"May I respectfully request your opinion as to whether or not an em- 
ployee who remains on the payroll on a sick leave basis is entitled to Acci- 
dental Disability retirement within two years of attaining the maximum 
age for his position, or whether or not the effective date as stipulated in his 
application for retirement is to be the effective date of retirement, or if 
such effective date is to be retarded to the extent of the sick leave granted 
to him after attaining age sixty-eight?" 

Your inquiry presents two questions, both involving an interpretation 
of the requirements of G. L. c. 32, § 7, subdivisions (1) and (2), in connec- 
tion with accidental disability retirement. Except for these two questions, 
which are covered in detail below, I understand from you that the employee 
in question meets all of the requirements of § 7. Accordingly, the only 
matters which are being considered in the present letter are these two speci- 
fic problems. 

It appears from the facts above set forth that the employee will attain 
his maximum age on September 26, 1956. It is provided by G. L. c. 32, 
§ 7 (1), that "no such retirement [for accidental disability] shall be allowed 
within any period of two years prior to attaining the maximum age. ..." 
This requirement is applicable to the present case because the accident 
upon which the application is based occurred prior to three years of attain- 
ing the maximum age. But, upon the facts which you have presented, the 
retirement in this case took place on September 26, 1954, which M^as exactly 
two years prior to the date on which the maximum age was reached. Al- 
though the approval of this application was voted by the State Board of 
Retirement on December 30, 1954, after favorable action by the medical 
panel, under the provisions of § 7 (1) the retirement itself is considered to 
be "as of a date which shall be specified in such application." The applica- 
tion specified the date of September 26, 1954. Accordingly, in my opinion, 
the retirement took place on that date, and upon this interpretation there 
is no violation of the prohibition of a retirement within a period of two 
years prior to attaining the maximum age. 

The other problem arises because of the fact that the employee was 
retained on the payroll on a sick leave basis until October 31, 1955, which 
is less than one year from the date of attaining maximum age. You inquire 



P.D. 12. 89 

whether this fact prevents allowance of retirement under the provisions 
of § 7. In my opinion, this fact does not bar the State employee from 
accidental disability retirement benefits under § 7. The date of the retire- 
ment itself and the date when a retirement allowance is to be paid are 
entirely distinct. The date of the retirement is covered by subdivision 
(1) of § 7. The date when the allowance is to become effective is governed 
by subdivision (2) of the same section. In subdivision (2) it is provided 
that the accidental disabihty retirement allowance shall become effective 
"on the date the injury was sustained ... or on the date six months prior 
to the filing of the written apphcation ... or on the date for which he last 
received regular compensation . . . whichever date last occurred." An 
analysis of this quoted provision makes it clear that the date of the re- 
tirement and the date when payment is to begin are different. The 
prohibition of retirement "within any period of two years prior to attaining 
the maximum age" appears in subdivision (1) and relates to the retirement 
itself, not to the date when retirement allowance is to begin. The date 
when payment is to begin is covered in subdivision (2) and there is no 
prohibition in this subdivision to having payment commence within such 
two-year period. Accordingly, in my opinion, the fact that the employee 
was retained on a sick leave basis to a date within the two-year period does 
not bar him from benefits under § 7. 

I have answered the two questions presented by you in favor of the appli- 
cant for accidental disabihty retirement. These are the only two matters 
which I have considered. If the applicant has compUed with all other 
provisions pertinent to his case, as you have indicated, then he is entitled 
to the benefits of § 7. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Parole Board — Power to issue Certificate of Termination of Sentence — 
Pardoned Prisoner — Defective Delinquent. 

May 16, 1956. 
Mr. Frederick J. Bradlee, Chairman, Parole Board. 

Dear Sir: — You request the advice of the Attorne}'' General upon the 
two following questions, both relating to the power of your board, under 
the provisions of c. 127, § 130, as amended by § 68 of St. 1955, c. 770, to 
issue certificates of termination of sentence. 

That statute provides for the issuance of such a certificate, by the 
luianimous vote of the members of the Parole Board, under certain speci- 
fied conditions, to "a parolee under its supervision." 

Your first question is whether such a certificate can be issued to one 
who has been conditionally pardoned by the Go^'ernor and Council, and 
who has been super^dsed "by the parole board as provided in c. 127, § 132, 
as amended." Said section, as it existed prior to its repeal by c. 770, § 122, 
vested your board with the responsibility of "supervising all prisoners par- 
doned on parole conditions"; the same responsibiUty, since its repeal, has 



90 P.D. 12. 

rested upon your board by virtue of G. L. c, ,27, § 5, as amended by c. 770, 
§ 1. I assume that the pardoned prisoner to whom your letter refers has 
been subject to supervision only under this continuing provision of law. 

Reduced to its simplest form, then, your question is whether a prisoner 
pardoned on parole conditions, and thereafter supervised by your board 
under said G. L. c. 27, § 5, is a "parolee" within the meaning of that word 
as used in said G. L. c. 127, § 130A. So stated, it must be answered in 
the negative. 

The pardoning power is solely vested in the Governor, by and with the 
consent of the Council. Mass. Const., pt. 2d, c. II, § I, art. VIII. It in- 
cludes the right to grant conditional pardons, Kennedy's Case, 135 Mass. 
48, 51, and the only right of the General Court to legislate in the field "is 
to enact laws to render the exercise of the constitutional power efficient 
and convenient," Opinion of the Justices, 210 Mass. 609. See, e.g., G. L. 
c. 127, § 152. While, as has been pointed out above, your board must 
supervise prisoners "pardoned on parole conditions," the statute further 
provides that any violations of the conditions of the pardon must be re- 
ported to the Governor for his consideration. G. L. c. 27, § 5. The issuance 
of a certificate of termination of sentence by your board under said § 130A 
at some time prior to the date upon which the "parole conditions" would 
otherwise terminate would be inconsistent with your continuing responsi- 
bility to supervise the prisoner during the entire period contemplated by 
the terms of the pardon, and would therefore iiifringe upon the consti- 
tutional right of the Governor alone to define the limits of his clemency. 
As used in § 130A, the words "parolee under its supervision" must be 
taken to mean only a prisoner released on a parole permit; such persons 
are, of course, also subject to the supervision of your board under G. L. 
c. 27, § 5. 

Your second question is whether a certificate of termination of sentence 
can be issued to a defective delinquent released on parole by your board 
under G. L. c. 123, § 118A. The answer to this question must likewise be 
in the negative. Commitment under the provisions of G. L. c. 123, § 113, 
"is not in the nature of punishment," Dubois, petitioner, 331 Mass. 575, 
578, and does not result in the defective delinquent's being "sentenced" 
for any defined term. The statutes dealing specifically with defective 
deUnquents provide the only ways in which such persons may be "dis- 
charged" from commitment. See G. L. c. 123, §§ 89A, 118. It is clear 
that the Legislature intended to surround any release from custody of a 
defective delinquent with safeguards which include ps3^chiatric advice and 
approval; even your board's power to parole such a person under said 
§ 118A has such a step as a prerequisite. Obviously it could not have 
been the intent of the General Court to permit your board, without such 
advice and approval, to terminate the period of custody of a defective 
delinquent. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



P.D. 12. 91 

Elevators — Administrative Procedure Act — "Regulations relating to Auto- 
matic Parking Garages — Incorporation of Regulations by Reference. 

May 29, 1956. 

Edward L. Schwartz, Esq., Clerk, Board of Elevator Regulations. 

Dear Sir: — You have asked this department for an opinion in con- 
nection with a proposed set of regulations relating to elevators in auto- 
matic parking garages. You present the following situation: 

"The Board of Elevator Regulations of the Commonwealth has been 
urgently requested by the city of Boston and other parties to frame im- 
mediately a new set of regulations relating to elevators in automatic park- 
ing garages. The present regulations of the Board of Elevator Regula- 
tions are apphcable to conventional types of elevators and are so stringent 
as to prevent completely the operation of any automatic parking garage. 

"In the interest of speed, it was our thought that we would frame a 
set of regulations which would refer to the American Standard Safety Code 
for Elevators, Dumbwaiters and Escalators, printed in 1955 and num- 
bered A 17.1. This would not be the usual type of incorporation by ref- 
erence since it would be our intention to deposit this American Standard 
Safety Code with the Secretary of the Commonwealth, where it could be 
readily available for public inspection. 

"The reader will be previously informed that Part 1, Section III, 
Rule 111.8 refers to that rule in the ASME code which he can find in the 
office of the Secretary of the Commonwealth or which, of course, can be 
obtained by purchase from the American Society of Mechanical Engineers. 
It is not our intention to incorporate by reference changes which may be 
made from time to time in the ASME code. All we are doing is simply, 
for convenience, cross-referencing to an existing private code. If there 
should be any changes in this private code which we should later wish to 
incorporate in our own regulations, we would amend the regulations." 

Your first question is whether or not the provisions of the State Admin- 
istrative Procedure Act, G. L. c. 30A, added by St. 1954, c. 681, are ap- 
phcable to the situation you present. In my opinion, the answer to this 
question must be in the affirmative. This is the conclusion reached in the 
opinion of this office sent to you on January 10, 1956. But in addition to 
the requirements of the State Administrative Procedure Act, there may be 
administrative requirements in c. 22 or c. 143 of the General Laws which 
must be observed. 

Your second question deals with the estabhshment of regulations un- 
der G. L. c. 143, § 69, and under G. L. c. 30A, § 2, by means of a short 
regulation making reference to and incorporating the detailed provisions 
of the American Society of Mechanical Engineers' code dealing with the 
matter. This adoption by reference is not objectionable if the regulations 
so adopted are within the power of your board, and are consistent with 
the laws of the Commonwealth, and if such regulations are incorporated 
in your own regulations and are deposited with the Secretary of State, 
But such incorporation by reference is valid only as to existing provisions 
of the ASME code, and would not be valid as to future changes in such 
regulations. Opinion of the Justices, 239 Mass. 606. 



92 P.D. 12. 

Your third question relates to the immediate adoption of these regula- 
tions as an emergency under the provisions of G. L. c. 30A, § 2 (3). In 
my opinion the provisions of this new statute are available to you if your 
board makes the necessary finding of facts as required by such provisions. 
Of course, the adoption of such regulations under this emergency provision 
is limited to no longer than three months, unless during that time there 
is full comphance with all requirements for notice and hearing specified 
in § 2. 

It will, of course, be necessary for your board to comply with the re- 
quirements of c. 30 A, § 6, in regard to publication, availability and dis- 
tribution of your regulations. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Mentally III Persons ■ — Requirements of Hearing prior to Commitments 
under G. L. c. 123, § 100, in Criminal Cases. 

May 31, 1956. 

Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir : • — You have asked this department for an opinion relative 
to the application of the hearing and notice provisions, now required by 
G. L. c. 123, § 51, to the situations covered by § 100 of that chapter. 

Last year the Legislature, by St. 1955, c. 637, § 8, inserted detailed 
provisions into G. L. c. 123, § 51, regarding notice to a person alleged to 
be mentally ill and in need of commitment to a State institution and his 
right to a hearing. This neAv procedure as to notice and hearing is made 
applicable, by specific reference to the procedure under § 51, to commit- 
ments for observation under § 77, and to voluntary commitments under 
§86. 

You inquire whether or not this new procedure is also applicable to 
commitments under § 100 of the same chapter. Your question is — 

"... whether or not after commitments for observation are made under 
G. L. c. 123, § 100, commitments could be made on report of the hospital 
superintendent without a hearing as required by G. L. c. 123, § 51, as 
amended by St. 1955, c. 637." 

Section 100 relates to commitment of a person held under cojnplaint or 
indictment for a crime who is found to be in need of commitment because 
of his mental condition. The first sentence of § 100 provides as follows: 

"If a person under complaint or indictment for any crime is, at the time 
appointed for trial or sentence, or at any time prior thereto, found by the 
court to be insane or in such mental condition that his commitment to an 
institution for the insane is necessary for his proper care or observation 
pending the determination of his insanity, the court may commit him to a 



P.D. 12. 93 

state hospital or to the Bridgewater state hospital under such limitations, 
subject to the provisions of section one hundred and five as it may order. " 

So far as is pertinent to the present question, § 105 provides as follows: 

"If a prisoner, committed or removed under section one hundred . . . 
for his proper care or observation as aforesaid, is found by the super- 
intendent ... to be insane, the finding shall be certified upon the warrant 
or commitment, and the superintendent of the institution . . . shall report 
the prisoner's mental condition to the court or judge issuing the warrant 
or commitment, . . . with the recommendation that the prisoner be 
committed as an insane person. The court, judge or justice may thereupon 
commit the prisoner to an institution for the insane, if, in the opinion of 
the court, judge or justice, such commitment is necessary." 

Commitments under § 100 are entirely different from commitments 
under §§ 51, 77 or 86. There are some requirements of § 51 which are in- 
consistent with § 100; and many requirements which seem inappropriate 
to criminal cases. The procedure for commitment under § 100 should not 
be construed to include the new notice and hearing provisions added to 
§ 51 unless there is some statute which makes such requirement. I find 
no such statute. The reference in the last sentence of § 51 to a commit- 
ment by a court under §§ 100 or 101, which has appeared in such statute 
since the enactment of our General Laws in 1921, does not make such re- 
quirement. 

The 1955 change in the laws relating to the commitment of mentally 
ill persons was based upon the report of the Special Commission on Com- 
mitment, Care and Treatment of Mental Health Hospital Patients, May 2, 
1955, Senate No. 735. On page 9 of such report the commission states 
that the new provisions as to notice and hearing are "under the regular 
judicial commitment procedure." On the same page the commission 
recommends that such change also be applied to voluntary and temporary 
care patients under § 77 and § 86. There is no mention made of court 
commitments in criminal cases under §§ 100, 101 and 103. (See comment 
on distinction between a commitment "under orders of a court" similar 
to those issued for the commitment of an insane person charged with a 
felony, and a commitment by "order of a judge" under § 77, in Acting 
Commissioner of Mental Health v. Williamson, 330 Mass. 52.) In fact, 
except for one suggestion of a change in § 100, which did not relate to 
notice or hearing (Senate Document No. 366, of 1954, § 7, pages 21-22), 
and which w^as not mentioned by the commission in its report nor adopted 
by the Legislature, it seems clear that nothing in the commission's work 
and certainlj' nothing in the commission's report, nor in St. 1955, c. 637, 
as adopted by the Legislature, relates in any way to commitments in 
criminal cases. 

Since there is no statute which directly or indirectly applies the notice 
and hearing provisions of § 51 to § 100, and since the commission restricted 
its recommendation to "the regular judicial commitment procedure," and 
made no reference to commitments by the court of criminal defendants 
held upon complaint or indictment, it is my opinion that the notice and 
hearing requirements of G. L. c. 123, § 51, as added by St. 1955, c. 637, 
are not applicable to court commitments under § 100 of that chapter. 

This opinion deals only with the question asked, that is, the application 



94 P.D. 12. 

of the new hearing and notice provisions of § 51 to § 100. No opinion is 
expressed as to what hearing or notice, if any, apart from § 51, may be 
required for commitments under § 100. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell" S. Nicholson, 

Assistant Attorney General. 



Lord's Day — Duty of Commissioner of Public Safety to license Stage Plays 
on Sunday under G. L. c. 136, § 4- 

June 27, 1956. 
Hon. Otis M. Whitney, Commissioner of Public Safety. 

Dear Sir: — In your recent letter you call the attention of the Attorney 
General to the amendment of G. L. c. 136, § 4, effected by St. 1955, c. 742, 
and inquire whether "in view of the decision in Brattle Films, Inc. v. 
Commissioner of Public Safety, 333 Mass. 58, and in view of c. 742 . . . 
the Department of Public Safety should continue previewing 'live' stage 
plays . . . for the purpose of deciding whether or not to approve Sunday 
licenses." 

I answer your question in the affirmative. The Brattle decision holds 
only that motion ^pictures cannot legally be subjected to "advance scrutiny 
by governmental authority"; its effect is to be narrowly confined to the 
actual facts of the case. It does not, nor do the Federal decisions upon 
which it rests, determine that "live" stage plays fall within the free- 
speech, free-press area constitutionally protected against such "advance 
scrutiny." It is difficult to justify such governmental regulation of a 
"live" performance when we must say that the showing of motion pictures 
of the same performance could not constitutionally be so regulated. 
However, it is even more difficult to classify as either "free-speech" or 
"free-press" such "live" entertainment as musical comedies, prize fights, 
burlesque shows or band concerts, and until the United States Supreme 
Court definitively rules that all, or some, "live" shows fall within the 
protected area, it is my belief that our own courts will not do so. 

I refer you to my letter to you dated August 22, 1955,^ relative to the 
effect of the Brattle decision on said c. 136. The provisions of St. 1955, 
c. 742 are entirely consistent with what I said therein, and in no way 
relieve your department of any responsibilities imposed upon it by said 
c. 136 except as to motion 'pictures, radio and televison. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



1 Supra, page 32 of this report. 



P.D. 12. 95 



Foreign Medical Schools — Right of Approving Authority under G. L. c. 112, 
§ 2, to approve Foreign Medical Schools retroactively. 

June 27, 1956. 

Mrs. Hazel G. Oliver, Director of Registration, Department of Civil Serv- 
ice and Registration. 

Dear Madam : — You have recently asked this department, in behalf 
of the Board of Registration in Medicine, for an opinion relative to the 
approval of foreign medical schools under G. L. c. 112, § 2. 

The provisions that an applicant for examination and registration as a 
qualified physician must have completed his premedical work in an ap- 
proved college or university and must have received his degree of doctor 
of medicine from an approved medical school were first added to our 
statutes by St. 1936, c. 247. See now G. L. c. 112, § 2, as last amended 
by St. 1952, c. 585, § 21. By such provisions an "approving authority" 
was established, and it was empowered, upon written request and after 
hearing and by written decision, to approve any college, university or 
medical school for the purposes of said section. Such requirements for 
approval became effective on January 1, 1941, but did not apply to appli- 
cants who had matriculated in a medical school prior to that date. St. 1938, 
c. 259. 

You advise me that on April 9, 1956, the approving authority "approved 
several foreign and European medical schools as of January 1, 1941." You 
further advise me that these medical schools had not requested approval 
until recently, that such approval had never been refused, that the pro- 
cedures relative to application for approval, hearing and decision have 
been followed, that the character and quahty of the instruction of each 
school since January 1, 1941, have been investigated, that consideration 
was given to the unusual situations during the war years of 1939-1946, 
and that the members of the approving authority have unanimously found, 
upon the merits, that the qualifications of such schools since January 1, 
1941, have been comparable to those of approved medical schools in the 
United States and Canada. 

Upon the above facts, you request the opinion of this department as to 
whether the approving authority under G. L. c. 112, § 2, has power to 
approve currently such foreign medical schools and to make the effective 
date of such approval retroactive to January 1, 1941. 

In my opinion, the answer to your inquiry is in the affirmative. 

Your inquiry is not answered by the express provisions of § 2; but cer- 
tainly there is no prohibition of a retroactive approval. The requirement 
that an applicant for examination "has received" his medical degree from 
a school "approved by the approving authority" is met, literally, by the 
approval of a medical school prior to the state examination although sub- 
sequent to the applicant's graduation from the school. Furthermore, it 
clearly would be proper to give the approval some retroactive effect be- 
cause it would necessarily be based upon past rather than future perform- 
ance of the school, and approval retroactive for the period covered by the 
study made by the approving authority would be reasonable. In fact, I 
understand that manj^ approvals by accrediting authorities are given 
retroactive effect for such period of examination. Finally, since it could 



96 P.D. 12. 

not be expected that the approving authority would have passed upon 
every medical school in the world prior to an application for examination 
and registration from a graduate of such a school, a rule barring retroactive 
approval would mean that in numerous instances the first appHcant from 
many schools would have to be refused. 

The statute requiring approval must be given a reasonable interpreta- 
tion. Such an interpretation does not forbid retroactive approval. The 
power given to the approving authority is not thus restricted. But such 
power is a great one, and it will be presumed that the approving authority 
has given careful and conscientious consideration to the records and quali- 
fications of a college, university, or medical school, covering the full period 
of retroactive effect, prior to rendering a judgment that the approval should 
be made retroactive. The present opinion of this department is founded 
upon such presumption. 

For the reasons set forth above, it is the opinion of this department that 
it is within the power of the approving authority under G. L. c. 112, § 2, 
to give current approval to certain foreign or European medical schools 
and to make the date of approval retroactive to January 1, 1941. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Interstate Commerce — Power of Division of Marine Fisheries to inspect 
Offshore Fresh Fish — No Pre-emption of Field by United States. 

June 28, 1956. 

Howard S. Willard, Esq., Director of Law Enforcement, Department of 

Natural Resources. 

Dear Sir: — You have recently asked this department for an opinion 
relative to whether or not the United States has pre-empted the field of 
fish inspection. 

You present the following situation : 

"For a considerable length of time the fish inspectors of this division 
have been inspecting fish from the various offshore banks as it comes out 
of the boats at dockside here. The boats are owned by citizens, resident 
in this Commonwealth, and are manned by Massachusetts residents. In- 
spections of the fish have followed from dockside, through the processing, 
freezing, warehousing and on into the retail outlet operations. The in- 
spectors have also required compliance with the sanitary standards pro- 
mulgated by the Division of Marine Fisheries relative to the production 
of fish. (G. L. c. 130, §§ 84 to 92; c. 130, § 1, last paragraph.) Until now, 
as between the U. S. Food and Drug Division and this division, the as- 
sumption that frefeh fish from offshore banks landed here as above indicated 
was neither in interstate nor foreign commerce, and the further assump- 
tion that the duty of inspecting such fish was the paramount concern of 
the Commonwealth of Massachusetts, has not been questioned." 



P.D. 12. 97 

You further state that the Food and Drug Division of the United States 
Department of Health, Education and Welfare has now declared that, by 
the Food, Drug and Cosmetic Act, fresh fish from offshore banks is in 
interstate commerce and that this field has been pre-empted by the United 
States to the exclusion of any State regulations. You request an opinion 
on this matter of Federal pre-emption in this field. 

The provisions in the Massachusetts statutes for the inspection of fish 
are contained in G. L. c. 130, §§ 84-92. There is nothing in these sections 
which appears to deal with commodities in interstate commerce. In the 
last paragraph of § 1 of c. 130 it is stated that these statutes shall apply to 
fish witliin the jurisdiction of the Commonwealth of Massachusetts, and 
shall not apply to "fish being transported through the commonwealth 
under authority of the laws of the United States." Since the authority of 
your division is restricted to commodities which appear to be in intrastate 
commerce, the provisions of the statute are constitutional and are not 
repugnant to the Constitution or the laws of the United States. Man- 
chester V. Massachusetts, 139 U. S. 240, 265. 

Even if the statutes under which your fish inspectors exercise their au- 
thority could be construed to affect commodities in interstate commerce, 
such statutes are still constitutional. The police power reserved to the 
Commonwealth to protect the health, life and safety of our citizens au- 
thorizes inspection of food under the circumstances contemplated in G. L. 
0. 130. Plumley v. Massachusetts, 155 U. S. 461, 472-473. Grossman v. 
Lurman, 192 U. S. 189, 196. Savage v. Jones, 225 U. S. 501. It was held 
in Bayside Fish Co. v. Gentry, 297 U. S. 422, that a California regulation 
concerning the processing of sardines, some of which came into the State 
through interstate commerce, was a proper regulation under the state 
police power, both for the preservation of health and to conserve the 
State's fish supply, that its effect upon interstate commerce was purely 
incidental, and that the regulation was not unconstitutional because of 
any activities of the United States in this field. To this same effect see 
Gommonwealth v. Trott, 331 Mass. 491, 496. 

It does not appear that the statutes and regulations of Massachusetts 
are in any way inconsistent with Federal laws covering the inspection of 
fish. Our laws can operate concurrently with all existing Federal statutes 
and regulations. It cannot be assumed that, in the field of the inspection 
of food for the prevention of the spread of disease and for the protection of 
the State's inhabitants. Congress intends to supersede or exclude State 
action. Mintz v. Baldwin, 289 U. S. 346, 350. Dean Milk Go. v. Madison, 
340 U. S. 349, 353. The criteria or tests to determine whether Congress 
has pre-empted a specified field are set forth in Pennsylvania v. Nelson, 
350 U. S. 497, 502. Some of these tests are as follows: that Federal regu- 
lations are so pervasive as to make reasonable the inference that Congress 
left no room for the States to supplement such regulations; that the field 
in question is one in which the Federal interest is so dominant that the 
Federal statutes must be assumed to preclude enforcement of State laws 
on the same subject; that enforcement of the State acts would present a 
serious danger of conflict with the administration of the Federal program. 
A consideration of these tests, and of the other criteria listed on page 502 
of the Pennsylvania v. Nelson decision, requires the conclusion that the 
Federal acts and regulations in the field of the local inspection of offshore 
fish brought into the Commonwealth for processing and sale do not pre- 



98 P.D. 12. 

empt the field and do not prevent enforcement of State laws in the same 
field. 

An examination of the recent Federal statutes in the field of fish and 
fisheries indicates that such statutes, rather than seeking exclusive oc- 
cupancy of the entire field, are directed toward cooperation with the 
States in their own efforts along this fine. See USC, Title 16, §§ 760a, 777, 
987. The same conclusion is indicated in Commonwealth v. Trott, 331 
Mass. 491, 497, in connection with the International Convention for the 
Northwest Atlantic Fisheries, which became operative on July 3, 1950. 

As indicated above, my conclusion is that the Federal Government has 
not pre-empted this field of the inspection of fish. However, you make 
reference to a contention of the Food and Drug Division of the United 
States Department of Health, Education and Welfare that, by operation 
of the Food, Drug and Cosmetic Act, there has been Federal pre-emption 
in this field. I have no knowledge of such contention by the Food and 
Drug Division. I have no knowledge of any statute or regulation upon 
which such a contention can be based. There is now pending in Congress 
a proposal to establish a comprehensive national policy relating to fish- 
eries. Senate Bill No. 3275. In its present form this bill provides (§ 6): 
" Nothing in this Act shall be construed . . , to supersede any regulatory 
authority over fisheries exercised by the states. ..." This bill was passed 
by the Senate on May 24, 1956, and is now with the House of Representa- 
tives Committee on Merchant Marine and Fisheries.^ Although doubtful, 
it is theoretically possible that this bill may be amended so as to exclude 
State participation in this field. But until there is some miequi vocal act 
by Congress excluding the States from concurrent activities in this field, 
it is my opinion that your authority under G. L. c. 130 continues and is 
valid. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



1 This Act, with the sentence quoted in the above opinion unchanged, but now appearing in § 10, be- 
came law on August 8, 1956. Fish and Wild Life Act of 1956, chapter 1036, Public Law 1024. 



INDEX TO OPINIONS 



PAGE 

Administrative law; decision made five years after public hearing ... 34 
Administrative Procedure Act: 

Applicability to proceedings in Division of Civil Service 43 

Board of Elevator Regulations; effective date of regulations . . . .60 
Elevators; regulations relating to automatic parking garages; incorporation 

of regulations by reference 91 

Appropriation; right of State Office Building Commission to balance of ap- 
propriation 65 

Armories; municipaUty; right to appropriate money for land for armory . 35 
Authorities; Massachusetts Turnpike Authority; as a "pohtical subdivision" 

of the Commonwealth 53 

Bonds, State: 

Duty of Department of Public Works to compensate for public land taken 

for State liighways ; prohibition of such payment in bond issue act . . 72 
State Purchasing Agent; right to supervise printing of State bonds . . 49 
Boston, City of; elevators; Administrative Procedure Act; regulations relat- 
ing to automatic parking garages; incorporation of regulations by 

reference 91 

Cities and towns : 
Floods; expenditure by Commonwealth for repair of flood damage to dams 

now municipally owned but formerly privately owned . . . .54 
Food ; right of local boards of health to regulate keeping and serving of food . 63 
Hurricane Rehef Board; use of pubhc funds; right to approve overtime pay 

for municipal policemen and firemen 51 

Obligation of city to pay interest on debt due State commission ... 76 
Old age assistance; right of local boards of welfare to furnish information 

relative to statutory hens for assistance granted 69 

Right to appropriate money for land for armory 35 

Civil Service, Administrative Procedure Act; apphcabihty to proceedings in 

Division of Civil Service 43 

Commitment of mentally ill persons — See Mental Health, Department of. 
Commonwealth : 
Highways; right of Department of Public Works to transfer unneeded high- 
way land to another State department 72 

Obligation of city to pay interest on debt due State commission ... 76 
Constitutional Law: 
Interstate commerce; power of State to inspect offshore fresh fish; no pre- 
emption of field by United States 96 

Land Court; jurisdiction of Division of Personnel and Standardization 
over employees of Land Court; separation of three branches of govern- 
ment 85 

Lord's day; licensing by Commissioner of Public Safety of motion pictures, 

stage plays and entertainments 32, 94 

Right of school committee to grant use of playground to charitable, historical 

or veterans organizations 66 

Veterans' Hospitals; cession by State to United States; right of State court 
to commit mentally ill veteran to Federal hospital; jurisdiction over per- 
son in Federal hospital 78 

Courts; right of General Court to prohibit wire taping of juries or jury 

rooms 67 

Criminal Law: 

Mentally iU person; requirements of hearing prior to commitments in 
criminal cases 92 



100 P.D. 12. 

PAGE 

Parole Board; power to issue certificate of termination of sentence; par- 
doned prisoner; defective delinquent 89 

Probation; effect of conviction and probation for attempted escape of 

confined prisoner; meaning of "sentence" 74 

Cuttyhunk Harbor; liability of Commonwealth to pay for extra dredging 84 
Dams; floods; expenditure by Commonwealth for repair of flood damage to 

dams now municipally owned but formerly privately owned ... 54 
Debt pooling plans; legislative declaration of what constitutes "practice of 

law" . . .' 31 

Defective delinquent; Parole Board; power to issue certificate of termination 

of sentence 89 

Demerit points; motor vehicles; compulsory liability insurance; surcharges 

as " premiums " rather than as " penalties " 45 

Dentistry; right of registered physician to extract teeth 69 

Electricians, State Board of Examiners of; right to requisition and appoint 

Civil Service employees •. . 75 

Elevator Regulations, Board of: 

Effective date of regulations 60 

Regulations relating to automatic parking garages; incorporation of regula- 
tions by reference 91 

Employees, State: 

Effect of resignation of employee on miUtary leave of absence ... 50 
Land Court; jurisdiction of Division of Personnel and Standardization over 

employees of Land Court; separation of three branches of government . 85 
Retirement; accidental disability; effect of remaining on sick leave . . 87 

Right to pay, during military training duties 62 

Right to salary, when also otherwise pubhcly emplo}'ed 42 

State Board of Examiners of Electricians; right to requisition and appoint 

Civil Service employees 75 

State Treasurer; right to remove, or suspend, Third Deputy Treasurer 48, 49 
Employer; employees' right to weekly payment of wages; inclusion of Sunday 

in six-day period 64 

Employment security; effect of guaranteed annual wage plan upon right to 

unemployment benefits 23 

Entertainments; Lord's day; licensing by Commissioner of Public Safety of 

motion pictures, stage plays and entertainments 32, 94 

Escape : 

Mentally ill person; commitment for observation; right to hold committed 

escapee 71 

Mentally ill person ; effect of escape upon term of commitment ... 61 
Probation ; effect of conviction and probation for attempted escape of con- 
fined prisoner 74 

Firemen; Hurricane Relief Board; use of public funds; right to approve 

overtime pay for municipal policemen and firemen 51 

Fisheries; interstate commerce; power of State to inspect offshore fresh fish; 

no pre-emption of field by United States 96 

Fitchburg, city of; obUgation of city to pay interest on debt due State com- 
mission 76 

Floods; expenditure by Commonwealth for repair of flood damage to dams 

now municipally owned but formerly privately owned .... 54 
Food: 

Interstate commerce; power of State to inspect offshore fresh fish; no 

pre-emption of field by United States 96 

Right of local boards of health to regulate keeping and serving of food . 63 
Standards of purity; administrative decision made five years after public 
hearing 34 



P.D. 12. 101 

PAGE 

Foreign medical schools; right of approving authority to approve schools 

retroactively 95 

Foreign steel; public contract; right of contractor to permit use of foreign 

steel . . . . . . . .44 

Garages; elevators; regulations relating to automatic parking garages . . 91 
Guaranteed annual wage plan; employment security; effect of plan upon 

right to unemployment benefits 23 

Health, boards of; food; right of local boards of health to regulate keeping 

and serving of food 63 

Highways : 

Duty of Department of Public Works to compensate for public land taken 

for State highways; prohibition of such payment in bond issue act . 72 
Right of Department of Public Works to transfer unneeded liighway land 

to another State department 72 

Hurricane Relief Board; use of public funds; right to approve overtime pay 

for municipal poUcemen and firemen 51 

Insurance, Commissioner of: 

Motor vehicles; compulsory liability insurance; demerit points; sur- 
charges as "premiums" rather than as "penalties" 45 

Right to review decisions of local retirement boards upon appUcations for 

retirement 37 

Interest; obUgation of city to pay interest on debt due .^tate commission . 76 
Interstate commerce; power of State to inspect offshore fresh fish; no pre- 
emption of field by United States 96 

Juries; right of General Court to prohibit wire tapping of juries or jury rooms 67 
Jurisdiction; veterans' hospitals; cession by State to United States: right 
of State court to commit mentally ill veteran to Federal hospital; juris- 
diction over person in Federal hospital 78 

Labor and Industries, Department of; employer; employees' right to weekly 

pavTueut of wages; inclusion of Sunday in six-day period .... 64 
Land Court; jurisdiction of Division of Personnel and Standardization over 

employees of Land Court; separation of three branches of government 85 
Lawyers; debt pooling plans; legislative declaration of what constitutes 

"practice of law" 31 

Legislative Research Bureau; State employees; right to salary, when also 

otherwise publicly employed 42 

Legislature : 

Legislative commission; appropriation; right of State Office Building 

Commission to balance of appropriation 65 

Retirement; amount of make-up payments of members of the General 

Court 56 

Retirement; duty of State Retirement Board to supply names of retired 

members of General Court ; pubhc records 77 

Retirement; creditable service for members of the General Court in the 

armed forces 55 

Lord's day; licensing by Commissioner of Public Safety of motion pictures, 

stage plays and entertainments 32, 94 

Massachusetts Turnpike Authority; as a "political subdivision" of the Com- 
monwealth 53 

Medicine, Board of Registration in: 

Foreign medical schools; right of approving authority to approve foreign 

medical schools retroactively 95 

Right of registered physician to extract teeth 69 

Mental Health, Department of: 

Mentally ill person; commitment for observation; right to hold committed 

g escapee 71 

Mentally ill person; effect of escape upon term of commitment . . .61 



102 P.D. 12. 

PAGE 

Mentally ill person; requirements of hearing prior to commitments in 

criminal cases 92 

Statues; effective date of act relative to mentally ill; act subject to referen- 
dum 47 

Veterans' hospitals; cession by State to United States; right of State court 
to commit mentally ill veteran to Federal hospital; jurisdiction over person 

in Federal hospital 78 

Metropohtan Water District; interest; obligation of city to pay interest on 

debt due State commission 76 

Mihtary leave; resignation of State employee while on military leave of ab- 
sence 50 

Military training; State employee; right to pay, during mihtary training 

duties 62 

Motion pictures; Lord's day; Ucensing by Commissioner of Public 

Safety 32,94 

Motor vehicles: 

Compulsory liability insurance; demerit points ; surcharges as "premiums" 

rather than as " penalties " 45 

Massachusetts Turnpike Authority; exemption from G. L. c. 159B of 

truck owners hired by the Authority 53 

Old age assistance; right of local boards of welfare to furnish information rela- 
tive to statutory liens for assistance granted 69 

Overtime pay; Hurricane ReUef Board; use of public funds; right to ap- 
prove overtime pay for municipal poHcemen and firemen . . .51 
Pardon; Parole Board; power to issue certificate of termination of sentence of 

pardoned prisoner 89 

Parole Board; power to issue certificate of termination of sentence of par- 
doned prisoner; defective delinquent 89 

Personnel and Standardization, Division of; jurisdiction over employees of 

Land Court; separation of three branches of government . . . .85 

Physician; right of registered physician to extract teeth 69 

Playground ; right of school committee to grant use of, to charitable, historical 

or veterans organizations 66 

PoHcemen; Hurricane Rehef Board; use of public funds; right to approve 

overtime pay for municipal policemen and firemen 51 

Printing, State ; State Purchasing Agent ; right to supervise printing of State 

bonds 49 

Prisoner : 

Parole Board; power to issue certificate of terminatioA of sentence; par- 
doned prisoner; defective dehnquent 89 

Probation; effect of conviction and probation for attempted escape of con- 
fined prisoner; meaning of "sentence" 74 

Probation; effect of conviction and probation for attempted escape of con- 
fined prisoner; meaning of "sentence" 74 

Pubhc building construction; bid statute: 

Cuttyhunk Harbor: liability of Commonwealth to pay for extra dredging; 

words: "alteration, "extra work" 84 

Unit prices; notice of intention; words: "extra work," "alteration," 

"repairs," "additional work" 27 

Public contract ; right of contractor to permit use of foreign steel ... 44 
Pubhc funds: 

Floods ; expenditure by Commonwealth for repair of flood damage to dams 

now municipally owned but formerly privately owned .... 54 
Hurricane Relief Board; right to approve overtime pay for municipal 

pohcemen and firemen 51 

Right of school committee to grant use of playground to charitable, his- 
torical or veterans organizations 66 



P.D, 12. 103 

PAGE 

Public Health, Departnieni of: 

Food, right of local boards of health to regulate keeping and serving of 

food 63 

Food; standards of purity; administrative decision made five years after 

puliUc hearing 34 

Public land; highways; duty of Department of Public Works to compensate 
for pubhc laud taken for State highways, prohibition of such payment 

in bond issue act 72 

Public records; duty of State Retirement Board to supply names of retired 

members of General Court 77 

Public Safety, Department of; liOrd's day; licensing by Commissioner of 

Public Safety of motion pictures, stapre plays and entertainments . 32, 94 
Public Works, Department of: 

Highways; duty of department to compensate for public land taken for 

State highways; prohibition of such payment in bond issue act. . . 72 
Highways; right of department to transfer uimeeded highway land to an- 
other State department 72 

Tidewater lands; right of department to hcense construction where title to 

land is in question 26 

Quincy, city of; right of school committee to grant use of Veterans Memorial 

Field to charitable, historical or veterans organizations .... 66 
Referendum ; statutes ; effective date of act relative to mentally ill . . . 47 
Registration, Division of; State Board of Examiners of Electricians; right to 

requisition and appoint Ci^^l Service employees 75 

Retirement : 

Accidental disabiUty; effect of remaining on sick leave 87 

Commissioner of Insurance; right to review decisions of local retirement 

boards upon applications for retirement 37 

Legislators; amount of naake-up payments of members of the General 

Court 56 

Legislators; duty of State Retirement Board to supply names of retired 

members of General Court; public records 77 

Legislators; veterans; creditable service for members of the General Court 

in the armed forces 55 

Veteran ; right to return of accumulated deductions upon retirement under 

non-contributory provisions 59 

Workmen's compensation benefits; setoff against veteran's non-contribu- 
tory pension 58 

School committee; city of Quincy; right of school committee to grant use of 
Veterans Memorial Field to charitable, historical or veterans organisa- 
tions 66 

State Office Building Commission; right of commission to balance of appro- 
priation 65 

State Purchasing Agent : 

Public contract; right of contractor to permit use of foreign steel . . . 44 

Right to supervise printing of State bonds 49 

Statutes; effectivedateof act relative to mentally ill; act subject to referendum 47 
Statutory construction : 

Debt pooling plans; legislative declaration of what constitutes "practice of 

law" 31 

Foreign medical schools; right of approving authority to approve foreign 

medical schools retroactively 95 

Old age assistance; right of local boards of welfare to furnish information 

relative to statutory liens for assistance granted 69 

Right of school committee to grant use of playground to charitable, his- 
torical or veterans organizations 66 

Sunday — See Lord's day. 



104 P.D. 12. 

PAGE 

Taunton State Hospital; effect of resignation of State employee on military 

leave of absence 50 

Tidewater lands; right of Department of Public Works to license construc- 
tion where title to land is in question 26 

Time; inclusion of Sunday in computing six-day period for payment of wages 64 

Towns — See cities and towns. 

Treasurer, State; right to remove, or to suspend, Third Deputy Treasurer 48, 49 

United States; veterans' hospitals; cession by State to United States; right 
of State court to commit mentally ill veteran to Federal hospital; juris- 
diction over person in Federal hospital 78 

Veterans : 

Retirement; creditable service for members of the General Court in the 

armed fo'r'ces . . , ■ .55 

Retirement; right to return of accumulated deductions upon retirement 

under non-contributory provisions 59 

Retirement; workmen's compensation benefits; setoff against veteran's 
non-contributory pension 58 

Veterans' hospitals; cession by State to United States; right of State court 
to commit mentally ill veteran to Federal hospital; jurisdiction over 
person in Federal hospital 78 

Veterans Memorial Field ; city of Quincy 66 

Wages; employees' right to weekly payment of wages; inclusion of Sunday 

in six-day period 64 

Waterways: 

Cuttyhunk Harbor; liability of Commonwealth to pay for extra dredging 84 
Tidewater lands; right of Department of Public Works to Ucense con- 
struction where title to land is in question . 26 

Welfare, boards of; old age assistance; right of local boards to furnish in- 
formation relative to statutory liens for assistance granted . . .69 

Wire tapping; right of General Court to prohibit wire tapping of juries or 



jury rooms 



67 



Workmen's compensation; setoff of benefits against veteran's non-contribu- 
tory retirement pension 58 



STATUTES CITED. 



United States Constitution. 

Article I, § 8, el. 17 . . . . 79, 81 

1st Amend 10, 32, 33 

14th Amend 10, 32 

United States Code. 

Title 4, §§ 104, 105, 106 ... . 81 

16, §§ 700a, 777, 987 .. . 98 

18, §§ 4241-4248 .... 82 

24, §§ 161, 191 (et seq.) . . 82 

26, § 3305d (1954 Code) . . 81 

32, § 65 63 

38, c. 12A 83 

40, § 290 81 

Massachusetts Constitution. 

Part 1st, Art. XXX 87 

Part 2nd, c 1, § 1, Art. II , . . 48 

Part 2nd, c. 2, § 1, Art. VIII . . 90 

Amend. 46 66 

Amend. 48 48 

Amend. 62 73 



Massachusetts Statutes. 



1926, 
1934, 
1936, 



1879, c. 195, §2 
1922, c. 409 
c. 508 

c. 386, § 

c. 590 

c. 247 

c. 266 

c. 361, § 2 

c. 259 

c. 708, § 

e. 240 

c. 489 

c. 658 

c. 660 

c. 660, § 7 

c. 497, § 4 



1947, 

1949, 
1950, 
1951, 



1952, 



1953, 



1954, 



639 
262 
7.32, § llA 
801, §4 
354, § 2 
354, §§ 3, 

c. 564, § 2 

c. 585, § 21 

c. 634 . 

c. 634, § 8 

c. 182 

0. 570 

c. 570, § 15 

c. 675. § 2 

c. 403, § 

c. 430 . 

c. 529 . 

c. 590 



15 



56, 
56, 



79 
80 
48 
80 

36, 37 
95 

66, 67 
80 
95 

50, 51 
70 
49 
38 

57, 58 

57, 58 
80 
14 
53 
76 
70 
54 
53 

80, 83 
95 
56 
56 

66, 67 
46 
46 
65 

72, 73 
53 
13 
35 



1954, c. 590 

c. 607, § 2 

c. 627, § 8 

c. 667 . 

c. 680 

c. 681 

1954 (Res.) c. Ill 

1955, c. 496-497 
c. 506 . 

c. 554 . 

c. 637 . 

0. 637, § 8 

c. 643 . 

c. 693 . 

c. 699, § 4 

c. 742 . 

0. 770, § 1 

c. 770, § 66 

c. 770, §§ 68 

c. 752 . 

1955 (Res.) c. 94 

1956, c. 48 . . 



122 



43, 



PAGE 
62 

42 
55 
19 
85 
60, 91 
65 
65 
64 

56, 57, 58 
47, 48 
79, 92, 93 
. 85 
72, 73 
54 
. 94 
. 90 
. 74 
. 89 
51, 53 
65 
67 



Public Statutes, 
c. 87, § 40 62 

General Laws. 

c. 3, §§ 56-61 42 

c. 4, § 1 48 

§ 7, cl. 26 78 

§ 7, cl. 34 37 

c. 5. § 1 49 

c. 7, § 13 30, 31 

§ 22 (17) 44 

§23A 44 

§28 85 

§28A 86 

c. 10, § 5 49 

c. 12, § 3 18 

§3B 14 

§8 13 

§11 7 

c. 13, §§ 3, 8, 9, 25, 32, 40, 43, 44D 75, 76 

c. 22 91 

c. 27, § 5 90 

c. 29, §§ 12, 13 65 

§20A 27,28,30 

§31 43 

c. 30, § 21 42, 43 

§38 85,87 

§44A 72 

§§ 45, 46 85, 86 

c. 30A 43,60,91 

§1 43 

§1(1) 44 

§1(2) (5) 61 

§2 91 

§2(3) 92 



106 



P.D. 12. 



PAGE 

C.30A §2-6 44 

§5 61 

§6 92 

§§ 8, 9, 10-13, 11 (6) . . 44 

c. 31 43 

§§ 3ff, 43ff 44 

c. 32 37,38 

§§ 1-28 39, 40, 41 

§ 1 55 

§ 3 (2) 59, 60 

§3(7) 59 

§4(l)(h) 55 

§ 5 38 

§ 6 38, 58, 59 

§ 7 . 38, 39, 41, 58, 59, 87, 88, 89 

§ 9 . . . . 38, 39, 41, 58, 59 

§ 14 58 

§ 16 18, 39, 41 

§ 20 (5) (a) 78 

§ 21 40 

§ 24 40, 41 

§25 (3) (a) 59,60 

§ 56-60 58, 59, 60 

c. 33 35,36 

§§ 28, 30 35 

§§ 38, 40, 41, 42 .... 62 

§ 59 62, 63 

§ 60 62 

§§ 117, 118, 119, 120, 121, 

122 (a), 123, 124, 127 ... . 36 

c. 40 37 

§§ 5, 14 36 

§ 32 18 

c. 45, § 14 66 

c. 60, § 23 69, 70 

c. 66, § 10 78 

§ 17A 69, 70 

c. 71, § 71 66 

c. 81, § 7E 72 

c. 90, §§ lA, 34A-34J .... 46 
c. 90A '. 17,46 

§6 47 

§ 15 46, 47 

c. 91, § 14 26 

c. 94, § 146 63 

§ 192 34 

c. HI, §31 63 

c. 112, § 1 75 

§ 2 95, 96 

§§ 50, 52, 53 69 

§81G 76 

§85 75 



PAGE 

c. 118A, §4 69,70 

c. 121, § 4A 69, 70 

c. 123 47 

§§ 10, 20A 79 

§24 78 

§ 34A 79 

§50 79,83 

§ 51 . 71, 79, 82, 83, 92, 93, 94 

§ 77 .... 71, 79, 92, 93 

§86 92,93 

§§ 88, 89 62 

§89A 90 

§ 95 71 

§96 15 

§ 100 92, 93, 94 

§§ 101, 103, 105 ... . 93 

§ 106 71 

§§ 113, 118, 118A ... 90 

c. 127, § 129 74 

§ 130 89 

§ 130A 90 

§ 132 89 

§ 152 7, 90 

c. 130, 98 

§ 1, 84-92 96, 97 

c. 136, §§ 2-4B 33 

§4 10,32,33,94 

§§ 4A, 5 33 

c. 143 91 

§69 60,61,91 

c. 149, § 30A 85, 86 

§ 148 64 

c. 151A 23, 25 

§l(r)(2)(3) 24 

§ 1 (s) (4) 26 

§ 29(a) 24 

c. 152 16 

§§ 65, 65N .... 15, 16 

§ 73 58, 59 

c. 159B 53 

§§ 13, 18 53 

c. 175, § 113B 46, 47 

c. 185, §§ 1, 7, 12, 14 . . . 85, 86 

c. 221, §§46B, 46C 31 

c. 253, §§ 33-38 54 

c. 258 84 

c. 271, § 14 9 

§ 43 69, 70 

c. 272, § 79A 67 

c. 277, §§ 47, 55 10 

c. 279, §§ 3, 4A 74 



v^ 



vS