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

Public Document No. 12 



Cbe Commontoealti) of ^aeeactiuettte 



REPORT 



ATTORNEY GENERAL 



FOB THE 



Year ending June 30, 1957 




Public Document No. 12 



Cfte Commontoeaitt) of e@a88ac!)u»etts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1957 



Publication or thu Document Approved bt Beenabd Solomon, State Puechasinq aoent 
UOO-7-68-923127. 



■^L 



STATE LIBRARY OF MASSACHUSETTS 
DEC 12 1958 

STATE HOUSE, BOSTO!^ 
IIASS OFjFTCIALS 






Cl)e Commontoealtib of Q^a0$aci)u$ett0 



Boston, December 4, 1957. 
To the Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending Jmie 30, 1957. 

Respectfully submitted, 

GEORGE FINGOLD, 

Attorney General. 



Clje CommontoealtJ) of ^a$0ac|)U0ett0 

DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
GEORGE FINGOLD 



First Assistant Attorney General 
Fred Winslow Fisher 



Assistant Attorneys General 

Samuel H. Cohen Edward F. Mahony 

Malcolm M. Donahue^ Charles F. Marsland, Jr. 

Joseph H. Elcock, Jr. Joseph P. McKay ^ 

Daniel J. Finn^ George Michaels 

Samuel W. Gaffer Lowell S. Nicholson 

DoRiCE S, Grace Arnold H. Salisbury 

Saul Gurvitz Barnet Smola 

Matthew S. Heaphy Norris M. Suprenant 

Edward J. Kimball 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 

Frank Ramacorti David L. Winer 

Assistant Attorneys General assigned to Metropolitan District Commission 
William J. Robinson Joseph H. Sharrillo 

Assistant Attorneys General assigned to Division of Employment Security 
Lazarus A. Aaronson* George Broomfield^ 

Stephen F. LoPiano, Jr. 

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

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

Chief Clerk to the Attorney General 
Harold J. Welch 

Attorney 
James J. Kelleher 

Head Administrative Assistant 
Russell F. Landrigan 

> Resigned, July 31, 1956. * Resigned, Jan. 15, 1957. 

2 Resigned, Nov. 30, 1956. * Appointed, Jan. 16, 1957. 

3 Appointed, Dec. 1, 1956. '' Deceased, Jan. 26, 1957. 
* Resigned, July 20, 1956. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1956, to June 30, 1957 



Appropriations. 

Attorney General's Salary .... 

Administration, Personal Services and Expenses 
Claims, Damages by State Owned Cars . 
Small Claims ...... 

Veterans' Legal Assistance .... 

Total 



$15,000 00 

297,000 00 

86,970 00 

15,000 00 

18,600 00 

$432,570 00 



Expenditures. 

Attorney General's Salary .... 

Administration, Personal Services and Expenses 
Claims, Damages by State Owned Cars . 
Small Claims ...... 

Veterans' Legal Assistance .... 

Total 



$15,000 00 

296,997 12 

86,970 00 

15,000 00 

18,599 76 

$432,566 88 



Approved for Publishing. 



FRED A. MONCEWICZ, 

Comptroller. 



Cf)e Commontoealtj) of ^a00acf)usett0 



Department of the Attorney General, 
Boston, December 4, 1957. 

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, 1957, totahng 17,801, 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 

Civil Defense .... 

Department of Mental Health 

Department of Natural Resources 

Department of Public Utilities 

Massachusetts Turnpike Authority 

State Reclamation Board 
Miscellaneous cases, including suits for the collection of money di 
monwealth ......... 

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

Investigations and recommendations in accordance with G. L. c 
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 . 



e the 



Com 



. 127, § 152, 



137 
181 

1,138 
193 
1 
2 
18 
1 
2 
1 

5,069 

1,437 

27 



62 
351 

5,807 

377 

2.997 



Introduction. 

As I have stressed in my earlier annual reports, the scope of the work of 
the Department of the Attorney General is nearly as wide as the fabric of 
the law itself. Of course, the basic test of the interest which this depart- 
ment must take in a particular matter is whether the problem in any way 
concerns the Commonwealth or any of its agencies, but there are extremely 
few legal situations or procedures which cannot, in appropriate circum- 
stances, meet that test. Consequently, as in the past, the personnel of the 
department has been faced throughout the fiscal year ending June 30, 1957, 
with the task of advising His Excellency, the General Court and its com- 
mittees, and the several departments, boards and commissions of the Com- 
monwealth, in a myriad of legal matters. More than 20,000 separate items 
have been disposed of in this period — some minor, many requiring no 
court appearances, but all of importance, in some degree, to the govern- 



8 P.D. 12. 

meat of the Commonwealth. There are very few of the governmental ac- 
tivities of the Commonwealth which have not, at one stage or another of 
their progress, been studied by this department. 

Considerations of time and space forbid a detailed resume of the flood 
of matters which the department has handled during the past fiscal year. 
However, as has been my practice in the past, I shall discuss some of them, 
briefly. 

Eminent Domain Division. 

This special division of the department has from January 23, 1953, to 
date disposed of some 2 300 cases throughout the Commonwealth. The 
petitioners in these cases sought total compensation amounting to $40,- 
509,956.30; they were finally awarded a total of $22,295,281.34. To the 
difference of $18,214,974.96, itself representing a substantial saving to the 
taxpayers of the Commonwealth, should be added the interest item of 
$1,252,380.19 which would have been payable had all of these matters 
gone to a jury trial. 

As a result of an arrangement with the Chief Justice of the Superior 
Court, conferences and special land damage sessions have been set up in 
the various counties, with the presiding Justice participating in the adjust- 
ment of the cases on the trial list. By way of illustration, during a recent 
special land damage session in Suffolk County, ninety-five cases were com- 
pletely disposed of and certificates of judgment issued. This procedure has 
made less necessary the hiring of real estate experts to testify, and has 
saved the Commonwealth over $500,000. It has relieved, to a great ex- 
tent, the congestion of the Superior Court dockets of the various counties 
throughout the Commonwealth. 

I am grateful to the Justices of the Superior Court foi their cooperation 
in biinging about the disposition of the great number of land damage cases 
which pass thiough this office. It is my hope that this newly established 
procedure will be continued, since the program of new road construction 
will be increased for the next thirteen or fifteen years because of Federal 
participation, there being allocated in Massachusetts for road construction 
an amount of $840,000,000. The actual trial of every land damage case 
would result in court congestion and extreme delays and hardship to 
property owners whose properties have been taken. 

It will continue to be the policy of the Eminent Domain Division to act 
upon all cases which come before it as efficiently and expeditiouslj^ as 
possible in order to minimize any inconvenience to property owners and 
to save the pj^yment of interest over extended periods of time. 

Division of Public Charities. 

This division of the Department of the Attorney General was estab- 
lished in 1954 (St. 1954, c. 529) on the basis of proposals made by me to 
the General Court. In the three years of its existence its value has been 
fully demonstrated. First, it affords an orderly, efficient administration 
of the function of the Attorney General to assure the proper and intended 
application of funds given or appropriated to public charity; and second. 



P.D. 12. 9 

by obtaining annual reports from all public charities in accordance with 
the provisions of the statute under which it was created, it provides a 
constant check upon these activities. 

The administrative function of the division has included an immense 
volume of probate work of all kinds. It encompassed in the past year the 
examination, and approval, of over two thousand probate accounts, with 
assets ranging from a few hundred dollars to many millions; the examina- 
tion of, and action on, petitions for appointment of trustees, for instruc- 
tions, for allowance of wills, for licenses to sell, for compromise and settle- 
ment, and other matters in the usual routine of the handling of trusts and 
estates. Petitions for the application of cy pres, of which the number 
again increased, are in a special category, since the Attorney General is 
a necessary party to them and bears a particular responsibility to the 
courts which hear them. The division has been able, in many cases, to 
assist the members of the bar in their preparation and presentation of 
litigated matters. It is apparent that this cooperation between the bar 
and the division is leading to the increasing use of the doctrine of aj pres, 
with the result that idle charitable funds are being adapted to present day 
needs. 

Representation of public charitable interests involves not only the 
scrutiny of administrative functions, but active participation in the pro- 
tection or preservation of those interests. During the past year the division 
represented such interests in many proceedings before the courts. 

A case of unusual interest, both from a historic standpoint, and as an 
example of how certain problems of charitable trusts have their origins in 
the distant past, was that of Franklin Foundation v. Boston, 336 Mass. 39, 
which presented the question of whether the managers of the Franklin 
Fund could pay current expenses of the Franklin Institute from the princi- 
pal of a donation made to this fund by Andrew Carnegie, whose gift was 
made to "match Ben Franklin." The Franklin Fund was established 
under Benjamin Franklin's will and codicil, at his death in 1790. The 
decision of the court was that the principal of the fund could not be thus 
expended. 

A case representative of the problems of today was presented by the will 
of Russell Weeks Hook, who died resident in New Hampshire, leaving the 
bulk of his estate to a public charitable purpose in this Commonwealth, 
namely, the Lowell Technological Institute. Certain heirs and legatees 
attacked the validity of the will in New Hampshire. Due to the participa- 
tion of the division, the will was sustained and a favorable settlement was 
effected which secured approximately $40,000 for the benefit of the Insti- 
tute, of which Mr. Hook had been a graduate. 

The value of the requirement for annual reports becomes increasingly 
apparent, as it reveals funds now lying idle that may properly become the 
subject of the doctrine of ctj pres. It also discloses the extent to which 
funds are being devoted to public charitable purposes by means of inter 
vivos trusts and the formation of charitable corporations and foundations. 
This rapidly growing area of charitable trusts is one that requires careful 
attention now, and promises to require more as the development continues 



10 P.D. 12. 

in the future. Annual reports, in this field, provide a factual background 
of obvious importance. 

The cooperation of the bench and bar has been greatly responsible for 
the contribution made by the division. I wish again to express my deep 
appreciation to them, and all those who handle the affairs ot charitable 
activities in the Commonwealth. 

Criminal Division. 

The Criminal Division of my office, which I established in 1953, has 
continued to function on behalf of citizens all over our Commonwealth. 

Its principal function continues to be the investigation of complaints 
and requests for assistance from citizens and law enforcement agencies. 
These complaints in and of themselves take up the bulk of the time of my 
investigative staff, which has continued to work effectively with Federal, 
State and local law enforcement agencies in an effort to maintain our 
Commonwealth's relatively low crime rate. 

Crime Commission witnesses. — On August 6, 1956, the House of Repre- 
sentatives adopted, in concurrence, a Senate Order adopted four days 
earlier, relative to the prosecution of some twenty-one persons who allegedly 
had wilfully failed to comply with witness summonses served upon them 
by order of the so-called "Crime Commission" established by c. 100 of 
the Resolves of 1953 and revived and continued by later enactments. 
This order directed the Attorney General to proceed with the prosecutions, 
as provided by G. L. c. 3, § 28A. 

Accordingly, pursuant to said Order, evidence was presented to the 
Suffolk County Grand Jury in December, 1956, and indictments were 
returned against all twenty-one defendants. 

In April, 1957, pursuant to a similar legislative Order, another indict- 
ment was sought, and returned, against another alleged recalcitrant wit- 
ness. 

As of June 30, 1957, these cases remained to be tried in the Superior 
Court fox Suffolk County. These indictments were the first to be returned 
under said § 28 A, and the trials will involve questions of law unique in 
Massachusetts jurisprudence. 

Santos Rodriguez pardon. — On April 9, 1957, at the request of the 
District Attorney for the Western District, an extraordinary meeting of the 
Governor and Council was held for the purpose of considering the pardon 
petition of one Santos Rodriguez, who was then serving a life sentence 
for murder. The pardon grounds were that Rodriguez was completely 
innocent of the crime, the true murderer having since confessed and been 
sentenced therefor. The District Attorney assured His Excellency that 
there was now no question of the innocence of Rodriguez, and that his 
conviction had been a miscarriage of justice. 

At my direction, an Assistant Attorney General forthwith advised the 
Governor that the safety and welfare of the people of the Commonwealth 
could in no measure be jeopardized by the immediate release from im- 
prisonment of one whom His Excellency believed to be innocent of the 
crime for which he was sentenced; no opinion was requested, or given, as 



P.D. 12. 11 

to the effect of that provision of G. L. c. 127, § 152, which requires written 
recommendations on a pardon petition to be given "within not less than 
two weeks" following its transmission to the recommending agencies. 
Accordingly, a complete gubernatorial pardon was given to Rodriguez, 
and he was released from confinement, on the same day. 

In order that there be no later question as to the definite termination of 
the charges against Rodriguez, his attorney thereafter filed another petition 
for his pardon, and on May 8, 1957, I forwarded a written recommendation 
to His Excellency which read, in part, as follows: 

"Obviously, I cannot assure Your Excellency that Rodriguez is indeed innocent 
of the crime of murder. The criminal proceedings against him were conducted 
by the District Attorney throughout all their stages, and only he is in a position 
to know the facts of the case from the viewpoint of the Commonwealth. However, 
Mr. Moynahan's presentation of the matter to Your Excellency some four weeks 
ago, was sufficiently persuasive to cause the issuance of your pardon to Rodriguez 
at that time, and I am aware of no intervening occurrence which would cause you 
to change your mind as to the petitioner's innocence. 

"In these circumstances, Your Excellency's duty is clear. No resident of this 
Commonwealth who, in your considered opinion, has been unjustly convicted of 
a crime in fact committed by another should be denied the executive clemency 
which the Constitution authorizes you to extend to him." 

As of June 30, 1957, no second pardon had been given to Rodriguez. 

Full Bench Decisions. — Several criminal matters w^ere determined by 
the full court of the Supreme Judicial Court in which this department 
appeared as of counsel. Of more than usual interest were: 

The three decisions redefining and clarifying the Massachusetts rule 
governing the right of an indigent criminal defendant to counsel. Drolet v. 
Commonwealth, 335 Mass. 382; Pugliese v. Commonwealth, 335 Mass. 471; 
Brown v. Commonwealth, 335 Mass. 476. 

The two decisions construing the new statutory provisions dealing with 
"good time" deductions from criminal sentences. Comerford v. Commis- 
sioner of Correction, 335 Mass. 714; Gildea v. Commissioner of Correction, 
336 Mass. 48. 

In accordance with the statutes and established procedures, the division 
processed sixty-two references to it from the Advisory Board of Pardons 
of petitions for executive clemency. Each was carefully reviewed, and ap- 
propriate recommendations made. 

In addition, throughout the year, a total of 137 interstate rendition 
matters were disposed of. In each instance where a demand had been 
made by some other State for the return of an alleged fugitive from justice, 
a hearing was accorded to the defendant, and a full report made to His 
Excellency. 

Some fifty-seven proceedings involving extraordinary writs (mandamus, 
habeas corpus, writs of error, and the like) or petitions for declaratory 
judgments were also the concern of the division during the fiscal year 1957; 
these matters required the preparation of written briefs for submission to 
the courts, and actual court appearances and trials when necessary. 

Certain criminal prosecutions undertaken by the division deserve com- 



12 



P.D. 12. 



meat, but since they are still undecided by the courts I do not deem it 
proper, at this time, to do more than mention their existence. 



Employment Security 
on hand July 1, 1956 
(a) Employer contribution 
(6) Contract actions against Director 

(c) Board of Review cases 

(d) Supreme Judicial Court . 

(e) Employee Overpayment Cases 



Matters. 



178 
11 



2 

107 



307 



307 



Referrals ..... 

(1) Contribution cases . 

(2) Employee overpayment cases 



70 



70 



Total cases during fiscal year 



377 



Cases closed: ............ 

(1) Contribution cases ......... 68 



(2) Overpayment cases 

(3) Supreme Court 

(4) Board of Review . 



117 



117 

Cases on hand July 1, 1957 260 

(a) Contribution cases in process ....... 147 

(b) Board of Review ......... 2 

(c) Employee criminal cases . . . . . . .111 



Total monies collected on taxes .... 
Total monies collected — recovery on fraud collections 



$48,541 91 
7.005 50 



$55,547 41 

Town By-Laws. 
During the year 242 by-laws and amendments to by-laws voted by the 
various towns in the Commonwealth were submitted to this office for ap- 
proval under the provisions of G. L. c. 40, § 32. My official responsibiUty 
in these matters is iar from formal. Many of them are so-called "zoning" 
or "protective" by-laws, which necessarily affect, presently or in the future, 
and for better or for worse, millions of dollars worth of real estate within 
the Commonwealth. I have assigned one and sometimes two of my staff 
to examine all such by-laws carefully before submitting them to me for 
action, bearing in mind, at all times, the rule of Cohen v. Lynn, 333 Mass. 
699, 705: "... every presumption is to be made in favor of the by-law 
or ordinance and it will be sustained unless it is shown beyond a reasonable 



P.D. 12. 13 

doubt that it conflicts with the statute or the Constitution." My assistants 
have on more than one occasion visited the areas affected by the by-laws 
before making a final report to me. 

Occasionally, for technical reasons, it becomes my duty to disapprove 
town by-laws. Before this is done, however, the local town counsel is 
communicated with, and usually understands and approves the action 
which I must take. 

State Contributory Retirement Appeal Board. 

Under the provisions of G. L. c. 32, § 16, it becomes my duty to designate 
an Assistant to sit, together with a designee of the Director of the Division 
of Accounts and a designee of the Commissioner of Insurance, upon the 
Contributory Retirement Appeal Board of the Commonwealth. This 
board has the deficate and important responsibility of adjudicating appeals 
by the members of the various contributory retirement systems from de- 
cisions of the local retirement boards. Subdivision (4) of the statute pro- 
vides that "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." Much of the time of this board is devoted to 
the hearing and adjudication of applications under § 7 of said c. 32 for 
accidental disability retirement allowances and under § 9 for accidental 
death benefits. These sections in substance provide retirement allowances 
for members of the various systems, and for their wives and children in 
cases of death, where total and permanent incapacity has resulted from 
personal injuries sustained during the performance of public duties. Un- 
fortunately, there have been few decisions of our Supreme Judicial Court 
relative to these matters, and the board has been obliged to blaze its own 
legal pathway. These matters are becoming so numerous and so important, 
however, that not infrequently they reach the Supreme Judicial Court. 
Several cases are presently pending and awaiting adjudication. The duty 
of the board, of course, is to weigh the evidence carefully and deal fairly 
between the member (or his dependents in the event of his death) , on the 
one hand, and the various retirement boards, on the other. 

Since the general public substantially underwrites the various public re- 
tirement systems, it is quite clear that too careful consideration of these 
matters cannot be given. Unfortunately, this work requires much time 
in the hearing of the cases, and further time in arriving at decisions, and 
while its responsibilities are substantial, only a very small sum of money 
is available for the expenses of this board. It is my feeling that an in- 
dependent permanent state appeal board should be provided with ample 
time and sufficient money and facilities expeditiously and properly to 
handle the matters upon which it must pass. 

State Housing Board. 

The Assistant Attorneys General assigned to the State Housing Board 
contipued to perform their functions. Formal and informal legal opinions 



14 P.D. 12. 

and legal advice memoranda were furnished to the board, some seventy-six 
title abstracts were reviewed, the several active Housing and Redevelop- 
ment Authorities were serviced, fifty-three original and refunding note 
issues, involving a total of $79,078,000, were reviewed and approved, and 
many hundreds of conferences and hearings were attended. 

Motor Tort Cases. 

Under G. L. c. 12, § 3B, the Attorney General must in certain circum- 
stances defend State employees operating State-owned motor vehicles. 
While such cases might formerly 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, these limits have now been raised to $10,000 and $5,000. 
Any such settlement is originally determined by the Attorney General, 
but must be approved by the Governor and Council. 

From June 30, 1956, to July 1, 1957, a total of 216 motor tort cases were 
disposed of by either settlement or trial. 

Mental Health Cases. 

Under G. L. c. 123, § 96, the Commonwealth has the right to bring 
claims against persons and estates for maintenance and support of patients 
in the State mental health institutions. These claims are handled by this 
department. 

From June 30, 1956, to July 1, 1957, a total of forty-eight cases were 
either settled or tried, resulting in the collection of $45,930.71 for the 
Commonwealth. 

Malpractice Cases. 

Under G. L. c. 12, § 3D, the Attorney General may, in certain circum- 
stances, defend any officer or employee of the Departments of Mental 
Health, Public Health, or Correction, or of the Soldiers Homes, against an 
action for damages for bodily injuries or infections, physical or mental 
agony, pain,, death of any person, or any damage to property of another 
on the hospital grounds. 

There are now two such cases pending in the Superior Court. 

Conclusion. 
The foregoing does not, of course, purport to do more than highlight a 
few of the many legal matters which this department has been called upon 
to process during the past year. The thousand-and-one routine daily tasks 
which their duties require the members of my staff to perform have been 
carried out with the same promptness and efficiency which I have come to 
expect of my co-workers during my years of association with them. To 
them go my sincere thanks for their continued loj'-alty to me and their 
dedicated service to the Commonwealth. 

Respectfully submitted, 

GEORGE FINGOLD, 

Attorney General. 



INDEX TO REPORT FOR 1956-57 
DEPARTMENT OF THE ATTORNEY GENERAL 



Subject page 

Copy of Covering Letter 3 

Department Staff 5 

Appropriations and Expenditures 6 

Introduction 7 

Eminent Domain Division 8 

Division of Public Charities 8 

Criminal Division 10 

Crime Commission witnesses 10 

Santos Rodriguez pardon 10 

Full Bench Decisions 11 

Employment Security Matters 12 

Town By-laws 12 

State Contributory Retirement Appeal Board 13 

State Housing Board 13 

Motor Tort Cases 14 

Mental Health Cases 14 

Malpractice Cases 14 

Conclusion 14 



OPINIONS. 

State Bonds — Right of Treasurer to issue Bonds at Different Times. 

July 2, 1956. 
Hon. John F. Kennedy, Treasurer and Receiver General. 

Dear Sir: — You have requested an opinion as to your powers under 
G. L. c. 29, § 49. 

Specifically, you inquire whether, the Governor and Council having 
requested you to issue bonds in specified amounts under a number of 
different statutory provisions, you must issue all of said bonds at the same 
time, or whether you may, in your discretion, "order three different bond 
sales at different times within this year." 

Said § 49 authorizes you to issue bonds of the Commonwealth in such 
amounts and at such times as you shall determine, subject only to the 
requirements (1) that they shall be issued upon the serial payment plan, 
and (2) that the times and amounts of the issues shall be approved by 
the Governor and Council. Accordingly, if the Governor and Council 
approve your plan to issue different bonds at different times, you may 
legally do so. 

Very truly yours, 

George Fingold, Attorney General. 

By Arnold H. Salisbury, 

Assistant Attorney General. 

Revolutionary War '^ Bounty Note'' — Right of Treasurer to pay Ancient Note. 

July 6, 1956. 

Hon. John F. Kennedy, Treasurer and Receiver General. 

Dear Sir: — Your recent letter requests an opinion as to whether you 
have authority to pay two notes, each issued during the Revolutionary 
War period, which have recently been presented to you for payment. 

The earlier note, dated February 19, 1777, and designated as a "bounty 
note," is as follows: 

(No. 16424) 
State of Massachusetts-Bay. The 19th day of Febry — 1777. 
FOR Value received for the Use of the State of 

MASSACHUSETTS-BAY, I do in Behalf of said State, 
hereby promise and oblige myself, and Succession in the 
Office of Treasurer, to pay to the Possessor of this Note 
I the Sum of TEN POUNDS, on the Sixth 

;z; Day of Decem. 1780, with Interest at Six per Cent, 

>, per annum; the Interest to be paid Annuall3^■ 
c 

£10 Witness my Hand, 



W 



H, Gardner, Treasurer. 
W. Cooper ] 

Committee. 
N. Appleton 



IS P.D. 12. 

Since the answer to your inquiry is in the negative, for the reasons stated 
in the following paragraphs, it is unnecessary to make a determination of 
the validity of the note in question. But if this problem of validity were 
to be pursued, it is possible that serious doubts as to the present validity 
of the note might develop. The note itself was issued by the "State of 
Massachusetts-Bay," during the course of the Revolutionary War, but 
before the adoption of the original Constitution of the Commonwealth. 
Apparently it was given as a bounty for enlistment in military service. 
In the early years following the adoption of the Constitution in 1780, 
questions relating to notes similar to the one presented to you were con- 
sidered by the General Court. In some instances the then Treasurer of the 
Commonwealth [incidentally, the first Treasurer and Receiver-General 
of the Commonwealth was Henry Gardner, presumably the same person 
who signed the 1777 note in question] was given authority to pay certain 
notes, or to consolidate them, or to call them in. In some of those early 
statutes there is reference to depreciation of notes. It was also during this 
period that the use of English pounds was being changed to American 
dollars. A more detailed study of these problems, against the background 
of the unexplained delay of 176 years in presenting the note, might well 
bring to light insuperable problems as to the existing validity of the note 
presented to you. But, since you must refuse to pay the note on other 
grounds, I have not made an extended examination of the problems men- 
tioned in this paragraph. 

The bounty note of 1777, set forth above, is an ordinary promissory note. 
This kind of a claim is within G. L. c. 258, § 1, by which the Commonwealth 
has consented that court action may be taken against it. However, from 
the time of the original consent to be sued, our law has provided that 
statutes of limitations shall be a defence to such claims against the Com- 
monwealth. St. 1879, c. 255, § 5. In Sturtevant v. Pembroke, 130 Mass. 
373, a claim against a town for a military bounty during the Civil War was 
held barred by the six-year statute of limitations. A stricter prohibition, 
that claims against the Commonwealth under c. 258 "shall be brought only 
within three years next after the cause of action accrues," was adopted in 
1943. See G. L. c. 260, § 3A. "It is axiomatic that the Commonwealth 
can be held answerable in its own courts only to the precise extent and in 
the precise manner to and in which it has submitted itself to their jurisdic- 
tion by statute." Putnam Furniture Bldg., Inc. v. Commonwealth, 323 
Mass. 179, 185. The running of the statute of limitations will bar such an 
action. Chilton Club v. Commonwealth, 323 Mass. 543, 544. The present 
provision permitting such actions "only within three years" is a strict 
condition to the action rather than a milder statute of limitations. Inter- 
national Paper Co. v. Commonwealth, 232 Mass. 7, 10. Finn v. United 
States, 123 U. S. 227. This defence or bar presented by lapse of time 
cannot be waived by you. VI Op. Attv. Gen. 231, 232. Munro v. United 
States, 303 U. S. 36, 41. United States v. Trollinger, 81 F2d 167, 168. See 
also George A. Fidler Co. v. Commonwealth, 303 Mass. 216, at 221. 

I find nothing in our statutes authorizing you to pay the above note. 
Because of the stated policy of the Commonwealth not to permit itself to 
be sued on an old claim, and because you have no authority to waive such 
defence, it is my opinion that you would be acting without authority if you 
were to pay the Commonwealth's money to the present holder of the 1777 
bounty note. 

Although the holder of the above note cannot sue the Commonwealth, 



P.D. 12. 19 

and although you as Treasurer and Receiver General of the Common- 
wealth have no present authority to pay such note, the General Court 
itself has power by legislative act to give you such authority if it is of the 
opinion that the note, in the hands of the present possessor, constitutes a 
moral claim against the Commonwealth which should now be paid from 
public funds. This method of presenting claims against the Common- 
wealth by petition to the Legislature has always existed. It was the only 
method available prior to the granting of permission to sue the Common- 
wealth first given in 1879. Mc Arthur Brothers Co. v. Commonwealth, 197 
Mass. 137, 138. This method is still open to the holder of the bomity note. 
Upon such a petition, the Legislature, as "the keeper of the conscience of 
the Commonwealth" (see VI Op. Atty. Gen. 235), could determine whether 
or not it should authorize payment of public money for this purpose. 

You also inquire as to your authority to make payment on another old 
note. The only description given to you of this second note is as follows •. 

". . . it is a note for a loan for one hundred (100) pounds made by the 
State of Massachusetts from a Mr. William Samuel Ward in the year of 

1782." 

I see no waj' in which this note has any better standing than the bounty 
note of 1777. Accordingly, in the absence of facts to take the case out of 
the rules set forth above, it is my opinion that you are without authority 
to make any payment on this note. 

A matter very similar to the two presented here, involving a note issued 
by the Commonwealth in 1794, was considered by Hon. J. Weston Allen, 
Attorney General, in 1921. VI Op. Atty. Gen. 231. His conclusions were 
that the claim was barred by the statute of limitations and that the Treas- 
urer "should refuse to pay both the principal and the interest upon this 
note." I concur with the reasons and conclusions stated by Attorney Gen- 
eral Allen. For such reasons, and for the additional reasons specified 
above, it is my opinion that you should refuse to pay both the principal 
and the interest on the two notes which have been presented to you. No 
payment on either note can validly be made unless there is a specific act 
of the Legislature instructing you to make such payment. 
Very truly yours, 

George Fingold, Attorneij General. 



Logan Airport — Right of City or Town to license Taxicahs for Operation 
"at Logan Airport only'' — Solicitation of Business in Boston by Out- 
side Taxicahs. 

July 11, 1956. 

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

Sir : — Your recent letter to me states that you have been informed by 
the Boston Taxi Driver's Association, Inc., that many taxicabs regularly 
soliciting business within the city of Boston have not been licensed to do 
so by the police commissioner, and that certain taxicabs doing business at 
the Logan Airport hold taxi licenses issued by some city or town for opera- 
tion "at Logan Airport only." 



20 P.D. 12. 

You inquire: 

1. Whether the regular solicitation of business in Boston by taxicabs 
not licensed by the police commissioner is a violation of St. 1930, c. 392, § 3. 

2. Whether any city or town may properly license a taxicab for opera- 
tion "at Logan Airport only." 

"Regulation of the operation of vehicles used for the conveyance of 
passengers was an early and is a well recognized subject for local by-law 
or ordinance. . . . That this power includes automobiles is not open to 
question." Commonwealth v. Slocum, 230 Mass. 180, 190 (1918). All 
municipalities are expressly empowered by G. L. c. 40, § 22, to make such 
regulations. Commonwealth v. Rice, 261 Mass. 340, 344 (1927). See 
Commonwealth v. Matthews, 122 Mass. 60, 63 (1877), upholding regulations 
imposed by the city of Boston. In Boston, the matter is now specifically 
governed by St. 1930, c. 392, § 1, under which "the police commissioner 
. . . has all the power conferred upon the board of aldermen of a city by 
said § 22." Burrell v. Checker Taxi Co., 287 Mass. 108, 113 (1934). 

Under c. 392, the police commissioner has wide authority to regulate 
"hackney carriages" (§2). It is clear that his rules govern the operation 
of taxicabs. Commonwealth v. Haydock, 286 Mass. 47 (1934). One of 
the statutory prerequisites for the use of a taxicab "from place to place 
within the city" is that it be "licensed thereto by the police commissioner" 
(§ 3), and all such licenses are subject to such terms as he may prescribe 
(§4). He is authorized to promulgate rules and orders for the regulation 
of taxicabs (§1), and has done so: see "Rules and Regulations for Hackney 
Carriages (1954)." 

There is, of course, nothing to prevent a taxicab duly licensed by another 
municipahty from bringing a passenger into the city of Boston, even 
though it must pass over public ways within the city. See Commonwealth 
V. Stodder, 2 Cush. 562, 576, (1848), and annotations as to the regulation of 
interurban carriers in LRA 1918, 891 and 31 ALR 594 (1924). But such 
a taxicab cannot then legally remain in Boston soliciting business in com- 
petition with taxicabs duly licensed under c. 392. Section 3 of said chap- 
ter specifically prohibits any person "not licensed thereto by the police 
commissioner" from driving or having charge of a hackney carriage in 
Boston. In this blanket prohibition, these provisions differ widely from 
those of the Brookline by-law interpreted in Commonwealth v. White, 
260 Mass. 300 (1927), which in my opinion does not estabHsh any principle 
of law contrary to the conclusions to which I come herein. See, also, 
§§ 62A and 102 of c. 40 of the Revised Ordinances of the City of Boston 
(1947), the former as inserted by c. 3 of the Ordinances of 1951. 

Section 4 of c. 392, limiting the number of taxicab licenses which the 
police commissioner may issue, evinces a clear legislative intent not to 
have more taxicabs in operation throughout the city than the maximum 
number therein specified. I am informed by the commissioner that the 
full available number of licenses has already been granted by him for the 
current year, so that if any unlicensed taxicabs regularly operate within 
the city, the legislative mandate as to said permissible maximum number 
is clearly being defied. 

Accordingly, I answer your first question in the affirmative. 

Your second question must be answered in the negative. G. L. c. 40, 
§ 22, only authorizes municipalities to regulate vehicles used therein, and 
confers no power upon a city or town to license vehicles for use as taxicabs 



P.D. 12. 21 

"at Logan airport only." A taxicab duly licensed under § 22 for use as 
such within any town may, under the rules promulgated by the Com- 
missioner of Airport Management (G. L. c. 90, § 50D), operate at the 
Logan Airport. See 1952 Rules, Rule I (7); the Boston police commis- 
sioner has no jurisdiction over airport taxicab stands. Attorney General's 
Report, 1942-44, pp. 47, 48. But a license to operate only outside the 
territorial limits of the city or town by which the grant is made is, in my 
opinion, an invalid exercise of the regulatory authority contained in said 
§ 22. It would follow that such a vehicle cannot legally be operated as a 
taxicab at the Airport. 

Very truly yours, 

George Fingold, Attorney General. 



Officer of State Police — Retirement — Waiver of Heart Condition at re- 
enlistment. 

Aug. 9, 1956. 

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

Dear Sir: — You have requested the opinion of this department 
relative to the retirement of an officer of the Massachusetts State Police, 
Uniformed Branch, in the Department of Public Safety, appointed under 
G. L. c. 22, § 9A. 

The officer has requested retirement because of physical incapacity 
caused by illness or injury incurred in performance of duty. The pertinent 
statutory provisions are in G. L. c. 32, § 26 (2) (a), which provides: 

" . . .an officer of the division of state police in the department of public 
safety shall be retired by the state board of retirement in case the rating 
board, after an examination of such officer by a registered physician ap- 
pointed by it, shall report in writing to the state board of retirement that 
such officer is physically or mentally incapacitated for the performance 
of duty by reason of (i), illness incurred through no fault of his own in the 
actual performance of duty, or (ii), an injury resulting from an accident 
occurring during the performance and within the scope of his dlity and 
without contributory negligence on his part, and that such incapacity is 
fikely to be permanent." 

You advise me that all of the conditions and requirements of the above 
statute have been met and complied with in full, including specifically 
the medical examination and the report of the rating board. 

The disability of the officer in question has been established to have 
been caused by hypertension or heart disease. Because of this, the officer 
claims the benefit of the presumption in G. L. c. 32, § 94, which statute 
provides (St. 1956, c. 580): 

"... any condition of impairment of health caused by hypertension 
or heart disease resulting in total or partial disability or death to a uni- 
formed member ... of the state police in the department of public safety, 
. . . shall, if he successfully passed a physical examination on entry into 
such service, which examination failed to reveal any evidence of such 
condition, be presumed to have been suffered in fine of duty, unless the 
contrary be shown by competent evidence." 



22 P.D. 21. 

The officer first entered the service of the Massachusetts State Police 
in 1928. At that time, which was the time of his "entry into such service," 
the officer passed a physical examination which failed to reveal any evi- 
dence of hypertension or heart disease. But on his re-enlistment in 1948, 
and on subsequent re-enlistments, the officer's then existing physical 
condition or disqualification was waived by various Commissioners of 
PubUc Safety. 

Notwithstanding the strict and complete compliance with all provisions 
of G. L. c. 32, § 26 (2) (a), and the unrebutted presumption established by 
§ 94 of that chapter, the State Board of Retirement denied the officer's 
application for retirement upon the ground that "his continued employ- 
ment in the Department of Public Safety was based on waiving of the rule 
on physical condition required for members of the Uniformed Branch of 
the Division of State Police." 

Upon these facts you request an opinion "as to whether or not the State 
Board of Retirement had any choice other than to grant him retirement as 
requested in accordance with the provisions of G. L. c. 32, § 26 (2) (a)." 

In my opinion, upon the specific facts in this case, the State Board of 
Retirement should have granted the retirement. The reason assigned 
for refusal to grant retirement is not a valid reason. The officer, after 
meeting all requirements, became a member of the Massachusetts State 
Police in 1928. By subsequent re-enlistments he continued to be a member 
of that organization. The waiver of the officer's physical condition or 
disqualification was permitted by the provisions of G. L. c. 22, § 9A, and 
by the Rules and Regulations for the Government of the State Police. 
Technically, there was no "waiving of the rule on physical condition"; 
rather, the waiver was pursuant to the established rules 7.10, 7.11 and 7.12. 
These rules were issued under authority of G. L. c. 22, § 9A, and were duly 
approved by the Governor on March 5, 1951. The State Board of Retire- 
ment cannot deprive the officer of his rights because of this lawful waiver 
of a physical condition or disqualification. 

The possibility of loss of rights because of lapse of time or for failure to 
report injury or claim retirement, as set forth in G. L. c. 32, § 7, does not 
arise in the present case since that section is not applicable here. § 7 (1); 
§26 (2) (a); §26(4). 

Since -the ground for refusal by the State Board of Retirement to grant 
retirement is invalid, and since there appears no other error of fact or law 
in the proceedings for retirement or in the compliance with all statutory 
and regulatory requirements, the State Board of Retirement should have 
granted the officer's application. The Legislature has declared^ by G. L. 
c. 32, § 26 (2) (a), that in situations of this kind the officer "shall be re- 
tired." In my opinion, upon the facts of this case, the board had no choice 
but to grant retirement. 

Very truly yours, 

George Fingolu, Attorneij General, 

By Low^ELL S. Nicholson, 

Assistant Attorney General. 



P.D. 12. 23 

Contract for Public Building — Bidding Procedure — Work to he done by 

City. 

Aug. 23, 1956. 

Hon. Ernest A. Johnson, Commissioner of Labor and Industries. 

Dear Sir: — You have asked for an opinion concerning the interpreta- 
tion of the statute relating to the bidding procedure on public building 
contracts as set forth in G. L. c. 149, §§ 44A-44D, as amended by St. 1954, 
c. 645. You make reference to the specifications relating to construction 
of a housing project in Lynn, Massachusetts, wherein the following lan- 
guage appears in the specifications for the plumbing subcontract under 
Division 20-3 (d) (1): 

"Work excluded from this Division 

(d) City of Lyjin Water Department 

(1) Furnish and install a new water service pipe from the water 
main in Fayette Street up to and including the 2-inch master 
water meter in the building, as indicated on the drawings. 
The Plumbing Contractor shall pay the City of Lynn Water 
Department any fees or charges for all work done by the City 
of Lynn in connection with the water service. All under- 
ground water piping up to the meter shall be Type K copper 
tubing with cast or wrought copper sweat joints, as specified 
hereinafter." 

You state that the low bid for the plumbing subcontract made no 
reference in its bid to the work to be done by the Lynn Water Department, 
and you ask whether such work should have been listed on the bid form 
for subcontractors as a sub-subcontractor. 

If a subcontractor intends not to perform some of the work listed in the 
plumbing specifications but intends instead to have it performed by another 
contractor, such other subcontractor should be listed on the bid form for 
subcontractors under section (b). An examination of the language in the 
specifications quoted above indicates that the work to be performed by the 
Lynn Water Department was work excluded from the pmmbing division. 
It is also clear from the language that the plumbing subcontractor has the 
obligation of paying any fees to the Lynn Water Department. It would 
appear, therefore, that any such fees must be included in the subcontract 
bid for the plumbing work but that the city of Lynn need not be listed as a 
subcontractor. 

In reference to the same plumbing subcontractor you refer to Division 
20-13, which relates to exterior storm and sanitary drainage systems. Sec- 
tion {g) thereof provides as follows : 

"All storm and sanitary sewer pipe work located inside the limits of the 
project property lines shall be performed by Licensed Plumbers; all pipe 
work located outside the project property lines shall be done by City of 
Lynn Licensed Drainlayers in the Plumbing Sub-Contract." 

You state that the plumbing subcontractor has not listed a city of Lynn 
licensed drainlayer as a sub-subcontractor and that such work will probably 
be done by an employee of the plumbing subcontractor, who is also a city 
of Lynn licensed drainlayer. In view of the fact that the work is actually 



24 P.D. 12. 

to be performed by a properly licensed drainlayer, as called for by the 
specifications, it would appear that the foregoing procedure is in accord- 
ance with such specifications. There appears to be no legal objection apart 
from the bid statute which would prevent the plumbing subcontractor 
from employing such a drainlayer. 

In summary, it is our opinion, in reference to your first question, that the 

Lynn Water Department need not be listed as a sub-subcontractor, and it 

is our further opinion, in connection with your second question, that a 

city of Lynn licensed drainlayer need not be listed as a sub-subcontractor. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Contract for Public Building — - Bidding Procedure — Separate Suhbids. 

Aug. 24, 1956. 

Hon. Ernest A. Johnson, Commissioner of Labor and Industries. 

Dear Sir: — You have asked for an opinion concerning the interpreta- 
tion of the statute relating to the bidding procedure on public building con- 
tracts as set forth in G. L. c. 149, §§ 44A-44D, as amended by St. 1954, 
c. 645. 

You state that specifications relating to construction of the Lynn Hous- 
ing Project contain in Division 10 specifications calling for a subbid on 
"Roofing and Sheet Metal" and that, by Addendum No. 1, Division 10-A 
was established calling for an additional subbid for "Asphalt Shingle Roof- 
ing." You ask whether separate subbids on these two items may be called 
for b}^ the specifications or whether all such roofing must be included in 
one subbid. 

General Laws c. 149, § 44C (A) 2, provides as follows: 

"2. Each bid shall be divided into two items: — 

"Item 1, covering all the work of the general contractor, being all work 
not covered in item two. 

"Item 2, covering the work and the bid prices therefor of the subcon- 
tractors for such of the following as in the estimate of the awarding au- 
thority shall exceed one thousand dollars: (a) roofing and flashing; (b) 
metal windows; (c) waterproofing, dampproofing and caulking; (d) mis- 
cellaneous and ornamental iron; (e) lathing and plastering; (f) accoustical 
tile; (g) marble, tile and terrazzo; (h) resilient floors; (i) glass and glaz- 
"ig; (J) painting; (k) plumbing; (1) heating, ventilating and air condition- 
ing; (m) electrical work; (n) elevators; and (o) the work of any other 
principal or minor subcontractors for which the awarding authority deems 
it necessary to receive filed sub-bids; and each of these classes of work 
shall be designated in item two of the bid form for general contractors as 
classes of work for which bid prices from subcontractors must be given." 

An examination of the foregoing provision indicates that subbids shall 
be called for in connection with roofing and flashing when bids are sought 
in connection with the construction of public buildings. It appears that 



P.D. 12. 25 

such subbids were included in the specifications. The only difficulty ap- 
pears to be that two separate subbids for roofing work have been called for 
under Division 10 and Division 10-A mentioned previously. The language 
of the statute quoted above does not appear to have any mandatory re- 
quirement that all such roofing and flashing should be done by one sub- 
contractor. In summary, it is our conclusion that the specifications as 
they relate to the work on roofing and flashing are not inconsistent with 
the applicable bid statute. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Civil Service — Police Officer — Notice of Hearing Relative to Discharge — 
Notice to Mentally III Person. 

Aug. 29, 1956. 

Comviissioners of Civil Service. 

Gentlemen: — You have requested an opinion as to whether or not a 
patrolman in the Boston Police Department who is discharged was given 
proper notice in connection with the hearing relative to his discharge. 

The statute involved is G. L. c. 31, § 43. This statute provides that be- 
fore the discharge of an employee from public office in the classified civil 
service he "shall be given a full hearing before the appointing authority, 
of which hearing he shall have at least three days' written notice." 

In the case which you present the patrolman was temporarily suspended 
in 1953, and at that time notice was given to him of a public hearing as 
required by the above section. Because the charges against the patrol- 
man were pending in the courts, the hearing before the appointing authority 
was continued from time to time until disposition of the court case. This 
occurred in June of 1956. Notice was given on June 27, 1956, to the 
patrolman of a hearing to be held before the appointing authority under 
c. 31, § 43, to begin on July 5, 1956. The hearing was held from July 5 
to July 9. The decision ratifying suspension was made on July 10. 

The question as to the validity of the notice to the patrolman is based 
upon the fact that in 1954 he had been placed under guardianship by the 
probate court as a mentally ill person, and that this was his status during 
the hearing in July, 1956. With reference to this matter your hearing 
officer has found the following facts: 

" (1) Upon all the evidence before me, I find that the Employee, a 
mentally ill person, had been placed under guardianship February 4, 1954, 
by the Suffolk Probate Court, Boston, Massachusetts, and had not been 
removed from this disability at the time of the hearing before the Ap- 
pointing Authority; 

"(2) Upon all the evidence before me, I find that the Appointing Au- 
thority had knowledge of said guardianship at the time of the hearing be- 
fore him; 

"(3) Upon all the evidence before me, I find that notwithstanding this 
knowledge, the Appointing Authority refused to continue the hearing or 
to notify the guardian." 



26 P.D. 12. 

However, it appears from the transcript of evidence before the hearing 
officer (p. 11) that during such hearing before the appointing officer the 
patrolman "was present and was represented by counsel and pleaded not 
guilty." Upon the above facts you request an opinion as to whether or 
not the patrolman was given proper notice of hearing. 

In my opinion, the proper notice was given to the patrolman. The 
statute requires that notice be given to the employee (§ 43). This section 
makes no reference to an employee who is mentally ill and is under guard- 
ianship. There is no statutory provision in our laws with respect to the 
service of notice upon a guardian of a mentally ill person. In passing 
upon similar provisions for the service of process in civil cases, under 
G. L. c. 223, § 29, which calls for service upon the defendant, our courts 
have held that such service must be upon the defendant in person even 
though he is mentally ill, and that a service upon the guardian and no 
service upon the defendant in person is an invalid service. This rule has 
recently been applied in connection with the notice of hearing on probate 
accounts under G. L. c. 201, § 25, with rulings that absence of service upon 
the party interested, even though insane, rendered the proceeding void, 
and service solely upon the guardian of such person did not validate the 
proceedings. Taylor v. Lovering, 171 Mass. 303, 306. Anagnostopoulos v. 
Anagnostopoulos, 307 Mass. 493, 494-495. Burnett v. Williams, 323 Mass. 
517, 520, 521. Reynolds v. Remick, 327 Mass. 465, 469. 

In the present case, it is to be noted that the original service of notice 
for the earliest scheduled hearing was made upon the patrolman prior to 
his disability. The hearing in 1956 was a continuance of that earliest 
scheduled hearing. Furthermore, at the 1956 hearing the patrolman was 
present at the hearing in person and was represented by counsel. Notices 
for both the 1953 hearing and the 1956 hearing were delivered to the 
patrolman as required by the statute. Under these circumstances the 
notice required by G. L. c. 31, § 43, was given, and the appointing au- 
thority had jurisdiction to proceed with the hearing. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



State Employee — Accidental Disability Retirement — Effective Date of 
Retirement — Commencement of Payments. 

Aug. 30, 1956. 

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

Dear Sir: — You have requested an opinion regarding the rights of a 
State employee to accidental disability retirement under the provisions of 
G. L. c. 32, § 7. 

You present the following facts: 

An employee of the State Quartermaster's department of the Common- 
wealth was injured in September of 1952, and such injuries resulted in 
total incapacity. On August 26, 1955, the employee filed an application 



P.D. 12. 27- 

for accidental disability retirement under G. L. c. 32, § 7, and requested 
that he be retired as of October 31, 1955. Your board has (1) found that 
all conditions for allowance set forth in § 7 have been met, (2) approved 
the application, (3) established September 2, 1955, as the date of retire- 
ment, and (4) fixed December 28, 1955, the day after the employee's name 
last appeared on the State payroll, as the date when retirement payments 
are to begin. 

Your request for my opinion is as follows: 

"The board respectfully requests your formal opinion as to whether or 
not it is within the province of this board to approve the application so as 
to have the retirement effective as of September 2, 1955 and the retire- 
ment allowance effective as of December 28, 1955." 

This opinion is restricted to the specific question asked. Except for the 
question asked, I understand from you that the employee meets all of the 
requirements of § 7. 

In the first place, the beginning of retirement payments on December 28, 
1955, the first day after "he last received regular compensation for his 
employment in the public service," is required b}^ subdivision (2) of said 
§ 7. This subdivision relates to the date retirement pajnnents shall start, 
not to the effective date of the retirement itself. 

The date of September 2, 1955, fixed by your board as the effective date 
of retirement, is the latest date possible. Any later date would place the 
retirement within the prohibited period of "two years prior to attaining 
the maximum age." § 7 (1). In passing upon the validity of the date of 
September 2, 1955, the date selected by your board, consideration must 
be given to three other dates suggested by the statute: September 10, 1955, 
which is the date fifteen days after the filing of the apphcation; Decem- 
ber 28, 1955, the date when retirement payments were to begin; and Octo- 
ber 31. 1955, the date indicated by the employee as the time he desired 
to be retired. 

September 10, 1955 — The provision in § 7 that the employee "shall be 
retired ... as of a date . . . which shall be not less than fifteen days 
... after the filing of such application," in my opinion, is directory rather 
than mandatory. This general subject was considered in Boston v. Barry, 
315 Mass. 572, and the court stated at page 578: 

"A statute 'imperative in phrase,' prescribing the time or manner of 
performance by a public or corporate officer of an act not intended for the 
benefit of a person in the position of the party attacking its validity, is 
ordinarily construed as a merely directory provision for the orderly and 
convenient conduct of business, and compliance with it is not a condition 
of the validity of the act." 

December 28, 1955. — The date of the retirement itself and the date 
when a retirement allowance is to be paid are entirely distinct. The former 
is covered by subdivision (1), the latter by subdivision (2). Payment may 
and sometimes must begin within the two-year period before maximum 
age. But the day of payment has no bearing upon the date "as of" which 
the retirement takes place. 

The conclusions of law stated above are included in my opinion to you 
dated April 25, 1956. (Attorney General's Report, 1956, pp. 87, 89.) 
See that opinion for further explanation of the above principles. 



28 P.D. 12. 

October 31, 1955. — Subdivision (1) of § 7 also provides that an employee 
''shall be retired . . . as of a date which shall be specified in such applica- 
tion." Again, it is my opinion that this provision is directory and not 
mandatory. I do not believe that the Legislature could have intended to 
bar payment of accidental disability retirement, to which a State employee 
was otherwise fully entitled, because the employee in an application filed 
more than two years prior to maximum age suggested that the retirement 
be effective at a date within such two-year period. 

In conclusion, and for the foregoing reasons, it is my opinion that your 
board acted within its powers in fixing September 2, 1955, as the effective 
date of the retirement and in providing for payments to begin on De- 
cember 28, 1955. 

Very truly yours, 

George Fingold, Attorney General. 



General Court — Travel Expenses of Members of General Court — Adjourn- 
ment or Recess — '^Informal" Sessions. 

Sept. 25, 1956. 

Hon. John F. Kennedy, Treasurer and Receiver General. 

Dear Sir: — You have requested the opinion of this department rela- 
tive to the travel expenses of members of the General Court. 
Your statement of the facts and of your inquiry is as follows: 

"On August 10th, it was announced that the General Court would be in 
recess from August 10, 1956, to September 25, 1956. A number of mem- 
bers have presented vouchers for payment of travel and I desire to know 
whether or not under St. 1953, c. 263, payment can be made for such 
members' attendance upon the General Court." 

Your authority to pay members of the General Court for their travel 
expenses, or for their expenses of travel, lodging and meals, is contained in 
G. L. c. 3, § 9B, added by St. 1953, c. 263. This provides that "for each 
day of attendance upon the general court" a member is entitled to his ex- 
penses as set forth in this section. You are given authority by the section 
to make payments upon a voucher in which a member "certifies that he 
travelled daily as above specified or travelled and incurred expenses for 
lodgings and meals daily as above specified." If there was actual attend- 
ance at a session of the General Court, and if the proper voucher is sub- 
mitted to you, you are authorized to pay the expenses as provided for in 
§9B. 

The problem you present raises a question as to the existence of con- 
stitutional sessions of the General Court between the dates of August 10, 
1956, and September 25, 1956. During this period you state that the 
General Court is "in recess." Technically, there have been "adjourn- 
ments" of each branch of the Legislature during this period, but no 
"recess." The orders for adjournment are set forth in the Journals of 
August 10, 1956. Senate Journal, pages 1651, 1673. House Journal, 
page 2261. These adjournments were in accordance with the provisions 
of the Massachusetts Constitution giving each house the power to adjourn 



P.D. 12. 29 

themselves, "provided such adjournments do not exceed two days at a 
time. The Legislative Power, c. I, § II, art. VI and § III, art. VIII. The 
adjournments, informally but incorrectly referred to as a recess, have not 
been taken under an order of the Governor and Council (c. II, § I, art. VI), 
nor by concurrent vote of both houses under article LII of the Amendments 
to the Constitution. 

The adjournments of each house, beginning on August 11, 1956, have 
been followed by constitutional sessions of each branch of the General 
Court on each Monday and Thursday. Although these sessions have been 
"informal," without prosecution of the usual business, and as a part of a 
general plan for adjournments or a "recess" until September 25, 1956, 
such "informal sessions" on each Monday and Thursday have been con- 
stitutional meetings of each branch of the General Court. 

Because each session of the General Court during this period of repeated 
adjournments has been a valid and constitutional session, members who 
have actually been in attendance at any such session are entitled to pay- 
ments of expenses under G. L. c. 3, § 9B. 

Very truly yours, 

George Fingold, Attorney General, 

By Low ELL S. Nicholson, 

Assistant Attorney General. 



Board of Registration in Medicine — Alien Physician — Rescission of 

Order. 

Oct. 5, 1956. 

Mr. Roger T. Doyle, Chairman, Board of Registration in Medicine. 

Dear Sir: — You have inquired concerning the right of your board to 
issue a second license to Dr. Herbert Penuel Falkner Corbin of Adams. 
I understand that he has not been able to file proof of citizenship within 
the five years mentioned in G. L. c. 112, § 2, but that such final citizenship 
papers will be granted to him in about a month. 

I have examined the various provisions of law relating to this situation. 
Even though it were ruled that you had a right to issue a second "courtesy 
license" to Dr. Corbin, such a new license would have to be preceded by an 
application and an examination. This procedure might take such a length 
of time that it would cause unnecessary suffering to the doctor's patients in 
Adams. Because of the inevitable delay under such procedure, and be- 
cause the question of a second license under this paragraph of § 2 has never 
been passed upon, I am not answering the specific question you have asked 
but am calling your attention to another procedure which will accomplish 
the same result. 

Although your board has already entered an order of revocation of the 
doctor's license, you have authority to rescind such order of revocation and 
to give the matter further consideration. The revocation or cancellation 
called for in § 2 is not automatic, and the law does not require such revoca- 
tion if the purpose of the statute, that is, final securing of citizenship, is 
accomplished. Under this statute, your board has authority to exercise 
discretion and to take such action in the matter as would be reasonable 



30 P.D. 12. 

under all the circumstances. Even a delay of a few weeks in taking final 
action on the matter of revocation, until the official citizenship papers are 
received, would be legal. The phrase ''shall be revoked" in this statute 
does not require automatic or instantaneous action by the board. Boston v. 
Barry, 315 Mass. 572, 578. Smith v. Director of Civil Service, 324 Mass. 
455, 458-459. Selectmen of West Springfield v. Hoar, 333 Mass. 257, 260. 

Accordingly, it is my suggestion that instead of making a study of the 
matter of issuing a second "courtesy license," you consider the matter 
from the point of view of rescission of the outstanding order of revocation, 
and a consideration of the needs of Dr. Corbin's clients and the fact that 
he will become an American citizen within a few weeks. 
Very truly yours, 

George Fingold, Attorney General. 

Statutes — Approval of Bill by Governor After Prorogation of General Court. 

Oct. 18, 1956. 

Hon. Edward J. Cronin, Secretary of the Commonwealth. 

Dear Sir: — You have requested an opinion regarding House Bill 690 
(changed), which is entitled "An Act relative to assessments upon cities 
and towns served by the New Bedford, Woods Hole, Martha's Vineyard 
and Nantucket Steamship Authority in the event of a deficit in the cost of 
service of said Authority, and providing for continuous service throughout 
the year." 

You present the following factual situation: "House Bill 690 (changed) 
was engrossed in both branches of the General Court on October 5, 1956, 
and laid before His Excellency, the Governor, for his approbation on 
October 6, 1956. The General Court was prorogued at 5:46 p.m. on 
Saturday. October 6, 1956. At the time of prorogation this measure was 
before His Excellency. On Thursday, October 11, 1956, this measure was 
signed by Governor Herter and was transmitted to this office where it was 
received at 5:15 p.m. the same day." 

You further state: "A search of precedents indicates that no measure 
has been approved by a governor and filed in this office after the proroga- 
tion of the General Court since the effective date of Article I of the Amend- 
ments to the Constitution, June 5, 1821." 

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

"Should House Bill 690 (changed), approved by His Excellency, the 
Governor, on October 11, 1956, the fifth day following the prorogation of 
the 1956 session of the General Court, be given a chapter number and 
published as a law of the Commonwealth?" 

I answer your question in the affirmative. 

The Massachusetts Constitution provides (pt. 2nd, c. I, § I, art. II) that 
no bill shall become law "until it shall have been laid before the governor 
for his revisal"; and also that the Governor shall return a bill to the 
Legislature, if he objects thereto, within five days. This article gives the 
Governor five davs within which to approve a bill. Opinion of the Justices, 
291 Mass. 572. 



P.D. 12. 31 

There is nothing in the Massachusetts Constitution which states or 
imphes that the above five-day period is shortened if the Legislature 
prorogues before the end of such period. The duty of the Governor to 
study a bill and to consider whether he will approve it or veto it is a vital 
and historical part of our constitutional procedure for the adoption of laws. 
The Governor is entitled to the full five days in which to approve or dis- 
approve a law. If it were to be ruled that the Governor could not approve 
a law, which was presented to him later than five days before prorogation, 
unless he acted on it in less than five days, he would effectively be deprived 
of the five days given to him by the Constitution for consideration of the 
matter. Although this precise question has not been adjudicated in Massa- 
chusetts, our Supreme Judicial Court has clearly stated that this five-day 
period for consideration and approval of enacted bills "cannot be lessened, 
directly or indirectly, by the Legislature." The court stated, in TiUtle v. 
Boston, 215 Mass. 57, 59-60, as follows: 

"The duty of revisal of acts passed by the legislative department of 
government, which is vested by the Constitution in the Governor, is a 
personal duty. It must be performed by him alone, and cannot be dele- 
gated. It is a high prerogative. ... It is a power conferred by the Con- 
stitution itself. It cannot be narrowed or cut down in any i-espect by the 
legislative department. The time within which it is to be exercised under 
the Constitution cannot be lessened, directly or indirectly, by the Legis- 
lature." 

In Opinion of the Justices, 291 Mass. 572, 576, in commenting upon the 
"brief time allowed to the chief executive of the Commonwealth with 
respect to the revisal of measures adopted by the legislati^'e department of 
government," the court again stated: 

"The time allotted to him by the Constitution for the performance of 
that weighty duty cannot be abbreviated or lengthened by the legislative 
department of government." 

That our court will follow this rule even in the case of prorogation of the 
Legislature prior to the expiration of the five-day period seems to be 
indicated by the case of Galligan v. Leonard, 204 Mass. 202, 205. In that 
case, which dealt with the approval or disapproval by a mayor of a measure 
presented to him by the city council two days before its final adjournment, 
the court stated : 

"The statute gives to the mayor the specific time of ten days within 
which to decide whether he will approve or disapprove a given measure. 
It cannot have been the intent of the Legislature to put it in the power of 
the city councils to shorten this definite period or to compel the mayor to 
exercise these important prerogatives under the pressure of the closing 
hours of his term of office, without the time necessary to do so intelHgently." 

There is no Massachusetts decision holding that the Governor cannot 
approve a bill after prorogation. The Opinion of the Justices, 3 Mass. 567, 
states that a bill or resolve laid before the Governor less than five days 
before prorogation, and not signed by the Governor, does not have the 
force of law. The questions considered in such opinion were specifically 
limited to bills and resolves which were not approved by the Governor. 

Nor is there any provision in the Massachusetts Constitution which 



32 P.D. 12. 

prevents approval by the Governor after prorogation. The provision of 
Art. I of the Amendments to the Constitution, that a bill which is pre- 
sented to the Governor within five days of adjournment and is not approved 
shall not become a law, is limited to bills and resolves which "shall be 
objected to, and not approved by the governor." Such amendment has no 
application to a bill which is signed and approv^ed by the Governor within 
the five-day period. 

On the other hand, a ruling was made by Attorney General Knowlton, 
in 1894, that the Governor may approve bills even after prorogation. 
I Op. Atty. Gen. 168. This opinion has stood without criticism for many 
years. The careful opinion expressed there that the Governor has authority 
to approve a bill after prorogation may by this time be deemed to have been 
accepted and to have become a part of our constitutional law. 

]\Iy affirmative answer to your question is in accord with the established 
rule of law applicable to the Federal Constitution. The provisions of the 
United States Constitution (Art. I, § 7, cl. 2) are the same, for the pur- 
poses of this problem, as the Massachusetts provisions cited above. This 
identical problem, but with reference to the right of the President of the 
United States to approve a bill after the final adjournment of Congress, 
was decided in favor of such right in Edwards v. United States, 286 U. S. 
482. Various legal and theoretical objections to this conclusion were con- 
sidered by the Supreme Court of the United States, and were overruled. 
In its conclusion, the court stated (pages 492-493) : 

"There is nothing in the words of the Constitution which prohibits the 
President from approving bills, within the time limited for his action, 
because the Congress has adjourned; and the spirit and purpose of the 
clause in question forbid the implication of such a restriction. The provi- 
sion that a bill shall not become a law if its return has been prevented by 
the adjournment of Congress is apposite to bills that are not signed, not 
to those that are signed. . . . 

"Regard must be had to the fundamental purpose of the constitutional 
provision to provide appropriate opportunity for the President to consider 
the bills presented to him. The importance of maintaining that oppor- 
tunity unimpaired increases as bills multiply. . . . No possible reason, 
either suggested by constitutional theory or based upon supposed policy, 
appears for a construction of the Constitution which would cut down the 
opportunity of the President to examine and approve bills merely because 
the Congress has adjourned." 

For later Federal decisions to the same effect, see United States v. 
Kapsalis, 214 F.2d 677, and United States v. Pruitt, 121 F.Supp. 15, 
affirmed at 217 F.2d 648. Certiorari was denied in these two cases: 349 
U. S. 906, 907. See also, treatise on "The Veto Power of the President," 
by Charles J. Zinn, 12 F. R. D. 207, at pages 226-228. 

The fact that the Governor, with the advice of the Council, may delay 
the time of prorogation (Mass. Const., pt. 2nd, c. II, § I, art. V) — in this 
respect the Massachusetts situation is different from that of the Federal 
Government since the President's approval is not necessary to the adjourn- 
ment of Congress (U. S. Const., art. I, § 7, cl. 3) — does not affect the pres- 
ent question. In the first place, if this power to delay prorogation were 
to be used to obtain the full five-day period for study of a bill by the 
Governor, then prorogation could never be said to "prevent his returning 



P.D. 12. 33 

it with his objections/' and art. I of the Amendments of our Constitution 
would be unnecessary. Furthermore, if prorogation were delayed for such 
purpose, the enactment of new bills during that period of delay would be 
valid as well as probable, thus calling for another delay, and then still more 
bills, without end. Finally, and most importantly, the power to delay 
prorogation is immaterial because the Governor's right to a full period of 
five days to consider bills is a constitutional right he has, not as a consti- 
tuent part of the Legislature, but entirely independent of and apart from 
the Legislature. He is entitled to this period of five days irrespective of 
his legal or practical power to delay prorogation. This dominant nature of 
the Governor's power to approve a bill and his right to hold the bill for a 
full period of five days of study is implicit in all the decisions cited above. 
For the reasons above stated, you are hereby advised that House bill 
690 (changed), enacted by the Legislature on October 5, laid before the 
Governor on October 6, prior to prorogation of the General Court on that 
day, and approved by the Governor on October 11, 1956, has the force of 
law and should be given a chapter number and published as a law of the 
Commonwealth.' 

Very truly yours, 

George Fingold, Attorney General. 

Menially III Person — Commitment by Doctor in Military Service. 

Oct. 30, 1956. 

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

Dear Sir: — You have requested an ophiion of this department relative 
to the right of doctors in military service to sign admission papers for 
mentally ill persons in need of temporary care. The facts which j^ou present 
and 3^our inquiry upon such facts are as follows: 

"The Department of Mental Health has been asked to learn whether 
doctors in military service have the right to sign papers for the adinission 
of a mentally ill person under the provisions of G. L. c. 123, § 79. IVIost of 
these physicians do not have a license to practice medicine in the State of 
Massachusetts. They are here for a short time on military assignment. 
Occasionally one has practiced in Massachusetts and is licensed, in which 
case there is no question of his legal ability to sign this paper. 

"Public Law 569 of the 84th Congress, entitled 'Dependents' Medical 
Care Act,' was passed and signed June 7, 1956, and becomes operative on 
December 8, 1956. Under this law dependents are entitled to receive 
medical care, the same as military personnel. The question is raised: 
Can the military doctors, without a state license, sign the admission papers 
under G. L. c. 123, § 79? In both instances, the hospitals of the military 
installations in Massachusetts do not have accommodations to care for 
patients who are acutely, mentally ill. 

"Section 79 of G. L. c. 123 states that the physician shall be a graduate 
of a legally chartered medical school, shall be registered in accordance with 
c. 112, or shall be a commissioned medical officer of the United States 

• k similar ruling, citing the above opinion, was made by the Supreme Judicial Court on November 9, 1956. 
Opinion of the Justices, 334 Mass. 765, 770. 



34 P.D. 12. 

army, navy or public health service acting in performance of his official 
duties. The question is: Is the signing of a commitment paper for the 
admission of a patient, military or dependent military, to one of the State 
mental hospitals, performance of official duties, and can this paper be 
signed legally by a physician who does not hold a license to practice medi- 
cine in Massachusetts?" 

Under G. L. c. 123, § 79, as most recently amended by St. 1956, c. 589, 
§ 5, a person in need of immediate care because of mental derangement can 
be received and cared for in an institution for the insane for a period not 
exceeding ten days upon request made to the superintendent or manager 
of such institution by a "physician," and by certain other persons. The 
statute identifies the "physician" who may make such a request in the 
following way: 

"The physician shall be a graduate of a legally chartered medical school, 
shall be registered in accordance with chapter one hundred and twelve, 
or shall be a commissioned medical officer of the United States army, navy 
or public health service acting in the performance of his official duties . . ." 

Even though a physician does not comply with the first two requirements 
of the above quotation, he may lawfully request such temporary care of an 
insane person if he is "a commissioned medical officer of the United States 
army, navy or public health .service acting in the performance of his official 
duties." 

Your specific question is as follows: 

"Is the signing of a commitment paper for the admission of a patient, 
military or dependent military, to one of the State mental hospitals, per- 
formance of official duties, and can this paper be signed legally by a physi- 
cian who does not hold a license to practice medicine in Massachusetts?" 

This question must be considered hi two parts, first, with reference to 
military patients, and second, with reference to dependents of members of 
the military'- forces. With reference to persons in the military forces or 
retired therefrom, I assume that their entitlement to medical care is broad 
and inclusive and would include, in the proper case, a request for temporary 
care of such person in an institution for the insane. As to such persons, 
a doctor in the military service would be acting in the performance of his 
official duties to request such temporary care, and accordingly such medical 
officer would be authorized to make such request under c. 123, § 79. The 
situation would be different in regard to a dependent of a member of the 
military forces. You call my attention to Public Law 569 of the 84th 
Congress, entitled "Dependents' Medical Care Act." I know of no other 
statute under which a dependent of a member or retired member of the 
military forces is entitled to professional services of a medical officer of the 
United States army, navy or public health service. Unless this cited act 
ejititles dependents of persons in the military forces to such professional 
services, then a doctor in the military service would not be acting in the 
performance of his official duties in requesting the temporary care of such 
a dependent. I note that section 103 (/) (of the "Dependents' Medical 
Care Act") docs not include the tniatment of mental disorders. I note 
that section 103 (g) (2) of such act provides that "hospitafization under 
this section is not authorized dependents for . . . mental disorders . . . 
e.xcept that the Secretary of Defense, after consultation with the Secretary 



P.D. 12. 35 

of Health, Education, and Welfare, by regulation, may provide in special 
and unusual cases for hospitalization of not to exceed twelve months for 
dependents for such disorders. ..." 

Since the above cited Federal act does not authorize medical care or 
hospitalization to dependents for mental disorders, except in the special 
and unusual cases referred to in the act, it is my opinion that a doctor in 
the mihtary service is not "acting in the performance of his official duties" 
in requesting temporar}'- care under G. L. c. 123, § 79, for a dependent of a 
member or retired member of the military forces. Accordingly, unless such 
medical officer complies with the other portions of § 79, he is not such a 
person as may request temporary care under this statute. 
Very trul}^ yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Division of Waterways — Flood Relief Act — Obtaining Indemnity Bond. 

Oct. 31, 1956. 

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

Dear Sir : — You have asked whether the so-called Flood Relief Act 
embodied in St. 1955, c. 699, requires the filing of an indemnity agreement 
by a cit}^ or town relating to waterway work done by the department under 
authority of the Flood Relief Act. 

My answer is in the negative. Such an indemnity agreement is not 
required by any particular provision of the Flood Relief Act itself. As far 
as other provisions of law are concerned, indemnification agreements from 
cities and towns relating to harbor improvement work are authorized by 
G. L. c. 91, § 29, which provides as follows: 

"A county or town may appropriate money for the improvement of 
tidal and non-tidal rivers and streams, harbors, tide waters, foreshores and 
shores along a public beach within its jurisdiction, and the money so 
appropriated shall be paid to the state treasurer and be expended by the 
department for said purposes within the limits of such town ; and the town 
may also assume liability for all damages to property suffered by any person 
by any taking of land, or of any right, interest or easement therein, within 
the town made by said department for the purposes hereinbefore au- 
thorized." 

The statute does not require that such an indemnification agreement be 
filed but merely authorizes the execution of such agreement. You state 
that the Division of Waterways customarily requires the filing of such 
agreement prior to commencing work on waterways. Such action on the 
part of the division is a matter of policy and. in the absence of other special 
provision, does not appear to be required as a matter of law. 



36 P.D. 12. 

Ill relation to waterway projects under the Flood Relief Act, it is not 
required as a matter of law that indemnification agreements be filed by- 
cities and towns. Within its discretion, however, the Commonwealth may 
ask for such agreements and may refuse to undertake the projects unless 
the agreements are filed. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



State Employees' Group Insurance Commission — Delegation of Powers, 

Nov. 1, 1956. 

Mr. William A. Burke, Executive Secretary, State Employees' Group In- 
surance Commission. 

Dear Sir: — You have asked for an opinion concerning the authority 
of the State Employees' Group Insurance Commission to delegate certain 
duties to the chairman or executive secretary of the commission. 

You state first that the commission has awarded a three-ybar insurance 
contract calling for monthly payments by the Commonwealth to an in- 
surance company, such payments being determined each month by the 
number of employees then in the employ of the State. You ask the fol- 
lowing question: 

"May the commission by vote, authorize the chairman, or the executive 
secretary to sign the subsequent monthly vouchers since that is only a 
ministerial duty depending on the particular number of employees cov- 
ered for that particular month?" 

The answer to your question is in the negative. There are two statutory 
provisions which appear to require this conclusion. The first is G. L. 
c. 32 A, § 8 (c), providing in part as follows: 

"... The commission, from funds appropriated therefor, shall author- 
ize payment of the contribution of the commonwealth as provided in 
said paragraphs (a) and (6), which, together with the employee payments, 
shall be paid at least once each month to the carrier or carriers entitled to 
the premium." 

The second is G. L. c. 29, § 20, providing that: 

"No account or demand requiring the certificate of the comptroller or 
warrant of the governor shall be paid from an appropriation unless it has 
been authorized and approved by the head of the department, office, com- 
mission or institution for which it was contracted; nor shall any appro- 
priation be used for expenses, except gratuities and special allowances by 
the general court, unless properly approved vouchers therefor have been 
filed with the comptroller." 



P.D. 12. 37 

Both of the foregoing provisions indicate that the individual vouchers 
should be approved by the commission. The commission may, of course, 
act through a majority of its members as provided in G. L. c. 4, § 6, cl. 5. 
In addition, where the commission has actually voted to approve a voucher, 
it may authorize some other person, such as the chairman or executive 
secretary, to sign for it thereby indicating commission approval. 

The actual power of the commission to approve vouchers is, however, a 
power which may not be delegated. Such conclusion has been reached in 
unpublished opinions of the Attorney General to the Auditor dated April 
17, 1917, and August 23, 1920. There appears to be no substantial change 
in the law since that time which would cause this office to depart from the 
opinions then rendered. 

Your second question is as follows: 

"Once the commission has determined the number of employees and 
grades necessary, subject to appropriation, may the commission vote to 
authorize the chairman or executive secretary to sign requisitions for 
personnel?" 

For the reasons previously stated, this question also is answered in the 
negative. General Laws c. 32A, § 3, provides in part that — 

"... The commission . . . may, subject to appropriation, incur ex- 
penses and appoint an executive secretary and such other employees as 
may be necessary to administer the provisions of this chapter ..." 

General Laws, c. 31, § 15, provides in part that — 

"No person shall be appointed or promoted to any position in the classi- 
fied civil service except upon requisition by the appointing officer and upon 
certification by the director from an eligible list prepared in accordance 
with this chapter and the rules made thereunder . . ." 

The "appointing officer" referred to in § 15 includes any person, board 
or commission having the power of appointment or employment (G. L. 
c. 31, § 1). 

From the foregoing statutes it appears that the commission has the 
power of appointment and must make the requisition for employees. It 
may act through a majority of its members and, once having voted on a 
particular requisition, may authorize its chairman or executive secretary 
to sign the requisition for the commission. The actual power to requisi- 
tion may not be delegated by the appointing authority. 
Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



38 P-D. 12. 

State Employee — Accidental Disability Retirement — Accidental Death 
Benefit — Hypertension or Heart Disease. 

Nov. 21, 1956. 

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

Dear Sir: — You have recently requested an interpretation of §§ 7, 9 
and 94 of G. L. c. 32, which sections relate to accidental disability retire- 
ment, accidental death benefit, and the presumption that in case of heart 
disease the impairment of health was suffered in line of duty. 

Two specific cases, each one involving a Metropolitan District Com- 
mission police officer, are now before you for action. In one case a ser- 
geant suffered a heart attack on December 5, 1955, and he is claiming 
accidental disability retirement under c. 32, § 7. In the other case a pa- 
trolman died on November 24, 1955, as a result of heart disease, and his 
widow is claiming accidental death benefit under c. 32, § 9. You advise 
me that all of the requirements of §§ 7 and 9 have been satisfactorily met 
except for the c^uestion of compliance with the provision quoted in the 
next paragraph. 

Both § 7 and § 9 require, in addition to other conditions for allowance 
of the disability retirement or death benefit, respectively, that the mca- 
pacity or death must have resulted from "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. ..." 

The requirement of "personal injury" is met by the heart attack or 
heart disease which you have found caused the incapacity or death. 
The requirement that the injury be suffered while in the performance of 
duties is met, in the absence of contrary evidence, by the presumption 
created by c. 32, § 94, that "anj^ condition of impairment of health caused 
by hypertension or heart disease resulting in total or partial disability or 
death . . . shall ... be presumed to have been suffered in line of duty. 
..." But because of doubt as to compliance with the remaining require- 
ment that the injury must have occurred "at some definite place and at 
some definite time," you request an opinion of this department. Specifi- 
cally, your first inquiry is as follows : 

"Do the provisions of § 94 remove the requirement in § 7 and § 9 as to 
the necessity of an injury having been sustamed or a hazard having been 
undergone at some definite time and place? In other words, must an 
applicant prove an injury sustained or a hazard undergone at some defi- 
nite time and some definite place if such appUcant is a police officer or the 
widow of a police officer where such police officer is permanently disabled 
or dies as a result of a condition of hypertension or heart disease?" 

The above questions are not answered by the recent decisions of the 
Supreme Judicial Court, Selectmen of West Springfield v. Hoar, 333 Mass. 
257, and Foster v. City of Everett, 334 Mass. 14, which discuss the applica- 
tion of § 94 to §§ 89A and 83 A (a) of chapter 32. 

Although § 94 contains no direct reference to the requirement of a 
definite place and time, it is my opinion that the only reasonable inter- 
pretation which can be given to § 94 is to hold that it removes the need 
for independent proof of a definite time and place in the cases now before 
you. Section 94, to the extent pertinent to the present question, provides 
as follows: 



P.D. 12. 39 

"Notwithstanding the provisions of any general or special law to the 
contrary affecting the non-contributory or contributory system, any con- 
dition of impairment of health caused by hypertension or heart disease 
resulting in total or partial disability or death to a uniformed member 
... of the police force of the metropolitan district commission . . . shall 
... be presumed to have been suffered in line of duty, unless the con- 
trary be shown by competent evidence." 

The words "or death" were added to the above section by St. 1956, 
c. 411. But death was covered by the section, even without express 
reference, prior to such amendment. Selectmen of West Springfield v. 
Hoar, 333 Mass. 257. 

The above statute, both by its content and expressly by its title, refers 
to the "accidental disability retirement law" of c. 32. Section 7 of c. 32 
is entitled "Accidental Disability Retirement," and is the only section in 
the chapter so entitled. Section 9 covers the same kinds of injuries as § 7, 
with almost identical wording, but relates to death rather than disability. 
It would be unreasonable to interpret § 94 in such a way that it could not 
apply to either § 7 or § 9. This would be the result if it were held that the 
presumption of injury in line of duty created by § 94 did not extend to and 
cover and meet the requirement of §§ 7 and 9 that the injury occur at 
some definite time and place. If in a heart disease or hypertension case 
there was evidence that the condition occurred at some definite time and 
place (which evidence would be available in heart disease and hypertension 
cases only occasionally), this evidence of time and place could show that 
the injury occurred in line of duty, and retirement allowance or death 
benefit would be granted on the basis of § 7 or § 9, without the need for 
§ 94. On the other hand, if the evidence of time and place showed that the 
injury did not occur in line of duty, and therefore that no payment could 
be made under § 7 or § 9, the presumption in § 94 could not apply in the 
face of such contrary evidence. With such evidence of time and place, § 94 
is not needed. To add to these two situations in which proof of time and 
place excludes the operation of § 94, an interpretation that § 94 is not 
effective by itself and that there must be independent proof of the exact 
time and place (in hypertension and heart cases such evidence of time and 
place could rarely be obtained), would render § 94 totally futile. This re- 
sult should be avoided. "An intent to pass an ineffective statute is not 
to be imputed to the Legislature." Repucci v. Exchange Realty Co., 321 
Mass. 571, 575. 

In my opinion, § 94, read as a whole, including its title, and its very 
broad first clause, discloses a legislativ^e purpose to provide accidental re- 
tirement allowances and death benefits even though the nature of the in- 
jury, hypertension or heart disease makes it difficult or impossible to pin- 
point the exact time and place and thereby prove that the injury was 
suffered in line of duty. "A legislative act ought to be interpreted, when- 
ever permitted by its words, so as to make it effective toward a substantial 
end and not devoid of vitality." Flood v. Hodges, 231 Mass. 252, 257. It 
is entirely reasonable to apply the presumption in § 94 that the injury was 
suffered in line of duty to include a coverage of a definite time and place 
because the exact time and place of injury is very much a part of a finding 
that an injury was suffered in line of duty. "The time when a personal 
injury is received, within the meaning of the workmen's compensation 
act ... is important in several respects. The injury must be received 



40 P.D. 12. 

by the employee 'in the course of his employment.' . . ." Crowley's Case, 
287 Mass. 367, 370. 

Application of § 94 to some of the restricted and special accidental dis- 
ability provisions in c. 32 which do not contain a requirement of proof of a 
definite time and place (to §§ 26, 46, 66, for some examples) and failure 
to apply it to the general and ordinary disability sections (§§7 and 9) 
would not meet the broad and obvious legislative purpose of § 94. 

For the above reasons, it is my opinion that, if the applicants in the two 
cases before you are entitled to the benefit of the presumption in § 94, it is 
not necessary for them to produce independent evidence that the heart 
disease was sustained at some definite time and place. 

Very truly yours, 

George Fingold, Attorney General. 



State Employees — Barrington Plan — Accrual of Annual Increments. 

Dec. 3, 1956. 

Mr. Walter R. Baylies, Acting Commissioner of Administration. 

Dear Sir: — You have requested my opinion regarding the correct inter- 
pretation of St. 1956, c. 729, which gives salary increases to State employees 
under the so-called Barrington Plan, and St. 1956, c. 746, § 9, which places 
a $1000 maximum restriction on salary increases. Your specific problem 
relates to the application of the restriction on maximum increase to the 
customary step-in-range annual increases in pay. 

The salary increases granted by c. 729, by which the Legislature adopted 
the Barrington Plan, became effective on October 1, 1956. The restriction 
on maximum increases during the final nine months of the 1957 fiscal year 
(October 1956 to June 1957, inclusive) is stated in c. 746, § 9, as follows: 

"... during the fiscal year nineteen hundred and fifty-seven, the rate 
of compensation of each employee allocated to the new salary plan shall 
be limited to an increase not in excess of one thousand dollars per annum 
over the rate paid to such employee on September thirtieth, nineteen 
hundred and fifty-six ..." 

You present the following factual situation : 

"A person holding the position of State Hospital Steward, a Grade 56 
position with salary range of $5,700 Min. $7,140 Max. per annum as of 
September 30, 1956, with step rates of $240 in accordance with G. L. c. 30, 
§46. 

"On October 1, 1956, by virtue of St. 1956, c. 729, this position was 
changed from a salary grade #56 to a Job Group #18 with salary range of 
$6,812 Min. annually and $8,684 Max. annually with step rates of $312 
per year. 

"On September 30, 1956, this person is being paid the Minimum of the 
Grade or $5,700 per annum. 

"On 0(;tober 1 , 1956, it is proposed to allocate him in the salary schedule 
at the Minimum rate of $6,812 per annum, but due to the limitation of 
$1,000 in c. 746, § 9, to then set a salary for the fiscal year 1957 af $6,700. 



P.D. 12. 41 

"This employee will have performed services in the class for twelve 
months on December 1, 1956, and will be entitled to a step rate increase in 
the amount of $312 establishing his rate in the salary schedule at $7,124." 

You state that your proposed action in the above situation, subject to 
my opinion, will be as follows: 

"It is proposed to establish this employee's rate in the salary schedule 
on December 1, 1956, at $7,124, but due to the hmitation of $1,000 in 
c. 746, § 9, to set a salary for the fiscal year 1957 at $7,012." 

You request my opinion upon the following question : 

"Does the Director of Personnel and Standardization comply with the 
provisions of c. 746, § 9, if he acts as proposed?" 

I answer your inquiry in the affirmative. In my opinion, the $1,000 
restriction is applicable to the increase in rate of compensation from the 
old schedule on September 30 to the new schedule on October 1, and does 
not limit or prevent the subsequent addition of the customary step-in- 
range increase in salary. 

The policy in this Commonwealth of giving annual increases to State 
employees is firmly established. This policy has been in effect on an in- 
formal basis since 1926 (upon recommendation of the Division of Personnel 
and Standardization, and approval of such recommendation by the Legis- 
lature in the budget), and on a formal basis since 1948 by various acts of 
the Legislature commencing with St. 1948, c. 311. Such a plan — for 
annual increases, for a stated number of years, to a certain maximum — 
is essential to any business which expects to attract and retain competent 
help. To abandon, even temporarily, such estabhshed and just recogni- 
tion of faithful service by a plan of annual increments, could be harmful 
to the entire work of the Commonwealth. There is nothing in the pro- 
vision for the $1000 restriction on increased rate of compensation which 
in any way indicates that the Legislature intended to abandon or curtail 
or interrupt this established policy of annual increments to State employees. 

A contrary intention, that is, that such annual increments are to be 
continued, is gathered from several parts of the 1956 legislation. The 
$1,000 restriction in § 9 makes reference to an increase over the "rate of 
compensation" paid on September 30, 1956, to employees "allocated" 
to the new salary plan. In St. 1956, c. 729, which gives effect to the Bar- 
rington Plan, an "allocation" refers to the initial placing of an employee 
in the new salary schedule. See definitions in § 5. References to the rate 
of compensation on September 30, 1956, and to the rate of compensation 
on October 1, 1956, which is the time of the initial entry under the new 
schedule, exclude from both references an annual increment due at a 
later time. Furthermore, the last paragraph of § 5 of c. 729 provides that 
annual salary increments are to be given "after a person has been allo- 
cated" under the new salary schedule. Also, the title of c. 729 states that 
one of the purposes of the act is to reduce the time required to reach maxi- 
mum rate. This purpose would be nullified if any annual increments were 
to be omitted. 

These two new acts were intended to remedy an inadequate base pay for 
State employees. Chapter 729 refers to "additional" income. Chapter 
746 refers to an "increase" in rate of compensation. On September 30 



42 P.D. 12. 

the employee in question not only was receiving a certain salary, but he 
also was entitled to a step-rate increment due on December 1. To give 
him the $1,000 increase but to take away his increment would not merely 
be granting him "additional" income or an "increase" in rate of compen- 
sation, but would be awarding him the higher figure conditioned upon a 
forfeiture of part of his former entitlement. Under such a ruling the new 
figure, in effect, would be a new salary "in heu of" the old payment, and 
not a straight "addition" to or "increase" in salary as contemplated by 
the clear words of the statutes. 

The stated purpose of the Legislature in adopting the Barrington Plan 
was "to correct existing ineciuities in the salary pay plan of the Common- 
wealth." St. 195G, c. 729, title. If the customary step-in-range increases 
are denied only to those employees who are due for such increases between 
October 1 and June 30, but are granted to all other employees, inequities 
would not be corrected but would be created. Such an interpretation, if 
adopted, might even prevent an increase in salary to any employee who 
during that period is promoted to a higher position. No such inequitable 
meaning should be given to these 1956 acts of the Legislature. 

I have made a careful study of all parts of c. 729 and c. 746 of the Acts 
of 1956. In my opinion, your proposed action with reference to the salary 
increase and the December 1 step-in-rate annual increment for the em- 
ployee referred to in your question complies with the provisions of St. 1956, 
c. 746, § 9. 

Very truly yours, 

Georgp: Fingold, Attorney General. 



State Employees — Barrington Plan — Interpretation of 1956 Salary 
Schedule. 

Dec. 5, 1956. 

Mr. Walter R. Baylies, Acting Commissioner of Administration. 

Deak Sir: — You have requested my opinion further interpreting St. 
1956, c. 729, by which the so-called Barrington Plan was approved by the 
Legislature and a higher salary pay plan of the Commonwealth was put 
into effect. 

You present two questions. Both of these questions involve an interpre- 
tation of § 16 of the new 1956 act. This section reads as follows: 

"If an employee is receiving a salary in a salary grade under the salary 
schedule in effect on September thirtieth, nineteen hundred and fifty-six, 
which is greater than the salary provided for in the same step-in-range in 
the job group of the general salary schedule in effect on October first, 
nineteen hundred and fifty-six, to which the position occupied by said 
employee has been allocated, said employee shall receive a salary under the 
general salary schedule in effect on October first, nineteen hundred and 
fifty-six, which is nearest to the rate then paid but at least equal to the 
salary he was entitled to on September thirtieth, nineteen hundred and 
fifty-six; provided, however, that if an employee is receiving a higher salary 



P.D. 12. 43 

in the salary schedule in effect on September thirtieth, nineteen hundred 
and fifty-six, than that provided in the job group to which his position has 
been allocated in the general salary schedule effective October first, nine- 
teen hundred and fifty-six, such employee shall continue under the same 
title and be paid in accordance with the salary schedule in effect on Septem- 
ber thirtieth, nineteen hundred and fifty-six, and such employee shall be 
eligible for any increments provided therein. If such employee vacates 
such position for any reason whatsoever the successor in such position shall 
be paid a salary in accordance with the general salary schedule then in 
force." 

Your first question is as follows: 

"We have many cases where the employee's salary set out in G. L. 
c. 30, § 46, as of September 30, 1956, was such that it could be allocated to 
a step-in-range in the Job Group to which Barrington Associates has 
allocated their position giving such employee an immediate increase in 
salary but which would provide, eventually, a lower salary at the maximum 
in the Job Group in question than existed in the salary schedule in effect 
on September 30, 1956. 

"Is the Director of Personnel and Standardization correct in interpreting 
§ 16 of St. 1956, c. 729 as requiring that such employee must be allocated 
to the salary schedule in effect en October 1, 1956?" 

Under the first clause of the first sentence of § 16, quoted above, the 
employees mentioned in your first question must be placed in the new salary 
schedule, since there is a step-in-range figure which is greater than the 
salary received by them on September 30, 1956. The fact that the maxi- 
mum salary a\^ailable in the new job group may be lower than the maximum 
granted under the old salary schedule does not cause these employees to 
be continued under the old salary schedule. 

Your second question is as follows; 

"We also have some employees whose salaries under the old salary 
schedule in effect on September 30, 1956, were larger than any step-in- 
range in the new salary schedule in effect on October 1, 1956, as a result of 
Barrington allocation. 

"Is the Director of Personnel and Standardization correct in interpret- 
ing § 16 of St. 1956, c. 729 as requiring that such employees shall be paid 
in accordance w^ith the salary schedule in effect on September 30, 1956?" 

Under the proviso clause of the first sentence of § 16, quoted above, the 
employees mentioned in your second question, whose salaries on Septem- 
ber 30, 1956, were larger than any step-in-range within their job group in 
the new salary schedule, must be continued in accordance with the salary 
schedule in effect on September 30, 1956. 

Accordingly, I answer both your questions in the affirmative. 
Very truly j'^ours, 

George Fingold, Attorney General. 



44 P.D. 12. 

Drunkenness — Imprisonment — Release or Discharge. 

Dec. 5, 1956. 
Hon. Russell G. Oswald, Commissioner of Correction. 

Dear Sir : — You have requested an opinion of this department relative 
to the effect of certain sections of St. 1956, c. 715. 

Said c. 715 estabhshed a program for the control of alcoholism in this 
Commonwealth, and, by amendments to certain sections of the General 
Laws, changed the existing provisions relative to the sentencing and dis- 
charge of persons committed to correctional institutions for drunkenness. 
As you point out, these changes in the law will shortly become effective. 
Your inquiries relate to their effect upon the rights of persons presently 
under sentence for drunkenness. 

1. As it now exists, the law permits you to grant a conditional release to 
any prisoner confined only for drunkenness, and to revoke the same at any 
time; it further provides that such a release will become void upon its 
holder's violation of any of its terms or of any law of the Commonwealth. 
G. L. c. 127, § 136A, as amended by St. 1951, c. 33. Section 19 of c. 715, 
which will become effective December 27, 1956, has rewritten § 136A so 
as to provide that after he has served sixtij days, and upo7i the recommenda- 
tion of the doctor in charge of the clinic at the institution, and with the approval 
of the principal officer of the institution, you may unconditionally discharge 
such a prisoner. In answer to your first question, I advise you that on and 
after the effective date of the 1956 act you will have no further authority 
to grant conditional releases in such cases. 

2. Secondly, you inquire whether, on and after said effective date, you 
may revoke a conditional release theretofore granted by you under the 
present provisions of § 136 A. Since the date of your letter, however, I 
have been informed by your office that you have no intention of exercising 
any such power, if it exists. Accordingly, there seems to be no present 
need for any answer to this question, and I express no opinion concerning it. 

3. Your third question concerns the effectiveness, on and after Decem- 
ber 27, 1956, of your revocation prior to said date of such a conditional 
release. I advise you that such a revocation remains fully effective not- 
withstanding the changes in your powers resulting from the new legislation. 

4. Your remaining questions relate generally to the rights of persons 
presently serving sentences for drunkenness to the benefits of the 1956 
legislation. Under G. L. c. 272, § 48, and c. 279, § 36 (St. 1955, c. 770, 
§ 104), as they now exist, persons sentenced for drunkenness to the reforma- 
tories, and men sentenced for drunkenness to the State farm, may be held 
therein for not more than one year. The new provisions in such cases 
place a time limitation of six months upon the holding of such persons. 
St. 1956, c. 715, §§ 20, 24 and 26. I advise you that the custody of all 
such prisoners will, on and after December 27, 1956, be governed by these 
new provisions, and that they will thereupon be entitled, also, to be em- 
ployed on day work under the provisions of G. L. c. 127, §§ 86A.^., inserted 
by § 18 of said c. 715. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



P.D. 12. 45 



State Employee — ■ Employee of Bookstore at University of Massachusetts — 
Entitlement to Workmen's Compensation Benefits. 

Dec. 11, 1956. 

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

Dear Sir: — You have requested the opinion of this department re- 
garding the status of the store at the University of Massachusetts. Your 
inquiry arises in connection with the appUcation for workmen's compensa- 
tion benefits under c. 152 of the General Laws by the head bookkeeper at 
the university store. 

You request an opinion upon the following question : 

"Is the operation of the university store at the University of Massachu- 
setts which is referred to in G. L. c. 75, § 5A, as amended, an ofhcial activity 
or function of the Commonwealth, notwithstanding that the operation 
of said store is not provided for from funds appropriated b}^ the General 
Court from the treasury of the Commonwealth?" 

I answer your question in the affirmative. The facts with reference to 
the operation of the store at the University of Massachusetts are as 
follows : 

Prior to 1918 the predecessor of the University of Massachusetts was a 
public charitable corporation for educational purposes. St. 1863, c. 220. 
Since 1918 the University of Massachusetts has been a State institution. 
St. 1918, c. 262. Prior to 1918 the University sold textbooks to the stu- 
dents through its treasurer's office. This activit}^ which became known as 
the bookstore or university store, was continued after the University be- 
came a State institution. For many years the store has been financed 
through one of the so-called revolving "Students' Trust Fund Accounts." 
The store account has shown a surplus of receipts o\'er disbursements, and 
no appropriation of money from the Legislature has been made to such 
account. This practice was confirmed by St. 1939, c. 329, now G. L. c. 75, 
§ 5A, by which the Legislature directed that — 

"All receipts from student activities, including the operation of the 
university store . . . shall be retained by the trustees in a revohdng fund 
or revolving funds and shall be expended as the trustees shall direct in 
furthering the activities from which the receipts were derived . . ." 

The function of the store is to provide necessary books and other sup- 
plies and incidentals, including a snack-bar, to the students at prices that 
will be economical to the students. The trustees of the Uni\'ersity, through 
the president and other administrative officers, determine the policies of 
the store and approve appointments of personnel. The director of the 
store is employed by the trustees. The funds of the store are maintained 
in the office of the treasurer of the University and all receipts and dis- 
bursements are handled by the treasurer of the University. Employees 
of the store, including the claimant in this case, are paid weekly on the 
same payroll as other employees of the University from the treasurer of 
the University. The source of their compensation is, as a matter of book- 
keeping, the university store account. There has always been sufficient 
store income to cover all store disbursements. 



46 P.D. 12. 

Since the above question has been answered in the affirmative, it does 
not appear that you require answers to your five other specific questions. 
These other questions, however, relate to the status of the claimant as an 
employee of the Commonwealth within the meaning of the laws relating 
to workmen's compensation. In my opinion, the claimant is an employee 
of the Commonwealth for such purposes. By the statute making the 
University of Massachusetts a State institution, it Avas provided that all 
University employees became State employees. St. 1918, c. 262, § 5. My 
answer to your first question indicates that the operation of the store is a 
State function. It is not a private venture of the trustees. The store is 
being operated under the direction of the trustees by virtue of their posi- 
tions as duly appointed trustees of this State institution. There is nothing 
in the statute to indicate that an employee of the store is not an employee 
of the Commonwealth. The fact that the store is a self-sustaining unit 
and that no appropriations have been made by the Legislature for the 
support of the store or for compensation of employees who work in the 
store does not mean that such employees are not State employees. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



State Employees — Barrington Plan — Payment of Bonus in Addition to 

Salary. 

Dec. 17, 1956. 

Mr. Walter R. Baylies, Acting Commissioner of Administration. 

Dear Sir: — You have requested my opinion further interpreting St. 
1956, c. 729, which adopted the so-called Barrington Plan and which pro- 
vides for general increases in the salary pay plan of the Commonwealth. 

You present the following question : Can the employment office managers 
and the principal interviewers in the Division of Employment Security, 
who perform supervisory duties in addition to their regular work and who 
have, for that reason, been paid a bonus in addition to the salary set forth 
in the regular salary schedule, continue to be paid such bonus under the 
new salary schedule adopted by the Legislature by St. 1956, c. 729? 

The facts are as follows: Some employment office managers perform 
supervisory duties, and some do not. These supervisory duties consist of 
supervision by designated employment office managers of other managers 
in the same grade. All managers were allocated to grade 45 in the old 
salary schedule, but those managers who performed supervisory duties re- 
ceived a bonus in addition to the regular salary paid to all managers. The 
same situation has existed with respect to the principal interviewers: all 
were allocated to grade 28, but those with supervisory duties over other 
interviewers were paid a bonus. This practice has been in effect since 1942. 
Under the new salary schedule, all managers and interviewers, irrespective 
of the performance of supervisory duties, have been allocated to job groups 
13 and 10, respectively. The managers and interviewers who in the past 



P.D. 12. 47 

have performed supervisory duties will continue to do so under the new 
salary pay plan. The question which you present is whether the bonus, 
paid in the past to cover these additional supervisory duties, can continue 
in the future. 

In my opinion, your question must be answered in the affirmative. 

Payment of such bonus in the past, to compensate for the performance 
of additional supervisory duties, not required of other employees in the 
same position, was lawful. Approval of this practice was given by the 
Division of Personnel and Standardization, and also by the Governor and 
Council. The practice has continued for fourteen years. Approval was 
hkewise given by the Legislature by St. 1954, c. 587. See interpretation of 
such act in the unpublished opinion of this department given to you under 
date of November 17, 1954. Payment of "other forms of compensation" 
for personal services, authorized in addition to regular salaries, is la\\'ful. 
See the 1955 general appropriations act, St. 1955, c. 706, § 7. Payment for 
maintenance, in addition to the amount fixed by the general salary schedule, 
was ruled lawful in a 1948 opinion to your commission. See Attorney 
General's Report, 1949, p. 51. Payment of additional compensation, above 
the regular salary figure, for additional services, is also illustrated by the 
frequent payments made for overtime work. 

Since payment of a bonus for the above-described supervisory- duties was 
lawful, there is no reason which suggests that continuation of such pay- 
ment for such additional duties is unla\vful under the new salary schedule. 
In all particulars, except for the general increase of salary levels, the new 
salary schedule is identical with recent salary schedules. There is nothing 
in the new salary schedule, nor in c. 729 of the Acts of 1956 which contains, 
the new salary schedule, which in any way indicates that a bonus, if lawful 
under the earlier salary schedules, wovild be unlawful under the new salary 
schedule. 

The above opinion is confirmed by a common sense view of the whole 
situation. It is difficult to understand how payment of the same salary to 
persons who supervise and also to the persons who are supervised can be 
justified. It seems unfair to restrict the supervisors to the same salary re- 
ceived by those under them. It also seems impracticable to pay the same 
salary both to the man who supervises and to the persons who are working 
under him. It does not seem that such an arrangement could be successful. 
This allocation of the supervisors to the job group in which all other persons 
under them have been placed was made by an experienced group in the 
Division of Personnel and Standardization. Such group knew of these ad- 
ditional supervisory duties, and they also knew that such supervisors for 
the past fourteen years had received a bonus because of these additional 
supervisory duties. The only reasonable explanation of this allocation of 
the supervisors to the same group in which the persons under them were 
placed is to assume that the bonus paid for the performance of these ad- 
ditional supervisory duties would continue. An assumption that it was 
planned to discontinue the payment of the bonus, and in fact pay no ad- 
ditional compensation for the performance of these additional duties, would 
be unreasonable, unfair and impracticable. There is nothing in the new 
salary schedule or the statute which accompanies it to justify such an 
assumption. 

For the above reasons, it is my opinion that payment of the bonus to the 
managers and interviewers designated for supervisory duties should con- 
tinue. 



48 P.D. 12. 

In determining within which step-in-range these supervisory positions 
should be placed, I call your attention to § 16 of St. 1956, c. 729. This sec- 
tion, in referring to the amount of the former salary paid, makes reference 
to the "salary in a salary grade under the salary schedule in effect on" 
September 30, 1956. Such specific reference to the former "salary sched- 
ule" does not include the amount of the bonus which was paid to these 
managers and interviewers on top of their regular salary. Accordingly, 
the assignment of these employees to the new salary schedule is to be based 
on the amount of their former regularly scheduled salary exclusive of the 
bonus paid to them for their additional duties. 
Very truly yours, 

George Fingold, Attorney General. 

Veterans — Payment of Bonus Claims. 

Dec. 19, 1956. 

Hon. John F. Kennedy, Treasurer and Receiver General. 

Dear Sir: — In reference to veterans' bonus claims provided for under 
the provisions of St. 1953, c. 440, you state that all monies realized from 
the sale of bonds have been expended. Pending the borrowing of addi- 
tional funds through a bond issue sometime next year, you ask whether 
the Treasurer may make payments on approved bonus claims from other 
funds available in the treasury. 

The answer is in the affirmative. Section 10 of c. 440 provides in part 
that "expenditures authorized by this act shall be obligations of the 
Veterans' Services Fund established by chapter six hundred and eight of 
the acts of nineteen hundred and forty-six." Section 2 of St. 1946, c. 608, 
states that moneys needed for purposes of the Veterans' Services Fund 
may be acquired by bond issue "in addition to the moneys otherwise 
available for said purposes." The quoted words of § 2 make it clear that 
the necessary funds may be obtahied either by bond issue or by use of 
other available funds. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Prisoners — Deduction from Sentence for "Good Work." 

Dec. 21, 1956. 

Hon. Russell G. Oswald, Commissioner of Correction. 

Dear Sir: — You inquire whether or not a prisoner sentenced prior 
to October 20, 1955, the effective date of St. 1955, e. 770, is entitled to 
earn a deduction of his sentence for "good work" upon that part of sen- 



P.D. 12. 49 

tence served after said date in addition to earning 123^ days per month 
for good conduct under said chapter. 

I answer your question in the negative, upon the basis of the only judi- 
cial decision upon this question now available. Comerford v. Massachu- 
setts, 233 F. 2d. 294 (U. S. C. A. 1st, 1956; per curiam), cert. den. 352 
U. S. 899 (1956). As you know, this question will be presented for the 
determmation of our own Supreme Judicial Court in the near future, 
probably during the February, 1957, sitting of the full court. Comerford v. 
Oswald, S. J. C. No. 11813. Until that court finally decides against the 
validity of the reasoning of the Federal Court of Appeals, it is my opinion 
that you should assume that it will not do so. ' 
Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



State Racing Commission — Interpretation of "State Fair" and "County 

Fair." 

Dec. 28, 1950. 
State Racing Commission. 

Gentlemen: — You have requested an opinion as to the proper inter- 
pretation of the phrases "state fair," "county fair," or "state or county 
fairs" in G. L. c. 128A relating to pari-mutuel betting on horse and dog 
races. 

You state that under this act the number of days of racing which can 
be allocated to "fairs" changes according to the kind of fair which is in- 
volved. You request an opinion as to the definition of the various kinds 
of fairs which are mentioned in this chapter. 

There is no statutory definition of a state fair or a county fair. Tech- 
nically speaking, there is no such thing in Massachusetts as a state fair or 
a county fair, since neither the State nor the counties officially sponsor or 
support any fairs. Although there are no fairs which can be given this 
technical description, and although there is no definition of these terms in 
any of our statutes, nevertheless the descriptions were used deliberately 
by the Legislature and they must be given some meaning. In G. L. c. 4, 
§ 6, cl. third, it is provided as follows; 

"Words and phrases shall be construed according to the common and 
approved usage of the language ; but technical words and phrases and such 
others as may have acquired a peculiar and appropriate meaning in law 
shall be construed and understood according to such meaning." 

Since there is no legal definition of the various kinds of fairs, the ap- 
plicability of these terms must be determined as a matter of fact. This 
department pointed out to you in our opinion dated July 27, 1948 (At- 
torney General's Report, 1949, p. 21) that we do not pass upon questions 
of fact, and we pointed out in that opinion that you should determine as a 

1 The Supreme Judicial Court followed the reasoning of the Federal Court of Appeals. Comerford v. 
Commiisioner of Correction, 336 Mass. 714. 



50 P.D. 12. 

matter of fact whether a particular fair could reasonably be said to consti- 
tute a state fair or a county fair. 

In determining, as a matter of fact, whether a particular fair is a state 
fair or a county fair, you should apply the general rule of interpretation 
quoted above. Under this rule you should consider the common usage of 
the public in referring to specific fairs. You can also consider the practice 
which has actually been followed by your commission. You may also 
consider the classifications and designations of fairs in this Commonwealth 
as made by the Division of Plant Pest Control and Fairs in the Depart- 
ment of Agriculture. 

Beyond these general rules of interpretation, we are unable to help you. 
As pointed out above, the matter comes down to a determination as a 
matter of fact by your commission. 

Incidentally, I call your attention to St. 1956, c. 350, which forbids the 
use of the words "Massachusetts State Fair" or similar words without the 
consent of the Commissioner of Agriculture. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



State Employees — Retirement — Building and Boiler Inspectors in the 
Department of Public Safety — Statutory Interpretation. 

Dec. 31, 1956. 

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

Dear Sir: — You have requested an opinion from this department as 
to the classification under the retirement laws of the building and boiler 
inspectors in your department. You present the following question: 

"Are the Building and Boiler Inspectors in the Department of Public 
Safety, appointed under G. L. c. 22, § 6, classified, for purposes of retire- 
ment, in Group C, as defined in G. L. c. 32, § 3 (2) (g)?" 

If this question were to be answered solely with respect to G. L. c. 32, 
§ 3 (2) (g), the answer would be in the negative. However, the provisions 
of § 26 of this chapter, subparagraphs (a) and (6) of subdivision (3), if 
standing alone, would require an affirmative answer. These two provisions 
cannot be reconciled. To give effect to one provision rather than the other 
will change the apparent meaning of such other section. It is necessary, 
however, that this be done; but the matter is in great doubt, and it may be 
impossible to arrive at an interpretation which would be accepted by the 
courts. 

Upon the various statutory provisions relating to this matter it is my 
opinion that, so far as an interpretation can be made upon the statutes, 
the building and boiler inspectors in the Department of Public Safety are 
in Group C. This is the meaning of § 26 (3) (a) and (5). These two para- 
graphs cannot be interpreted other than to place your inspectors in Group 



P.D. 12. 51 

C. Although § 3 (2) (g) seems to exclude such inspectors from Group C, 
the reference to § 26, and the reference to "inspectors of the division of 
state police in the department of public safety," whereas the only inspectors 
in the Department of Public Safety are in the Division of Inspections, 
lend some slight ground for accepting the interpretation that such inspec- 
tors are in Group C. 

Among the divisions in the Department of Public Safety are a Division 
of State Police and a Division of Inspection. G. L. c. 22, § 3. The officers 
of the Division of State Police and the inspectors of the Division of Inspec- 
tion have police powers. G. L. c. 147, § 2. The inspectors are subject to 
assignment "for temporary service in the division of state police." Id. 
These officers and inspectors are all appointed under c. 22, § 6. In c. 32, 
§ 68, the words "officer" and "inspector" seem to be used interchangeably. 

The administrative practice of the Board of Retirement is not helpful, 
because for many years it was the practice to include inspectors in Group C, 
but for the past few years that practice has been changed. 

The classification by groups was first brought into our retirement laws 
in 1945. The explanation that the allocation of the employees in the De- 
partment of Public Safety was not completely and correctly delineated in 
the revised retirement laws adopted at that time may be the correct ex- 
planation, but this does not help in an immediate interpretation. 

For the reasons set forth above, it is my opinion that the building and 
boiler inspectors in the Department of Public Safety, appointed under 
G. L. c. 22, § 6, are classified in Group C. 

Although I believe that the above interpretation is required as a matter 
of law, it is clear that this conclusion could be contested by a judicial 
tribunal. Because of the very definite inconsistency between § 3 and § 26 
of c. 32, it may be advisable to have this question clarified by the Legis- 
lature. 

Very truly yours, 

George Fixgold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

Autopsies — Absence of Consent by next of Kin — State Institutions. 

Dec. 31, 1956. 

Mr. John L. Quigley, Commandant, Soldiers' Home, Chelsea. 

Dear Sir: — You have requested an opinion of this department con- 
cerning your right to grant permits for autopsies. 

Apart from the statutes, the right to grant a permit for an autopsy, if 
not covered by instructions or the will of the deceased, is a right of the next 
of kin. Sheehan v. Commercial Travelers &c. Ass'n., 283 Mass. 543, at 553. 
Gahn v. Leary, 318 Mass. 425, 428-429. Some of the statutes relating to 
autopsies are found in G. L. c. 38, § 6 and in c. 113. 

I understand that your inquiry relates not to statutory autopsies but 
rather to the performance of autopsies by consent of the next of kin. In 
this connection you state as follows: 



52 P.D. 12. 

"There, of course, are cases in which there is no next of kin or any one to 
assume final responsibility for the funeral arrangements. In such cases, our 
medical staff is vitally concerned with obtaining an autopsy permit. In 
the past, the undersigned has granted such authorization. Of late, how- 
ever, there has been an increase of probably six to eight cases per year. 
The undersigned has always been satisfied by the medical staff as to the 
reason for the request and attempts to act as if it were a relative of his own 
family." 

I do not know of any law which gives you authority to consent to an 
autopsy in behalf of the next of kin. I do not believe that the statutes 
cited above cover your situation. Your personal permit, both as a matter 
of fact and as a matter of law, is not a permit by the next of kin. Even if 
there was no next of kin, I do not know of any law which permits you to 
act in lieu of the next of kin and with such authority. 

In accordance with your request, this is only a brief and informal opinion. 
If it would be of assistance to you, I would be glad to talk to you by tele- 
phone further in this matter. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Capital Outlay Appropriation — Restriction on Use of Money. 

Dec. 31, 1956. 

Hon. Francis W. Sargent, Commissioner of Natural Resources. 

Dear Sir: — You have requested the opinion of this department regard- 
ing your right to use money from the 1955 capital outlay appropriations 
for purposes not enumerated in the legislative act. You call attention 
to Item 825G-09 of St. 1955, c. 738, providing for a special capital outlay 
program, and you also call attention to your general authority under G. L. 
c. 132A, § 3, to acquire lands suitable for purposes of conservation or recrea- 
tion. You then present the followhig question; 

"In preparing plans for the development and improvement of existing 
recreation areas, other than those areas mentioned above, we find it de- 
sirable, and sometimes necessary to acquire additional land so that our 
designs might be put into execution. Occasionally we receive proposals 
that we purchase land widely separated from existing State Parks or Forests 
to preserve their natural beauty, historic interest, or for recreation. 

"If land is acquired under the authority conferred by G. L. c. 132A, § 3, 
in locations other than those referred to in Item 8256-09, could payment 
be made from the funds provided in said Item?" 

In my opinion, the answer to the above question is in the negative. 
The appropriations provided by the 1955 capital outlay act are very speci- 
fically limited to "the several purposes and subject to the conditions speci- 
fied in said section two . . ." This restriction is in § 1, and § 1 also makes 



P.D. 12. 53 

reference to "a special program ..." Accordingly, the appropriation in 
Item 8256-09 cannot be used for any purposes not specifically included in 
the description of such item. The intent of this item is clear in every 
respect. The uses to which the money appropriated is to be applied are 
specific. The funds so made available cannot be applied in payment of 
other lands acquired under G. L. c. 132A, § 3. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Board of Registration in Nursing — Examination for the licensing of 
Practical Nurses. 

Jan. 8, 1957. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam: — You have requested an opinion of this department 
regarding interpretation of St. 1956, c. 371, which relates to the examina- 
tion of persons applying for licenses as practical nurses. 

It is provided by G. L. c. 112, § 74A, as last amended by St. 1953, 
c. 350, that the Board of Registration in Nursing shall hold examinations 
for the licensing of practical nurses. Among other requirements, an appli- 
cant for such a license must be a graduate of an approved school for 
practical nurses. This requirement that an applicant must be a graduate 
of such a school was limited by St. 1956, c. 371. This new act provides 
that in two instances the board may examine persons who are not gradu- 
ates of approved schools. Section 1 of the 1956 act permits examination 
of a person — 

"who is a graduate of a school for attendants which was located within 
the commonwealth prior to August first, nineteen hundred and forty- 
four. . . " 

Section 2 of the 1956 act permits the board to examine a person — 

"who furnishes satisfactory proof that he was a student in an approved 
school for nurses located within the commonwealth and was at the time 
of his withdrawal therefrom in good standing and that he received therein 
theoretical instruction and clinical experience equivalent to that required 
for graduation from [approved] schools for practical nurses ..." 

The clear purpose of the 1956 statute is to permit examinations to be 
given to persons applying for licenses as practical nurses even though they 
are not graduates of an approved school for practical nurses. However, 
this extension of the right to take such examinations is limited to the 
exact situations set forth in the new law. The situation outlined in § 1 
seems to be stated clearly. (The term "attendant" was changed to 
"practical nurse" by St. 1953, c. 350, § 5.) As to the situation outlined 
in § 2 it can be noted that the requirement for permission to take such an 
examination is that the applicant furnish "satisfactory proof" that (1) 



54 P.D. 12. 

he was a student in an approved school for nurses, (2) was in good stand- 
ing at the time of his withdrawal from such school, and (3) that he had 
received certain instruction and experience equivalent to that required for 
graduation from approved schools for practical nurses. In the event that 
an applicant complies with either of these sections, he may be admitted 
to take the examination. It is a question of fact for your board to decide 
whether or not the situations specified in the 1956 statute actually exist. 
To assist you in making these determinations of fact, I am setting forth 
below some comments regarding four situations which you present. 

1. You present the following situation: The board has received under 
§ 1 certain applications from individuals claiming they are unable to pre- 
sent evidence of graduation because they have lost their diploma, etc., 
and the school is no longer in existence. The board has received one 
claiming she is a graduate of a school and has lost her diploma but the 
board has been unable to secuie any tangible evidence that the particular 
hospital named ever conducted what might be properly considered a school 
for attendants at any time. The specific question of the board is — "Does 
the board in such cases have any alternative under the law but to reject 
these candidates since they have not furnished any satisfactory evidence 
that they meet requirements of the law?" 

In the above situation I believe your board has no alternative but to 
reject these applications for permission to take the examination. If it is 
a fact that the applicant was a graduate as required b}^ § 1, you would 
have to p(n-mit the taking of the examination. But before you can do 
this you must find as a fact that the applicant was such a graduate. In 
the absence of evidence which persuades you that as a reasonable matter 
the applicant was such a graduate, you must deny the rec^uest to take the 
examination. 

2. Under § 2 of the new law you can permit certain students who had 
attended an approved school for nurses to take the examination for prac- 
tical nurses if they comply with certain requirements. In this connection 
you present the following problem: The board would appreciate your 
opinion as to what it might properly regard as being "at the time of his 
withdrawal therefrom in good standing." The board has received a num- 
ber of applications from former students who weie "dismissed," "asked 
to resign," "reason for withdrawal," "disciplinary problems," etc. Many 
of these dismissals, particularly in the case of students who were enrolled 
in the school a long time ago, do not appear justified such as some who 
were dismissed for "social infractions," etc. But, if applicants were forced 
to withdraw, or were indefinitely suspended from the school of nursing, 
has the board the right to review the circumstances under which the 
student was dismissed, and if so, if the action of the school at that time 
appears unjustified, has the board the right to accept these individuals 
for examination, or is the board obliged to reject them according to law? 

The requirement of "good standing" presents a question of fact for 
your decision. Before admitting an applicant to an examination you 
must have received "satisfactory proof" that the student who attended 
an approved school for nurses and then withdrew was "in good standing" 
at the time of such withdrawal. It seems to me that a student who had 
been forced to withdraw or had been dismissed or suspended cannot be 
said to have been in good standing at the time of his withdrawal. Even 
though the reason for dismissal or suspension was inadequate, it could 
not be said that such student was in good standing at the time of with- 



P.D. 12. 55 

drawal. The fact of inadequate reason for dismissal does not, in my 
opinion, justify your board in finding that the student was in good stand- 
ing at the time he was dismissed. Under the new statute your board must 
decide as a question of fact whether or not an apphcant was in good stand- 
ing at the time he \nthdrew from the school for nurses, and it is not within 
your province to review the circumstances under which the student was 
dismissed or suspended. In this connection, however, I do not believe 
that a student could be considered to have been dismissed or suspended, 
and therefore not in good standing, merely because he could not pay his 
tuition and withdrew for that reason. There may be other factual situa- 
tions which resemble nonpayment of tuition which would not cause the 
student to be in bad standing. These are all questions of fact for your board 
to determine. 

3. Again, in connection with § 2, you present the following problem: 
With reference to the phrase "received therein theoretical instruction and 
clinical experience equivalent to that required for graduation from ap- 
proved schools for practical nurses," is the board allowed discretion under 
the law such as follows : May the board use its own professional knowledge 
and experience of the differences in content of the course for practical 
nurses and the course for nurses to evaluate and to determine whether or 
not a former student has received, in fact, "eciuivalent" preparation and 
experience, even though some specific deficiencies might appear to exist? 

This also presents a question of fact. The burden is upon the applicant 
to furnish satisfactory proof that the required instruction and experience 
had been received. The board should then use its own professional knowl- 
edge and experience to determine whether or not the student had received 
a reasonable ''equivalent" to the instruction and experience required for 
graduation from approved schools for practical nurses. You have no dis- 
cretion to ignore this requirement, but you must use your knowledge and 
experience and discretion in determining whether or not this equivalent 
exists as a matter of fact. 

4. You present another situation regarding "satisfactory proof" as to 
the instruction and experience received by an applicant: Under "satis- 
factory proof" which in many cases has not been presented for various 
reasons, is the board allowed any discretion or is the burden of the proof 
on the individual to present to the board as required by law "satisfactory 
proof" that the former student has received while in the school of nursing 
theoretical and clinical experience equivalent to that required for gradua- 
tion from an approved school for practical nurses? Example: Many 
applicants were enrolled in approved schools w^hich have been discontinued 
and records cannot be obtained. In cases where annual reports have been 
filed by the school with the office of the board, it is possible, of course, for 
the board to have some idea of the preparation received. However, in the 
absence of such information what discretion does the board have in the 
handling of these applications? 

I think your above question has been answered to some extent by my 
comments under the third question. As stated there, your board cannot 
ignore the requirement that you must be furnished with "satisfactory 
proof" of the required instruction and experience. You cannot find that 
this requirement is met if there is an absence of proof. However, any kind 
of proof which is satisfactory to the members of your board, and which 
persuades them that the required instruction and experience have as a 
matter of fact been received, would be sufficient. 



56 P.D. 12. 

All of the situations which you present are cases in which your board 
must make a finding as a matter of fact, as jurors would in the trial of a 
case in court, as to whether or not these specific requirements of the 1956 
act have been met. There is very little law which can be applied to such 
determinations of fact. The professional knowledge and experience of 
the members of your board give them a background for determining these 
matters of fact. With this background and experience, and with the use 
of ordinary common sense and understanding, the members should deter- 
mine what they believe the facts are, and then should make a decision as 
to permitting an applicant to take the examination upon the basis of such 
facts. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Contract for Highway Construction — Bidding Procedure — Bid of " Two 
Dollars" in Writing but "S2.15" in Figures. 

Jan. 14, 1957. 

Hon. Carl A. Sheridan, Commissioner of Public Works. 

Dear Sir: — You have requested an opinion relating to bidding pro- 
cedure in connection with the award of contracts for highway construc- 
tion. You state that a bidder, in submitting a bid, has written out in 
words the unit price of two dollars as constituting the price per cubic yard 
for rock excavation, and you state further that the same bidder has then 
written in numerals $2.15 for the same rock excavation. You state that 
the department desires to award the contract to the bidder, using the 
figure of two dollars, which would thus make him the low bidder for the 
project involved. You ask whether there would be any error in making 
such an award. 

Article 10 of the Standard Specifications for Highways and Bridges, 
upon which bids are submitted, provides in part as follows: 

"Proposals which fail to meet the requirements of Articles 5, 6 and 7 
or which are incomplete, conditional or obscure, or which contain additions 
not called for, erasures, alterations or irregularities of any kind, or in which 
errors occur, or which contain abnormally high or abnormally low prices 
for any class or item of work, may be rejected as informal." 

Under the foregoing article the department has the discretion to reject 
the bid in question because it contains an error. Said article 10, however, 
does not require that such bids be rejected but leaves the matter to the 
commission's discretion. 

It is also noted in article 5 of Standard Specifications that the following 
sentence appears: "In case of a discrepancy between the prices written 
in words and those written in figures, the written words shall govern." In 



P.D. 12. 57 

accordance with the foregoing sentence of article 5, the commission would 
have authority to use the bid of two dollars as written in words rather 
than the bid of $2.15 as written in figures. In the event that there is a 
substantial error in a bid which is apparent to the commission, then the 
commission may not be able to hold a bidder to such bid submitted in 
error. In the case presently being discussed, it does not appear that such 
a substantial error does in fact exist. 

In conclusion, it is probably within the discretion of the commission to 
award the contract based upon the bid of two dollars as described above. 
Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General, 



Department of Corporations and Taxation — State Purchasing Agent — 
Books and Forms for Municipalities Ordered by Director of Accounts. 

Jan. 18, 1957. 

Hon. John Dane, Jr., Commissioner, Department of Corporations and 

Taxation. 

Dear Sir: — You have requested my opinion as to whether or not 
printing or suppHes purchased in behalf of municipalities by the Director 
of Accounts in your department must be approved by the State Purchasing 
Agent or by the Commission on Administration and Finance. 

The Director of Accounts, appointed under G. L. c. 14, § 1, is charged 
with the compilation of municipal statistics and the auditing of municipal 
accounts. G. L. c. 14, § 7; c. 44, §§ 35-46A. Part of his work is to secure 
uniformity in these accounts. In this connection, § 38 of c. 44 provides as 
follows : 

"The accounting systems installed in accordance \A'ith this chapter shall 
be such as mil, in the judgment of the director, be most effective in securing 
uniformity of classification in the accounts of such cities, towns and dis- 
tricts. The director may supply approximately at cost to cities, towns and 
districts where such accounting systems have been installed such books, 
forms or other supplies as may be required from time to time after the 
original installation of such systems." 

Municipalities may, but are not required to, obtain such supplies from the 
director. If they do request such supplies from the director they must pay 
the approximate cost of such material. For this purpose an appropriation 
is made for the initial purchases under the orders of the director — for 
example, see 1955 appropriation of $45,000 "for the expenses of certain 
books, forms and other material which may be sold to cities and towns 
requiring the same for maintaining their system of accounts." St. 1955, 
c. 706, § 2, Item 1203-12, page 677. Payments by municipahties for this 
material go to the State Treasurer, and such repayments cancel out this 
appropriation in full. 



oS P.D. 12. 

Your request for an opinion is as follows: 

"Your opinion is respectfully requested as to whether books, forms, and 
supplies which the Director of Accounts is required to supply to cities, 
towns, and districts must be ordered through the Commission on Adminis- 
tration and Finance or whether the Director of Accounts may purchase the 
books and forms without the necessity of obtaining approval of the Pur- 
chasing Agent and the Commission on Administration and Finance." 

Three statutes must be considered : 

1. St. 1955, c. 706, § 10 (and similar provisions in other recent appropria- 
tion acts), provides that expenditures for any "document," whether "for 
outside or interdepartmental circulation," must be approved by the State 
Purchasing Agent. 

2. G. L. c. 5, § 1, first paragraph, provides that "the state printing and 
all publications by the commonwealth" shall be supervised by the State 
Purchasing Agent. Other paragraphs in this section refer to bids and con- 
tracts by the Commission on Administration and Finance, "or any other 
awarding official," in connection with printing "for the several depart- 
ments" of the State. 

3. G. L. c. 7, § 22, provides that the commissioners of the Commission 
on Administration and Finance shall make regulations governing the pur- 
chase of supplies by the State Purchasing Agent "for the various state 
departments." 

I do not believe that the above statutes apply to the material obtained 
by the Director of Accounts under c. 44, § 38. This material consists of 
sheets of ruled paper, of uniform sizes and uniform rulings for various 
purposes, and with subject matter printed at the head of some columns, 
together with the name of individual municipalities. These sheets of 
paper are blank, except for the rulings and columnar headings. They are 
ready for the placing of records and information upon them, but as ordered 
by the Director of Accounts they are merely blank forms. After a careful 
study of the above statutes, both in their present and in their earlier forms, 
it is my opinion that these blank forms ordered by the director for the con- 
venience of various municipalities, and paid for by such municipalities, 
are not "documents" or "publications" or "state printing" or supplies 
"for the various state departments," and that they are not subject to the 
provisions of these three statutes. 

There is no administrative practice which is controlling. A small portion 
of the printing and purchases under c. 44, § 38, has received the approval 
of the State Purchasing Agent; but the greater part of this printing and 
material has been obtained without such approval. The reference to 
"supervision of state printing" in c. 5, § 1, has been on our statute books 
in some form for about sixty years, but it has only been in recent years 
that even a small amount of this printing and materials for municipalities 
has been purchased by the State Purchasing Agent. 

The opinion of this department in Attorney General's Report, 1939, 
p. 87, is not pertinent because that opinion can properly be applied to the 
considerable amount of printing, not under c. 44, § 38, which is needed by 
the Director of Accounts and which in fact consists of "documents" and of 
printing "for a state department." 

Considering the problem of the printing and materials ordered to carry 



P.D. 12. 59 

out the provisions of c. 44, § 38, and the exact wordings of the three statutes 
cited above, and also the administrative practice, it is my opinion that the 
printing and purchasing under c. 44, § 38, of "books, forms and other 
suppUes" for municipaUties, to be paid for by them, is not subject to the 
supervision of the Commission on Administration and Finance nor does it 
require the approval of the State Purchasing Agent. 
Very truly yours, 

George Fixgold, Attorney General. 



State Employees — Retirement for Accidental Disability — Necessity for 
Examination by a Medical Panel. 

Feb. 12, 1957. 
State Board of Retirement. 

Gentlemen : — You have requested an opinion regarding the necessity 
of a physical examination under G. L. c. 32, § 7. 
You present the following request for opinion : 

"Your opinion is respectfully requested on the question as to whether 
or not the State Board of Retirement is required by the provisions of G. L. 
c. 32, § 7, to cause a physical examination to be made of an applicant for 
accidental disability retirement under said section, or whether the board 
may disapprove such application if the facts as appearing in the case are 
sufficient to justify this action." 

It is clearly provided in c. 32, §§ 6, 7, that no member of the State Retire- 
ment System can be retired for accidental disability under § 7 unless there 
has been an examination by the medical panel provided for in § 6 (3). 
Without such an examination the Retirement Board is without authority 
to make a finding that the required incapacity exists. Hunt v. Contributory 
Retiremem Appeal Board, 332 Mass. 025, 627. The statutes require such an 
examination, even though the report of the medical panel is not binding on 
the board. Gassier v. Gontributory Retirement Appeal Board. 332 Mass. 237, 
240. 

In my opinion, the requirement of a medical examination goes even 
further. Although the literal words of the statute provide only that no 
retirement for accidental disability shall be allowed by the board unless 
there are an examination and a favorable report by a medical panel, I 
believe the correct interpretation requires that there should be a medical 
examination if any question of mental or physical incapacity, or any related 
question, is to be considered by the board. That is, although the board 
may be determined that the application will be denied because, in its 
opinion, there is no required mental or physical incapacity, I believe the 
intent and benefit of the statute would be violated if a final decision to this 
effect were made by the board without having an examination by a medical 
panel or without giving due consideration to such report. 

On the other hand, however, there may be some circumstances under 
which an application for accidental disability retirement under § 7 may be 
denied even without there being a physical examination by a medicarpanel. 
Several required conditions for the allowance of accidental disability 
retirement are specified in § 7. Some of these have no possible relation to 



60 P.D. 12. 

the mental or physical incapacity covered by the section; and some of 
these specified conditions are requirements precedent to the existence of 
jurisdiction to allow retirement under this section. Some of these required 
conditions are as follows: The section does not apply to a member in service 
classified in Group C to whom the provisions of § 26 (2) are applicable; the 
benefits of this section do not pertain to a person w^ho sustains the incapaci- 
tating accident after he has passed the maximum age for his group; nor is 
such section applicable if the accident in question took place before the 
date the employee became a member and before the date when the em- 
ployee w^as protected by any provision relating to non-contiibutory pen- 
sions; another requirement is that there be a "written application on a 
prescribed form filed with the board"; nor does this section cover a case in 
which the inj ury was sustained more than two years prior to the filing of the 
application and no notice of the injury w'as filed mth the board within 
ninety days after its occurrence; and, finally, the section does not provide 
for accidental disability retirement if the application is filed with a retire- 
ment board other than the board of the unit where the applicant is presently 
employed. 

In my opinion, a request for allowance of accidental disability retirement 
under § 7 may be denied upon a finding that one or more of the essential 
jurisdictional requirements of § 7 do not exist. If such facts do not exist, 
there can, of course, be no allowance of the disability retirement. Under 
such circumstances it would be unreasonable to require a medical examina- 
tion which, no matter what the findings might be, could not possibly en- 
title the applicant to retirement under this section. I do not believe the 
references in §§ 6 and 7 require any such unreasonable result. 

But even as to the jurisdictional facts referred to in the second paragraph 
above, the applicant is entitled to present his proof and be heard in connec- 
tion with the existence of such required jurisdictional facts. And if any of 
these questions should relate in any way, directly or indirectly, to the 
question of incapacity or the proximate coimection between the accident 
and the disabilit}^ in such cases I believe that a medical examination should 
be required. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Department oj Corporations and Taxation — Demotion of Officer without 
Hearing — Lapse of Three Years without Action by Officer — Moral 
Obligation. 

Feb. 14, 1957. 

Hon. John Dane, Jr., Commissioner, Department of Corporations and 

Taxation. 

Dear Sir: — You have requested my ophiion as to the rights of Francis 
X. Lang, formerly an employee in your department. 

You present the following facts: On May 8, 1946, Lang was duly ap- 
pointed to the office of Director of the Division of Accounts, in the Depart- 



P.D. 12. 61 

ment of Corporations and Taxation, with the advice and consent of the 
Governor and Council. On March 5, 1953, after six years and ten months 
of service as Director of the Division of Accounts, Lang was removed from 
this position. This removal was by Commissioner Henry F. Long, then 
the Commissioner of the Department of Corporations and Taxation, and 
was made with the advice and consent of the Governor and Council. On 
March 5, 1953, the date of Lang's removal, he was appointed as Supervising 
Assistant Director of the Division of Accounts. This appointment was 
made by Commissioner Long, with the advice and consent of the Governor 
and Council. Although objecting to this demotion, Lang entered upon 
his new appointment and continued service in that position until recently. 

You advise me that Lang has continued to object to his demotion, has 
claimed that it was invalid, and he has now made demand upon you for 
reinstatement and for payment of the difference between the salary under 
his former position and that received by him after his demotion. In this 
connection you request my opinion as to the rights of this former employee. 

Lang's appointment to the position of Director of the Division of Ac- 
counts and his service therein from 1946 to 1953 were under the provisions 
of G. L. c. 14, § 4, prior to the amendment of that chapter and the re- 
organization of your department under St. 1953, c. 654. In 1951 the Legis- 
lature, by an act ''regulating the separation from service of the Common- 
wealth of certain employees of the Department of Corporations and Taxa- 
tion" (St. 1951, c. 470), provided that persons holding a position such as 
the position of Director of the Division of Accounts "shall not be involun- 
tarily separated therefrom except subject to and in accordance with the 
provisions of" G. L. c. 31, §§ 43-45. These sections require notice to a 
protected employee before he is removed or lowered in rank or compensa- 
tion, together with a written statement of reasons for such removal or 
demotion, and also an opportunity for hearing. Lang was removed or 
demoted without compliance with these provisions. If he had held his 
position for less than five years, removal by a commissioner with the advice 
and consent of the Governor and Council, as then provided in G. L. c. 14, 
§ 4, would have been valid. However, since Lang had held such position 
for a total period of more than five years, he could not be separated there- 
from except by compliance with the provisions of G. L. c. 31, §§ 43 and 45. 

It is my opinion, therefore, that since Lang was removed without com- 
phance with the protection given to him by the Legislature his removal 
and demotion were unlawful. 

Your inquiry to me, of course, is an inquiry as to Lang's present rights. 
His unlawful removal gave him no rights under c. 31 §§ 43, 45, since he was 
not removed under any of the provisions of those sections. He did have a 
right to remedy by mandamus, but since he now desires only recompense 
for loss of pay, and not reinstatement, that remedy is not applicable. He 
also had a right, because of his unlawful demotion, to bring a petition 
against the Commonwealth under G. L. c. 258. But such right existed 
only for three years (G. L. c. 260, § 3A), and therefore it came to an end 
on March 5, 1956. It is therefore my opinion that, at the present time, 
Lang has no legal rights which can be enforced against the Commonwealth. 

From the facts that you have presented it appears to me that Lang has 
a moral claim against the Commonwealth. This seems obvious because he 
was demoted without compliance with the laws which were specifically 
applicable to his position. This conclusion is confirmed by the proceedmgs 
for mandamus against the former commissioner by a fellow employee who 



62 P.D. 12. 

was removed on the same date that Lang was demoted, and who was 
reinstated to his position and given his full back pay by final judgment 
entered in the mandamus proceeduigs with the consent of this department. 
See Middlesex Superior Court No. 186574. 

The fact, however, that the Commonwealth may have a moral obligation 
to Lang does not give it the right to make payment to him. The defence 
or bar presented by lapse of time cannot be waived by a State officer. 
VI Op. Atty. Gen. 231, 232. Munro v. United States, 303 U. S. 36, 41. 
United States v. TroUinger, 81 F2d 167, 168. See also George A . Fuller Co. v. 
Commonwealth, 303 Mass. 216, at 221. 

However, although Lang cannot sue the Commonwealth, and although 
you as Commissioner of the Department of Corporations and Taxation 
of the Commonwealth have no present authority to pay such moral claim, 
the General Court itself has power by legislative act to authorize such 
payment if it is of the opinion that the claim constitutes a moral claim 
against the Commonwealth which should now be paid from public funds. 
This method of presenting claims against the Commonwealth by petition 
to the Legislature has always existed. It was the only method available 
prior to the granting of permission to sue the Commonwealth first given 
in 1879. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, 138. 
This method is still open to Lang. Upon such a petition, the Legislature, as 
"the keeper of the conscience of the Commonwealth" (see VI Op. Atty. 
Gen. 235), can determine whether or not it should authorize payment of 
public money for this purpose.^ 

The reorganization of the Department of Corporations and Taxation 
in 1953, by St. 1953. c. 654, approved July 2, 1953, effective October 1, 
1 953, does not alter any of the opinions expressed above. Prior to such act 
Lang had been demoted without authority of law, and his rights to rein- 
statement and to back pay existed at the time the reorganization act was 
approved. Although Lang's former position was abolished by the reor- 
ganization act, § 104 of that act continued the protection to all employees 
who were on tenure in a permanent position, and as to each of these em- 
ployees it was provided that they would be appointed "to a position in 
the department in the same salary grade." 

Very truly yours, 

George Fingold, Attorney General. 



De-partment of Public Works — Erection of Traffic Control Signal on Public 
Highway at Junction with a Private Way. 

Feb. 14, 1957. 

Hon. Carl A. Sheridan, Commissioner of Public Works. 

Dear Sir : • — You have requested my opinion in connection with the 
installation of traffic control signals at the junctions of State highways and 
private ways. 

I The General Court subsequently authorized payment of this claim. St. 1957, c. 547. 



P.D. 12. 63 

You present the following situation: 

"This department is receiving increasing requests for the installation of 
traffic control signals at the junctions of State highways and private serv- 
ice roads or drives to industrial and business establishments such as fac- 
tories, shopping centers, outdoor theatres and other similar locations. 
Also, similar requests are frequently received for approval of such installa- 
tions on roads and ways under the jurisdiction of the respective cities and 
towns, as required under G. L. c. 85, § 2. 

"The policy of this department in refushig to install or approve such 
signals, on the basis that such private drives are not 'ways' as defined in 
c. 90 and therefore cannot be signalized, is being challenged frequently by 
( ounsel representing the respective enterprises. 

"The statute, G. L. c. 85, § 2, authorizes the installation of signals on 
State highways and certain other ways by this depariment. It also re- 
quires the approval by this department of signals iiistalled by cities and 
towns on ways within its control. The result has been, therefore, that in 
addition to refusing to install signals at the j unction of State highways and 
private drives, the department has also refused to approve the installation 
of such signals on city and town ways. 

"Financially, these requests usually take either of the following forms: 

"1. The department or city or town to install and pay for the installa- 
tion. 

"2. The local enterprise offers to pay the cost of installation and some- 
times maintenance with ownership being transferred, if necessary, to the 
authority having jurisdiction over the particular highway. 

"Another situation also confronted by the department and somewhat 
comparable to the foregoing is the case where a private drive from an 
establishment or even a private resideiice enters the highway within the 
area of a legal intersection of ways and it is the desire of the department 
to signalize the intersection." 

Your powers and duties with respect to the installation of traffic con- 
trol signals are set forth in G. L. c. 85, § 2. This section provides that the 
Department of Public Works — 

"shall erect and maintain on state highways and on ways leading thereto^ 
and on all main highways between cities and towns, such direction signs, 
warning signs or lights, curb, street or other traffic markings, mechanical 
traffic signal systems, traffic devices, or parking meters as it may deem 
necessary for promoting the public safety and convenience . . . No such 
signs, lights, signal systems, traffic devices, parking meters or markings 
shall be erected or maintained on any state highway by any authority 
other than the department except with its written approval. ..." 

The reference to "ways" in the above statute is controlled by the defi- 
nition of this word in G. L. c. 90, § 1. This definition is as follows: 

" 'Way', any pubhc highway, private way laid out under authority of 
statute, way dedicated to public use, or way under the control of park 
commissioners or body having like powers." 

You inquire as to the power of your department under the above stat- 
utes, and you present eight specific questions as set forth below. In 



64 P.D. 12. 

connection with each question I indicate my answer. Where an addi- 
tional explanation is necessary I am adding it at the end of your list of 
questions. 

1. "Can a signal be installed at the junction of a public highway and a 
private driveway?" Answer: Yes. 

2. "Can a signal be installed at the junction of a public highway and a 
private driveway using public funds?" Answer: Yes. 

3. "Can a signal be installed at the junction of a public highway and a 
private driveway if the installation is paid for by the owner of the drive- 
way?" Answer: No. 

4. "Can the authority having the jurisdiction over the public highway 
accept the ownership of the completed installation as a gift?" Answer: 
See note below. 

5. "Can public funds be spent for the maintenance of such a signal?" 
Answer: Yes. 

6. "Can any component part of such a signal be located on private 
property with permission of the owner?" Answer: No. 

7. "In the case of a manually operated signal in which no part of the 
installation is on private property, can the signal be considered legal on 
the assumption that control takes place the instant traffic crosses the high- 
way side line even though following cars may be stopped on private prop- 
erty?" Answer: Yes. 

8. "In the case of a private drive entering the highway within the area 
of a legal intersection, can the drive be legally signalized?" Answer: Yes. 

Your power under G. L. c. 85, § 2, is to erect and maintain, "on state 
highways and on ways leading thereto, and on all main highways between 
cities and towns," such traffic control systems and other traffic markings 
as your department "may deem necessary for promoting the public safety 
and convenience." Under this statute you may install a signal "on" a 
public highway if "the public safety and coiivenience " is promoted thereby. 
The fact that such signal is iiistalled at the junction of a public highway 
and a private way is immaterial. Since you have a power to install such 
signal, you can use public funds therefor. However, in my opinion, such 
an installation on a public highway cannot be paid for by a private owner. 
Because of this, I think question No. 4 above must be answered in the 
negative; I do not kiiow how a private person could have the right to 
install a traffic signal on a public highway, even though he were thereafter 
to make a gift of such installation to the State. Since you have a right to 
install and pay for such signal, you also have a right to spend public funds 
for its maintenance. I have answered in the negative your question 6, 
as to your right to place some part of the signal on private property, be- 
cause the statute docs not give you such right. The statute gives you 
power only to erect signals on public highways or on "ways," that is, 
ways as are defined in G. L. c. 90, § 1. Since the statutes do not give your 
department any right to install a traffic signal on the private way, it is 
not within the jurisdiction of your department to locate such a signal or 
any part thereof upon such private property. 

I do not agree with your assumption that the installation of such a 
traffic control system, at the junction of a State highway and a private 
way, is considered to be "for the sole benefit of the owner of the private 
drive." If this were a fact, you would have no right to install it because 
the statute gives you only the right to install such signals as you may 
deem "necessary for promoting the public safety and convenience." It 



P.D. 12. 65 

seems clear to me, however, that the installation of a signal on a public 
highway at its junction with a private drive, if necessary at all, is for the 
protection of the public safety and convenience of persons lawfully on a 
public highway. It is upon this foundation that I have answered your 
questions as shown above. The fact that such a signal will in effect con- 
trol traffic on private property before such traffic crosses the highway side- 
line and enters upon the public highway does not render such signal 
improper. The objective of such signal is a promotion of public safetj^ 
and convenience on the public waj', and such signal is therefore lawful. 
Very truly yours, 

George Fingold, Attorneij General. 



Interstate Compact for Supervision of Out-of-State Probationers and Parolees 
— Meaning of Word "State.'' 

Feb. 19, 1957. 

Mr. Frederick J. Bradlee, Chairman, Parole Board. 

Dear Sir : — You have requested mj^ opinion regarding the interpreta- 
tion of the word "state" as used in G. L. c, 127, §§ 151 A to 151G, by which 
provisions the Legislature in 1937 authorized a compact between this 
state and other states for the supervision of out-of-state probationers and 
parolees. 

Your particular inquiry is whether or not the word "state," as appear- 
ing in the above statute, may be construed as meaning and including 
Alaska, Hawaii, Puerto Rico, the Virgin Islands and the District of 
Columbia. 

I answer your question in the negative. 

Ordinarily, the word "state" as used in our statutes "shall extend to 
and include the District of Columbia and the several territories." G. L. 
c. 4, § 7, cl. 31st. However, for the reasons indicated below, this statute 
defining the word "state" cannot be applied to the provisions of c. 127 
which relate to the interstate supervision of probationers and parolees. 

The provisions of§§151Btol51Gofc.l27 relate to and supplement the 
compact authorized by § 151A of that chapter. A compact such as this 
one, entered into between several states of the United States, can be made 
only with the consent of Congress. "No State shall, without the Consent 
of Congress, . . . enter into any Agreement or Compact with another 
State . . . ." U. S. Const., Art. I, § 10, cl. 3. The consent of Congress, 
necessary to the making of the interstate compact under § 151A, was 
given in 1934 by Public Laws No. 293, 73rd Congress, Second Session; 
formerly contained in 18 U. S. C. § 420. Massachusetts acted upon this 
consent in 1937 by adopting the provisions now contained in G. L. c. 127, 
§§ 151A-151G. St. 1937, c. 307. However, this 1934 consent of Congress 
gave consent only for a compact between the states, and not for a compact 
between the states and a territory and the District of Columbia. Since 
there is no Federal definition of the word "state" appficable to all Federal 
statutes, this word has had varying interpretations according to the con- 
text of particular Federal statutes. In general, however, it has been held 



66 P.D. 12. 

that, unless the context requires a different interpretation, the word 
"state" does not include the territorities and the District of Columbia. 
See Words and Phrases, Vol. 40, pages 11 and following. This restricted 
meaning of the 1934 Consent Act, although accepted by the persons in- 
terested in the subject matter, precipitated a movement to get Congress to 
broaden this Consent Act in order that the territories and the District of 
Columbia might become members of this compact. On August 3, 1956, 
the original 1934 Consent Act was broadened as desired. Public Law 1970, 
84th Congress Second Session, now contahied in U. S. C. Title 4, § HI. 
This change was made by adding a new paragraph to the 1934 Consent 
Act stating that the term ''States" includes the territories and the Dis- 
trict of Columbia. 

Since the consent by Congress in 1934 gave consent to a compact be- 
tween the states but not between a state and the territories, the compact 
entered into by the states pursuant to this consent is itself limited to the 
states themselves, and does not include the territories or the District of 
Columbia. A broader interpretation would have been unconstitutional. 
That compact, to which our Legislature gave its consent in 1937, cannot be 
broadened in its application to ^Massachusetts except \\Tith the consent of 
our Legislature. Such a compact is a contract, and its validity depends 
upon the consent both of Congress and of the states. Since the original 
compact did not include the territories or the District of Columbia, it is 
essential that a new consent be given by Congress and by the participating 
states to such broadening of the compact. Such consent has already been 
given by Congress by the law passed in 1956. To effectuate the desired 
broadening of this act it is now essential that the states involved, acting 
by their legislatures, give their several consents to such broadening, and 
that thereafter a new compact or an amendment to the original compact 
be made. 

For the reasons above stated I advise you that the word "state," as 
appearing in G. L. c. 127, § 151A, does not include Alaska, Hawaii, Puerto 
Rico, the Virgin Islands and the District of Columbia. 
Very truly yours, 

George Fixgold, Attorney General. 



Mentally Retarded Children — Education in Public Schools — Exclusion 
because of Age. 

Feb. 20, 1957. 

Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir : — You have requested the opinion of this department rela- 
tive to the education of mentally retarded children in the pubhc schools 
of the Commonwealth. Your questions present problems relating to the 
age of school children, the rights of local school committees, and the 
effect of statutes dealing specifically with mentally retarded children. 

Except in special cases, a child must attend school between the ages of 
seven years and sixteen years. G. L. c. 76, § 1. Cities and towns, on 
their part, are required to maintain public schools, and a child has a right 
to attend these schools, even children over sixteen years of age. G. L. 



P.D. 12. 67 

c. 71, §§ 1, 4, 6; c. 76, § 5. In most matters the local school committee 
has final say as to details of education, subject of course to the require- 
ments of the statutes. This authority in local school committees includes 
the right to exclude a student if his attendance might cause difficulty with 
other children. The power of local school committees to make reasonable 
regulations and to make final decisions upon the facts has been estab- 
lished in many cases decided by our courts. 

With regard to mentally retarded children, however, the situation is 
somewhat different. It is stated in G. L. c. 71, § 46, as most recently 
amended by St. 1956, c. 535, § 4, as follows: 

''At the beginning of each school year the [school] committee of every 
town or district committee of every regional school district Avhere there 
are five or more such children as determined in accordance with, the first 
sentence of this section," — i.e., children retarded in mental development 
— ''shall, and every town or regional school district where there are less 
than five such children may, establish special classes for the instruction of 
the educable mentally retarded children and for the instruction of the 
trainable mentally retarded children according to their mental attain- 
ments, under regulations prescribed by the departments." 

The above section s])ecifies that regulations regarding special classes for 
mentally retarded children, instead of being prescribed by the local school 
committee, are to be prescribed by the Department of Education. Pur- 
suant to this requirement regulations have been promulgated. Portions 
of these regulations, pertinent to the questions you ask, are as follows: 

"2. . . . No mentally retarded child shall be excluded from or denied 
the right to attend special classes merely because of age." 

"5. . . . Only those 'educable' and 'trainable' children whose pres- 
ence is not detrimental to the members of their class or school shall be 
enrolled in a special class." 

You reciuest an opinion on four questions. These questions, and my 
answers thereto, are as follows: 

1. Can a local school committee exclude a mentallj^ retarded child from 
school merely because of age? No, unless the reasons for exclusion be- 
cause of age are applicable to all children aUke. 

2. If the school age in a tow^n is 53^ years, has a mentally retarded 
child the same right to enter school at that age as any other child? Yes, 
unless there are conditions relating to the child apart from age and mental 
condition which would prevent the entry and which exclusion would be 
applied equally to all children under the same conditions. 

3. May a school committee exclude mentally retarded children at the 
age of sixteen if other children are allowed to remain in school for a longer 
period of time? No, except upon grounds which would apply to all chil- 
dren of such age and which would warrant exclusion for reasons not con- 
nected with age or mental condition. 

I think the statute itself, and the two regulations adopted by your de- 
partment and quoted above, cover the problems presented in your three 
questions. Your regulation that "No mentally retarded child shall be 
excluded from or denied the right to attend special classes merely because 
of age" is clear and valid. Your regulation that these children can be 
excluded if their presence is "detrimental to the members of their class 



68 P.D. 12. 

or school" is a valid regulation under the statute and states the only 
ground for exclusion. Of course, the determination of the fact that the 
presence of such a child is or is not detrimental is for the local school 
committee. 

You present a fourth question, as follows: 

4. What is the legal meaning of the word "child"? I am unable to 
give you an opinion on this question. There is no statutory definition of 
the word "child." If there is some specific statute which uses this word, 
and if you need to know the apphcation of such word to a specific set of 
facts, i can give you an opinion if you will detail such circumstances. 
However, your general inquiry, without reference to a statute or to par- 
ticular facts, cannot be answered. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Veterans — Non-Contributory Retirement — Creditable Service for Employee 
Holding Position as a Town Moderator. 

Feb. 28, 1957. 

His Excellency Foster Furcolo, Governor of the Commonwealth. 

Sir: — I am in receipt of your letter stating that Leo M. Harlow, first 
Deputy Secretary of the Commonwealth, is retiring for superannuation at 
the present time, and that he has applied for retirement under the pro- 
visions of G. L. c. 32, § 58. You inquire whether or not the period during 
which Harlow held the position of town moderator of the town of Easton 
can be considered as creditable service toward the thirty years required 
by § 58. . 

The correct interpretation of § 58, in my opinion, permits creditable 
service to be given to Harlow, on account of his twenty-three years' tenure 
as towii moderator, only for the time or days he actually i^erformed service 
as town moderator, and credit cannot be given to him for the entire period 
during which he held that position. 

Although the word "service" in § 58 is not controlled by defijiitions of 
that word in §§ 1 to 28 or in other sections of c. 32, yet the true meaning of 
"service" in § 58, and the intent of the Legislature in using that word in 
§ 58, are to be learned, at least in part, by an understanding of the sense 
in which that same word has been used by the Legislature m other portions 
of c. 32. INIy interpretation set forth in the paragraph above is consistent 
with, and I believe is logically required by, the various usages of that word 
in other portions of this chapter. See, for example, §§ 1, 3 (2) (d), 4 (1) (a), 
4 (2) (6). Prior opinions by this department in which full-time credit has 
been given to State employees (Attorney General's Report, 1955, p. 78; 
Attorney General's Report, 1953, p. 29) were based upon analogies to other 
sections in c. 32 in which such full-time credit was indicated. 

On the other hand, it is clear that service in the position of town moder- 
ator, that is, actual work done, is the kind of service for which "creditable 



P.D. 12. 69 

service" must be given under § 58. The amount of credit which can 
reasonably be given for this actual work depends upon the facts in the 
case, that is, the amount of time or the number of days when work as town 
moderator was performed. These facts can be obtained from the applicant 
or from the Commission on Administration and Finance. Of course, 
additional credit cannot be given for such actual work if such work was 
performed within a period for which creditable service has already been 
given to the applicant on the basis of some other service for the Common- 
wealth or a governmental unit. 

Very truly yours, * 

George Fingold, Attorney General. 



Board of Registration of Certified Public Accountants — Examination — 
Inspection of Papers by a Candidate. 

March 4, 1957. 

Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam: — You have requested, in behalf of the Board of Regis- 
tration of Certified Public Accountants, an opinion of this department as 
to whether or not the board is required to furnish, upon request of the 
candidate, a photostatic copy of an examination paper written by such 
candidate for registration. 

I advise you that the answer to your question is in the affirmative, but 
with some qualifications. The rule adopted by the Governor and Council 
on February 18, 1948,^ which you have furnished to me, clearly states that 
a candidate such as the one involved in your inquiry "may inspect his or 
her papers after the results of the examination have been made known." 
This rule clearly is applicable to examinations conducted by the Board of 
Registration of Certified Public Accountants. The right of a candidate to 
"inspect" the examination carries with it the right to make a copy of his 
answers. "The right to inspect commonly carries with it the right to 
make copies without which the right to inspect would be practically value- 
less." Direct-Mail Service v. Registrar Motor Vehicles, 296 Mass. .353, 356. 

However, this right to inspect and to make copies can be exercised only 
in a manner which is reasonable and does not interfere with the duties of 
the board. For example, the time and place and circumstances of the 
inspection can be determined by the board, and the cost to the board, if 
any, can be charged to the applicant. Whatever may be "reasonable" 
on your part to enable the applicant to make use of his right to inspect 
would be required; but nothing which might be considered unreasonable 
could be required. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

> Rui.E: Administrative Bulletin No. 90, Commission on Administration and Finance, dated March 29. 
1948, re rule of Governor and Council on Feb. 18, 1948. 



70 P.D. 12. 

Contract for Public Building — Bidding Procedure — Increase in Contract 
— Emergency. 

March 7, 1957. 

Hon. Charles W. Greenough, Commissioner, Metropolitan District 

Commission. 

Dear Sir: — You have asked our advice concerning Metropolitan Dis- 
.trict Commission contract No. 948 between the Commonwealth and C. Ray 
Norris & Son, dated July 19, 1956, and calling for repairs to the Charles 
River Dam. The contract is a unit price contract awarded on a bid of 
$10,200, said bid being based on estimated quantities. The commission 
estimated that approximately 40 studs in the dam would be removed and 
replaced and that one rail break would require splicing. On these items 
the bid of the Norris company was based on a cost of $225 per stud ($9000) 
and a cost of $800 per rail break ($800). During progress of the work it 
has become apparent that approximately 58 additional studs and four 
additional splices must be made. At the unit prices in the contract the 
cost of these additional items would come to $16,250. It appears also 
that an extra work order for patching a hole and for splice plates in the 
amount of $4320 is contemplated. The combhiation of these two figures 
in the amount of $20,570 would constitute an increase in the contract from 
$10,200 to $30,770. (The actual figure estimated in your correspondence 
is $30,820.) 

You state that an emergency exists calling for immediate completion 
of the work described. 

You state that the Commission on Administration and Finance has 
asked that the method of procedure be clarified by consultation with this 
office before such work is authorized. 

It appears that an increase in the contract price from $10,200 to ap- 
proximately $30,800 constitutes a substantial change in the original con- 
tract which may be made onlv after compliance with the terms of the bid 
statute (G. L. c. 29, § 8A). See Morse v. Boston, 253 Mass. 247, 254. 

Whether a change in a contract is technically an extra work order re- 
quiring approval under G. L. c. 29, § 20A, or whether it may be described 
as a mere change in quantities of work or material covered by unit prices 
in the contract, such changes may be made without compliance with G. L. 
c. 29, § 8A, only if the changes are incidental to the original contract. 
Where, as here, there is a substantial change amounting to a new contract, 
the bid statute must be observed. 

It is noted that such bid statute (G. L. c. 29, § 8A) provides for notice 
and publication of proposals relating to the type of work here involved, 
all as directed by the Commission on Administration and Finance. It 
also contains the following exception : 

"... provided, that such publication may be omitted, in cases of 
special emergencies involving the health and safety of the people and their 
property, upon the written approval of said commission." 

You state that an emergency does exist and that application has been 
made to the commission for approval of waiver of publication. If such 
approval is granted, the necessity for publication will be removed. By 
an ophiion of a former Attorney General directed to the Commissioner of 



P.D. 12. 71 

Public Works and dated February 19, 1951 (Attorney General's Report, 
1951, p. 38), it has been determined that a waiver of publication in emer- 
gency situations includes a waiver of the posting of notice as well as a 
waiver of the newspaper publication. 

Provided there has been a waiver of publication by the Commission on 
Administration and Finance, it would then be proper to award a contract 
to the Norris company for the additional work. In the absence of such 
waiver the contract may be awarded only after posting of notice and news- 
paper pubHcation as required by G. L. c. 29, § 8A. 
Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



State Employee — Retirement of State Police Officer — Effect of Report by 
Police Rating Board. 

March 7, 1957. 

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

Dear Sir: — You request an opinion of this department relative to an 
application for retirement for reasons of accidental disability filed with the 
State Board of Retirement by a State Pohce patrolman in the Department 
of Public Safety. 

You inform me that this application for accidental disability retirement 
has been made under the provisions of G. L. c. 32, § 26 (2) (a). This pro- 
vision applies to "any member in service classified in Group C who is an 
officer of the division of state police in the department of public safety." 
If such an oflficer applies for disability retirement under this provision he 
is to be examined by a registered physician appointed by the "rating board " 
established by subdivision (1) of this § 26, and the Rating Board shall then 
report in writing to the State Board of Retirement with respect to the offi- 
cer's incapacity. The statute provides that the report of the Rating Board 
shall indicate, if it is a fact, as follows: 

"... that such officer is physically or mentally incapacitated for the 
performance of duty by reason of (i), illness incurred through no fault of 
his own in the actual performance of duty, or (ii), an injury resulting from 
an accident occurring during the performance and within the scope of his 
duty and without contributory negligence on his part, and that such in- 
capacity is likely to be permanent." 

This provision of law also provides that, if the Rating Board shall make 
a report as above stated, the officer "shall be retired by the state board of 
retirement." 

You advise me that this officer has met all requirements for disability 
retirement under this provision, with the possible exception as to his in- 
capacity. On this question the Rating Board has reported to you that it 
has caused an examination to be made of the physical condition of the offi- 



72 P.D. 12. 

cer and as a result of such examination the Rating Board lias found that 
the officer 

"should be retired as he is physically incapacitated for the performance 
of duty by reason of illness incurred through no fault of his own in the 
actual performance of duty and that such incapacity is likely to be per- 
manent." 

Upon the above facts you request an opinion as follows : 

"Your opinion is respectfully recjuested as to whether or not the statute 
rec^uires that the State Board of Retirement must approve the application 
filed by this State Police patrolman solely on the basis of the examination 
as ordered by the State Police Retirement Rating Board and the recom- 
dation of such board that the applicant be retired or is it necessary that 
the applicant prove to the satisfaction of the State Board of Retirement 
that he is physically incapacitated for further duty as the result of an 
injury sustained or a hazard undergone at some particular time and place 
during the performance of his duty and that such incapacity is likely to 
be permanent." 

The report of the Rating Board adequately meets the requirements of 
§ 26 (2) (a), and such report conclusively establishes the required in- 
capacity. Your board has no duty or power to review this finding of fact 
made by the Rating Board on the question of incapacity. The require- 
ment of physical incapacity "as the result of an injury sustained or a 
hazard undergone at some particular time and place" is a reciuirement of 
some other statute and is not required for retirement under § 26 (2) (a). 
In my opinion, you have no further duty to ascertain the facts as to the 
incapacity of the officer here in question other than to accept and make 
use of the report submitted to you by the Rating Board. 

Since in this case you have founcl that all jurisdictional requirements 
other than that relating to incapacity have been met, and since the report 
of the Rating Board covers in full the rec^uirements relative to incapacity, 
your present duty under the statute is to carry out the specific provision 
that the officer "shall be retired by the state board of retirement." 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Civil Defense ■ — Right of Cities and Towns to Appropriate Money for 
Expenses — Uniforms. 

March 20, 1957. 

Mr. Geor(;e H. Burrows, Acting Director, Civil Defense Agency. 

Dear Sir; — You have requested an opinion of this department regard- 
ing equipment or uniforms to be furnished to auxiliary police under the 
statutes relating to civil defense. 

The civil defense statute is contained in St. 1950, c. 639. It is provided 
by § 15 of that chapter that each city and town shall have power to make 



P.D. 12. 73 

appropriations "for the payment of expenses of its local organization for 
civil defense." Your question relates specifically to auxiliary police. In 
§ 11 (a) of this chapter it is provided that cities and towns "may appoint, 
train and equip volunteer, unpaid . . . auxiliary police." 

You request an opinion upon the following particular matter: 

"I respectfully wish to be advised whether under this provision of 
law, cities and towns may properlj^ appropriate and spejid funds to buy 
uniforms for auxiliary police appointed under the authority thereof." 

Although there is no express provision in the civil defense act or in any 
other statute authorizing cities and towns to spend funds to buy uniforms 
for auxiliary police, it cannot he ruled as a matter of law that such author- 
ity does not exist by virtue of the provisions of the civil defense act itself. 
That is, the authority in § 15 to appropriate money for the payment of 
expenses of its local organization for civil defense, and the authoritj^ in 
§ 11 to equip auxiliary police, authorize a city or town to provide its 
auxiliary police with the use of such uniforms as are needful to such mem- 
bers in carrying out their duties under the civil defense act. It is clear 
that some duties of auxiliary police could make it needful that uniforms 
be supplied in the performance of such duties. One example, at the end 
of § 11 (c), is the duty which may be given to auxiliary police in towns to 
exercise the powers conferred upon regular police by § 10, which powers 
in § 10 specifically require uniforms. It may be possible that there are 
other services, for which auxiliary police may be called upon, which would 
either require or would need something in the nature of a uniform. If so, 
§§11 and 15 of the act authorize the towns to provide such uniforms. 
The decision whether or not uniforms are needed for certain duties re- 
quired of auxiliary policemen is a decision which must be made, as a 
matter of fact, by some administrative officer charged with the responsi- 
bility of training and equipphig these auxiliary policemen. Such decision 
cannot be made by this office. 

In summaiy, I answer your question in the affirmative, but with the 
qualification that the authority to buy uniforms exists only in situations 
in which such uniforms are found to be needful in the carrying out of the 
duties given to auxiliary policemen by the civil defense act. 
Veiy truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Escape of Mentally III Person from State Institution — Punishment. 

March 22, 1957. 

Hon. Russell G. Oswald, Commissioner of Correction. 

Dear Sir: — In your recent letter to the Attorney General you state 
the following facts relative to the commitment of one Modestino Tango 
to the State Farm : 



74 P.D. 12. 

On September 19, 1956, having been found guilty of a violation of G. L. 
c. 123, § 112, by the East Boston District Court, Tango was sentenced to 
the State Farm; this sentence was thereupon suspended, aiid Tango was 
placed on probation. 

On January 30, 1957, the court revoked the suspension of the sentence 
imposed on September 19, 1956, and Tango was committed on that day 
to the farm. 

Calling the attention of the Attorney General to the fact that the 
actual commitment of this person took place after the effective date of 
c. 715 of the Acts of 1956, you inquire: 

(1) Was said commitment proper? 

(2) If so, how long may Tango be held at the State Farm in custody? 
Prior to the effective date of c. 715, persons properly sentenced to the 

State Farm for any offence other than drunkenness might be there held in 
custody for two years. G. L. c. 279, § 36, as then existing. The amend- 
ment to said section effected by c. 715, however, prohibits (with certain 
exceptions presently immaterial) sentences to the State Farm for any 
offence except drunkenness. Hence, if the commitment be regarded as 
following upon a sentence imposed on January 30, 1957, it is clear that it 
was improper, because of the new statute. 

On the other hand, the action of the court in revoking the suspension 
of the September 1956 sentence, although occurring subsequent to the 
effective date of c. 715, might properly be regarded not as the imposition 
of a prohibited sentence but rather merely as an implementation of a 
sentence properly imposed when first announced (of. Attorney General's 
Report, 1952, p. 14) ; in these circumstances, the actual commitment might 
well be valid. However, if, quite apart from the 1956 amendment, the 
sentence imposed in September 1956 were then legally improper, it would 
follow that the commitment concerning which you inquire is likewise 
invalid. 

In my opinion, the original sentence to the State Farm was not lawful. 
G. L. c. 123, § 112, provides merely that one found guilty of its provisions 
"shall be punished by fine or imprisonment, at the discretion of the court." 
The offence being a misdemeanor punishable by imprisonment, and there 
being no express provision as to the place of commitment, Tango could 
properly have been sentenced only to a jail or house of correction. G. L. 
c. 279, § 5. See the "Findings" and the "Judgment" of Mr. Justice 
Spalding in McLaughlin v. Commonwealth, Supreme Judicial Court for 
Suffolk County, No. 51269 Law (January 16, 1952). 

Accordingly, I answer j^our first question in the negative, without having 
to reach a determination as to the effect to be given to a revocation, after 
the effective date of said c. 715, of the sus{3ension of a sejitence prohibited 
by its provisions but in fact properly imposed prior to said date. Your 
second question, of course, needs no answer. 

Ver}^ truly yours. 



George Fingold, Attorney General. 

By Arnold H. Salisbury, 

Assistant Attorney General. 



P.D. 12. 75 

State Employees — Increase in Compensation to Doctors and Psychiatrists. 

March 26, 1957. 

Hon. Francis X. Lang, Commissioner, Commission on Administration & 

Finance. 

Dear Sir: — You have requested an opinion of this department regard- 
ijig the increased payments, provided for by St. 1956, c. 745, for personal 
services in certain medical positions in the Commonwealth service. 

The stated purpose of this act is "to relieve the acute shortage of quali- 
fied doctors and psychiatrists" in the Department of Mental Health and 
in the Department of Public Health. This purpose is sought to be ac- 
complished by providing for a $1,000 salary increase in certain positions, 
and by an additional $1,000 increase if the incumbent of such a position 
has been certified to possess certain described qualifications. 

It is provided in § 1 of this act that the "salary range" of specifically 
enumerated State positions shall be increased as of October 1, 1956, by 
$1,000 above the range in effect on September 30, 1956. It is clear that 
this section establishes an increased salary for the positions therein de- 
scribed and is for the benefit of the existing incumbent, if any, and also 
of any future incumbent of such a positioii. 

In § 2 there is a provision that the salary range of the incumbent of 
each position enumerated in § 1 shall "be increased an additional one 
thousand dollars beyond the range provided in section one," but only if 
the then iiicumbent presents a certification of his qualifications by one of 
the boards named in this § 2. It is clear that this additional increase of 
$1,000 does not always go with the positions set forth in § 1, but is a bene- 
fit to go with such position only if the incumbent, present or future, of 
such position shall present the specified certification of his qualifications. 

In my opinion, the $1,000 increase provided bj^ § 1 is to be applied for 
the benefit of all present and future incumbents of the positions enumer- 
ated therein. The additional increa.se in § 2 goes with such positions, but 
only if the incumbent, present or future, possesses the required certified 
qualifications. These increases are increases above the salary range in 
effect on September 30, 1956. The salary range on October 1, 1956, is 
immaterial. These increases are applicable only to the positions listed 
in § 1, and are to be paid only to persons occupying such positions. It is 
immaterial that a listed position may have been vacant either on Sep- 
tember 30 or on October 1, or that an incumbent may have been ap- 
pointed to such a position after October 1, 1956. 

I believe the above interpretation of St. 1956, c. 745, answers the ques- 
tions you present. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



76 P.D. 12. 

State Employees — Barrington Plan — Powers of Personnel Review Board. 

April 12, 1957. 
Personnel Review Board. 

Gentlemen : — You have requested an opinion of this department re- 
garding the powers given to j^ou, by St. 1956, c. 729, § 19A, relative to 
appeals to you from classifications or allocations under the so-called 
Barrington Plan. 

You present two problems, and you state your own understanding of 
your powers in each case.' You request the advice of this department as 
to these cases. 

1. The board has interpreted the first sentence of the second paragraph 
of this section [§ 19 A] to mean that the board shall entertain appeals in 
the original form as presented to the Director of Personnel and Standardi- 
zation. 

The sentence in § 19A to which you refer provides: "Said board shall 
hear all appeals as if said appeals were originally entered before it." In 
my opinion I believe you are correct in your interpretation. That is, the 
appeals which are to be entertained by your board are the appeals as to 
the classification, reclassification, allocation or reallocation to which ob- 
jection has been made by an employee and as to which he has appealed 
under § 19 to the Director of Personnel and Standardization and on which 
the employee is aggrieved by the decision of the director. On such ap- 
peals you are limited to the matter which was objected to by the employee 
and upon which he appealed to the director. 

2. The board has interpreted this sentence to limit the board to review 
only that evidence which accompanied and became part of the original 
appeal to the Director of Personnel and Standardization. 

Although your board is limited in its consideration to the classification 
or allocation objected to by the employee, there is no limit as to the evi- 
dence which you can receive, if such evidence is relevant to the question 
before you. Since you are to consider each appeal on the merits as if said 
appeal "were originally entered" before your board, you are therefore 
entirely free to decide what evidence and arguments j^ou will receive at 
the hearing. Accordingly, I do not agree with the interpretation made by 
your board and contained in your statement. 
"\^ery truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



' See opinion on a related matter, infra, page 90. 



P.D. 12. 77 

State Employees — Retirement — Successive Periods of Public Service, and 
Right to Pension for Each Period — Members of General Court — 
Police Officer. 

April 15, 1957. 

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

Dear Sir: — You have requested my opinion with respect to three dif- 
ferent situations m which appUcations for contributory retirement bene- 
fits have been presented to your board b}^ employees of the Commonwealth. 

My conclusions set forth below are not to be taken to indicate personal 
approval or disapproval of the broad coverage of our State retirement 
laws. In answering your requests for these opinions I have studied and 
interpreted the applicable laws as they stand upon our statute books. As 
the Attorney General of the Commonwealth I have a duty and an ob- 
ligation to interpret the laws as they exist, without regard to my personal 
opinion as to the merit of these statutes. The fact that, in my opinion, 
our State retirement laws may in certain instances be too broad or too 
generous cannot affect the required legal interpretation of the statutes 
which control the situations preseiited by you. 

The first situation which you present concerns applications for super- 
annuation retirement received by your board from seven persons who 
were elected and have served as members of the Massachusetts House of 
Representatives for the sessions of 1955 and 1956. These seven applica- 
tions were received bj^ your board during October 1956. Each of the seven 
applicants requested that he "be retired as of November 1, 1956." That 
date, as to six of the applicants, was after the maximum age of seventy 
years had been reached, and was about two months before the end of the 
two-year term for which they were elected in 1954. Retirement benefits 
and pension rights for these members of the General Court, in accordance 
with the provisions of §§ 1 to 28, iiiclusive. of c. 32 of the General Laws, 
were restored and granted by St. 1955, c. 554, § 2. 

Your request for an opinion on this first situation is as follows : 

"The State Board of Retirement respectfully requests your formal 
opinion as to whether or not the board may accept applications for retire- 
ment from these members of the General Court with such retirements to be 
effective as of November 1, 1956, notwithstanding their terms of office do 
not expire until the first Tuesday of January 1957." 

For the reasons set forth below, I answer your question in the affirmative. 

Ordinarily, retirement for superannuation is automatically effective 
"upon attaining the maximum age" (G. L. c. 32, § 5 (1) (a)), and the 
applicant has no right to select another date. But for the applicants in 
the present case the retirement was not automatic at age seventy because 
the statute provides that persons "holding office by popular election at 
the time of attaining the maximum age . . . may continue to serve in such 
office . . . until the expiration of the term for which he was elected." 
C. 32, § 5 (1) (d). 

The question presented in this case is whether the above right of these 
applicants to "continue to serve" beyond maximum age, but not beyond 
the end of the then current term, gives them the privilege to select as the 
effective date of retirement some date between these two extremes of 
maximum age and the end of the term. In two instances, the Legislature 



78 P.D. 12. 

has expressly given this right to select a date for retirement. If a member 
of a retirement system is over fifty-five years of age and is under the maxi- 
mum age, he shall be retired for superannuation "as of a date which shall 
be specified" in his application. C. 32, § 5 (1) (a). By a recent statute 
a teacher who attains maximum age during the school year may remain 
in service until the end of the year, and the right is expressly given to such 
teacher to select any date after attaining maximum age and not later than 
the end of the school year as the effective date of retirement. C. 32, § 5 (1) 
(/), as added by St. 1954, c. 348. 

The rights of the present applicants are not made clear by the statutes. 
For these persons, retirement for superannuation is not autom.atic at the 
maximum age; they "may contmue to serve." However, no right is 
expressly given to them to select a date for retirement. Does this mean 
that these applicants can be retired only on two possible dates, the date of 
attaining maximum age, or the date of the end of their term of office? 
In my opinion, these are not the only available alternatives. The provision 
for remaining in service is permissive — such a person "may" continue. 
The fact that continuance of service beyond maximum age is actually 
entered upon does not, in my opinion, mean that the applicant is there- 
after to be compelled to continue to serve up to the very end of his term 
of office. Such compulsion of service is not suggested by the statute, nor 
does it seem a reasonable or necessary construction. Since retirement at 
maximum age is not automatic or compulsory, and since the right to "con- 
thme to serve" is permissive, it is my opinion that these applicants can 
select any date within these two extremes as the date when retirement is 
to be effective. The absence of express statutory permission to specify 
the date of retirement, even in the light of such permission being given 
expressly to other groups, does not in the circumstances of this case — i.e., 
where retirement is not automatic and where there is no requirement that 
the term must be served out in full — require a ruling that the right to 
specify a date for retirement does not exist. 

The above ruling that your board may accept these appUcations and that 
they are effective on November 1, 1956, which in turn means that payment 
of retirement allowances shall start as of that date (§ 5 (2) first paragraph), 
docs not mean that these persons will receive double pay for the remaining 
two months of their term of office. The full compensation received by 
these representatives, paid prior to November 1, 1956, was for the 1956 
"session" (c. 3, § 9), which session ended on October 6, 1956; such com- 
pensation for their legislative services was not for the months of November 
and December, nor for the calendar year 1956. Furthermore, after Novem- 
ber 1, 1956, these men were not representatives; their status as representa- 
tives had come to an end by virtue of their retirement. The termination 
of their status as representatives occurred when they "retired" from that 
position. This is the result of the obvious and common meaning of "re- 
tirement." Such termination of their status as representatives is implicit 
in the definition of "member in service" (§ 3 (1) [a) (i)), and particularly 
in the statement in that paragraph that "separation from the service be- 
comes effective by reason of his retirement, resignation, failure of re- 
election," or for other reasons. 

The urther fact that some of these representatives were elected on 
November 6, 1956, to serve anew as members of the House of Representa- 
tives, and that they will therefore be entitled during 1957 and 1958 to 
receive both their retirement allowance and also their compensation as 



P.D. 12. 79 

representatives, has no bearing on the question you ask. The Legislature 
has seen fit to provide that a person receiving a retirement allowance shall 
also be paid "for service in a public office to which he has thereafter been 
elected by direct vote of the people." C. 32, § 91. This mandate and 
public policy of the Legislature that the voluntary choice of the people to 
select their representatives for office shall not be restricted because a person 
is on retirement, is binding on all executive officers of the Commonwealth. 
This provision for double compensation — both salary and retirement 
allowance — cannot alter the interpretation of the general statutes which 
entitle these representatives to retirement. 

The legal position of the one representative who had not reached the 
maximum age of seventy years on November 1, 1956, is the same as that 
of the six other representatives. If anything, his position may be stronger 
because of the express provision in § 5 (1) (a) that a person over fifty-five 
years and under the maximum age shall be retired "as of a date which shall 
be specified" in the application. 

The second matter upon which you request an opinion is as follows: 

"Your formal opinion is also respectfully requested as to whether or not 
the State Board of Retirement is obliged to paj^ a retirement allowance to 
one of those representatives noted above, notwithstanding the fact that 
at the present time, he is receiving a retirement allowance from the Teach- 
ers' Retirement System based on his service in one of the towns of the 
Commonwealth. ' ' 

You inform me that this representative, after thirty-six years of service 
as a teacher in our public schools, retired for superannuation at the age of 
sixty-nine years, and that under the general statutes relating to retirement 
he is entitled to and is now receiving an allowance from the Teachers' 
Retirement System. After retirement as a teacher this person was elected 
a member of the House of Representatives and he has served as such for 
the past ten years. During this second period of public service he has 
received both his teacher's retirement allowance and his salary as repre- 
sentative. This is permitted by c. 32, § 91. This representative, as well 
as the six other representatives covered by your first inquiry, has now 
applied for a retirement allowance based upon his ten years of service as a 
member of the House of Representatives. 

This second inquiry is whether or not this representative is now entitled 
to an additional retirement allowance based upon his more recent period 
of service as a member of the Legislature. The answer to this question is 
in the affirmative. This representative, in common with all of the other 
representatives covered by your first inquiry, became a member of the State 
Employees' Retirement System under the provisions of St. 1947, c. 660. 
This mtimbership was lawful and complete, and the member has made the 
required contributions and has complied with all the other requirements of 
the retirement laws. Therefore, by the provisions of St. 1955, c. 554, which 
restored and granted pension rights to members of the General Court, 
he is entitled to the retirement allowance provided by c. 32, §§ 1 to 28. 

The third situation upon which you request an opinion relates to an 
application for retirement for ordinary disability, under G. L. c. 32, § 6, 
made by a State employee fifty-four years of age who, since May 1, 1939, 
has worked at the Massachusetts Reformatory, now the Massachusetts 
Correctional Institution, at Concord, as a correction officer, or prison 
guard, and who has become disabled for further duty. 



80 P.D. 12. 

You advise me, however, that this employee had formerly been a police 
officer in the service of the city of Springfield, that he was retired for dis- 
ability by the city of Springfield on August 1, 1936, and that ever since 
that time he has been paid a pension of $28.69 per week because of such 
disability. The retirement by the city of Springfield was granted under the 
provisions of G. L. c. 32, § 83, as those provisions appear in the Tercen- 
tenary^ Edition. The conditions for retirement under § 83 at that time 
were that the employee must have been a "member of the police depart- 
ment," he must have become "disabled for useful service in said depart- 
ment," and he must have been certified by the city physician "to be per- 
manently disabled, mentally or physically, by injuries sustained through 
no fault of his own in the actual performance of duty, from further per- 
forming duty as such member." These conditions were met by the em- 
ploj^ee in question, the retirement was granted, and the disability pension 
is still being paid to him by the city of Springfield. 

Notwithstanding the above facts, this employee has now applied for 
ordinary disability retirement from his present Commonwealth service 
under the provisions of G. L. c. 32, § 6. The conditions for allowance of 
disability retirement under this section are that the employee must be a 
"member in service," that he must have become "totally and permanently 
incapacitated for further duty before attaining age fifty-five and after com- 
pleting fifteen or more years of creditable service," and that "such in- 
capacity is likely to be permanent." You advise me that this employee 
has been a member of the State Employees' Retirement System, that the 
required retirement deductions from his pay have been made, and that he 
meets the tests for incapacity set forth in § 6. There is no requirement in 
this section, as there is in §§ 7, 9, 83, and in many other sections, that the 
disability must have resulted from the performance of his duties. 

Upon these facts, you request my opinion on the following question : 

"May we respectfully request your opinion as to whether or not this 
employee has the right to be retired by the Commonwealth on the basis 
of his application for ordinary disability retirement or on any basis." 

Employment by the Commonwealth in 1939 of this retired police officer 
was lawful. Although employment of such a person would be unlawful at 
the present time, under the present provisions of G. L. c. 32, § 91, the pro- 
visions of that section as they stood in 1939 provided oiily that a person 
receiving a pension or retirement allowance from the Commonwealth or 
from any county, city or town could not be paid for services rendered "to 
the commonwealth, county, city or town which pays such pension or allow- 
ance." St. 1938, c. 439, § 5. It was not until 1941 that the prohibition 
against payment for services of a pensioner was made applicable to all 
governmental units, rather than merely to the unit which was paying the 
pension. St. 1941, c. 670, § 24. The 1941 amendment stated specifically 
(§ 26) that the extended prohibition did not render illegal the continued 
employment of any person who, upon the effective date of the act, was 
legally employed. 

Nor did the provisions of § 83 providing for the retirement of the police 
officer from his Springfield position prevent him from taking a new posi- 
tion and receiving compensation for the work performed. On the contrary, 
§ 86, as in force at the time, by stating that any such retired police officer 
"who accepts another appointment or employment as a police officer or 



P.D. 12. 81 

police official" would lose his pension, impliedly authorized the police 
officer here in question to take any other kind of employment. The officer's 
employment as correction officer, with custodial and disciplinary duties, 
was not employment as a police officer or as a police official. 

Furthermore, I know of no law which prevents a person who is "dis- 
abled for useful service" in a police department from being employed in 
some other kind of public service if he meets all the requirements which 
may exist for that second employment and if an employing officer desires 
to hire him. 

Some question might possibly exist as to the duty of the cit}^ of Spring- 
field to continue a pension to this retired police officer — see in this con- 
nection St. 1988, c. 277, § 2; St. 1939, c. 264; St. 1946, c. 576. §§ 8, 7; 
St. 1949, c. 562; St. 1950, c. 895; Moffatt v. Mayor of Lowell, 215 Mass. 
92; Foley v. Springfield, 828 Mass. 59 — but this question does not affect 
your obligation to pay the applicant the ordinary disability retirement 
provided by § 6. 

In summary, this third situation shows lawful employment of the appli- 
cant during the past seventeen or eighteen years, with full compliance 
with the requirements of the State Employees' Retirement System, and 
with a present condition of total and permanent incapacity which brings 
him within the benefits of c. 82, § 6. Since his employmeiit by the State 
has been lawful, since he has complied with all requirements for ordinary 
disability retirement, and since there is no statute which forbids payment 
to him of benefits under § 6, no other conclu-sion can be reached but that 
he is now entitled to such benefits. 

In the cases covered by your second and third inquiries, for service which 
is permitted by § 91, and where there is compliance with all the pertinent 
requirements for retirement, the statutes of the Commonwealth eiititle 
these State employees, who have rendered two separate, successive periods 
of lawful public service, to receive the I'etirement allowance granted by 
the Legislature for each period of service. Such concurrent retirement 
allowances are not prohibited by the provision in G. L. c. 82, § 8 (7) (g), 
that a person who is retired "shall receive only such benefits as are allowed 
or granted by the particular provisions of the law under which he is re- 
tired." These persons have been granted benefits by two separate "par- 
ticular provisions of the law." These persons are therefore entitled to 
receive such benefits. 

In this Commonwealth retirement benefits are granted to public em- 
ployees if and when they comply with the various statutory conditio^is 
and restrictions which have been established by the Legislature. In each 
of the three situations set forth above, the facts which you present show 
that the applicants have performed lawful public service, that they have 
become members of the State Employees' Retirement System, that they 
have paid their required contributions to that system, and that they have 
met in full all other conditions relating to the retirement allowances for 
which they have made application. I find no statute or rule of law which 
prohibits the payment of these requested retirement benefits. By reason 
of these facts, and on the basis of the statutes applicable, these applicants 
as a matter of law are entitled to receive the retirement benefits which 
have been granted to them by the Legislature. 
Very truly yours, 

George Fingold, Attorney General. 



82 P.D. 12. 

Employees of Lowell Technological Associates, Inc. — Operation of Book- 
store at Lowell Technological Institute ■ — Eligibility for Membership in 
State Retirement System. 

May 20, 1957. 

Mr. EvEiiETT V. Olsen, Assistant to the President, Lowell Technological 

Institute. 

Dear Sir : — You have requested an opinion of this department with 
reference to the status, as State employees, and with reference to eligi- 
bihty for membership in the State Retirement S3^stem, of the employees 
of Lowell Technological Associates, Inc., a corporation which operates 
your bookstore. 

You present the following facts: The Lowell Technological Associates, 
Inc., was incorporated on December 1, 1934, as a non-profit corporation 
under G. L. c. 180. Management of this corporation rests with seven 
regular members, four of whom shall be members of the instructing staff 
or officers of the Lowell Technological Institute, two shall be alumni of 
the Lowell Technological Institute, and one an undergraduate of Lowell 
Technological Institute. This corporation operates the bookstore at the 
Lowell Technological Institute where students purchase books and sup- 
plies for use in their study, and it operates the mailroom where students 
pick up their mail, and it also operates a revolvhig Student Loan Fund for 
the benefit of the students of the Institute. State-owned facilities are 
used for the bookstore and mailroom, but the furniture and equipment 
have been purchased by the corporation. The only funds received by the 
corporation from the I]istitute consist of two dollars per student annually 
for use of mailroom facilities. This money is paid to the corporation by 
the trustees of the Lowell Technological Institute from the funds received 
by the trustees from student activities under G. L. c. 75A, § 2. These 
receipts constitute only a very small portion of the total receipts of the 
corporation. The employees of the corporation are paid by the corpora- 
tion from corporation funds. The books of the corporation are audited 
periodically by auditors from the office of the State Auditor. The corpo- 
ration employs three full-time and three part-time people. The part-time 
people are students at Lowell Technological Institute. 

You request an opinion as to W'hether the full-time employees are State 
employees within the meaning of the State retirement laws. 

In my opinion, the full-time emploj^ees of the Lowell Technological 
Associates, Inc., are not employees of the State, and for that reason such 
employees are not eligible for membership in the State Retirement System. 
They are employees of a Massachusetts corporation which is a body cor- 
porate separate and apart from the Commonwealth. Opinion of the Jus- 
tices, 261 Mass. 523, 550. Norton v. Attorney General, 269 Mass. 503, 512. 
The facts that a small portion of the corporation's income is received from 
a State school, that its books arc audited by the State Auditor, and that 
the purposes of its existence relate to such State school and assistance to 
its students and alumni, do not make the corporation a division or agency 
or instrumentality of the Commonwealth, nor make the corporation's em- 
ployees employees of the State. As a matter of law, the Lowell Techno- 
logical Associates, Inc., "is a juristic entit}^ which is legally separate and 
distinct from the commonwealth . . . and whose employees are not b}'' 



P.D. 12. 83 

virtue of their relation to such juristic entity employees of the common- 
wealth . . . ." G. L. c. use, § 2 (/). 

For the above reasons, in my opinion, the employees of the Lowell 
Technological Associates, Inc., are not State employees and are not 
eligible for membership in the State Retirement System. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Veterans Non-Contributory Retirement — Creditable Service — Dishonor- 
able Discharge followed by Re-enlistment and Honorable Discharge. 

May 27, 1957. 

Hon. Francis X. Lang, Commissioner, Commission on Administration and 

Finance. 

Dear Sir : — You have requested my opinion concerning the amount of 
creditable service which can be allowed to a certain State employee who 
has applied for non-contributory retirement as a veteran under the pro- 
visions of G. L. c. 32, § 58. 

You present the following facts : 

"This employee began public service on July 1, 1924, and he had over 
seventeen years of creditable service when he was commissioned a First 
Lieutenant in the United States Army on May 9, 1942. He served until 
June 1(5, 1945, when he was dismissed as the result of a trial by a General 
Court Martial for violation of the 93rd, 95th, and 96th Articles of War. 
On June 11, 1946, he re-entered the United States Army and was honorably 
discharged on March 31, 1947. He returned to State service on May 19, 
1947, twenty-three months after his dismissal as an officer." 

Your letter assumes that the employee in question is a "veteran" within 
the meaning of G. L. c. 32, §§ 58, 58A. I agree with this assumption. 
G. L. c. 4, § 7, cl. 43rd; c. 31, § 21 (see both versions: St. 1951. c. 663, 
and the later amendment in St. 1954, c. 627, § 3); c. 32, §§ 1, 56, 58A. 
The provisions of St. 1941, c. 708, § 26, and other sections, do not, in the 
circumstances of the present case, require a different conclusion. 

Since this employee is a veteran, the only question upon which you re- 
quest an opinion is the amount of "creditable service" which is to be given 
to him. Your request is as follows: 

"Your formal opinion is therefore respectfully requested as to whether 
the period between May 9, 1942 and June 16, 1945 is creditable service, 
even though the veteran was dismissed from military service by General 
Court Martial for the violation of the Articles of War mentioned above." 

I answer your inquiry in the affirmative. 

The amount of creditable service to be allowed in the present case is de- 
termined by c. 32, § 58 A. That section provides that a State employee 
who is a veteran shall be given creditable service for — 



84 P.D. 12. 

"... the period of his wartime service until the date of his discharge 
or release from such service, which shall include credit for any actual 
service in the armed forces between January first, nineteen hundred and 
forty, and July first, nhieteen hundred and fifty-five." 

The only basis upon which it could be ruled that this employee is not 
entitled to credit for the time of his first period of service is that that 
first period was terminated by a dishonorable discharge. Such conclusion 
is not called for by the statutes which apply to the present case. It is 
specifically provided in § 58A that a person who is a "veteran" shall be 
given creditable service "which shall include credit for any actual service 
in the armed forces" between two dates which include the entire period 
in question. It is not in words specified in this statute, nor in any other 
statute, that creditable service under this § 58A shall not be given if the 
service was terminated by dishonorable discharge. Nor can such an im- 
plication or intention be read into the literal language of this statute. We 
are required to follow the statute as clearly written by the Legislature, and 
not to change it because of some circumstances called to our attention 
which possibly had not been called to the attention of the Legislature. In 
the present case, furthermore, it seems probable that this kind of a situa- 
tion had been considered by the Legislature (see definition in G. L. c. 4, 
§ 7, cl. 43rd). It is in just this kind of an hiquiry that the rules of statutory 
interpretation, which call for the application of the clear and literal words 
of the statute itself, should be applied. 

This conclusion is confirmed by the definition of the woid "veteran" in 
the various provisions that have been adopted as the basis of retirement 
and creditable service under § 58. In G. L. c. 4, § 7, d. 43rd, a veteran is 
defined as a person " whose /as^ discharge or release . . . was under honor- 
able; conditions . . . ." (Itahcs are supplied.) This same clause also 
states, in subdivision (/) of the ninth paragraph, that "any person whose 
last discharge or release from the armed forces is dishonorable" shall not 
be deemed to be a veteran. The inclusion as a veteran of a person "whose 
last discharge . . . was under honorable conditions" makes it clear that 
the test of the right to credit toward retirement for the period spent in 
military service is the nature of the last discharge. This provision suggests 
something in the nature of condonation if a period of actual service ending 
by a dishonorable discharge is followed by a subsequent period ending by 
an honorable discharge. This suggestion is confirmatory of the adoption 
of a literal interpretation of § 58A by which creditable service is to be 
given to this employee for his "actual service." 

Accordingly, I advise you that, in my opinion, and under the circum- 
stances of this case, the employee in ciuestion is entitled to creditable 
service, upon his application for retirement under G. L. c. 32, §§ 58, 58A, 
for the period from May 9, 1942 to June 16, 1945. 
Very truly yours, 

George Fingold, Attorney General. 



P.D. 12. 85 

Secretary of the Commonwealth — Right of Retired First Deputy Secretary 
to Payment in Lieu of Unused Vacation Time. 

May 28, 1957. 

Hon. Edward J. Cronin, Secretary of the Commonwealth. 

Dear Sir : — You have requested my opinion regarding payment of 
money in lieu of unused vacation time to your former first deputy who 
has now retired. 

The problem you present is not answered by G. L. c. 29, § 31 A (6). That 
statute relates only to employees of the Commonwealth, not to officers. 
The first deputy secretary is a public officer (Howard v. State Board of 
Retirement, 325 Mass. 211), and he is appointed, by constitutional pro- 
vision, by the Secretary, without requirement of approval by the Governor 
and Council. Mass. Const., c. II, § IV, Art. II. Also, G. L. c. 9, § 2. See 
unpublished opinions of this department to Commissioner of Administra- 
tion dated May 19, 1950, and March 4, 1952. 

Your specific inquiry is whether or not the retired first deputy is entitled 
to pay for unused vacation allowance under paragraphs LV-8, G-5 and 
G-6 of the Rules and Regulations governing vacation time (1956) author- 
ized under G. L. c. 7, § 28. The Director of Personnel and Standardization, 
subject to approval of the Commission on Administration and Finance, 
is authorized by the second paragraph of this § 28. as last amended by 
St. 1954, c. 680, § 2, to make rules which shall regulate vacation leave. 
These rules are applicable, not only to employees of the State, but also to 
"officers other than those exempted by such rules." Pursuant to this 
authority rules have been adopted and are now in force (July 1, 1956, 
edition) regulating vacation leave and also indicating the officers who are 
covered or who are exempted by such rules. The regulations stating 
which officers are exempted from these rules are contained in Rules G-5 and 
G-6. A careful reading of these rules makes it clear that the first deputy 
secretary is not exempted. 

Accordingly, in my opinion, the rules and regulatiojis issued under c. 7, 
§ 28, are applicable to the retired first deputy secretary. Therefore, the 
retired first deputy secretary is entitled, under Rule LV-8, to payment 
in lieu of unused vacation time. The amount of vacation time to which 
he was eligible is determined by Rule LVI. 

Very truly yours, 

George Fingold, Attorney General. 



Rates of Compulsory Automobile Insurance — Additional Premiums after 
Smaller Tentative Rates are Anmdled by Court. 

May 28, 1957. 
To the House of Representatives: 

1 have the honor to acknowledge the receipt of an order adopted by the 
House of Representatives on May 22 last, requiring the opinion of the 
Attorney General upon certain questions therein stated. Said order is as 
follows : 



86 P.D. 12. 

"Ordered, That the Attorney General of the Commonwealth be forth- 
with requested by the House of Representatives to render an opinion to 
be delivered to the Speaker and the Clerk of the House of Representatives 
at the earliest possible date,, on the following questions: — 

"1. Can an insurer who, in the current year, has issued a compulsory 
motor vehicle liability policy to an insured and who has collected therefor 
the premium charges originally established by the Commissioner of In- 
surance require the payment of any additional premium charges which 
said commissioner may fix as a result of the recent decision of the Supreme 
Court if said insurer has not by notice, endorsement on the policy issued, 
or otherwise reserved the right to collect such additional premium charges? 

"2. Can such an insurer require the payment of such additional premium 
charges if the right to collect the same was reserved by the insurer by 
notice, endorsement on the policy issued, or otherwise?" 

The Commissioner of Insurance on September 26, 1956, filed in his 
office tentative rates for compulsory automobile insurance for the year 
1957, and later, on November 21, 1956, after hearing, fixed and established 
the rates for 1957 in accordance with the provisions of G. L. c. 175, § 113B. 
The propriety of his rates was challenged by a petition for review in the 
Supreme Judicial Court for the County of Suffolk as provided by § 113B, 
brought by several insurance companies. The case was heard by a single 
justice of said court and reported and reserved by him without decision 
for the consideration of the full court which, on May 3, 1957 (see American 
Employers' Ins. Co. v. Commissioner of Insurance, 335 Mass. 748) ruled 
that the order of November 21, 1956, must be annulled "... and new 
rates, adequate, fair, reasonable and non-discriminatory ..." must be 
substituted by the Commissioner as soon as may be. (Pages 756-757.) 
In its decision the court used the following language at page 750: 

"Where the duty is imposed upon a public official by statute to estab- 
lish a rate that is 'adequate, just, [and] reasonable,' G. L. (Ter. Ed.) 
c. 175, § 113B, it is our duty to see that a rate of that description is pro- 
mulgated by him." 

Moreover, the court said at page 755 : 

"It was known to the petitioners and the respondent prior to fixing the 
rates for 1957 that the average loss cost increased from $19.22 per car year 
in 1948 to $31.71 in 1955. The underwriting loss sustained by the com- 
panies for the year 1955 on the evidence in the record can be easily repre- 
sented as follows: 

Premiums $60,501,912 

Losses developed $45,649,868 

Expenses 20,028,519 

Losses and expenses 65,678,387 



Underwriting loss $ 5,176,475 

That was the most recent full year that the parties had from which to 
draw their experience with respect to the preparation of the 1957 rates. 
All the data, including the most recent reports prior to October 25, 1956, 
which it was possible for the bureau to submit to the Commissioner, showed 
that 1956 would prove a worse year than did 1955. If the rates for 1957 
are established at the same pure premium or low level cost as the 1956 



P.D. 12. 87 

rates, the petitioners calculate that the full year will result in a loss of 
approximately $9,000,000. The impUcations of facts which are of common 
knowledge point in the same direction." 

As has been seen, the 1957 rates were not finally established until over 
four months after the 1957 policies were required to be written to enable 
owners to operate their cars after January first. In the meantime, pre- 
sumably, policies were written and bills for premiums issued and paid. 

Subsequent and pursuant to the decision of the full court, the commis- 
sioner established finally the 1957 rates on a basis substantially higher 
than before. Naturally some perplexity has been caused as to the re- 
sponsibility for the later and higher rates. 

The General Court has left very little, if any, room for judicial con- 
struction of its purpose in this situation. The situation which has come to 
pass was foreseen by your honorable body some twenty-five years ago 
when it enacted St. 1930, c. 343, entitled "An Act relative to Classifications 
of Risks and Schedules of Premium Charges under the Compulsory Motor 
Vehicle Liability Insurance Law, when delayed in becoming effective." 
The body of this statute is now found in G. L. c. 175, § 113B, and reads as 
follows : 

"If, for any reason, classifications of . . . premium charges fixed and 
established as aforesaid on or before September fifteenth in any year for 
the ensuing calendar year are not effective for the said year, the classifica- 
tions of . . . premium charges in effect for the then calendar year shall 
remain in full force and effect, and shall be used and charged in connec- 
tion with the issue or execution of motor vehicle liability policies or bonds 
for said ensuing calendar year until classifications of . . . premium charges 
for said ensuing calendar year are finally fixed and established. Classi- 
fications of . . . premium charges when finally fixed and established for 
said ensuing calendar year shall become effective as of January first of 
said year, and all 'premium charges affected by any change thereby made 
which have been paid or incurred prior to the time when such charges are' 
finally fixed and established shall be adjusted in accordance with such change, 
as of said January first." (Emphasis supplied.) 

So it is seen that the General Court has, with clarity, fixed and deter- 
mined the method of assessment of premiums in the cases you refer to, 
the amounts of the same and the method of adjustment of charges when 
the premiums have been modified in the statutory manner. Contractual 
arrangements between the parties involved are subject to this law. It 
controls the relations of all with each other. It is, in my opinion, a valid 
law. Lorando v. Gethro, 228 Mass. 181. The only remedy open to the 
Legislature is repeal or amendment of the existing statute. 

In my opinion the answer to both your questions must be in the affirma- 
tive. 

Respectfully submitted, 

George Fingold, Attorney General. 



88 P.D. 12. 

Tewksbury State Hospital — Ownership of "Patient's Canteen Fund.'' 

May 29, 1957. 
Hon. Patrick A. Tompkins, Commissioner, Department of Public Welfare. 

Dear Sir: — You have requested my opinion as to whether or not the 
Commonwealth is the owner of and can control the proceeds of the Com- 
munity Store at the Tewksbury State Hospital and Infirmary and the 
funds in the "Patieiits Canteen Fund" which have come from the opera- 
tion of such store. 

You state that the canteen was organized, owned and managed by the 
Employees Group at the Tewksbury State Hospital and Infirmary, but 
that in May of 1954 the Employees Group made a gift of the canteen to 
the trustees of the Tewksbury State Hospital and Infirmary with the 
condition that the proceeds from the canteen be continued to be paid into 
the "Patients Canteen Fund." The trustees by vote accepted the gift 
wdth its condition, and beginning in 1955 the trustees have operated the 
canteen through a so-called "concessionnaire," and the payments from 
the " concessionnaire " have been paid directly into the Patients Canteen 
Fund. You further state that the trustees have now been requested by 
the Auditor of the Commonwealth and the Comptroller of the Common- 
wealth to turn over money received from this canteen to the general fund 
of the Commonwealth upon the ground that such money constitutes in- 
come of the Commonwealth and that it is not available for expenditure 
without appropriation by the Legislatm^e. 

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

"Under the terms of the vote of the trustees in accepting this gift from 
the Employees Group may they continue to use the proceeds from this 
canteen in the Patients Canteen Fund"? 

. The answer to your question depends upon an analj^sis of the detailed 
facts relating to the origin and the past and present operations of this 
canteen. The mere fact that it is a canteen operated in a State institution 
is not, by itself, a sufficient basis upon which to answer your question of 
law. There are many canteens in State institutions. (Some other "can- 
teens" are those in the institutions of the Department of Correction, the 
Department of Mental Health, in the Soldiers Home in Chelsea and 
Holyoke, and at the State Teachers Colleges at Worcester and Lowell; con- 
cessions at State airports; also, the bookstores at the University of Massa- 
chusetts and at the Lowell Technological Institute; and many others.) 
Some of these "canteens," or by whatever name they are called, are con- 
trolled by statutes, or by department regulations; all of them could be so 
controlled. In the absence of statutes or regulations, the answer to the 
question whether funds or income of such canteens belong to the Common- 
wealth depends upon the facts in each case. On varying factual situations 
it has hvxm ruU^d that the bookstore at the University of Massachusetts 
belongs to the Commonwealth, but that the bookstore at the Lowell Tech- 
nological Institute does not. See Opniion of the Attorney General to De- 
partment of Industrial Accidents dated December 11, 195G, and Opinion 
of the Attorney General to Lowell Technological Institute dated May 20, 
1957.1 

' See supra, pages 43 and 80. 



P.D. 12. 89 

111 the present case no statute or regulation is applicable. The "Patients 
Canteen Fund" involved here is not the "Patients' Funds" governed by 
G. L. c. 122, §§ 2, 2B and 2C. The answer to your question, therefore, 
requires a detailed statement of all facts relating to the Patients Canteen 
Fund. Such a detailed statement has been supplied to me. In substance, 
the facts relating to this Patients Canteen Fund are as follows : 

The Community Store, or canteen, at the Tewksbury State Hospital 
and Infirmary, Tewksbury, Massachusetts, was started in 1922 or 1923, 
through the efforts of the employees and staff at the hospital. IVIoney 
needed to start the store was contributed by these persons as individuals. 
No money in any way came from the Commonwealth. The Community 
Store was operated by the "Employees Group" (an unincorporated associa- 
tion) from 1923 until 1954. The purpose of the operation of the Community 
Store has been to obtain funds for the benefit of patients. Profits from the 
store were placed in the "Patients Canteen Fund," sometimes called the 
"Community Store Fund." During these years the method of operation 
of the Community Store has been as follows: The use of space in the hos- 
pital building, and also electricity, heat and water, have been furnished 
without charge. Purchases of stock and store equipment were made from 
store funds, not from State money. The labor required to operate the 
Community Store was furnished by the employees, outside their regular 
working hours, through the organization called the Employees Group. 

Over the past thirty years considerable profit has been made from the 
store. All of this has gone into the Patients Canteen Fund. 

In 1954 there was discussion as to a change in the method of operation 
of the Community Store. But it was understood and stated by all persons 
involved that the purpose of the operation of the store, for the benefit of 
the patients of the hospital, would remain the same. It was decided that 
the store, stock and equipment should be turned over to the trustees of the 
hospital, that the store should be run by an outside per.son as a "conces- 
sionaire," and that the amount paid by the outside person should go into 
the Patients Canteen Fund. Accordingly, the Employees Group, by formal 
vote on May 7, 1954, made a gift to the trustees of the store and its stock 
and equipment. The vote recited: "This vote was taken with the under- 
standing that the Trustees will continue the operation of the store and 
commissary and devote the profits therefrom to the Community Store 
Fund," and that the trustees could rent the store "so long as the rental and 
the money derived from the sale of the merchandise on hand at time of 
transfer are devoted to the Community Store Fund." 

The gift from the employees was accepted by vote of the trustees of the 
hospital on May 12, 1954. The vote stated : "... it was voted to accept 
from the Employees Group the store and commissaiy now operated by them 
and to continue its operation in accordance with the vote of said Employees 
Group and to devote the profits therefrom to the Community Store." 

Following the above dealings, and by direction of the trustees, the super- 
intendent obtained one McCabe to operate the store, and on April 25, 
1955, a written agreement was entered into between McCabe and the trus- 
tees of the hospital. This agreement provided that McCabe would be 
permitted to operate the Community Store located on the premises of the 
hospital for a term of three years. The trustees agreed to furnish McCabe, 
without cost, electricity, heat and water (and, impliedly, space in which to 



90 P.D. 12. 

run the store), and also the use of the soda fountain, ice cream cabinet and 
other store equipment. The agreement required McCabe to purchase at 
cost all merchandise on hand. It was then provided: 

"In consideration of such authorization and permission, the party of the 
second part (McCabe) agrees to donate to the Patients' and Employees' 
Fund of the Tewksbury State Hospital and Infirmary an amount each 
month in the sum of Three Hundred and Five Dollars ($305.00)." 

Your question concerns the above $305 paid each month by McCabe. 

It seems clear, on the above stated facts, that, prior to the change in 
1954, the profit obtanied from the operation of the Community Store 
belonged to the Employees Group, and did not constitute income or assets 
of the Commonwealth. It would seem that prior to the change in 1954 
there could be no legal objection to the Employees Group placing this 
profit in the Patients Canteen Fund, and that up to that time the Common- 
wealth had no claim to such fund. The change in method of operation in 
1954 and 1955, m my opinion, did not change the legal situation. The 
change in operation was merely to substitute operation by McCabe for 
voluntary operation by the Employees Group, and to provide for an exact 
and definite sum of money each month, instead of the varying and uncertain 
amounts earned by the Employees Group. These monthly proceeds from 
the operation of the store, whether they be considered as rentals or dona- 
tions, and also the funds and assets of the store, in my opinion, are held by 
the trustees of the Tewksbury State Hospital and Infirmary, under the 
powers given to them by G. L. c. 122, § 2 A, and subject to the conditions 
upon which the gift from the Employees Group was made to the trustees. 

For the above reasons, and upon the exact facts in this case, it is my 
opinion that the trustees of the Tewksbury State Hospital and Infirmary 
may continue to have the monthly payments received from McCabe paid 
directly into the Patients Canteen Fund and used, without appropriation 
or action of any kind by the Commonwealth, for the benefit of the patients 
at the Tewksbury State Hospital and Infirmary. 
Very truly yours, 

George Fingold, Attorney General. 



Department of Public Works — Construction of Underpass under State 
Highway Connecting Two Parts of a Private Shopping Center. 

June 3, 1957. 

Hon. Carl A. Sheridan, Commissioner of Public Works. 

Dear Sir: — You have presented the following facts to this office and 
have requested advice thereon. The North Shore Shopping Center has 
purchased several hundred acres of land on either side of Route 128 in 
Peabody near the Andover Street interchange at a location where Route 128 
has been laid out under limited access provisions. The said North Shore 
Shopping Center is presently developing a large shopping area on either 
side of the route, and desires to construct or have constructed at its ex- 
pense an underpass to allow passage for vehicles and pedestrians under 
Route 128 from the shopping area on one side of Route 128 to the area on 



P.D. 12. 91 

the other side of the route. At present the two areas are connected by a 
small cattle pass which passes under Route 128. The proposed new passage 
at approximately the location of the cattle pass will have no direct access 
to Route 128. 

The underpass is designed to help reduce the flow of traffic on the regular 
128 interchanges in that vicinity which would otherwise be used by persons 
passing from one side of the shopping area to the other. 

General Laws c. 81, § 7C, provides in part that "all of the provisions of 
law in regard to the laying out, relocation, alteration or discontinuance of 
state highways and to damages therefor shall apply to limited access ways." 
Chapter 81 gives adequate powers to the department concerning layout, 
relocation and alteration of State highways. Subject to the limitations 
therein set forth (which it does not appear necessary to discuss here) the 
department may alter the layout of Route 128, a limited access highway, 
and may make provision for the described underpass. 

In connection therewith it is noted that the land on which the proposed 
underpass is to be located passing under Route 128 is land owned in fee 
by the Commonwealth. The cattle pass which you say exists at this loca- 
tion is authorized by G. L. c. 81, § 71), which provides that: "The depart- 
ment may grant easements within state highway locations for wires, pipes, 
poles, conduits and cattle passes." 

The statute in question does not authorize easements for purposes other 
than those mentioned. The proposed underpass, therefore, should not be 
laid out as a private easement for the benefit of the Shopping Center and 
its customers. The underpass, instead, should create an easement for the 
benefit of the general public as do other public ways. To accomplish this 
result, public ways should extend from either end of the underpass con- 
necting it with other pubhc ways in the vicinity. 

In the manner outlined above, the department will be able to keep con- 
trol over the underpass for purposes of maintenance and repair and will be 
using State land for a public purpose rather than merely for the private 
benefit of the Shopping Center. 

In relation to the cost of financing the structure, you state that the 
Shopping Center is willing to undertake the entire cost of such construc- 
tion. It is suggested that the construction be carried out by contractors 
under the supervision of the department as in the case of other high- 
way projects. A clause may be inserted in the bids and in the awarded 
contract to the effect that the credit of the Commonwealth is not pledged 
and that the contractor shall look only to the Shopping Center for reim- 
bursement. A bond should be required from the Shopping Center to pro- 
tect the Commonwealth and the selected contractor. The mechanics of 
this procedure may better be explored by further consultations between 
officials of your department and this department. 

Your letter mentions the possibility of issuing a permit to the Shopping 
Center under the provisions of G. L. c. 81, § 21. Such a permit might be 
a way of authorizing the construction involved where the Shopping Center 
would award the contract rather than the State Department of Public 
Works. The permit issued thereunder, however, would not authorize the 
creation of a private easement in behalf of the Shopping Center. The 
easement problem would have to be solved somewhat in the manner out- 
lined above whereby a public easement would be created. 

In conclusion, it appears that the department has power to alter the 
layout of the limited access highway Route 128 to provide for the under- 



92 P.D. 12. 

pass in question provided that the underpass creates a public easement 
rather than a private easement. The construction may be done by the 
department with funds supphed by the Shopping Center or, in the alterna- 
tive, the construction may be carried out under a permit issued in accord- 
ance with c. 81, § 21. 

Very truly yours, 

George Fingold, Attorney General. 



State Employees — Barringto7i Plan — Powers of Personnel Review Board. 

June 6, 1957. 
Personnel Review Board. 

Gentlemen : — You have requested an opinion of this department, 
supplementing the opinion given in our letter to you dated April 12, 1957, ^ 
relative to appeals to you from the classifications or allocations under the 
so-called Barrington Plan. St. 1956, c. 729, § 19A. 

In addition to the two problems covered in the earlier opinion, you re- 
quest the advice of this department as to a third problem, as follows : 

The board has interpreted the first sentence of the second paragraph of 
St. 1956, c. 729, § 19A ["Said board shall hear all appeals as if said ap- 
peals were originally entered before it."] to mean that the board is not 
authorized to create new job titles or new classifications. 

The Legislature, by St. 1956, c. 729, put into effect, as of October 1, 1956, 
a new and increased pay plan of the Commonwealth, known as the Bar- 
rington Plan. This plan provided an entirely new set of classifications and 
titles for a classification plan for the Commonwealth, and new allocations 
of positions to the classifications and to salary groups. Because of the 
munerous changes made in prior classifications and allocations, the Legis- 
lature provided for two consecutive appeals by State employees. The 
purpose of these appeals was "to provide for adjustments which may be 
necessary in the initial allocation to the new pay plan." § 19. The first 
appeal was to the Director of Personnel and Standardization. The sub- 
sequent appeal was to your Personnel Review Board, established by § 19A. 
With reference to these second appeals, it was provided that your board 
"shall hear all appeals as if said appeals were originally entered before it." 
You request an opinion of this department as to whether or not this 
(juoted sentence authorizes yoxiT board "to create new job titles or new 
classifications." 

For reasons stated below, it is my opinion that the powers of your board 
on this second appeal are co-extensive with the powers of the Director of 
Personnel and Standardization in connection with the first appeal. It is 
therefore necessary to determine the powers of the director on such first 
appeal. 

The provisions creating the right of appeal to the Director of Per- 
sonnel and Standardization are contained in § 19. These provisions are 
as follows: 



P.D. 12. 93 

". . . if . . . any employee objects to his classification, reclassification, 
allocation or reallocation ... he shall have the right to appeal such 
classification, reclassification, allocation or reallocation to the director of 
personnel and standardization who shall render a decision on said appeal 
. . . [which appeal] shall be effected in accordance with the provisions of 
paragraph (5) of said section forty-five . . . ." 

Upon such appeal, in my opinion, the director has the power to create 
new job titles or new classifications, which "shall be effected" in accord- 
ance with G. L. c. 30, § 45 (5). The director has the power to create new 
classes and titles. G. L. c. 30, § 45 (1) (d). It is clear, by references to 
"classification" in § 19 [e.g., "any amendment of a classification," "the 
said director may classify or reclassify any office or position"], that the 
Legislature intended the Director of Personnel and Standardization to 
exercise, in appropriate cases on appeals by employees, his right to create 
a new classification. The word "classification" includes the creation of a 
new class or classification or title. G. L. c. 30, § 45 (9). Gediman v. Com- 
missioner of Public Works of Boston, 331 Mass. 658, 661-662. But this 
right of the director to create a new classification or new job title is re- 
stricted, for the purposes of this appeal under § 19, so that it "shall be 
effected" only in accordance with § 45 (5). One of the provisions of para- 
graph (5) is that no action by the director with reference to a permanent 
position "shall be effected, unless and until ...(d) it shall have been 
included in a schedule of permanent offices and positions approved by the 
joint committee on ways and means . . . ." 

In my opinion, the Personnel Review Board, created by § 19A, has the 
same power, subject to the same restraint, that the director has. It is 
provided in § 19 that "any employee aggrieved by the decision of the 
director . . . may . . . appeal to the personnel review board . . . ." 
The Personnel Review Board is given power to hear appeals hy the second 
paragraph of § 19 A, which states as follows: 

"Said board shall hear all appeals as if said appeals were originally en- 
tered before it. Its decisions shall be effective as of the effective date of 
this act and shall be effected in accordance with the provisions of para- 
graph (5) (d) of section forty-five of chapter thirty of the General Laws." 

There is nothing in the statute to indicate that the power of the Per- 
sonnel Review Board, on the second appeal, is less than the power of the 
director on the first appeal. The broad and unqualified language that your 
board shall hear all appeals "as if said appeals were originally entered 
before it," seems to mean that your board has as full powers as the director 
had on the first appeal. In Ullian v. Registrar of Motor Vehicles, 325 Mass. 
197, 198-199, our court stated that a similar "appeal," from a decision of 
the Registrar of Motor Vehicles, to the Department of Public Works, was 
unrestricted. 

"The word 'appeal' as appearing in the statute, G. L. (Ter. Ed.) c. 90, 
§ 28, comprehends all rulings and decisions of the registrar by which the 
holder of the license claims to be aggrieved. The word is used in its 
ordinary sense as providing far a new trial on all issues and a full hearing 
on the merits in no way limited or restricted by what had occurred at the 
previous hearing before the registrar." 

For the above reasons, in my opinion, the Personnel Review Board, es- 



94 P.D. 12. 

tablished by and acting under § 19A of St. 1956, c. 729, is authorized to 
make decisions for the creation of new job titles or new classifications. 
However, such new job titles or new classifications "shall be effected" 
only in accordance with G. L. c. 80, § 45 (5) (d), which requires that such 
new job titles or new classifications "shall have been included in a schedule 
of permanent offices and positions approved by the joint committee on 
ways and means. ..." In effect, your decision establishing a new job 
title or new classification is a recommendation to the Joint Committee on 
Ways and Means for the creation or approval of such new title or classifi- 
cation. If and when so approved, your decision has retroactive effect to 
October 1, 1956, the effective date of St. 1956, c. 729. 
Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Zoning Ordinance — Assignment of Dump Site to Single Family Residence 

Area. 

June 10, 1957. 

Samuel B. Kirk wood, M.D., Commissioner of Public Health. 

Dear Sir: — You have requested the opinion of this department as to 
the legality of the assignment of a dump site in the city of Beverly in an 
area zoned for single residences. 

The board of health of the city of Beverly, acting under the provisions 
of G. L. c. Ill, § 150A, added by St. 1955, c. 310, assigned as a site for a 
city dump a location in an area which was zoned for single residences. 
Parties aggrieved appealed to the State Department of Public Health, 
under the terms of said § 150 A, and your department has held a public 
hearing upon such appeal. Following this hearing, your department found 
as a matter of fact that "the site assigned by the board of health for a dump 
in Beverly is the best for the purpose of any site thus far proposed." How- 
ever, your department has delayed the final decision on this appeal because 
of doubt as to the legality of the assignment of a dump site in an area zoned 
for single residences. Your request for an opinion is as follows: 

"The Department of Public Health hereby requests your opinion as to 
whether or not the assignment by the board of health of Beverly of a site 
for a dump in an area zoned for single family residence is a legal assignment 
under the provisions of G. L. c. Ill, § 150A." 

I answer your question in the negative. In my opinion, under our 
statutes, and the zoning ordinance in the city of Beverly, a city dump 
cannot be assigned in an area zoned for single familj^ residences. 

We are faced, at the beginning of a consideration of this problem, with 
two clear propositions. (1) The zoning ordinance of the city of Beverly, 
by § 2, prohibits a city dump in single residence districts. This prohibition 
is not set forth specifically in terms of a city dump, but the use of premises 
which are permitted and the specific prohibition of any other uses, make it 
clear that the use of premises in a single residence district for a city dump 



P.D. 12. 95 

is prohibited. (2) The assignment of the site for a city dump was made 
in this case by the board of health acting under the authority of G. L. 
c. Ill, § 150A. That section states clearly that an assignment of a site 
for a dump can be made by a board of health only subject to the provisions 
of any existing zoning ordinance. In fact, under § 3 of St. 1955, c. 310, by 
which said § 150A was added to our General Laws, the assignment of a 
city dump to a site in violation of the local zoning ordinance shall be 
deemed to be a violation of said § 150A. 

In support of the assignment made by the board of health of the city 
of Beverly, it is contended that the literal provisions of the zoning ordinance 
in question prohibit the assignment of a city dump in any part of the entire 
city, and that this unqualified prohibition is arbitrary and unreasonable, 
and therefore that the zoning ordinance cannot constitutionally be applied 
to prevent the use of premises for a city dump. To meet this constitutional 
objection, it is urged that an unexpressed exception must be read into the 
zoning ordinance exempting city dumps from its scope. 

There are several answers to the above contention. A city dump may 
be permitted in industrial districts under § 8, Item (31), of the zoning 
ordinance, with the approval of the board of appeal. Even though it were 
ruled that the Beverly zoning ordinance prohibited the location of a city 
dump anywhere within the city, the consequences of this prohibition could 
be avoided by building an incineration plant (§8, Item 18), or bj^ contract- 
ing for disposal of refuse outside the city. Also, the consequences of an 
alleged total prohibition in the existing zoning ordinance could be avoided 
by amending the zoning law, or obtaining due approval of a variance or 
exception to it. 

The exigencies of the present situation, in my opinion, do not call for 
the adoption of the rare rule of judicial construction of an unexpressed 
exception to the zoning law exempting city dumps from its scope. While 
the present situation seems stronger than that relating to cemeteries in the 
city of Beverly, in Foster v. Mayor of Beverly, 315 Mass. 567, 570, I believe 
the conclusion of that case supporting the zoning ordinance should be 
followed in the present case. Furthermore, while it is true that the total 
and positive prohibition of a city dump anywhere within the city, if that 
should be the correct interpretation of the Beverly zoning ordinance, 
would be considered unreasonable and possibly arbitrary, it is equally 
unreasonable to suggest a correction for this situation by permitting a city 
dump to be located within the single residence district, the district which 
has been most strictly protected. The facts presented in this case, in my 
opinion, do not overcome the clear prohibition by the zoning ordinance of 
a city dump in the single residence district, nor the positive provision in 
G. L. c. Ill, § 150A, which was adopted by the Legislature in 1955, that 
the assignment by a board of health of a dumping ground is subject to the 
provisions of the existing zoning ordinance. These laws can be fully and 
reasonably enforced, with the city of Beverly still retaining its right to 
amend its zoning law, or to obtain a variance, or to dispose of its rubbish 
or refuse by other methods than a city dump. 
Very truly yours, 

George Fingold, Attorney General. 

By Lowell S. Nicholson, 

Assistant Attorney General. 



INDEX TO OPINIONS 



PAGE 

Autopsies; absence of consent by next of kin; State institutions ... 51 
Barrington plan; State employee: 

Accrual of annual increments 40 

Interpretation of 1956 salary schedule 42 

Payment of bonus in addition to salary 46 

Powers of Personnel Review Board 76, 92 

Bidding procedure: 

Bid of "two dollars" in writing but "$2.15" in figures; contract for high- 
way conysttuction 56 

Contract for public building: 

Increase in contract; emergency 70 

Separate subbids 24 

Work to be done by city 23 

Boiler inspectors in Department of Public Safet}'; retirement .... 50 
Bonds, State; right of Treasurer to issue bonds at different times ... 17 
Bookstore : 

Employee of, at University of Massachusetts; entitlement to workmen's 

compensation benefits; State employee , . .45 

Operation of, at Lowell Technological Institute; emploj'ees of Lowell 
Technological Associates, Inc.; eligibility for membership in State 

retirement system 82 

" Bounty note " ; Revolutionary War; right of Treasurer to pay ancient note 17 
Building inspectors in Department of Public Safety; retirement ... 50 

Canteen fund, ownership of; Tewksbury State Hospital 88 

Capital outlay appropriation ; restriction on use of money .... 52 
Certified Public Accountants, Board of Registration of; examination; inspec- 
tion of papers by a candidate 69 

Children, mentally retarded; education in public schools; exclusion because 

of age 66 

Cities and towns: 

Books and forms for municipalities ordered by Direictor of Accounts; State 

Purchasing Agent 57 

Right to appropriate money for expenses of civil defense; uniforms . . 72 
Right to licentee taxicabs for operation "at Logan Airport only"; solicita- 
tion of business in Boston by outside taxicabs 19 

Civil defense; right of cities and towns to appropriate money for expenses; 

uniforms 72 

Civil service; police officer; notice of hearing relative to discharge; notice 

to mentally ill person 25 

Corporations and Taxation, Department of; demotion of officer without hear- 
ing; lapse of three years without action by officer; moral obligation 60 

"County fair"; interpretation of 49 

Doctor in military service; commitment of mentally ill person ... 33 

Doctors and psychiatrists, increase in compensation to; State employee . 75 

Drunkeiiiniess ; imprisonment; release or discharge 44 

Dump site; assignment of, to single family residence area .... 94 

Employee, State: 

Accidental disability retirement: 

Accidental death tenefit; hypertension or heart disease .... 38 
Effective date of retirement; commencement of payments ... 26 



98 P.D. 12. 

PAGE 

Barrington plan: 

Accrual of annual Increments 40 

Interpretation of 1956 salary schedule 42 

Payment of bonus in addition to salary 46 

Powers of Personnel Review Board 76, 92 

Employee of bookstore at University of Massachusetts ; entitlement to work- 
men's compensation benefits 45 

Increase in compensation to doctors and psychiatrists . . . .75 

Retirement: 

Accidental disal)ility; necessity for examination by medical panel . . 59 
Building and boiler inspectors in Department of Pubhc Safety; statutory 

interpretation 50 

State police officer; effect of report by police rating board . .71 

Successive periods of public service, and right to pension for each period; 

members of General Court; police officer 77 

Flood Relief Act; Division of Waterways; obtaining indemnity bond . . 35 
General Court: 

Approval of bill by Governor after prorogation 30 

Travel expenses of members; adjournment or recess; "informal" sessions 28 
Heart condition, waiver of, at re-enlistment; State police officer ... 21 
Heart disease; accidental disability retirement; accidental death benefit; 

State employee 38 

Highway construction, contract for; bidding procedure; bid of "two dollars" 

in writing but "$2.15" in figures 56 

Insurance; rates of compulsory automobile insurance; additional premiums 

after smaller tentative rates are annulled by court 85 

Interstate compact for supervision of out-of-state probationers and parolees; 

meaning of word "State" 65 

Logan Airport; right of city or town to license taxicabs for operation "at 
Logan Airport only"; solicitation of business in Boston by outside 

taxicabs 19 

Lowell Technological Institute; operation of bookstore; employees of Lowell 
Technological Associates, Inc.; eligibifity for membership in State 

retirement system 82 

Massachusetts, University of; employee of bookstore; entitlement to work- 
men's compensation benefits 45 

Medical panel, necessity for examination by; State employees; retirement 

for accidental disability 59 

Medicine, Board of Registration of; alien physician; rescission of order . 29 
Mentally ill person : 

Commitment by doctor in military service 33 

Escape from State institution; punishment 73 

Notice of hearing relative to discharge; pohce officer 25 

Mentally retarded children ; education in public schools ; exclusion because of age 66 

Nurses, practical; examination for licensing of 53 

Parolees; interstate compact for supervision of out-of-state parolees; mean- 
ing of word "State" 65 

Pension; successive periods of public service, and right to pension for each 

period; State employees; members of General Court; police officer . 77 
PhysiciaTi, alien; rescission of order of Board of Registration of Medicine . 29 
Police officer; notice of hearing relative to discharge; notice to mentally ill 

person; civil .service 25 

Probationers; interstate compact for supervision of out-of-state probationers; 

meaning of word "State" 65 

Prisoners; deduction from sentence for "good work" 48 

Public building, contract for; bidding procedure: 

Increase in contract; emergencj^ 70 

Separate subbids 24 

Work to be done by city 23 



P.D. 12. 99 

PAGE 

Public Works, Department of: 

Construction of underpass under State highway connecting two parts of a 

private shopping center .90 

Erection of traffic control signal on public highwaj^ at junction with a private 



way 



62 



Retirement : 
Accidental disabihty: 

Accidental death benefit; hypertension or heart disease .... 38 

Effective date of retirement 26 

Necessity for examination by medical panel; State employees ... 59 
Building and boiler inspectors in Department of Public Safety; statutory 

interpretation 50 

Employees of Lowell Technological Associates, Inc.; operation of book- 
store at Lowell Technological Institute; eligibility for membership in 

State retirement system 82 

Non-contributory; veteran; creditable ser\ace: 

Dishonorable discharge followed by re-enlistment and honorable discharge 83 

Employee holding position as town moderator 68 

State employees; successive periods of public service, and right to pension 

for each period ; members of General Court; police officer ... 77 
State police officer; waiver of heart condition at re-enlistment ... 21 
Revolutionary War "bounty note"; right of Treasurer to pay ancient note 17 
Secretary of the Commonwealth; right of retired First Deputy Secretary to 

payment in lieu of unused vacation time .85 

Shopping center; construction of underpass under State highway connecting 

two parts of a private shopping center 90 

"State"; meaning of word; interstate compact for supervision of out-of-state 

probationers and parolees 65 

State Employees' Group Insurance Commission; delegation of powers . . 36 

"State fair"; interpretation of 49 

State police officer; retirement: 

Effect of report by police rating board 71 

Waiver of heart condition at re-enlistment 21 

Statfe Purchasing Agent; books and forms for municipalities ordered by 

Director of Accounts .57 

State Racing Commission; interpretation of "state fair" and "county fair" 49 
Statutes; approval of bill by Governor after prorogation of General Court . 30 
Taxicabs, right of city or town to license for operation "at Logan Airport 

only"; solicitation of business in Boston by outside taxicabs . . 19 
Tewksbury State Hospital; ownership of "patient's canteen fund" . . 88 

Towns — see cities and towns. 

Town moderator, creditable service for employee holding position as; non- 
contributory retirement ... 68 

Traffic control signal; erection of, on public highway at junction with a pri- 
vate way 62 

Travel expenses of members of General Court; adjournment or recess; 

"informal" sessions 28 

Vacation; right of retired First Deputy Secretary to payment in lieu of unused 

vacation time 85 

Veteran : 

Non-contributory retirement; creditable service: 

Dishonorable discharge followed by re-enlistment and honorable discharge 83 

Employee holding position as town moderator 68 

Payment of bonus claims 48 

Waterways, Division of; Flood Relief Act; obtaining indemnity bond . . 35 
Workmen's compensation; employee of bookstore at University of Massachu- 
setts; entitlement to benefits; State employee 45 

Zoning ordinance; assignment of dump site to single family residence area . 94