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

Public Document 






No. 12 



C{)e Commontoealti) of 9^assntbusttts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1959 




Public Document 



No. 12 



Cfte Commontoealtl) of 8©a0$ac|)U0ett0 



REPORT 



ATTORNEY GENERAL^ 

OFFICE 



Year ending June 30, 1959 



Publication of this Document Approved by Bernard Solomon, State Purchasing Agent. 
1100-6-60-928271 Estimated cost per copy: S1.64 



SIAIE lIBRARy flf I^A^i^l^ 
JUL 12 ml 

JjiASS. OFFICIM 



6 



Cf)e Commontoealtf) of ^a0$aci)U0etts 



Boston, December 2, 1959. 

To i/if Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1959. 

Respectfully submitted, 

EDWARD J. IMcCORMACK, Jr. 

Attorney General. 



R cop V. 
Cfte CommontrjealtJ) of g^assaclugetts 



DEPARTMENT OF THE ATTORNEY GENERAL 



Due to the untimely death of Attorney General George Fingold on August 31, 
1958, this portion of the report, devoted to staffing, has been set up in three sec- 
tions covering (1) the period July 1, 1958, to August 31, 1958, during the regular 
term of George Fingold, (2) the period September 12, 1958, to January 20, 1959, 
during the interim term of Attorney General Edward J. McCormack, Jr., as the 
electee of the Legislature, and (3) the period January 21, 1959, to June 30, 1959, 
during the regular term of Attorney General Edward J. McCormack, Jr. During 
the hiatus from September 1, 1958, to September 11, 1958, the office of Attorney 
General was vacant. 

July 1, 1958 to August 31, 1958 



Attorney General 
GEORGE FINGOLD' 



First Assistant Attorney General 
Fred Winslow Fisher 



Assistant Attorneys General 

Edmund Burke Charles F. Marsland, Jr. ^ 

Samuel H. Cohen Joseph P. McKay 

Joseph H. Elcock, Jr. George Michaels^ 

Samuel W. Gaffer Lowell S. Nicholson 

DoRicE S. Grace Harold Putnam* 

Saul Gurvitz Arnold H. Salisbury 

Matthew S. Heaphy Barnet Smola 

Edward J. Kimball Norris M. Suprenant 

Edward F. Mahony Haviland M. Sutton 

Assistant Attorney General; Director, Division of Pvhlic 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 



» Deceased, Aug. 31, 1958. s Terminated, Sept. 5, 1958. 

2 Terminated, July 2, 1958. * Terminated, Aug. 31, 1968. 



P.D. 12. 



Assistant Attorneys General assigned to Division of Employment Security 
George Broomfield Stephen F. LoPiano, Jr. 

Assistant Attorney General assigned to State Housing Board 
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 



P.D. 12 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1958, to June 30, 1959 

A'ppropriations. 

Attorney General's Salary $15,000 00 

Administration, Personal Services and Expenses .... 324,062 00 

Claims, Damages by State Owned Cars 90,000 00 

Small Claims 15,000 00 

Veterans' Legal Assistance ........ 18,600 00 

Salary, Deceased Attorney General ....... 5,796 00 

Total $468,458 00 

Expenditures. 

Attorney General's Salary ........ $14,488 64 

Administration, Personal Services and Expenses .... 323,991 82 

Claims, Damages by State Owned Cars ...... 89,994 91 

Small Claims 15,000 00 

Veterans' Legal Assistance . . . . . . . . 18,594 92 

Salary, Deceased Attorney General ....... 5,795 45 

Total $467,865 74 

Approved for publishing. 

FREDERICK J. SHEEHAN, 

Comptroller. 



10 



P.D. 12. 



Cf)e Commontoealtf) of Q^a00acl)usett$ 



Department of the Attorney General, 
Boston, December 2, 1959. 

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, 1959, totaling 16,538, 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 Safety 

Department of Public Utilities 

Massachusetts Maritime Academy 

Massachusetts Turnpike Authority 

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

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

Investigations and recommendations in accordance with G. L. c. 127, § 152, 
as amended ...... 

Small claims against the Commonwealth 
Workmen's compensation cases, first reports 
Cases in behalf of Division of Employment Security 
in behalf of Veterans' Division . 



Com 



136 
152 

1,287 

140 

2 

16 

1 
3 

2 

1 

4,794 

1,294 

12 



302 
6,035 

242 
2,019 



Introduction. 

At the commencement of this fiscal year my predecessor, George Fingold, 
held the office of Attorney General (having first been inducted into office 
in January, 1953) for a third term. He passed away at his home in Concord 
on August 31, 1958. 

Before continuing this report, I deem it proper to record for the future 
some facts about George Fingold. He was a faithful and courageous 
public servant. He brought to the office unusual talents. He was an 
excellent trial lawyer and a fine administrator. He was devoted to his 
State and the men, women and children comprising it. 



P.D. 12. 11 

His determination to justify the confidence reposed in him by the people 
of the Commonwealth prompted him to add a Criminal Division to the 
other heavy burdens of the office. I shall continue the Criminal Division 
as a permanent function of the office. The day has passed, I think, when 
an Attorney General can consider himself primarily a corporation counsel 
for the various State departments, officers, boards and commissions. He 
is, as the Supreme Court described him in the case of Commonwealth v. 
Kozlowsky, 238 Mass. 379, the "chief law officer" of the Commonwealth. 
I oan think of no more serious responsibility than that of preserving law and 
order in this Commonwealth. 

Mr. Fingold also organized an Eminent Domain Division to handle the 
increasing volume of land damage cases and provided it with separate 
quarters and a group of Assistant Attorneys General trained and equipped 
to handle the preparation and trial of land damage suits. This separate 
division, which I have continued and augmented, makes it possible for 
property owners, who had been damaged because of land taking by the 
Commonwealth necessary to construct its road building programs, to 
obtain a speedy trial or settlement of their cases. 

To properly serve the people of this State, I have added to the many 
other functions of the office, as administered by my predecessors and supple- 
mented by Mr. Fingold, two other divisions: a Division of Civil Rights 
dedicated to the protection of and maintaining the fundamental constitu- 
tional rights of all, particularly the weak and oppressed; a Consumers 
Council, under the control of an eminently qualified Assistant Attorney 
General, for the primary purpose of protecting the rights of the general 
public in hearings and proceedings affecting the prices of essential com- 
modities. 

From the date of Mr. Fingold's death, August 31, 1958, until I was 
chosen by the General Court on September 11, 1958, as Attorney General 
for the balance of his term, the work of the office was continued by At- 
torney General Fingold's Assistants under his First Assistant, Fred W. 
Fisher. After my election by the General Court as Attorney General, and 
in order to have the work of the department carried on with the least 
interruption possible during the remainder of my ad interim term, appoint- 
ments to serve under me were offered to all of Mr. Fingold's Assistants. 
Almost to a man the Assistants whose commitments were such that it would 
be most difficult to have their cases and assignments handled by others 
agreed to continue. To fill the places of those who did not continue, I 
appointed some of Attorney General Fingold's legal assistants and others 
as Assistant Attorneys General. 

Upon taking office under the Constitution on the third Wednesday in 
January, 1959, for the term for which I was elected by the people at the 
State election in November, 1958, I selected my staff of Assistant At- 
torneys General and legal assistants. They are men and women of the 
highest character and legal ability, including three of Mr. Fingold's Assist- 
ants, and others who served under him and other Attorneys General. 

The duties and responsibilities of the Attorney General are not generally 
known. In addition to those specifically enumerated in chapter 12 of the 



12 P.D. 12. 

General Laws, he is vested with innumerable duties under the provisions 
of statutes scattered throughout the General and Special Laws of Massa- 
chusetts. In addition to his statutory powers, he is vested with vast com- 
mon law powers inherent in the office of the Attorney General to institute 
and prosecute such proceedings as the welfare of the people of the Common- 
wealth requires. He has been described by our Supreme Judicial Court as 
the "chief law officer" of the State. He has complete control, when he 
deems it necessary, of all criminal proceedings in the Commonwealth in 
all its courts. Except in a few instances, he has the full duty and respon- 
sibility of advising the various constitutional officers, the Legislature, and 
all the State officers, boards and commissions in legal matters pertaining 
to their official duties, of representing them in the courts when it becomes 
necessary. Having in mind the vast duties and responsibilities of the Gov- 
ernor, the General Court, all the constitutional officers, and the mere than 
150 State boards, divisions and commissions, and departments, altogether 
expending a total of over $450,000,000 annually, some idea may be gained 
of the scope of the work which a proper administration of his department 
by an Attorne}'- General requires. There follow under separate headings 
more detailed statements of some of the more important aspects of the 
work in the office during the fiscal year. 

Division of Civil Rights and Liberties. 

On the assumption that protection of the civil rights and liberties of our 
citizens is as much the function of the chief law officer as prosecution in 
violation of the law, I created a permanent Division of Civil Rights and 
Liberties immediately upon my assumption of the office of the Attorney 
General in September, 1958. 

Since this Division represented an entirely new concept in the function- 
ing of the Attorney General's office, I set up a completely non-partisan 
committee of dedicated educators and leaders in community life to aid me 
in delineating the exact scope of the activities to be covered by the Division, 
and to advise me in appointing the Assistant Attorney General to be its 
Director. 

Serving on the committee are: Herman Snyder, Chairman, a prominent 
Boston attorney; Reverend Robeit J. Drinan, S.J., Dean of Boston Col- 
lege Law School; Elwood Hettrick, Dean of Boston University Law 
School; Erwin N. Griswold, Dean of Harvard Law School; Professors 
Mark Howe and Albert Sacks of the Harvard Law School; Monsignor 
Francis J. Lally, Editor of The Boston Pilot- Dr. Alexander Brin, Editor of 
The Jewish Advocate; Erwin Canham, Editor of The Christian Science 
Monitor; Dr. Carl S. Ell, President of Northeastern University; At- 
torneys LaRue Brown, Richard Mintz, Marion Miller, Henry M. Leen, 
Richard H. Nolan and Morris Michelson; Reverend Samuel Tyler, As- 
sistant Rector, Trinity Church; Ruth M. Batson, prominent connnunity 
leader; Joseph Salerno, Labor Authority; Thomas Curtin of the Massa- 
chusetts Department of Education; and Judge David A. Rose. 

On their recommendation I appointed Gerald A. Berhn, a Boston lawyer 



P.D. 12. 13 

with extended experience in this field, as the Assistant to head up the 
Division. 

The Division has been active in the field of legislation, police complaints, 
and in the processing of individual cases. 

It was instrumental in drafting and effecting the passage of legislation 
to impose curbs on unrestricted wire tapping. It has played a key role in 
attempting to provide a statutory basis for aid to indigent defendants in 
criminal trials, and was in the forefront of the successful effort to enact 
legislation prohibiting discrimination on account of race, creed or color 
in the sale or rental of private housing. The Division's program also in- 
cludes studies of the problem of admission of illegally obtained evidence, 
of the possibility of double jeopardy stemming from prior convictions in 
the Federal courts for the offenses arising out of the same acts for which 
a defendant might have been prosecuted in the State courts. 

A considerable amount of effort has gone in to help to establish a proto- 
type administrative agency to handle civilian complaints involving police- 
men. As a result of negotiations with the Division, the Boston Police 
Department has set up a Hearing Board consisting of three Captains to 
review such complaints, the proceedings of which are open to the press 
and pubhc. 

The Division has laid the groundwork for a comprehensive research 
program in racial and religious tensions caused by changing neighbor- 
hoods and the migration of minority groups in and out of the cities and 
suburbs. Working with the Division in this research will be the Boston 
University Human Relations Centre, the Division of City Planning of 
Harvard College and Massachusetts Institute of Technology, and the De- 
partment of Sociology of Springfield College. 

As might be expected, a large number of individual cases alleging dep- 
rivation of a civil light or liberty have come into the office, and these are 
processed by the Division. Many of these cases concern acts of vandalism 
or personal violation against Negroes who have moved into a previously 
all-white neighborhood. Effective police and community relations work 
in this tense area has had considerable success. 



Opinions. 

Complying with the requests of the various State officials for opinions 
as to legal questions is one of the most difficult, and one of the most im- 
portant, duties of the Attorney General. 

The questions asked are very rarely easy to resolve. In practically every 
instance the question is a novel one and very frequently arises out of such 
an involved factual situation as to require that the opinion expressed be 
restricted either to the facts reported to us, or that the official concerned 
be advised as to what the law is as to what he may determine the facts to 
be. Of necessity, the Attorneys General who served in this office before 
me laid down a rule, which I have adhered to, of making only determina- 
tions of law, and of not making determinations of fact. 

In addition to rendering written opinions on questions asked by State 



14 P.D. 12. 

officials, each of the staff members daily furnishes to the officials of the 
governmental agencies whose problems they handle a very considerable 
amount of assistance, in discussion and conference, as to the law appli- 
cable in cases coming before such officials. 

The questions upon which written opinions are requested are, as stated, 
almost never of little difficulty, and most of them are of more than consider- 
able difficulty, and require extensive research and careful attention. A 
very large amount of the time of four Assistants is devoted to work on the 
written opinions. An opinion drafted by one of the Assistants assigned to 
prepare written opinions must be reviewed by one of the other Assistants 
so assigned, and submitted to the Attorney General before being sent out. 

The more important opinions rendered during the fiscal year covered 
by this report are printed hereinafter. 



Criminal Division. 

The Criminal Division is one of the most important divisions of the 
Attorney General's Department. It is organized to carry out the statutory 
and common law duties of the Attorney General. The Attorney General 
has ultimate control of all criminal cases and can assume control of any 
criminal matter at any stage thereof. Mass. G. L. c. 12, § 27. Kozlowsky, 
petitioner, 238 Mass. 532. 

The Criminal Division is staffed by attorneys and members of the State 
Police. Their principal duty is to investigate complaints and answer re- 
quests for assistance from district attorneys, law enforcement agencies 
and citizens. The Division also works with law enforcement agencies of 
the Federal Government and other States. The attorneys of the Criminal 
Division represent the Commonwealth in criminal matters before the 
United States Supreme Court, the Federal Courts, the Supreme Judicial 
Court and the other State courts. 

Full Bench Decisions. — Seveial criminal matters were determined by 
the full court of the Supreme Judicial Court in which the Department 
appeared as of counsel or in w^hich the Department was interested. Of 
more than usual interest were the following decisions which made far 
reaching changes in the law; 

Metcalf V. Commonwealth, 338 Mass. 648. In that case a youth who was 
aged 13 years, nine and one-half months, at the time of the alleged crime 
in 1956 was indicted for first degree murder. A plea of guilty of murder 
in the second degree was accepted by the Superior Court. The Supreme 
Judicial Court held that the acceptance of the plea of the lesser offense 
established that the child was guilty of conduct constituting delinquency 
within G. L. c. 119, §§ 52-63, as amended, but not of a crime, so that 
thereupon the power of the Superior Court to sentence him ceased and a 
further proceeding in a District Court under §§ 52-63, dealing with de- 
linquent children, i.e. "juvenile delinquents," was in order. The youth 
was then released from prison and treated as a delinquent child. As a 
result of the decision in this case there may be a non-criminal disposition 



P.D. 12. 15 

of the case involving youthful offenders between the ages of seven and 
seventeen years even after an indictment for first degree murder. 

John Giles v. Commonwealth, 339 Mass. 410. The petition for a writ of 
error in this case was based upon the ground of a denial or reasonable op- 
portunity to procure counsel. The petitioner had been convicted of break- 
ing and entering with the intent to commit larceny. In granting the writ 
the court held that the petitioner was not entitled to be discharged from 
custody but must be retried properly. This case made two reforms in the 
law. First, the court distinguished it from a long line of cases where the 
petitioner was discharged because there was error at the trial. Second, 
the absence of assistance of counsel at the trial of a felony was conclusively 
reaffirmed as a ground for a writ of error. 

Page Case. — The case of Commonwealth v. Arthur A. Page, Jr., 339 
Mass. 313, was tried prior to my becoming Attorney General. However, 
the holding of that case has given rise to a substantial number of cases 
during my tenure with similar facts. The court held in the Page case 
that persons committed under G. L. c. 123A as sex offenders were to be 
discharged because in fact there was no separate treatment center created 
for said offenders at the Massachusetts Correctional Institution, Con- 
cord. Further, although said statute regarding sex offenders was non- 
penal in nature, the persons treated were housed with the general prison 
population. As a result of this case several sex offenders who had been 
committed prior to the date of the decision by the Supreme Judicial Court 
have been discharged. In each of these instances the public interest was 
protected by having the persons involved examined to determine whether 
they were presently mentally ill and, thus, committable under G. L. c. 123. 

Campbell v. Commonwealth, 339 Mass. 695. The petitioner had appealed 
a sentence for the term of eighteen months for larceny from the person. 
He subsequently withdrew his appeal and an indeterminate sentence, 
which under statute is treated as a maximum five-year sentence, was im- 
posed. It was held that G. L. c. 278, § 25, which prohibits an increase in 
sentence after appeal from a District Court, applied, and that the original 
sentence stood. 

Guerin v. Commonwealth, 339 Mass. 731. The petitioner had been found 
guilty of various sex offenses. He had been defended by an experienced 
attorney. On writ of error the petitioner claimed that he had been preju- 
diced during the trial by being shackled in the prisoner's dock and had been 
denied by his guard the right to consult with his attorney. It was held that 
the defendant had not been denied his right to counsel because he could 
have spoken to his lawyer before or after trial or during the recesses. 

Another important function of this Division is that of having the State 
Police Detectives assigned to my office conduct investigations and other 
activities in connection with criminal and related activities. Among the 
matters calling for investigations were two instances of improper granting 
of college degrees; eighteen matters relating to various charities, hos- 
pitals or trusts; four civil-liberties investigations; three Consumer 
Council probes in connection with bait advertising ; the special milk-price 
investigation; as well as many other investigations in connection with 



16 P.D. 12. 

various crimes, petitions for writs of error, and miscellaneous matters. 
The State Police Detectives assigned to my office have rendered invaluable 
service to me in the carrying out of my statutory duties and responsibilities. 
During the course of the year the Criminal Division also did a great deal 
of legal research in connection with cases before the courts and the many 
legal opinions requested by various State officials connected with law en- 
forcement and prison administration. 



Consumer Council and Division of Consumer Counsel. 

As previously stated, upon taking office as Attorney General, I appointed 
an Advisory Consumer Council consisting of 10 leading economists and 
experts in the field of consumer problems. As a result of the work of this 
Council, a Division of Consumer Counsel, under Assistant Attorney General 
Nathan S. Paven, was established. The Division appeared in hearings 
before the Department of Public Utilities with relation to the following 
matters: 

Boston & Maine Railroad discontinuance cases. 

Boston & Albany Railroad discontinuance cases. 

New York, New Haven & Hartford Railroad discontinuance 

cases. 
Boston Edison rate increase hearing. 

We have appeared before the Interstate Commerce Commission in con- 
nection with the following discontinuance cases: 

New York Central discontinuance. 

New York, New Haven & Hartford Railroad discontinuance. 

There have been a number of cases arising out of the action of the Milk 
Control Commission in fixing the retail price of milk in which the Division 
has been concerned. We have appeared in the Suffolk Superior Court in 
opposition to the action of the Commission, and have also appeared in 
opposition to the action of the Commission in filing a bill in equity without 
the authorization of this office. In the latter case Judge Fairhurst has 
dismissed the petition of the Milk Control Commission in rehance upon 
G. L. c. 12, § 3, which gives to the Attorney General the sole authority to 
institute actions on behalf of the various State agencies. This action has 
not been appealed. 

The Division has also brought action against an unlicensed school under 
the provisions of G. L. c. 112, § 2 (b), which action is still pending in the 
Suffolk Superior Court. 

In addition to the court actions referred to, the Division has taken action 
against, among others, knitting machine rackets and trading stamp com- 
panies operating without filing a bond as required by statute. The Division 
also held two Consumer Conferences during the period covered by this 
report. 

The Consumer Council has had referred to it various matters relating 
to restrictive trade practices and deceptive schemes which are still pending. 



P.D. 12. 17 

The Assistant in charge of the Division also handled the cases herein- 
after set out: 

The action of Joseph Salerno v. The Justices of the Superior Court arose 
out of a labor dispute. Mr. Justice Ronan vacated the restraining order 
on the grounds that a labor dispute existed and that the field was pre- 
empted by the Federal Law. By agreement of the parties the action was 
dismissed, and a final decree entered in accordance with Mr. Justice 
Ronan 's opinion. 

The Division appeared in behalf of the Department of Public Utilities 
in the following actions in the Supreme Judicial Court : 

Boston and Albany Railroad v. Department of Public Utilities 

(Parmenter Street Crossing case) 

Decision of the Department affirmed and final decree entered. 
Retail Store Delivery v. Department of Public Utilities 

(United Parcel case) 

Decision of the Department affirmed and final decree entered. 
City of Newton v. Department of Public Utilities 

(Boston and Albany Railroad Co. case) 

The demurrer challenging the standing of the city of Newton as an inter- 
ested party sustained and final decree entered affirming decision of the 
Department. 

Various cases concerning the Eastern Mass. Street Railway Company h- 
censes are still pending in the Supreme Judicial Court. 

Old Colony Railroad Matters 

The Division appeared in the Federal District Court in Connecticut and 
obtained extensions of the expiration date of the option granted in the 
reorganization of the New York, New Haven & Hartford Railroad Com- 
pany. 

The Division has also appeared in assistance of the legislative committee 
on transportation, and assisted the Mass Transportation Commission in 
formulation of its plans for the operation of passenger service, if the option 
is completely exercised. 

Division of Public Charities. 

The past year's activity of the Division of Pubfic Charities was high- 
lighted by the complete reorganization of the Division and its State-wide 
probe of charitable trusts. 

Form 12, upon which all public charities report their activities, has been 
greatly expanded to include the reporting of more detailed financial items. 
The additional information so obtained enables the Division to ascertain 
with greater certainty whether or not charitable funds are being duly 
applied. Organizations faifing to report have been contacted, and reports 
obtained from the delinquents. During the past year 2,313 reports were 
processed, bringing in $6,939, and it is expected that the following year will 
show a substantial increase as a result of the efforts of the Division. 

A charitable purpose index is now in the process of preparation, and when 



18 P.D. 12. 

completed, the Division will be in a position to assist persons and organiza- 
tions in need of funds by giving them the names of foundations and trusts 
having money available for their specific purposes. 

A revision is now being studied of Forms 9, 10, and 11, which are presently 
required to be filed by charitable organizations conducting solicitations. 

Included in the work of this Division was the examination, and approval 
or disapproval, of 1,294 matters pending in the probate court, involving 
allowance of wills, petitions for instructions, petitions for hcense to sell, 
allowance of executors' and trustees' accounts, petitions for appointment of 
trustees, and petitions for the application of the cy pres doctrine. 

Some 1,318 petitions involving the appointment of public administrators, 
receivers, etc., the allowance of their accounts, and petitions for the sale 
of assets of estates of individuals leaving no heirs, were also under the 
scrutiny of the personnel of the Division of Public Charities. Great care 
has been taken to preserve the assets of such estates so that the largest 
amount possible might escheat to the Commonwealth. 

During this term, the Franklin Foundation came up for consideration 
again. Chapter 596 of the Acts of 1958 was passed, which in effect called 
for the distribution of the Benjamin FrankHn Fund for the benefit of 
Franklin Technical Institute. This fund, on February 28, 1959, amounted 
to $1,578,098. A bill in equity was filed to implement said statute, and this 
presented a very interesting problem. As counsel for the Commonwealth 
in a case to which it is a party, the Attorney General must carry out the 
policy of the General Court as approved by the Governor, and to defend 
the constitutional efficacy of the statute in question. On the other hand, 
as the officer charged by statute with the defense of public charities, the 
Attorney General has the responsibility of defending the due application 
of the fund and resisting any contemplated breach of trust in its administra- 
tion. A thorough examination was made of the various aspects of this 
twofold problem and appropriate pleadings were filed in the case, which 
laid the groundwork for future argument before the Supreme Court of 
Massachusetts. 

At the request of certain distinguished recipients of degrees from Har- 
vard University and the wife of a graduate, I permitted an information in 
equity to be filed in order to obtain a court adjudication on the Arnold 
Arboretum controversy. The President and Fellows of Harvard College, 
trustees of the Arnold Arboretum institution, removed the library and 
herbarium from the Arnold Arboretum to a central building in Cambridge, 
and a question arose as to whether or not there was a breach of trust. This 
matter is now pending in the Supreme Judicial Court. 

In Bristol County, the Division commenced an investigation of the 
Acushnet Hospital Association. The investigation resulted in the com- 
plete reorganization of the hospital which will, under new management, 
seek to comply with the requirements of the Department of Public Health, 
and open its doors to the public. 

The Division's work in Plymouth County resulted in the discovery of 
a large amount of dormant funds. Application has been made to appoint 
new trustees of these funds and to apply them to their charitable purposes. 



P.D. 12. 19 

In Essex County, the Division was successful in preventing the trustees 
of the estate of David Smith from retaking the Rowley Town Hall and was 
successful in having the probate court order the ToA\'n Hall turned over to 
the town of Rowley. 

In Middlesex County, the Division successfully defended a petition 
brought by the heirs of Mary D. B. Hooper to terminate her trust estab- 
lished for the care of Aged Protestant Couples in Cohasset. This matter 
is now being appealed by the heirs to the Supreme Judicial Court. 

The Division also conducted investigations of the Prospect Hill Ceme- 
tery Association in Nantucket County, the Bristol County Veterans Chari- 
table Foundation in Bristol County and the George E. Keith Foundation 
in Plymouth County. 

In Norfolk County, the Division was successful in preventing a trustee 
of the estate of Henry Lawton Blanchard, which estate amounted to over 
$300,000 for the establishment of a museum in the town of Avon, from sell- 
ing his property at an exorbitant price to the trust. An investigation of 
this estate culminated in the filing of a petition for the removal of the trustee 
and in the discovery of a misappropriation of funds in the estate of An- 
tonia H. Bogardyn. 

A petition for the removal of the trustee was also filed in the Bogardyn 
estate. 

The work of the Division of Public Charities has just begun and there is 
a large amount of investigation still in the initial stages. The revision of 
the forms and office procedures is not yet completed. The Division has 
encountered areas in which legislation will be necessary, and proper legis- 
lation is now being drafted. 

The rapidly growing field of charitable trusts is one that requires careful 
attention and promises to require more as the development continues in the 
future. 

Eminent Domain Division. 

The duties of the Division have continued to expand greatly during the 
year, and it is now experiencing the heaviest case load in the history of the 
Division. Since July 1, 1958, the Division has disposed of 171 cases 
throughout the Commonwealth through trial. The petitioners in these 
cases had claimed a total of $4,538,544.29. Awards to them, either by ver- 
dict or settlement, totalled $2,701,761.91. The difference of $1,836,782.38 
reflects a substantial saving to the Commonwealth. There should be added 
to this the large amount of interest which would have been payable to the 
petitioners if all of these cases had gone to trial. Of the 171 cases dis- 
posed of, 129 were disposed of from January 21, 1959, to June 30, 1959. 

It has been my expressed conviction since assuming office that, when- 
ever possible, the Commonwealth should make a -pro tanto payment to the 
condemnee as soon as possible after the taking has been made and thus 
effect a substantial saving of interest, and that has been the policy of the 
Division. 

When a petition for the assessment of damages is referred to the Division, 
an appearance and interrogatories are filed immediately. Shortly there- 



20 P.D. 12. 

after, a request is made by the Division to the department or agency which 
has made the taking, to forward any and all material, including appraisals 
and written memoranda of conferences with the condemnee or his attorney, 
in its files. Upon the receipt of the material, one of the Assistant Attorneys 
General assigned to the DiAdsion reviews the file. Invariably, a conference 
is then held between Assistant Attorney General Joseph F. Lyons, in 
charge of the Division, and the attorney for the petitioner. At the con- 
ference, the petitioner's attorney will usually disclose the amount of his 
appraisal, the elements of damage considered by his appraiser and the 
value placed thereon. We then reidew our own appraisals for the purpose 
of seeing whether or not all of the elements claimed by the petitioner have 
been considered by the Commonwealth's appraisers. If any elements 
claimed by the petitioner have been overlooked by the State's appraisers, a 
conference is held with the appraisers. Following this, if an amount cannot 
then be agreed upon which my office and the petitioner's attorney consider 
fair and equitable, a pre-trial conference with a justice of the Superior 
Court is normally scheduled. Inasmuch as land damage cases are entitled 
to precedence as far as trial is concerned, this usually occurs very shortly 
after the office conference. At the pre-trial conference the presiding justice 
in the county goes over the case with the Commonwealth and the pe- 
titioner. This conference method frequently results in an amount being 
agreed upon. 

In cases involving takings by the Department of Public Works, which 
constitute the bulk of the case load, if, at either the office or court confer- 
ence, an amount is agreed upon which the Commonwealth feels is fair and 
equitable, the Division then computes its figures for judicial consideration. 
At the court's convenience one of the Assistant Attorneys General in the 
Division appears before a justice of the Superior Court at a jury- waived 
trial and makes a full disclosure of the area taken, the amounts of the 
Commonwealth's appraisals and the figure placed on the case by the Board 
of Review, and suggests to the court that the amount previously agreed 
upon would be a fair and just award. The Assistant then offers to the 
court the computations showing how the agreed figure was arrived at. The 
attorney for the petitioner also presents evidence either thi'ough his ap- 
praiser or his petitioner, or both, as to the amount of damages the pe- 
titioner claims he suffered as a result of the taking. After hearing from both 
sides in the above manner, the court orders judgment in the case. 

I wish to stress that the Commonwealth and the petitioner at this jury- 
waived trial merely suggest to the justice presiding that the figures agreed 
upon would appear to be fair, equitable and just to both parties. The judg- 
ment is, however, ordered by the court. The judge can order judgment 
in a greater or lesser amount than that suggested by the Commonwealth 
and acceptable to the petitioner, inasmuch as the parties have actually 
placed the case before the court for its final decision. 

The jury-waived procedure described is followed in every case where 
the amount agreed upon exceeds the Review Board figure, or the agreed 
figure is in excess of $2,500 and the case has no Review Board figure be- 
cause the Department of Public Works' appraisal was under S2,500. 



P.D. 12. 21 

The procedure followed has resulted in substantial savings to the Com- 
monwealth by making it unnecessary to impanel and pa.y juries and retain 
real estate experts to testify for the Commonwealth. It has also greatly 
lessened the congestion of the Superior Court dockets of the various courts 
throughout the Commonwealth. 

It is my feeling that the Division has been successful in effecting the 
quickest and most efficient settlement or judicial disposition of land dam- 
age claims, and it has done so in the way most consistent with the best 
interest of the Commonwealth and its taxpayers. The Division will con- 
tinue this policy in order that inconvenience to property owners will be 
minimized as much as possible and in order to save the expense to the 
Commonwealth of interest payments over extended periods of time. 

I would like to expressly mention the fine co-operation that has been 
extended to the Division by the Chief Justice and the Justices of the 
Superior Court in the handling and disposition of these matters. 

Town By-Laws. 

Pursuant to the provisions of G. L. c. 40, § 32, I have, as is usually the 
case, had between 250 and 300 town by-laws or amendments thereto sub- 
mitted to me for approval or disapproval. The functions vested in me 
under that section are not perfunctory for the reason that no town by-law 
becomes effective unless and until it has been approved by the Attorney 
General and published according to said G. L. c. 40, § 32. Two of the 
members of my staff experienced in such matters examine each by-law 
submitted for procedural and substantive defects before they are handed 
to me for my action. Zoning by-laws and amendments thereto require 
special scrutiny as the General Court has provided statutory procedural 
requisites to valid action by the towns. The requirements for planning 
board hearings in G. L. c. 40A, § 6, and a two-thirds vote in cases of zoning 
amendments, make it imperative that care be taken to see that these pro- 
ceedings have been complied with. 

I have endeavored to protect the towns in the Commonwealth in these 
matters. The Legislature, by an amendment to G. L. c. 40A, § 6, contained 
in c. 317 of the Acts of 1959, has required at least twenty-one days' prior 
published notice of planning board hearings on proposed zoning by-laws. 
Prior to this legislation, the law had required only due notice of such hear- 
ings. Usually the towns have provided for seven to ten days', and occa- 
sionally fourteen days', notice, which was probably sufficient. Anticipating 
that some of the towns might be unaware of the enactment of c. 317, I 
caused a letter to be dispatched to the various towns in the Commonwealth 
before the effective date of c. 317, notifying them of the change. Despite 
this precautionary measure, a small number of towns have acted under the 
earher law after c. 317 became effective. This, of course, compelled dis- 
approval in those cases where improper notices were given. However, 
fortunately, these instances were few. I do not anticipate many more. 



22 P.D. 12. 



Contributory Retirement Appeal Board. 

The Contributory Retirement Appeal Board is provided for in G. L. 
c. 32, § 16 (4). It is composed of three members, an x\ssistant Attorney 
General designated by me, a designee of the Director of the Bureau of 
Accounts and a designee of the Commissioner of Insurance. There has 
been no development of a comprehensive retirement system under a single 
management to handle all. administrative problems. On the contrary, 
there are 99 contributory retirement boards throughout the Common- 
wealth, each administering its own local system. 

A person aggrieved by a decision of any one of these local boards in 
questions relating to membership in the system, creditable service, rights 
to retirement, or issues dealing with anj^ of the aspects of the retirement 
laws, may appeal to the Appeal Board for a final determination. Under 
G. L. c. 32, § 16 (4), the Board "shall pass upon the appeal, and its deci- 
sion 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." 

There are great advantages to the general public in a well-designed re- 
tirement system which is properly administered. Such provisions improve 
the quality of the governmental service and systematically provide sup- 
port to employees retiring for superannuation, as well as those who, be- 
cause of ordinary disability due to disease, or other causes, or because of 
accident, are prevented from fulfilling the reciuirements of their positions. 

The Contributory Retirement Appeal Board devotes much time in hear- 
ing appeals emanating from the various systems. In addition, time must 
be spent in conferences, legal research and in preparation of written deci- 
sions adjudicating the rights of the parties appearing before it. 

Proceedings before the board are subject to the provisions of the Admin- 
istrative Procedure Act, G. L. c. 30A. Any party aggrieved by a decision 
of the Board may have his case reviewed in the Superior Court, with a 
right of appeal to the Supreme Judicial Court. The Board's decision must 
be accepted as final if supported by evidence and not tainted by error of 
law. It is, therefore, properly required that the Board shall deal with 
cases before it in such a manner that when a certified copy of the record 
is presented to the courts, they may be able to determine with reasonable 
certainty whether or not correct rules of law have been applied to facts as 
found. 

The Board has been blazing its own legal pathway because of the pau- 
city of authoritative precedents. There have been several decisions of our 
Supreme Judicial Court touching upon certain phases of the retirement 
system. The body of decisions rendered does not yet form an adequate 
background for determination of legal issues such as exist under the Work- 
men's Compensation laws. The issues coming before the Board are nu- 
merous and important; many appeals are pending in the Superior Court 
which will finally be determined in the Supreme Judicial Court. 

In all the cases before the courts, proper preparation must be made for 



P.D. 12. 23 

presentation of the issues, and briefs must be submitted before the Supe- 
rior and Supreme Courts, in oider that the rights of any aggrieved party- 
may be fully considered before final decision of our highest tribunal. 

A great portion of the time of this Board is taken up in consideration of 
appeals dealing with accidental disability provisions under § 7 of said c. 32 
and under § 9 dealing with accidental death benefits. These sections pro- 
vide retirement allowances for members in the various systems, and for 
their widows and children in cases of death, where total and permanent 
incapacity has resulted from personal injuries sustained during the per- 
formance of public duties. Two recent Supreme Court decisions have 
demonstrated the distinction between the provisions of the retirement 
system, G. L. c. 32, and those of the Workmen's Compensation law, G. L. 
c. 152, with regard to injuries due to accident. The court pointed out the 
restrictive language of the Retirement Act, requiring disability to be one 
arising out of and in actual performance of duty, and not merely arising 
out of and as an incident of duty, and held that in the latter instance 
accidental disability allowances cannot be granted. An increasing work 
load of cases coming before this Board may be expected. Its duty, of 
course, is to weigh the evidence carefully and deal fairly between the mem- 
ber (or his dependents in the event of his death), on the one hand, and the 
local retirement boards, on the other. 

The general public substantially underwrites the various retirement sys- 
tems, and, consequently, careful consideration should be given to the 
Board's needs for proper functioning. It is my recommendation that this 
Board should be set up with necessary machinery for the adequate per- 
formance of its function. It should be provided with an investigator to 
help the board in obtaining information and facts where an investigation 
is indicated. It should be provided with the necessary clerical service and 
quarters for its sole use. The board should be put on a permanent basis, 
provided with ample time to do its work, funds to defray its own admin- 
istrative expenses, and given independent facilities in order that it may 
expeditiously and properly handle all appeals coming before it in accord- 
ance with the provisions of the Retirement Act and the safeguards pro- 
vided under c. 30A, the Administrative Procedure Act. 

vState Housing Board. 

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

1. Rendering written opinions and giving oral opinions on general legal 
problems confronting the Board. 

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

3. Administration of Organization Transcripts of approximately 128 
active Housing and Redevelopment Authorities. 

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



24 P.D. 12. 

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

6. Litigation and trial work. 

7. Review for approval of contracts for financial assistance. 

8. Review and revision of forms. 

9. Legislation. 

In addition to their other duties, the Assistants assigned prepared and 
submitted in writing to the State Housing Board, at its request, 28 informal 
opinions and legal advice memoranda on legal problems confronting the 
Board. Nine hearings were attended and 122 oral opinions were given to 
the Board following conferences. Questions relating to the purchase and 
sale of land, and review of the abstracts and eminent domain matters, 
resulted in 20 memoranda, 22 oral opinions, 24 conferences and attendance 
at two hearings. 

A file of the organization transcripts of approximately 103 Housing Au- 
thorities and 25 Redevelopment Authorities is kept current. All these 
assist in keeping the Authorities on a sound legal basis. Li this connection 
13 legal memoranda were submitted and 27 oral opinions given. 

Note issues, both original and refunding, involving borrowing totaling 
$108,668,000 were approved, entailing 22 oral opinions and 88 written 
memoranda. 

Many hearings were attended, conferences held and oral opinions given 
relative to questions arising out of bids received and contracts disputed. 
An appearance was entered as amicus curiae in the Land Court relating to 
land taking in Woburn. 

We have reviewed and revised various forms of contracts used by the 
State Housing Board resulting in some oral opinions and 26 written memo- 
randa. Conferences have been held and requested drafts of legislation have 
been prepared and submitted, including one relative to taking by the 
Medford Housing Authority for the Elderly Project and to other matters 
concerning the Housing Authority Law. 

A complete study has been made of c. 626 of the Acts of 1958, which is 
the so-called "open meeting" law, and advice given to the State Housing 
Board and the local Housing Authorities as to its application to their 
proceedings. We have been in contact with both the Board and attorneys 
of the local Authorities supplying advice and help wherever requested. 



Division of Employment Security. 

On January 21, 1959, a review of the Division's legal docket was made 
with the Division Chief Counsel, his legal staff and the Assistant Attorneys 
General assigned to the Division. Conferences were held by the Assistant 
Attorneys General with the Assistant Directors of the Division, the Chief 
Counsel and his staff, to determine policy and procedure and areas of 
responsibility. 

After these preliminary conferences, the Attorney General met with, the 
Director of the Division, and it was determined that only the Assistant 



P.D. 12. 25 

Attorneys General assigned to the Division should represent the Director 
in the following courts: 

1. Massachusetts Supreme Judicial Court. 

2. Massachusetts Superior Courts. 

3. United States District Court. 

4. United States Appellate Court. 

5. United States Supreme Court. 

6. Municipal Courts — Criminal, and such other matters as may be 
brought to the attention of the Attorney General from time to time. 

Two cases were handled before the full bench of the Supreme Judicial 
Court : 

(1) Estey V. Director — decision in favor of the Commonwealth (156 
N. E. 695; 338 Mass. 797). 

(2) Western Electric Company v. Director (Decision pending). 

One hundred and fourteen cases were forwarded to the Attorney General 
for legal proceedings in the Superior Court in equity. In all these cases I 
requested appointment of receivers to protect the interest of the Common- 
wealth. Receivers were appointed and an accounting was made by the 
said receivers to the Commonwealth. This accounting enabled the Com- 
monwealth to recover sums, previously deemed unrecoverable. 

A problem between the Commonwealth of Massachusetts and the United 
States Government has arisen from the question of priority of liens. In 
numerous instances liens have been placed by both the Commonwealth 
and the United States. Special attention is being given by the Assistant 
Attorneys General relative to the position of the Commonwealth as op- 
posed to that of the Director of Internal Revenue in these instances. 

An active program has been conducted as to delinquent contributions 
involving criminal violations. Before proceeding with criminal complaints 
under G. L. c. 151A, § 47, repeated warnings were given to all delinquents 
and all remedies to ensure compliance were completely exhausted by means 
of thorough investigation. After all other methods and means wei-e ex- 
hausted and the delinquent contributors who had been given every op- 
portunity to make pajanents on their taxes still neglected to do so, criminal 
complaints were filed against them. 

One hundred and sixty-four complaints were issued and in all cases find- 
ings of guilty were made. As a result of this program, substantial sums 
were recovered by the Commonwealth. 

The Chief Counsel and his staff, as well as the technical staff of the 
Division, have been of invaluable assistance to me and the Assistants in 
the preparation and conduct of matters before the courts. The Director 
and his assistants also have been most co-operative in all matters within 
the scope of my duties, and I am grateful for their assistance and co- 
operation. 



26 P.D. 12. 



Land Title Cases. 

The Attorney General protects the rights of the pubhc in the lands 
owned by the Commonwealth, and protects the rights of the Common- 
wealth and its people in lands owned by private individuals where public 
rights are involved. 

In the past year approximately 208 petitions for registration of title to 
land entered in the Land Court involved interests of the general public 
or of the Commonwealth. It is my duty as Attorney General to see that 
decrees of registration of title to land registered are subject to the rights of 
the Commonwealth, or of the general public, whenever such rights and 
interests appear. The interests to be protected are varied and include 
those acquired for the promotion and protection of the general public 
health as well as the rights of the public in the tidewaters of the Atlantic 
Ocean, and the waters of great ponds of the Commonwealth, for fishing, 
fowling and navigation, as well as many other public rights. 

Deeds of acquisition of land for the Commonwealth by the various State 
departments and offices for the many public purposes the departments 
and offices are designed to provide are approved as to form by the Attorney 
General and the title report is reviewed. 

In addition to acquiring titles to real estate for highways and other 
public purposes, the Commonwealth also conveys land and leases, or makes 
other grants of rights in lands of the Commonwealth. The deeds, leases 
and other documents, in large numbers, are submitted to the Attorney 
General for approval as to form or for assistance in drafting. 

These matters all involved a great deal of the time of this office during 
the fiscal period covered. 



Veterans' Division. 

When I assumed the office of Attorney General I determined that it was 
of great importance that the Veterans' Division should continue to func- 
tion efficiently in furnishing legal advice to the thousands of veterans and 
their dependents who have need of its services. To that end, I staffed the 
Division with personnel who by training, background and experience were 
especially equipped to handle problems relating to veterans. Veterans 
in need of legal advice are referred to the Division by veterans' organiza- 
tions and Federal, State, county, city and town officials. In addition, 
countless inquiries come from out of State and from servicemen on active 
duty with the armed forces of the United States. 

The problems which continue to plague veterans are in many cases com- 
plex and oftentimes come to the attention of our Division after all other 
remedies and sources have been exhausted. They involve problems of 
taxation, real estate, veterans' benefits, domestic relations, licenses, civil 
service, retirement, education, employment and many other areas in which 
veterans become involved. 

Most of the cases of the Veterans' Division are handled through personal 
interviews, although many letters and telephone calls are received not only 



P.D. 12. 27 

from veterans and their dependents but from veterans' organizations and 
State, city and town officials seeking information on matters which affect 
veterans. 

The volume of business has been gratifying to me as Attorney General 
because it demonstrates that the work of the Division is so well known 
to veterans and those concerned with their problems that the Veterans' 
Division continues to serve both a useful and indispensable function. 



Insurance. 

During the year the Liberty Mutual Fire Insurance Company filed a 
petition for review in the Supreme Judicial Court for an order of the Com- 
missioner of Insurance which denied the application of Liberty for a de- 
viation from certain windstorm insurance rates, rules and schedules which 
had been filed by the New England Fire Insurance Regulatory Associa- 
tion, to which Liberty was a subscriber. The Htigation involved an inter- 
pretation of G. L. c. 174A, known as the fire, marine and inland marine rate 
regulatory law, which became effective on October 1, 1947. The contro- 
versy resulted in part from the absence in the statute of a definition of the 
word "deviation." No decision of the Supreme Judicial Court, or the 
highest court of any other jurisdiction had considered the point in issue. 

A single justice of the Supreme Judicial Court decided that the word 
"deviation" was synonjmious with "variation" and ordered the Com- 
missioner of Insurance to hold further hearings. As this involved subject 
matter is one of great importance to insurance regulatory officials, I ap- 
proved the taking of an appeal from the ruling of the single justice of the 
full bench of the Supreme Judicial Court in order to obtain a fully au- 
thoritative clarification of the statute for the future guidance of the Di- 
vision of Insurance. 

Workmen's Compensation. 

In accordance with the provisions of G. L. c. 152, § 69A, this office must 
give written consent for all pa^mients made by the Commonwealth under 
the chapter. This includes all compensation payments to injured em- 
ployees, doctor bills, hospital bills, payments to insurance companies on 
petitions brought by them under § 37 A of c. 152 for payments to be made 
out of the special fund established by § 65N of c. 152, and all payments 
made to insurance companies on petitions brought by them under § 37 to 
be paid out of the special fund established by § 65. All claims made by the 
Commonwealth under §§65 and 65N against insurance companies are 
brought by this office. 

For the fiscal year July 1, 1958, to June 30, 1959, 5,709 first reports of 
injury involving employees of the Commonwealth were received at the 
Attorney General's office. Seven hundred and eighty-six injured employees 
claimed compensation from the Commonwealth. Agreements for com- 
pensation for 762 of such employees were approved. The claims of the 
other 24 employees were not approved for various reasons. On the basis 



28 P.D. 12. 

of the 5,709 first reports of injury, 2,290 hospital and medical bills were 
submitted and were approved. 

The total amount spent by the Commonwealth under c. 152 for Work- 
men's Compensation payments, including hospital and medical bills, is as 
follows : 

Compensation payments made to injured employees, $780,745.25. 
Hospital bills paid for injuries sustained by employees, $168,999.15. 
Medical bills paid for treatments of injuries to Commonwealth employees, 
$140,000.88. 

The total amount spent — $1,089,745.28. 



General Industrial Accident Fund. 

This office collected $8,025 from insurance companies on claims brciight 
by the Commonwealth against the insurance companies under the pro- 
visions of G. L. c. 152, § 65. Balance in this fund as of December 1, 1959, 
was $46,696. During the fiscal year July 1, 1958, to June 30, 1959, pay- 
ments of $18,828 were made to insurers under G. L. c. 154, § 37. 



Veterans' Industrial Accident Fund. 

This office also was able to effect settlements with the insurance com- 
panies in the amount of $72,275. This amount was collected from July 1, 
1958, to June 30, 1959, for the Commonwealth under G. L. c. 152, § 65N. 
During this same period of time $56,959 was paid out of this Veterans' 
Industrial Accident Fund under § 37A. The balance on hand as of June 
30, 1959, was $365,938. 

The above payments made to insurance companies were made on peti- 
tions brought by the insurance companies under G. L. c. 152, §§ 37 and 
37A. During the fiscal year 1958, 137 appearances were made by this 
office before the Industrial Accident Board for various hearings and con- 
ferences on matters pertaining to employee's rights, disputed hospital and 
doctor bills, settlements of claims against insurance companies under 
§§65 and 65N, and on petitions brought by insurance companies under 
the above said §§37 and 37A. 



State Tax and Other Departments and Certain Boards and 
Commissions. 

During the year the Attorney General and the Assistant Attorneys 
General, in compliance with the provisions of G. L. c. 12, and other perti- 
nent provisions of law, appeared in the courts of the Commonwealth for 
the State Tax Department and other departments and have rendered legal 
services and advice to various beards and commissions including the follow- 
ing boards of registration: Architects; Medicine; Nursing; Chiropody 
and Podiatry; Optometry; Professional Engineers and Land Surveyors; 
Pharmacy; Barbers; Hairdressers; Electrologists; State Examiners of 



P.D. 12. 29 

Electricians, Plumbers, and others, either in the prosecution or defense of 
suits and other proceedings or in consultation. 

In a great number of proceedings the acts of such departments or boards 
are called in question, particularly by petitions for review in, or by way of 
appeal to, the Superior Court and the Supreme Judicial Court. 

The various boards which have been set up for purposes cf regulating 
professions and occupations have received much attention from this De- 
partment. The right to follow a chosen profession free from unreasonable 
government interference comes within the ''liberty and property" concepts 
of the United States Constitution and within the purview of the Bill of 
Rights, and consequently whenever these agencies have been confronted 
with proceedings for adjudicating the legal rights, duties or privileges of 
anyone to be registered for his chosen profession, or when determining 
questions of suspensions or revocations of registrations to practice the 
various professions, the Department of the Attorney General has rendered 
assistance and legal advice to the boards involved, to the end that the 
rights of all parties may receive the protection that is due and required 
by our laws. 

In addition to rendering formal and informal written opinions, oral 
opinions have also been rendered by the Assistant Attorneys General, 
for the purpose of aiding the various boards in the sound performance of 
their duties. Assistance has also been given by conferences and personal 
appearances of designated Assistants to sit with these administrative 
boards in the course of investigations or hearings, and advising them as to 
the law with reference to such hearings for the purpose of adjudicating and 
making decisions on matters before them, and as to the prosecution or 
defense of any proceedings for review by, or appeals to, the courts. 

There has been a continuing increase in the number of administrative 
boards and commissions about which the office must constantly concern 
itself, requiring, for proper efficiency in the administration of our laws, the 
assignment to these special duties of a number of Assistant Attorneys 
General. The requirements of these new boards and commissions have 
placed additional burdens and demands on the staff and have greatly in- 
creased the work load of the office, without a corresponding increase in 
the staff of this office. This situation will soon require that the Legislature 
authorize additional personnel to satisfy those burdens and demands. 



Collections. 

A large number of claims is referred to the Attorney General for collec- 
tion. Included are claims for support of patients in State institutions, 
damage to State property, etc. 

During the fiscal year covered by this report $123,925.65 was collected 
and remitted to the referring departments. 



30 P.D. 12. 

Chapter 626 of the Acts of 1958. 

Chapter 626 of the Acts of 1958, popularly known as the "Open Meet- 
ing" law, in general provides for notice of public meetings of State, county 
and municipal officers, boards and commissions, public access thereto and 
proper records thereof. There are some stated exceptions to this law. 
This legislation, and the demand for it, are indications of a wholesome in- 
crease of interest in pubhc affairs. Numerous requests have been made 
to me by State officers, boards and commissions for opinions relative to 
the construction of this statute. It has been my purpose to construe it 
liberally, consistent with what I feel was the legislative intent. 

Conclusion. 

To my staff, His Excellency the Governor, the members of the General 
Court, the various State officers, boards, commissions, department heads 
and employees, and the public at large who have done so much to help 
me in the administration of this period of my first term in office goes my 
deepest gratitude. I shall do everything in my power to execute the duties 
of this office in accordance with its highest traditions. 

Respectfully submitted, 

EDWARD J. McCORMACK, Jr., 

Attorney General. 



OPINIONS. 



An increase of penalty for an offense is not applicable to one whose sentence, 
under a law in an earlier form, was suspended. 

July 9, 1958. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — You have requested an interpretation of the law under 
the following circumstances: 

A person convicted on April 6, 1957, in the Boston Municipal Court of 
two misdemeanors and of violation of G. L. c. 94, § 211, as amended by 
St. 1938, c. 321, § 1, was sentenced to the Massachusetts Correctional 
Institution, Framingham, the Reformatory for Women, for an indefinite 
sentence. 

The penalty for violation of said § 211, possession of narcotic drugs, is 
imprisonment for not more than three and one half years in the State 
prison. 

This offense is a felony, G. L. c. 274, § 1. 

Since the maximum penalty was for not more than five years, the Boston 
'Municipal Court had jurisdiction. G. L. c. 218, § 26, as amended by St. 
1938, c. 265. 

The place of confinement was the Reformatory for Women, which is not 
a State prison and does not involve infamous punishment. Moidton v. 
Commonwealth, 215 Mass. 525, 527. Therefore, trial by jury and indict- 
ment by a grand jurv were not required by the Twelfth Article of the Decla- 
ration of Rights. See Jones v. Robbins, 8 Gray 329, 342, 350. 

She may be held at the Reformatory for not more than five years. G. L. 
c. 279, § 18, as amended by St. 1956, c. 715, § 24. Piatt v. Commonwealth, 
256 Mass. 539. 

At the time of her sentencing, April 6, 1957, sentence was suspended 
and she was placed on probation. 

While on probation, St. 1957, c. 660, was enacted, effective January 1, 
1958. This made the first two ofi"enses also felonies. 

On February 24, 1958, the court revoked the suspension of sentence and 
she was committed. 

The increase in penalty does not affect her since it is the penalty in effect 
at the time the crime was committed that should be imposed. To increase 
the penalty after a crime has been committed would be to enact an ex post 
facto law in violation of Article XXIV. Murphy v. Commonwealth, 172 
Mass. 264, 277. 

Very truly yours. 



George Fingold, Attorney General, 

By Fred L. True, Jr., 

Assistant Attorney General. 



32 P.D. 12. 



Day off, or compensation, for officers and employees of the Commonwealth 
working on Saturday holidays. 

July 30, 1958. 

Hon. Francis X. Lang, Commissioner of Administration. 

Dear Sir: — You have requested my opinion as to the effect of G. L. 
c. 30, § 24A, in certain instances where a legal holiday falls on a Saturday. 

As stated in an opinion from this department to the Commissioner of 
Administration on January 13, 1955 (Attorney General's Report, 1955, 
pp. 70, 71), said § 24A provides: 

"(1) That any 'person employed by the commonwealth' (other than 
certain ones enumerated in St. 1953, c. 400, the most recent amendment 
to § 24A) who is required to work on any one of certain named legal holi- 
days 'shall be given an additional day off, or, if such additional day off can- 
not be given by reason of a personnel shortage or other cause, he shall be 
entitled to an additional day's pay.' (In the interests of brevity, I shall 
hereinafter refer to all such persons as 'employees,' although 'officers' are 
also included within the sweep of the statute; see 1946 Op. A.G. 105.) 
This policy was established by St. 1945, c. 565, which originally inserted 
§ 24 A in said c. 30, and has since remained unmodified except by a minor 
change, presently immaterial, effected by St. 1948, c. 498. It was ap- 
parently the intent of the Legislature to make good to a State employee 
either by giving him a 'replacement' holiday or an extra day's pay, any of 
the designated holidays which he was not able to enjoy because of being 
required to work; it is completely immaterial, for the purposes of this part 
of said § 24 A, whether the holiday on which the employee works falls on a 
Saturday or on some other day of the week. 

" (2) That in the case of a State employee (other than one of those 
excluded by the 1953 amendment referred to above) 'who works five or 
more days a week and whose regular day off falls on any of the aforemen- 
tioned holidays except when such holiday occurs on Saturday, an additional 
day off shall be allowed, or payment in lieu of one day off shall be allowed.' 
This policy was established by St. 1946, c. 411, which added a clause to 
§ 24A, and has since remained unmodified except for the changes effected 
by St. 1948, c. 498, which inserted the italicized exception relating to 
Saturday holidays, and which also made the privilege created by the 
statute available to employees who work 'five or more' days weekly 
(theretofore it had been available only to those who regularly worked six 
days weekly). As expressed in the title of c. 411, as well as in the statute 
itself, this provision is intended to give an employee who 'misses' a holiday 
because it falls on his regular day off either a ' replacement ' holiday or an 
extra day's pay. Thus, he is placed on a par with all his fellow employees 
who are actually excused from a regular working day by the occurrence of 
a holiday, and who receive for any one week in which a holiday falls one 
day's pay more than the actual number of days worked. Cf. Attorney 
General's Report, 1948, p. 65. The exception of Saturday holidays may 
be justified upon the ground that most State employees have Saturday as 
a regular day off. You will note that this clause of said § 24A becomes 
operative when an employee does not have to work on a particular holiday, 
whereas the first clause of the statute, discussed above, deals with situa- 



P.D. 12. 33 

tions where an employee is called upon to work on a holiday. Again, cf. 
Attorney General's Report, 1948, p. 65." 

As also therein stated (Attorney General's Report, 1955, pp. 70, 73), 
the following tests may be applied in order to determine the effect of the 
statute in any given set of facts: 

"I. If the employee has been required to work on a holiday listed in said 
section, and if he does not fall within any of the classes of 'employees' 
exempted from the operation of the statute by its concluding clause, he is 
entitled to the benefit of the first clause. 

''II. An employee who has not worked on a holiday is entitled to the benefit 
of the second clause of the section only if each of the following inquiries can 
be answered in the affirmative : 

"1. Is he an employee other than one of those listed in the concluding 
clause of this section? 

"2. Did he work five or more days during the week in which the holiday 
fell? 

"3. Was the holiday one of those listed in said section? 

"4. Did it fall on his 'regular day off'? 

"5. Did it fall on a day other than Saturday?" 

The four factual instances concerning which you inquire are as follows: 

1. A legal holiday falls on a Saturday during the vacation period of an 
employee whose regular days off are Tuesday and Wednesday. 

2. A legal holiday falls on a Saturday during the vacation period of an 
employee whose regular days off are Sunday and Monday. 

3. A legal holiday falls on a Saturday; the employee (not on vacation) 
has Tuesdaj^ and Wednesday as his regular days off, and 

(a) He is required to work on the holiday. 

(b) He is not required to work on the holiday. 

It is immediately apparent that only in your third hypothetical case 
(#3a) should we concern ourselves with the first clause of said § 24A, since 
only in this instance has the employee been required to work on a legal 
holiday. In construing this clause of the statute, as stated in the opinion 
of January 13, 1955, "it is completely immaterial . . . whether the holi- 
day . . . falls on a Saturday or on some other day of the week." Accord- 
ingly, applying the first of the "tests" suggested by that opinion, it is clear 
that the employee is entitled to the benefit of § 24A. 

In each of the other three hypothetical cases put by you, the emploj^ee 
has 7iot been required to work on a legal holiday; hence, in each, it can be 
only the second clause of the statute which governs the employee's right. 
That clause never has any application in a situation involving a Saturday 
holiday. Your attention is called to the second of the "tests" suggested 
by the 1955 opinion; the answer to the fifth question of that "test" would 
necessarily be in the negative in each of your three assumed factual situa- 
tions (#1, #2, #3b). 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



34 P.D. 12. 



Department of Public Works has authority to contract by an extra work order 
for acceleration of the completion date of a highway contract upon its 
determination that the change is incidental, is in the public interest, 
the cost is reasonable, and the notice required by G. L. c. 29, § 20 A, is 



Aug. 1, 1958. 
Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion concerning the authority of 
the Department of Pubhc Works to issue an extra work order accelerating 
the completion date of a highway contract. You state that several sections 
of the new Southeast Expressway, which will run from Columbia Circle in 
South Boston to Route 128 in Hingham, are now completed and open to 
traffic and that two additional sections will be completed in September of 
this year providing a completed highway from Freeport Street in Dor- 
chester to a point in Braintree, a distance of about six miles. 

You also state that the access and egress roads at the southerly or 
Braintree end of the aforesaid six miles are now in process of construction 
under a contract calling for completion in November of 1959, some fourteen 
months after completion of the six-mile area described above. The con- 
tract relating to the access and egress roads is in the amount of $1,635,329 
and is currently about twenty-five per cent completed. You state that the 
contract for completion of such access and egress roads could be completed 
before the end of the current year, but in such event the contractor's 
costs Avould be increased by $126,500 because of overtime payments and 
premium charges that would be incurred. 

Advancing the completion date from November of 1959 to sometime in 
the latter part of 1958 would constitute an amendment to the contract. 
Such amendments may be made only if there is no conflict with the bid 
statute as embodied in G. L. c. 29, § 8A. As set forth in the case of Morse v. 
Boston, 253 Mass. 247, 253-254, such amendments must be within reason- 
able limits, must be made to remedy incidental defects or to improve the 
work in minor details, and such amendments must also bear a reasonable 
subsidiary relation to the work originally covered by the contract. Whether 
the amendment presently contemplated complies with the foregoing tests 
is a question of fact to be determined by your department. 

In addition to the case of Morse v. Boston, as referred to above, your 
department should, of course, make a determination that the additional 
expenditure of public money as involved in such amendment is in the 
public interest and that the actual cost of such increased work is fair and 
reasonable. These determinations, again, are questions of fact to be de- 
termined by your department. 

Subject to the foregoing limitations, it would appear that the department 
does have authority to contract for the change in the completion date of 
the contract. To the extent that such change may call for the payment 
of additional monies by the Commonwealth, there must be compliance 
with the terms of G. L. c. 29, § 20A, relating to extra work orders. 
Very truly yours, 

George P'ingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



P.D. 12. 35 



Price, while important, is not the only factual determination to be made in 
connection with the acceleration of the completion date of a highway con- 
tract. If, considering price and other factors involved, the necessary 
affirmative determinations are made, the Department of Public Works 
has authority to execute an extra work order to accelerate the completion 
date of the contract. 

Aug. 7, 1958. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — You have asked for further information concerning the 
authority of your department to issue an extra work order accelerating 
the completion date of a highway contract. In our previous letter to you, 
it was stated that if your department made certain derterminations of 
fact, then it would have the authority to issue the extra work order. The 
factual determinations included determinations that the change was in 
the pubhc interest, that the cost was reasonable and that the change was 
an incidental one within the meaning of Morse v. Boston, 253 Mass. 247. 

You state that your department has determined that the change is in 
the public interest and that the cost is reasonable. In addition, in order 
to comply with the Morse case, you must also answer each of the following 
questions in the affirmative: 

1. Is the change withui reasonable limits? 

2. Is the change one which is incidental to full execution of the work 
described in the contract and not a major change? 

3. Does the change bear a reasonable subsidiary relation to the work 
originally covered by the contract? 

If the foregoing questions are answered in the affirmative, then it is our 
opinion that your department has authority to issue the extra work order 
in question. 

In your letter you have made reference to the fact that the dollar value 
of the change constitutes only 7^^ per cent of total contract price, an 
amount which you state is incidental to such total price. Price is certainly 
one of the important elements to be considered in reaching your conclusion, 
but it is only one of many facts to be considered by the department. This 
office is not in a position to determine these facts for you. We may assist 
you in connection with matters of law but it is the function of your de- 
partment to decide the facts. 

To repeat, if you can answer the suggested questions in the affirmative, 
considering price together with the other factors involved, then you have 
authority to issue the extra work order in question under the terms of 
G. L. c. 29, § 2GA. 

It is noted that your letter states that the contract in question is not to 
be amended, whereas, in our previous letter to you we referred to the pro- 
posed transaction as an amendment. By using the word "amendment," 
we referred to the technical change in the contract as to price and as to 
completion date which would be brought about by the issuance of the extra 
work order described by you. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



36 P.D. 12. 



An extra work order accelerating the completion date of a highway contract 
can he on a lump sum or unit price basis if the Department of Public 
Works makes the necessary factual determinations, fixes a definite ter- 
mination date in the order, and complies with G. L. c. 29, § 20 A, and 
the contract provisions, as to such order. An offer to do work on a lump 
sum or unit price basis, divided to show various costs, etc., can he required 
by the department. Only after extra work is actually performed, whether 
on a lump sum or unit price basis, is payment, or partial payment, to 
be made. 

Aug. 18, 1958. 

Mr. Frederick J. Sheehan, Comptroller, Commission on Administration 
and Finance. 

Dear Sir: — ^You have asked for further mformation concerning an 
extra work order which has already been the subject matter of two letters 
from this office to the Commissioner of Public Works. The extra work 
order in question would advance the completion date of a highway con- 
tract from November of 1959 to the Fall of this year. Your letter states 
that the Department of Public Works has answered in the affirmative 
the three questions listed in our letter of August 7, 1958. Based on the 
foregoing, you ask whether the extra work order may be based on a lump 
sum payment. 

In the first instance, please note that the letters from this office to the 
Department of Public Works raise questions in addition to the three 
quoted by you. It is assumed for the purpose of answering your question 
that the department has also made proper factual determinations concern- 
ing these other questions. Your letter also states that the proposed extra 
work order advances the completion date of the contract in question from 
November of 1959 to the Fall of the current year (1958). If the completion 
date is changed from a particular time in November of 1959 to an earlier 
date, certainly, the earlier date for completion should be specified more 
particularly than merely by reference to "the Fall of 1958." Such a 
completion date would be too indefinite. 

Subject to the foregoing, it would appear that the issuance of orders for 
extra work or materials is governed by the provisions of G. L. c. 29, § 20A. 
The provisions of this chapter as to approval, notice, public inspection, 
and the like must, of course, be followed. In addition to the statute, the 
department in issuing an extra work order relating to a particular contract 
should, of course, comply with the terms in said contract as they may affect 
the issuance of extra work orders. You have not supplied this office with 
a copy of the contract or of the extra work order in\^olved. Assuming 
that the contract is on the standard form employed by the Department of 
Public Works and is subject to the Standard Specifications for Highways 
and Bridges issued by that department, then your attention is called to 
Article 2.3 of said Standard Specifications relating to extra work which 
provides in part as follows: 

"The Contractor shall do any work not herein otherwise provided for 
when and as ordered in writing by the Engineer, such written order to 
contain particular reference to this article. 

If the engineer directs, the Contractor shall submit promptly in writing 
to the Engineer an offer to do the required extra work on a lump sum or 



P.D. 12. 37 

unit price basis, as specified by the Engineer. The stated price shall be 
divided so as to show that it is the sum of: (1) the estimated cost of direct 
labor, materials, and use of equipment, plus 10 per cent of this total for 
overhead; (2) plus the estimated cost of Workmen's Compensation and 
Liability Insurances, Social Security deductions, and Unemployment 
Compensation benefits; (3) plus 6 per cent of the total of (1) and (2) for 
profit; (4) plus the estimated proportionate cost of surety bond," (em- 
phasis supplied). 

Standard Specifications also include detailed provisions in Articles 77 
through 83 as to the method of payment of amounts due under the con- 
tract including amounts to be paid under extra work orders. These pro- 
visions protect the Commonwealth so that the actual payment of money 
to a contractor, whether under a lump sum or a unit price agreement, takes 
place only after the work for which payment is being made has actually 
been performed. Subject to the foregoing comments, it appears that an 
extra work order issued by the Department of Public Works may be based 
on a lump sum method of payment or on a unit price method. The selec- 
tion of one method as opposed to the other is a question of judgment to be 
exercised by the department in light of the public interest involved. 
Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



A permanent promotion after January 1 and before October 1, 1966, follow- 
ing an earlier temporary promotion, is the employee's "most recent pro- 
motion,'' within St. 1957, c. 753, § 2. 

Aug. 27, 1958. 

Mr. Antonio England, Director, Division of Employment Security. 

Dear Sir: — You have requested the opinion of this department with 
reference to the salary status of an employee who was temporarily promoted 
to a higher salary grade on February 14, 1955, and who was given a per- 
manent promotion to that grade on January 17, 1956. You particularly 
inquire as to the effect of St. 1957, c. 753, § 2, upon such employee. 

Many salary changes and changes in classifications and allocations were 
made by St. 1956, c. 729 (which was based upon the so-called Barrington 
Plan), to become effective on October 1, 1956. In order to correct certain 
inequities in the fixing of salaries under the 1956 act, the Legislature 
amended that act by adopting St. 1957, c. 753, § 2 of which reads as 
follows : 

"Any employee whose step-in-range in the general salary schedule pro- 
vided for in this act [i.e., the 1956 act] would be less because of his most 
recent promotion occurring after January first, nineteen hundred and fifty- 
six, to his present grade than the step-in-range to which he would have 
been entitled if his promotion had not occurred until on or after October 
first, nineteen hundred and fifty-six, shall receive the step-in-range which 



38 P.D. 12. 

he would have received if his promotion had been deferred until October 
first, nineteen hundred and fifty-six." 

The question which you present involves the interpretation of the 
phrase "his most recent promotion" appearing in the 1957 act. The 
facts which you present, to which this 1957 act must now be applied, and 
upon which the present opinion is based, are as follows : The employee in 
question, on February 14, 1955, was assigned to the position of Head 
Interviewer in your division, but only on a temporary basis. He was 
given the title "Temporary Head Interviewer." No civil service ex- 
amination was taken by the employee; in fact, no civil service examination 
had ever been held for the position, and the employee had no civil service 
protection in his temporary position and could have been removed at the 
will of the appointing officer. After this temporary assignment, and on 
April 30, 1955, the first civil service examination for the position of Head 
Interviewer was given, and the first civil service list for such position was 
established on October 30, 1955. The employee in question was on this 
list, and on January 17, 1956, he was given a permanent appointment as 
Head Interviewer. 

Applying the 1957 statute to this situation, it is my opinion that this 
employee's "most recent promotion" occurred on January 17, 1956. Ac- 
cordingly, the employee is entitled to the benefit of § 2 of the 1957 statute, 
and he should be placed in the step-in-range to which he would have been 
entitled if his promotion had occurred on or after October 1, 1956. 

I do not agree with the ruling of the Division of Personnel and Standard- 
ization that, in a case such as this, the only "promotion" occurs at the time 
the employee is temporarily assigned to a new position and a salary in- 
crease takes place. There are many legal differences between a tempo- 
rary appointment and a permanent appointment. The rights of the in- 
cumbent are greatly increased when he holds a position on a permanent 
status following a civil service examination. Because of these differences, 
it is my opinion that the "most recent promotion" of the employee now 
being considered, so far as the benefits of the 1957 act are concerned, took 
place on January 17, 1956, when he became Head Interviewer on a per- 
manent basis following a civil service examination. This conclusion is 
required by the use of the word "promotion" in the 1957 statute. 

A question has been raised as to whether the conclusion reached above 
does not prohibit a temporary promotion received between January 1, 1956, 
and October 1, 1956, from also being treated as a promotion within the 
meaning of St. 1957, c. 753, § 2. No such result follows. While a per- 
manent promotion received in the period stated, following an earlier tem- 
porary promotion, is to be considered to be the "most recent promotion" 
within the meaning of the 1957 act, a temporary promotion is also a pro- 
motion ; and if the temporary promotion is the only promotion received by 
an employee in the period from January 1, 1956, to October 1, 1956, it is, 
for that employee, his "most recent promotion" within the meaning of the 
1957 act, and such temporary promotion entitles him to the benefits of 
that act. Rule No. 11 of the Division of Personnel and Standardization 
(effective October 1, 1956), which states that every person who is changed 
to a position of higher grade "will be deemed to be promoted," manifests 
an intent that employees only temporarily allocated to positions of higher 
grade shall be treated in all respects as if they had received permanent 
promotions. There is nothing in the provisions of St. 1957, c. 753, § 2, 



P.D. 12. 39 

which would forbid such a rule nor prevent it from operating so as to give 
to persons who received temporary promotions in the period from Janu- 
ary 1, 1956, to October 1, 1956, the same benefits that a person receiving a 
permanent promotion in that period would receive under the provisions of 
such act. Rule No. 11 operates to provide that a person who receives a 
temporary promotion shall be deemed to have been promoted and shall be 
entitled to the salary which he would be entitled to if he then received a 
permanent promotion, and as applied to a person who received a temporary 
promotion in the period from January 1, 1956, to October 1, 1956, who is to 
be "deemed" to have been promoted, it operates to give him the benefits 
provided for by the provisions of the 1957 act. This result is not forbidden 
by the 1957 act, nor by the interpretation in the present opinion that the 
1957 act also includes, as a promotion, a permanent assignment to a 
position which had previously been held on a temporary basis. 

The particular question you ask, of course, does not involve an interpre- 
tation of Rule No. 11 of the Division of Personnel and Standardization. 
On the single question you present, applying your exact set of facts to the 
provisions of St. 1957, c. 753, § 2, it is my opinion that the employee in 
question is entitled to the benefits of the 1957 act. 
Very truly yours, 

George Fingold, Attorney General, 

By Low^ELL S. Nicholson, 

Assistant Attorney General. 



Death of party convention nominee for Governor before primary — sticker 
nomination of person whose name appears on ballot as candidate for 
nomination to another office. ^^ .4 

Sept. 26, 1958. J 

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

Dear Sir : — You have requested my opinion concerning the nominee of 
the Republican party for the office of Governor in the election to be held 
in November of the current year. You call attention to the fact that the 
late Attorney General George Fingold was the nommee of the Republican 
party to be voted for at the September primary seeking the party nomina- 
tion for the office of Governor. As such nominee Mr. Fingold's name was 
printed on the primary ballot. His untimely death a few days prior to the 
primary caused a vacancy in this nomination. The ballots as used at the 
prunary listed Mr. Fingold's name but carried the name of no other candi- 
date for such party nomination. 

You state that at the Republican State Prunary there were sticker or 
write-in votes for Charles Gibbons of Stoneham in a sufficient number to 
qualify him for nomination, and that Mr. Gibbons received a plurality of 
the votes cast. There were also a sufficient number of sticker or write-in 
votes for John A. Volpe of Winchester, but Mr. Volpe did not receive a 
plurality of the votes cast. 

You state further that Mr. Gibbons' name appeared on the ballot as a 
candidate for the Republican nomination for the office of State Senator 
from the Seventh Middlesex District, Mr. Gibbons having previously filed 



40 P.D. 12. 

nomination papers for this position and having accepted said nomination, 
all as provided in G. L. c. 53. 

Based on the foregoing facts you have asked, first, whether Mr. Gibbons 
was a candidate for the Republican nomination for the office of Governor 
at the same time that he was a candidate for the State Senate within the 
meaning of G. L. c. 53, § 46, which contains a provision therein that "no 
person shall be a candidate for nomination for more than one office ..." 

The precise question presented by you is whether Mr. Gibbons was a 
"candidate for nomination for more than one office" within the meaning 
of this provision. 

Within certain sections of G. L. c. 53 the words "candidate for nomina- 
tion" are used in connection with persons who are candidates for nomina- 
tion by nomination papers as those words are used within the provisions 
of § 44 ; in other provisions they are used to refer to candidates for nomina- 
tion who are seeking such nomination by stickers or write-in votes (as 
in § 40). 

In the present case it appears that Mr. Gibbons cannot be said to be a 
candidate by nomination papers or their equivalent within the provisions 
of c. 53, § 49, in view of the fact that the Republican State Committee 
failed to comply with the provisions of G. L. c. 53, § 15, relating to the 
filing of a nomination certificate with the Secretary of State and the written 
acceptance of such nomination by the candidate nominated. Said § 15 
provides as follows : 

"When a nomination is made to fill a vacancy caused by the death, 
withdrawal or ineligibility of a candidate, the certificate of nomination 
shall, in addition to the other facts required, state the name of the original 
nominee, the fact of his death, withdrawal or ineligibility, and the proceed- 
ings had for filling the vacancy; and the presiding officer and secretary of 
the convention or caucus, or the chairman and secretary of an authorized 
committee, shall sign and make oath to the truth of the certificate, and it 
shall be accompanied by the written acceptance of the candidate nominated. 
Such certificate shall be filed with the state secretary m the case of state 
elections and with the city or town clerk in city or town elections." 

At most, it may be contended that Mr. Gibbons was a "candidate for 
nomination" by way of stickers within the meaning of G. L. c. 53, § 40. 

The question then arises as to whether the prohibition contained in G. L. 
c. 53, § 46, against being a candidate for nomination for more than one 
office is applicable to Mr. Gibbons as a sticker or write-in nominee. In 
view of the unusual circumstances which surround the present case, it is 
my belief that the prohibition does not so apply. An unduly legalistic 
interpretation of the words "candidate for nomination" should not be 
here applied. A liberal interpretation of the words should be given in 
order to comply with the intent of the Legislature, as well as the will of the 
voters as expressed at the recent primary election. Any other interpreta- 
tion of the limitation in question would have the effect of negating the 
express intent of the voters as shown at the primary election and would 
result in a perversion of the intent of the election laws. The right of the 
electorate to select a candidate for Governor under these conditions by 
sticker or write-in vote should not be easily nullified. 

In general, the provisions of c. 53 did not envision the preci.se question 
which is here presented for determination. For this reason, the general 



P.D. 12. 41 

intent of the statute in light of the particular facts is best served by apply- 
ing a broad interpretation to the words ''candidate for nomination." It 
is noted that the provision providing that a person shall be a candidate 
for nommation for only one office is included in a section which is otherwise 
completely devoted to the regulation of nomination papers. The section 
governs the time of filmg such papers, the place of filing, the number of 
signatures, and the like. It relates to nomination by nomination papers as 
provided in § 44. 

This is an unusual case. George Fingold, the only duly qualified candi- 
date for Governor, died on the eve of the primary election. The oppor- 
tunity and right of the voters in the Republican primary were on the verge 
of being eliminated. To deprive the voters of one of the major political 
parties of their right to express their choice for a gubernatorial nominee is 
in violation of deep-rooted constitutional principles. No provision of the 
statutes should be construed to accomplish such a result. It is clear 
beyond peradventure that the General Court never intended such a result. 

Under the circumstances of the present case, it is my opinion that 
Mr. Gibbons was duly nominated at the recent primaries as the Republican 
nominee for the office of Governor and that his name should be printed on 
the ballots to be used at the November election. The limitation of § 46 is 
not applicable to the case before me. 

In reaching this conclusion I have given due weight to the fact that the 
only name printed on the ballot was that of George Fingold and that a 
vote for Mr. Fingold, who had died prior to the primary, would not be a 
valid vote (Madden v. Board of Election Commissioyiers, 251 Mass. 95 
[1925]). In order for the voters to express their preference a sticker or 
write-in vote was necessary. The intent as there expressed should be 
followed. 

In this connection you have asked whether perhaps Mr. Volpe may have 
been nominated by virtue of the fact that he had sufficient votes to obtain 
nomination, if the votes for Mr. Gibbons were invalid. In view of the 
conclusion I have reached, it is unnecessary to answer this question. 
However, the inescapable conclusion from the language in the Madden 
case, cited above, is that Mr. Volpe could not be considered the nominee 
even if the votes for Mr. Gibbons were invalid. To rule out the sticker 
nomination of Mr. Gibbons would therefore completely thwart the ex- 
pression of the voters at the recent primaries. 

I also have in mind the fact that the Superior Court for the County of 
Suffolk, prior to the primary election, while not ruling on the merits, 
declined after hearing to issue a preliminary injunction restraining Mr. Gib- 
bons from being a so-called sticker candidate. All of the foregoing factors 
lead to the conclusion which I have expressed above. In view of what has 
previously been said, it becomes unnecessary to answer your additional 
questions. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



42 P.D. 12. 



The provision added to G. L. c. 262, § 63, by St. 1958, c. 422, allowing arrest- 
ing officers witness fees for first attendance at court, is not applicable to 
State police officers, in view of provisions of G. L. c. 262, § 53B, pertain- 
ing to State police officers and provision therein that no witness fee be 
paid arresting officer for first day of attendance. 

Oct. 2, 1958. 

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

Dear Sir : — You have requested my opinion relative to the appHcation 
of c. 422 of the Acts of 1958. In it you pose the following question: 

"Does G. L. c. 262, § 53, as most recently amended by St. 1958, c. 422, 
apply to State Police officers of the Department of Public Safety?" 

I answer your question in the negative. The subject of witness fees and 
travel allowances has been dealt with by the General Court, in G. L. c. 262, 
§ 53B. This section was amended by the provisions of St. 1957, c. 605, 
which dealt in some detail with the subject matter of witness fees and 
travel allowance for State Police officers of the Department of Public 
Safety. It provides specifically that "Any officer of the detective branch 
or of the uniformed branch of the division of state police in the department 
of public safety, appointed under section six or nine A of chapter twenty- 
two, on duty at night, or on vacation or furlough, or on a day off, who 
attends as a witness in a civil or criminal case pending in a district court or 
in the superior court shall be allowed a witness fee m the amount of three 
dollars for each day's attendance except his first attendance as arresting 
officer . . ." The title of c. 605 is also significant. It describes the chapter 
as "An Act providing travel allowance for State Police officers attending 
court as witnesses in criminal cases." 

On the other hand, c. 422, inserting a new section, 53, in c. 262 of the 
General Laws is entitled "An Act relative to the payment of witness fees 
to certain police officers in criminal cases" and provides for witness fees for 
"any police officer, or employee of the registry of motor vehicles having 
police powers ..." under the conditions therein stated, and particularly 
provides for a witness fee" in the amount of three dollars for each day's 
attendance, including his first attendance as arresting officer in the case ..." 
This provision is exactly opposite to the provisions appearing in c. 605 
relating to witness fees and travel allowance for State Police officers which, 
as I have said, provides for a witness fee in the amount of three dollars for 
each day's attendance "except his first attendance as arresting officer." 

It is quite clear to me that the General Court intended the subject of 
witness fees and travel allowances for State Police officers to be covered by 
§ 53B of c. 262. Section 53, in the form included by c. 422 of the Acts of 
1958, in my opinion, does not apply to State Pohce officers. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



P.D. 12. 43 

A veteran on strike is not to be considered to have available to him amounts 
held for his benefit in an employee's savings and retirement fund which 
call be paid to him only on certain conditions. 

Oct. 15, 1958. 

Mr. Charles N. Collatos, Commissioner of Veterans^ Services. 

Dear Sir: — You have requested my opinion as to whether a veteran, 
who is lawfully on strike and who is a member of a savings and retirement 
fund at his place of employment, is entitled to veterans' benefits under 
c. 115 of the General Laws. 

As a general proposition, any veteran who is participating in a lawful 
strike is entitled to receive veterans' benefits provided he satisfies the 
requirements of the statute. The question in this particular case is whether 
such a veteran is entitled to such benefits where he is a participant in a 
savings and retu-ement fund, inasmuch as § 5 of c. 115, provides in part: 
"such benefits shall not be paid to or for any person able to support him- 
self, or who is in receipt of income from any source sufficient for his support." 

As I understand from your letter, the veteran in question has approxi- 
mately $500 in savings in the fund, but it is not clear what, if any, credits 
he has resulting from employer contributions. You state that the veterans' 
agent has determined that these savings are assets, available to the ap- 
plicant on request, and that they are sufficient for his present needs and 
that he is presently able to support himself. 

The agreement creating the Boston Gear Works Division Savings and 
Retirement Fund, dated December 29, 1939, with all appurtenant amend- 
ments thereto, provides that the trustee in its discretion and with the 
approval of the advisory committee may make loans to an employee not 
exceeding his contribution to the fund, and that the advisory committee 
"may make such rules and conditions regarding the making of such loans, 
interest to be charged thereon, and participation in the fund during the 
existence of loans ..." (Article 11). The agreement further provides 
that an employee who has attained his sixty-fifth birthday and who has 
completed ten or more years of continuous service may be permitted a 
partial withdrawal by the advisory committee (Article 12). Article 19 of 
the agreement provides that an employee who ceases to make contributions 
to the fund or who does not comply with all the terms of the agreement 
or the rules and regulations promulgated by the trustee and the advisory 
committee shall cease being a member of said fund and shall be treated as 
having resigned from the company. 

In view of the above, it appears that the veteran in question has but 
two courses of action, either to apply to the trustee for a loan, or to inform 
the trustee that he intends to make no further contributions. Being under 
sixty-five, according to the provisions contained in the aforesaid agree- 
ment, he cannot even apply for a partial withdrawal. Failure by him to 
contribute to the fund while on strike, in my opinion, does not end his 
participation therein. Despite the provisions of Article 19, which provide 
for cessation of membership when an employee ceases to contribute, as a 
general proposition, failure to contribute ordinarily means a voluntary 
desire on the part of the employee not to contribute. It does not mean 
that where an employee is unable to contribute due to his being out ill or 
due to his being on strike, he ceases to be a member. Any loan, of course, is 



44 P.D. 12. 

contingent upon the approval of the trustee and the advisory committee 
and hence the employee does not have an absolute right to it. 

Therefore, I am of the opinion that the said veteran is not able to sup- 
port himself nor has he available to him a source of income sufficient for his 
support. Ability to support does not require the incurring of debts in 
order to effect such support, and, legally, money received from borrowing 
has never been considered to constitute income. It is true that the said 
veteran's account in the fund is an asset. But it is not an asset in the 
sense that a savings account is an asset, nor is it available to him on request. 
For him to realize the value of his account, he must either resign his em- 
ploj'^ment, or must violate the terms of the agreement, or manifest to the 
trustee his intent no longer to be a participant in the fund. In any of these 
situations he would jeopardize various advantages which would otherwise 
accrue to him. 

Furthermore, this plan is predicated upon the proposition that a certain 
percentage of employees will participate. Therefore, it is quite possible 
that forcing a number of employees to withdraw from the fund in order 
to maintain themselves while on strike may very well contribute to the 
destruction of the entire savings and retirement plan. 

Thus, I conclude that the veteran is entitled to receive veterans' benefits 
pursuant to the provisions of c. 115 of the General Laws. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By L. Johnson C^^llas, 

Assistant Attorney General. 



The Secretary of the Commonwealth is to determine whether provisions as 
to public policy questions have been complied with. 

Oct. 17, 1958. 

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

Dear Sir : — In your recent letter you state that it has been alleged 
that the two petitions numbered 061 and 187 (relating to an application 
for submission to voters of questions of public policy in the 9th Suffolk 
Representative District) are irregular in form and that they have been 
altered. 

You ask for an opinion as to whether or not the so-called "sweepstake 
public policy " question should be printed on the ballot for Ward 9 in Boston 
in view of the facts ''herein" presented. 

I have examined the certified photostatic copies of said petitions num- 
bered 061 and 187, a letter dated October 16, 1958, from David Lasker, 
Chairman of the Boston Board of Election Commissioners, and a letter 
dated October 9, 1958, from Attorney Francis E. Kelly. 

The pertinent provisions of law relating to ''questions to be submitted 
to the voters" are to be found in G. L. c. 53, §§ 18-22, inclusive. 

It is provided in § 19 that "Upon the fulfilment of the requirements of 
this and the two following sections the state secretary shall place such 



P.D. 12. 45 

question on the official ballot to be used in that . . . representative district 
at the next state election." Section 20 reads: ''The provisions of law rela- 
tive to the signing of nomination papers of candidates for state office, and 
to the indentification and certification of names thereon and submission 
to the registrars therefor, shall apply, so far as apt, to applications sub- 
mitted under section nineteen." (See G. L. c. 53, §§ 6 and 7.) I find no 
provisions of law relating to objections (to State Ballot Law Commis- 
sion) in matters involving applications for submission of questions of public 
policy to the voters. I do find, however, that the Legislature has on several 
occasions made provision for the filing of objections to nomination papers 
and certificates of nomination (G. L. c. 53, §§ 11, 12 and 27) (see also 
Madden v. Secretary of the Commonwealth, 337 Mass. 758) and two initiative 
and referendum petitions (G. L. c. 53, § 22A) where language similar to 
said § 20 also appears (see Compton v. State Ballot Law Commission, 311 
Mass. 643) and in connection with the filing of certain other petitions re- 
quu'ing signatures of voters and certification by the local election registrars. 
It is manifest that the Legislature intentionally made no provision for 
objections to the State Ballot Law Commission in matters involving ap- 
plications for submission of questions of public policy to the voters. Lender 
G. L. c. 53, § 19, it is the duty of the State Secretary to place such ques- 
tion on the official ballot to be used in that representative district at 
the next State election (only) upon fulfilment of the requirements of said 
§ 19 and the two following sections. I am therefore of the opinion that it 
is the duty of the State Secretary to decide whether or not the requirements 
of G. L. c. 53, §§ 19, 20 and 21, have been fulfilled and to place such ques- 
tion on the official ballot only if he makes such determination. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Samuel W. Gaffer, 

Assistant Attorney General. 



The provision of c. 29 of the Resolves of 1946 providing for doing certain work, 
subject to appropriation, and that municipalities provide 50 per cent of 
local contribution for certain work to be done by the Federal Government 
therein, was superseded by provisions of 1958 Capital Outlay Bill that 
municipalities pay 25 per cent of amount appropriated thereby for the 
work. 

Nov. 7, 1958. 

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

Dear Sir: — You have requested my opinion relative to the Hyannis- 
Duxbury Harbors Project. In c. 29 of the Resolves of 1946 it is provided: 

"That, subject to the conditions hereinafter imposed, the following 
projects for the improvement of harbors and waterways in the common- 
wealth, already adopted by the Congress of the United States, when federal 
funds are available therefor, are hereby authorized : — Manchester Harbor, 



46 P.D. 12. 

Salem Harbor, Marblehead Harbor, Duxbury Harbor, Hyannis Harbor, 
Cape Cod Canal (Onset Bay), Nantucket Harbor, Westport River. Sub- 
ject to appropriation, the department of public works is hereby authorized 
to pay to the secretary of war of the United States on his demand the con- 
tribution required from local interests, as specified by the Congress with 
respect to each project, and to give to said secretary of war the assurance 
required for such project; provided, that in each instance the municipality 
in which the project lies shall have deposited with the state treasurer one 
half of such contribution ..." 

You advise me that St. 1958, c. 650, § 2, Items 8259-94 and 8259-95, 
contain appropriations for the projects you refer to providing that the 
local municipalities provide twenty-five per cent of the required local 
interest contributions. 

Clearly, therefore, the appropriation statutes providing funds for these 
projects, upon the provision that the local municipalities provide twenty- 
five per cent of the required local interest contributions, are inconsistent 
with the original resolve of 1946 authorizing these projects, which specifi- 
cally requires one half of the local interest contributions. 

It should be further borne in mind that the provisions referred to in 
c. 650 described the contributions for these projects as the municipalities' 
shares. You assure us that there is nothing in the terms of the Federal 
legislation relative to this subject matter which interferes in any way with 
the change in the amount of the municipalities' contributions. 

Under the ordinary rules of statutory construction, both c. 29 and c. 650 
should be read together so as to produce a harmonious whole. Chapter 
650, as far as it is inconsistent with c. 29, repeals or amends to that extent, 
and no further, the earlier legislation. Pjjj^ 

You are correct in understanding that it is my opinion that the twenty- 
five per cent provision in c. 650 controls c. 29 as far as it is consistent there- 
with. Again, I am assuming what you have told me, that this amendment 
in no way affects nor violates the Federal legislation relative to this subject 
matter. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The prohibition in G. L. c. 266, § 89, of the use of the word "college," is not 
applicable to use of "college" by a "Barber College," as referred to in 
G. L. c. 112, § 87 P. 

Nov. 13, 1958. 

Hon. Owen B. Kiernan, Commissioner of Education.. 

Dear Sir: — Your recent letter poses the following question, in sub- 
stance : 

Whether the use of the name "Dalbec Barber College" is a violation of 
the provisions of 0. L. c. 266, § 89. 

In my opinion, the answer must be in the negative. True enough, § 89 
provides that: 



P.D. 12. 47 

"Any individual, school, association, corporation or institution of learn- 
ing, not having lawful authority to confer degrees, using the designation of 
'university' or 'college' shall be punished by a fine of one thousand dollars; 
but this shall not apply to any educational institution whose name on 
July ninth, nineteen hundred and nineteen, included the word 'university' 
or 'college.'" 

However, G. L. c. 112, § 87P, provides: 

"Any school or college where tuition or fees are charged for teaching the 
occupation of barbering shall be considered a barber school or barber 
college under sections eighty-seven F to eighty-seven R, inclusive, and all 
said schools or colleges shall keep prominently displayed at the entrance a 
sign 'Barber School' or 'Barber College,' as the case may be. Any person 
desiring to operate or conduct a barber school or barber college within this 
commonwealth shall first secure from the board a permit to do so." 

Section 87P further provides: "After receipt of an application for a 
permit to operate a barber school or barber college, the board [of registra- 
tion of barbers] shall make investigation as to the reliability of the applicant 
or applicants, the qualifications of the instructors of the school or college 
and the equipment, appliances and sanitary conditions thereof and if these 
conditions are found to be satisfactory, a permit to operate or conduct a 
barber school or barber college shall be granted." 

Section 87P further provides : "All . . . [barber] schools or [barber] col- 
leges shall keep prominently displayed at the entrance a sign 'Barber 
School' or 'Barber College,' as the case may be." 

The further requirements of § 87P provide detailed control by the Board 
of Registration of Barbers of the barber schools and barber colleges. As 
your letter furnishes me with no evidence that the concern you refer to has 
lawful authority to confer degrees, I assume to the contrary. At first 
glance it would seem as though there is an inconsistency between § 89 and 
I 87P. Section 89 apparently makes it a criminal offense to use the designa- 
tion "college" unless the concern using the name has "lawful authority to 
confer degrees . . . ." On the other hand, § 87P clearly confers upon 
barber schools or barber colleges the right to operate by express legislative 
permission under the name "Barber School" or "Barber College" under 
the restrictions, limitations and conditions specifically referred to in § 87P, 
none of which requires the authority to confer degrees as a condition. 

The cardinal principle of statutory construction in matters of this kind 
is to construe the statutes, so far as possible, as one harmonious whole. 

It is clear, it seems to me, that § 89 covers institutions not specifically 
covered by § 87P. It is also clear to me that the institutions covered by 
§ 87P have the right to operate within the limitations of that section 
independently of § 89. Section 87P explicitly requires the institutions 
covered therein to display a sign "Barber School" or "Barber College" 
presumably for the benefit of the general public. It would not be sensible 
to suggest that institutions covered by § 87P are expressly authorized to do 
business under the name of "Barber College" subject to the provisions of 
that section, and at the same time to say that such a business or institution 
should be punished by a fine of one thousand dollars for the use of the word 



48 P.D. 12. 

"College" when § 87P makes no provision for the issuance of degrees to 
such a business and does authorize their operation without degrees. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The portiori of profit paid by concessionaires of the student commuters' cafeteria 
at Westfield State Teachers' College must he paid into the Treasury of 
the Commonwealth. 

Nov. 20, 1958. 

Mr. Paul W. Knight, Business Agent, Department of Education. 

Dear Sir: — You have requested my opinion relative to a contractual 
agreement concerning the operation of Student Commuters' Cafeteria at 
State Teachers' College, Westfield, by a private concessionaire to remit to 
the college certain percentages of the operating profits. 

For the purposes of your letter I am assuming that your department, 
under the power vested in it by virtue of G. L. c. 73, § 1, giving it "general 
management of the state teachers colleges," has the power to enter into 
the arrangement you refer to. 

The General Court has made detailed provisions for school luncheon 
programs, see G. L. c. 71, § 72, and St. 1948, c. 548, as amended. These 
provisions do not, however, applj^ to state teachers' colleges. Therefore, 
the disposition of any proceeds from the operation of a cafeteria under the 
arrangement you refer to is controlled by G. L. c. 29, § 2, which provides 
that "All revenue payable to the commonwealth shall be paid into the 
general fund. . . ."; see also Article LXIII of the Amendments of the 
Constitution of Massachusetts which reads as follows: 

"All monej'^ received on account of the commonwealth from any source 
whatsoever shall be paid into the treasury thereof." 

The profits, therefore, from such an undertaking would be funds, in my 
opinion, belonging to the Commonwealth and should be turned over to the 
Treasurer. The profits are not available to the college for expenditure 
unless there is an appropriation for this purpose. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



P.D. 12. 49 



Limitation of land use along Rt. 128 in Danvers, Lynnfield and Peahody 
under St. 1950, c. 491, to that then 'permitted under certain local zoning 
laws, cannot be changed by local amendments of zoning laws; only by 
State. 

Nov. 21, 1958. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — In your recent letter you state that your department laid 
out and constructed during the 1940's the Northern Circumferential High- 
way (Route 128) in Danvers, Lynnfield and Peabody without limitation of 
access. You refer to St. 1950, c. 491, restricting the use of lands abutting 
the Yankee Division Highway and further state that in the years 1954 and 
1955 the department limited the access on Route 128 in Danvers, and no 
access can now be allowed to any property abutting the State Highway 
location. 

In the light of these facts you state that the town of Danvers now 
desires to rezone the use of the 200-foot strip and wishes to know whether 
enabling legislation is necessary to permit such rezoning. In my opinion 
it is. 

You will notice further that the area referred to is subjected by c. 491, 
among other things, to such structures and uses "as are permitted under 
the zoning ordinances and by-laws of the city of Peabody and the towns of 
Lynnfield and Danvers in effect immediately prior to the effective date of 
this act. . . ." 

Your letter does not advise us as to the nature and extent of the limita- 
tions of the access orders which you refer to in the third paragraph of your 
letter, nor do you advise us as to the applicable zoning provisions of the 
town of Danvers at the effective date of c. 491. 

Naturally, lawful orders of your department superimpose themselves 
upon existing local by-laws insofar as they are inconsistent with them. So 
far as reasonably possible, complete effect should be given to both. From 
the information contained in your letter I am unable to say that your 
limitation of access orders have repealed c. 491. That act subjected the 
land therein referred to to the then existing by-laws of Danvers. 

Further legislation, in my opinion, is necessary to authorize changes 
in those by-laws. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Emergency employees are not entitled to full pay under sick leave rules of 
the Division of Personnel and Standardization. 

Nov. 24, 1958. 

Mr. John D. Coughlin, Director, Division of Youth Service. 

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

"Is a person employed by the Commonwealth on an emergency appoint- 
ment entitled to receive for the period in which she was unable to work 



50 P.D. 12. 

due to an accident covered by Industrial Accident Insurance the difference 
in pay between her regular compensation and the amount of the Industrial 
Accident award?" 

Under the circumstances set forth in your letter, supplemented by the 
information given by you to me over the telephone, in my opinion the 
answer is "No." 

As you doubtless are aware, under the rules and regulations governing 
vacation leave, sick leave, travel, overtime, military leave, court leave, 
other leave, charges to State personnel and accident prevention, emergency 
employees are apparently excluded from Rule LV-1. They are also ex- 
cluded from sick leave Rules and Regulations LS-1. Moreover, the word 
"Person" is defined in G-7 as follows: 

"Person": "Shall mean any individual who is not included in the defini- 
tion of 'Officer' in Rule G-6, and an employee of the Commonwealth 
other than an emergency employee." 

I have found no rule nor regulation nor statutory provision authorizing 
make-up payments on top of compensation benefits to emergency em- 
ployees. The only provision which I have found is the provision in the 
last paragraph of sick leave Rules and Regulations LS-1 5 based appar- 
ently upon the provisions of G. L. c. 7, § 28. You advise me that the lady 
you refer to does not come within the provisions just above referred to as 
her accident did not result "from acts of violence" of any patient or 
prisoner in her custody. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A sentence for escape cannot he ordered to commence on date of sentence, by 
statute it must begin on expiration of sentence being served at the time 
of escape. 

Nov. 25, 1958. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — In your recent letter you requested an opinion relative 
to the sentences of two inmates of the Massachusetts Correctional In- 
stitution at Framingham. 

I note from your letter that on July 2, 1958, the inmates you refer to 
escaped from said institution while serving sentences there, and that on 
September 4, 1958, they were sentenced in the Middlesex Superior Court 
on a charge of robbery and a charge of escape, these sentences to be served 
concurrently. 

Your letter does not state what sentences they were serving at the time 
of their escape. However, I further note from the copy of the letter of the 
assistant clerk of the court to your Mr. Dwyer that the judge intended 
that the sentences imposed by him should begin on the date of imposition 



P.D. 12. 51 

of the sentences. You now ask our advice "as to when the sentence for 
escape from the Massachusetts Correctional Institution should begin." 
In my opinion, the General Court has answered your question in the 
last sentence of G. L. c. 268, § 16A, where it is stated that: 

"Such sentences shall begin upon the expiration of the sentence which 
said prisoner was serving at the time of escape or attempted escape." 

In my opinion, the judge's intention cannot amend nor rescind the 
mandate of the General Court. The Legislature has determined, in its 
wisdom, in cases such as these the sentences for escape begin at the ex- 
piration of the sentence being served at the time of escape. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A review ordered by the Governor under G. L. c. 94 A, § 13, of a minimum 
retail price order of the Milk Control Commission requires the same notice, 
hearing and publication, as on the original order; the review is not a 
mere extension of the original record, but is a separate proceeding, in 
which the original record may be considered. 

Nov. 28, 1958. 

Mr. Park Carpenter, Secretary, Milk Control Commission. 

Dear Sir: — In your recent letter you state that the Milk Control 
Commission has adopted General Order No. G17-505 relating to the fixing 
of minimum milk prices and that said order was adopted after notice, 
hearing and consideration of evidence received. You further state that 
the Governor has ordered the commission to review its action in accordance 
with the provisions of G. L. c. 94A, § 12. You have requested an opinion 
concerning the procedure to be followed in connection with said review. 

You ask first whether a notice of review should be published in the man- 
ner set forth in G. L. c. 94A, §§ 17(a) and 19(a). 

The provisions of G. L. c. 94 A, § 12, relating to the fixing of wholesale 
and retail minimum milk prices following the declaration of a state of 
emergency provide for the fixing of such prices "after public hearing held 
after due notice." The section also contains the following language: 

"The commission may in like manner at any time alter, revise, amend 
or rescind the prices so fixed. Any such action taken by the commission 
shall be reviewed by the commission at least once in each year thereafter, 
and, if not thus reviewed, the orders issued shall terminate upon the ex- 
piration of the period of one year after the date of the issuance of such 
orders, and any action may likewise at any time be thus reviewed on the 
order of the governor, or on the request of the milk regulation board. Due 
notice shall be given of any such review. Any price fixed pursuant to this 
section, and any alteration, revision or amendment thereof shall be fair, 
just and reasonable and shall be published as provided in section nine- 
teen." 



52 P.D. 12. 

The foregoing provisions thus require notice and hearing. The provi- 
sions relating to the time of giving notice of a hearing in connection with 
the adoption of a rule or regulation are set forth in G. L. c. 94A, § 17. It 
is my opinion, therefore, that you should follow the provisions of said §17(a) 
in carrying out the review ordered by the Governor. 

It is also noted that the last sentence of § 12 quoted above requires 
specifically that there be publication in accordance with § 19. My answer 
to your first question, therefore, is "Yes." 

You ask, secondly, if a review should be had by general hearing as pro- 
vided in § 16(6) of said chapter. Said § 16(6) provides as follows: 

"Before adopting, altering or rescinding any general order, rule or regu- 
lation, the commission shall hold a general hearing upon the subject matter 
thereof, and afford all persons interested an opportunity to ofi"er evidence 
pertinent thereto." 

In accordance with said section, my answer to your question is "Yes." 
you ask, finally, whether the record of such review will be an integral 
extension of the original record or that of a separate proceeding. The 
provisions for review quoted above indicate that the commission shall 
review any action taken under § 12 at least once in each year and if not 
thus reviewed, the orders so issued shall terminate upon the expiration of 
one year. It is apparent from the foregoing that a review is not merely 
a re-examination of the matters presented at the original hearing but is a 
proceeding designed to re-examine the entire question as to whether the 
general order should continue, should be revised, or should be allowed to 
expire. It also appears from the above-quoted language that the Governor 
may order such a review at any time, and the review so ordered by the 
Governor would not be any less restricted in scope than the review which 
should be made by the commission at least once in each year. 

In view of the foregoing, it would appear that a review is not merely 
an extension of the original record. It is a separate proceeding in which, 
of course, the original record may be considered. 
Very truly yours, 

Edward J. McCormack, iv., Attorney General. 



Option (d) under the Contribution Retirement Law, is not applicable to 

State police. 

Dec. 3, 1958. 

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

Dear Sir : — You have requested an opinion relative to the application 
of St. 1958, c. 614, to members of the State Police and pose the following 
question : 

"Do the provisions of St. 1958, c. 614, apply to the members of the State 
Police (Uniformed Branch) in the Department of Public Safety?" 

The retirement allowances of members of the State Police in the De- 
partment of Public Safety, in the contributory retirement system, are 
controlled largely, if not wholly, by G. L. c. 32, § 26. They are specially 



P.D. 12. 53 

classified under the provisions of § 3(2) (/) in a separate group by them- 
selves. They are not referred to in § 5 of c. 32, dealing with superannuation 
retirement, nor in § 6 of that chapter, dealing with ordinary disability 
retirement, but are included in the provisions of § 7, dealing with accidental 
disability retirement insofar as they are not covered by subdivision (2) 
of § 26. 

An examination of the provisions of c. 614 indicates that that chapter 
endeavors to broaden the benefits of option (d) of subdivision (2) of § 12 of 
c. 32 of the General Laws. Section 1 of c. 614, in part, reads as follows: 

"Option (d) of subdivision (2) of section 12 of chapter 32 of the General 
Laws, as most recently amended by chapter 494 of the acts of 1955, is 
hereby further amended by adding at the end the following paragraph: — 

The second paragraph of § 2 of c. 614 provides that: 

"A surviving eligible widow may elect to receive allowances under this 
section or to receive the survivor benefits as provided under option (d) 
of subdivision (2) of section twelve." 

Section 12 of c. 32, which creates the option (d) referred to in c. 614, 
reads in part as follows: 

''Any member who is retired for superannuation under the provisions of 
section five or who applies for a retirement allowance under the provisions 
of section ten, may elect to have his allowance paid in accordance with the 
terms of any one of the three options specified in subdivision (2) of this 
section. Any member who is retired for disability under the provisions of 
sections six or seven or who is retired under the provisions of section twenty-six, 
may elect to have his allowance paid in accordance with the terms of either 
option (a) or option (b) of subdivision {2) of this section. ..." 

It is therefore readily seen that, by inadvertence or otherwise, the bene- 
fits of options (c) and {d) are not, for some reason, made applicable to the 
members of the State Police who come within the purview of § 26. I am 
constrained, therefore, to answer your question in the negative. 
Very truly yours, 

Edward J. McCormack, St., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



An elected official, who is a veteran, remaining in service after attaining the 
maximum age for retirement, may retire thereafter as a veteran despite 
his election of option (c) applicable to the contributory retirement system. 

Dec. 10, 1958. 
Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir: — -You have requested an opinion relative to the eligibility 
of a certain elected official, who is a veteran, to retire under the provisions 
of G. L. c. 32, §§ 56 to 60, inclusive. 



54 P.D. 12. 

I note that the term of office of the apphcant, which is held by election 
by popular vote, terminates in January, 1959, and that he attained the 
maximum age for his group in November, 1957. I note further that under 
date of November 15, 1957, he elected to have his retirement allowance 
paid under Option (c), as contained in G. L. c. 32, § 12, subdivision (2). 
Under the same date, by letter, he notified the State Board of Retirement 
that he was electing to continue to serve in his office after attaining the 
maximum age until the expiration of the term for which he was elected, as 
provided by § 5(1) (d) of c. 32. In view of these facts which you have 
recited you ask my opinion "is he at this time eligible to apply for retire- 
ment as a veteran under the provisions of §§ 56 to 60, inclusive, of said 
c. 32?" In my opinion he is. 

In the first place, humane legislation of this kind is to be construed 
broadly in order to encourage high-minded and capable people to enter 
into the public service. Moreover, § 25 makes it clear that the General 
Court is especially solicitous of veterans who have served their country in 
time of need. The applicant in question is a duly elected public official by 
popular vote and is accorded unusual rights under the provisions of G. L. 
c. 32, §§ 1 to 28, inclusive. As a holder of office by popular election, he 
is accorded the right to continue in his office after attaining the maximum 
age for his group until the expiration of the term for which he was elected 
by the express provisions of G. L. c. 32, § 5 (1) (d). As a veteran, the Gen- 
eral Court has accorded him special privileges, denied to others, to elect 
when he retires as to whether he wishes to attain his contributions back 
and be retired under the noncontributory provisions of G. L. c. 32, §§ 56 
to 60A, inclusive, or to receive his superannuation retirement allowance 
under the provisions of G. L. c. 32, § 5. The foregoing must be borne in 
mind in determining the applicant's rights. 

The right of election of a veteran is clearly set forth in the broadest 
terms in G. L. c. 32, § 25 (3) (a). Therein it is provided that: 

"Any member in service classified as a veteran referred to in sections 
fifty-six to sixty A inclusive . . . shall have full and complete rights either 
under the system of which he is a member or under the provisions of sections 
fifty-six to sixty A inclusive, whether or not he may have signed a waiver of his 
rights under such sections . . . anything to the contrary in the provisions of 
this chapter or in similar provisions of earlier laws notwithstanding. Such 
rights shall be in the alternative and shall be exercised only at the time of his 
retirement. ..." 

Moreover, it is provided that if a member is retired under the provisions 
of §§56 to 60A he shall, upon his written application on a prescribed form 
filed with the board in which he waives all his rights under §§ 1 to 28 in- 
clusive, be paid the amount of the accumulated total deductions credited 
to his account in the annuity savings fund of the system on the date of his 
retirement. This same section further provides that "nothing contained in 
this subdivision shall permit the withdraival of any such veteran from member- 
ship in such system except upon termination of his service." 

Since the rights given under § 25 (3) (a) are to a veteran "member in 
service," it may be well to turn to the definition of that phrase which is 
found in G. L. c. 32, § 3 (1) (a) (i), which reads in part as follows: 

" (i) Member in Service. — Any member who is regularly employed in the 
performance of his duties . . . Any member in service shall continue as 



P.D. 12. 55 

such during any period of authorized leave of absence with pay or during 
any period of authorized leave of absence without pay if such leave is due 
to his mental or physical incapacity for duty. In any event the status of 
a member in service shall continue as such until his death or until his prior 
separation from the service becomes effective by reason of his retirement, resig- 
nation, failure of re-election or reappointment, removal or discharge from his 
office or position, or by reason of an authorized leave of absence without pay 
other than as provided for in this clause. ..." 

It should be noted carefully, in this connection, that the status of a 
member in service continues until his death or his prior separation from the 
service. Therefore, it naturally follows that the status of a member in 
service does not terminate in this case until the applicant is separated from 
the service in which he is engaged. Of course, this means the end of his 
tenure of office, which does not end until January, 1959. The provisions 
of § 3 (1) (c) are another indication of the solicitude of the General Court 
to make it clear beyond peradventure that members of the contributory 
retirement systems are not to be deprived of their full and complete rights 
by technicalities. 

Conceivably it might be argued that the applicant's indication under 
date of November 15, 1957, to have his retirement allowance paid under 
Option (c) as contained in § 12 and electing to continue to serve in his office 
until the expiration of his term, in some way barred him from exercising 
the express election given him under the provisions of § 25. I am convinced 
that this is not so for the reasons already stated and which I shall add to. 
Under § 25 (3) a veteran member in service as aforesaid stated is accorded 
complete protection in his right of election, despite any prior written waiver. 
His rights are in the alternative and shall be exercised only at the time of 
his retirement. Since he is a "member in service" as defined by § 3 (1) (a) 
(i), and since a "member in service" continues as such "until his prior 
separation from the service becomes effective by reason of his . . . failure 
of re-election," and since his "separation from the service" does not take 
place until January, 1959, I am persuaded that the applicant is well within 
the provisions which I have referred to. Moreover, it is to be noted that 
an election of the provisions of Option (c) contained in § 12, if made, is 
not final. As stated in § 12 (1): ". . . Election of an option shall be 
made by such member in writing on a prescribed form filed with the board, 
and once made may be changed from time to time by making a new election 
in a similar manner; ..." Section 12 (1) envisions the fact that there 
may be an election or several elections, or a revocation of all, when it 
states in the last sentence: "If no election of an option is made or if none 
is in effect as provided for in this section, the retirement allowance of such 
member shall be paid in accordance with the terms of option (b) of sub- 
division (2) of this section." 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



56 P.D. 12. 



The provision of St. 1958, c. 617, that any teacher who remained in service 
after reaching retirement age should receive the allowance which would 
have been granted if St. 1957, c. 661 {eff. 8/13/57), had been in effect 
at time of retirement, entitles a teacher who attained ma.vimum age 
after 9/1/56, and remained in service, to the allowance so computed from 
7/1/57. 

Dec. 15, 1958. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir : — You have requested an opinion relative to the retirement 
allowance rights of a school teacher under the provisions of St. 1958, c. 617, 
and pose the following questions : 

" (1) Does chapter G17 apply only to teachers who attained the age of 70 
AFTER January 1, 1957, and remained in service to the end of the school 
year June 30, 1957, or does it apply to teachers who attained the age of 70 
after September 1, 1956, and remained in service to the end of the school 
year June 30, 1957? 

''(2) In the case of persons entitled to the increased retirement allow- 
ance, shall the increased rate be effective from July 1, 1957, or shall pay- 
ment at the increased rate be made only from the effective date of St. 1958, 
c. 617, — January 1, 1959?" 

I assume from your letter that the teacher you refer to attained the age 
of 70 after September 1, 1956, and prior to May 1, 1957, and remained in 
service to the end of the school j^ear under the provisions of G. L. c. 32. 
§ 5 (1) (/), inserted by St. 1954, c. 348. 

Chapter 348 is entitled ''An Act permitting teachers under certain con- 
ditions to remain in service until the end of the school year in which the 
maximum age is attained," and has an emergency preamble reciting, in 
part, that the act "is to make certain provisions of law relative to retire- 
ment of teachers become effective for the present school year ..." The 
new paragraph (/) provides, in part : 

"Notwithstanding any other provision in paragraph (a) of this subdi- 
vision, any teacher who attains the maximum age for retirement in any school 
year may, upon the written request for the continued employment of such 
teacher . . . filed . . . not more than ninety days and not less than 
thirty days prior to the attaining of such maximum age, remain in service 
until the end of said school year, whereupon said service shall cease and 
retirement shall then become effective; . . . Any member who ... is 
permitted to remain in service beyond the maximum age shall . . . upon 
his written application ... be retired for superannuation as of a date 
which shall be specified in such application . . . but in no event later than 
the end of the school year in which he attains the maximum age. The re- 
tirement allowance from the date of retirement of a person who remains 
in service under this paragraph beyond the maximum age shall be at an 
annual rate equal to that to which he would have been entitled had re- 
tirement taken effect at said maximum age." 

Chapter 661 of the Acts of 1957, approved by the Governor August 13, 
1957, is entitled "An Act changing and simplifying the computation of the 
amount of superannuation retirement allowance for employees under the 
contributory retirement law," and contained a preamble that its purpose 



P.D. 12. 57 

is to "provide forthwith for a simplified superannuation retirement formula 
and to extend the benefits thereof to certain career employees ..." 

Chapter 617 of the Acts of 1958, approved by His Excellency the Gov- 
ernor on October 3, 1958, is entitled "An Act relative to the retirement of 
certain teachers who after reaching the age of retirement remained in 
service at the request of the school committee for the continued employ- 
ment of such teacher until the end of the school year." It provides that: 

"Any teacher who was permitted to remain in service after January 
first, nineteen hundred and fifty-seven under the provisions of paragraph (/) 
of subdivision (1) of section five of chapter thirty-two of the General Laws, 
as in effect prior to the effective date of this act, and remained in such 
service until the end of the school year in nineteen hundred and fifty-seven, 
shall, notwithstanding any provision of law to the contrary, receive the re- 
tirement allovv^ance to which he would have been entitled if chapter six 
hundred and sixty-one of the acts of nineteen hundred and fifty-seven had 
been in effect on the date he attained the age of seventy." 

The teacher you refer to, I assume from your letter, "was permitted to 
remain in service after January first, nineteen hundred fifty-seven under 
the provisions of paragraph (/)" and I also assume from your letter "re- 
mained in such service until the end of the school year in nineteen hundred 
and fifty-seven" and is therefore entitled under the express provisions 
of c. 617 to "receive the retirement allowance to which he would have 
been entitled if chapter six hundred and sixty-one of the acts of nineteen 
hundred and fifty-seven had been in effect on the date he attained the age 
of seventy." 

Chapter 661 contained an emergency preamble and would therefore 
become operative on the date of its approval, August 13, 1957. 

The pattern of the legislation which I have referred to indicates a legis- 
lative intent to provide a retirement allowance for teachers completing 
their work until "the end of the school 3='ear in nineteen hundred and fifty- 
seven," computed upon the formula provided by St. 1957, c. 661, as applied 
to the date "he attained the age of seventy." 

In my opinion, as I have indicated, the purpose of c. 617 is to extend 
the benefits of c. 661 to teachers permitted to remain in service after Jan- 
uary 1, 1957, until the end of the school year in 1957. I see nothing in the 
legislation to which I have referred indicating any intention to bar a teacher 
with an extension of service in accordance with the statute and completing 
the school year in 1957, and having attained the age of seventy after Sep- 
tember 1, 1956, from being entitled to the benign benefits of c. 617. 

It is my opinion, therefore, that the answer to your Question (1) is that 
c. 617 applies "to teachers who attained the age of 70 after September 1, 
1956, and remained in service to the end of the school year June 30, 1957." 

I answer your Question (2) by saying that according to the express 
language of c. 617, the teacher you refer to is entitled to "receive the re- 
tirement allowance to which he would have been entitled if chapter six 
hundred and sixty-one of the acts of nineteen hundred and fifty-seven had 
been in effect on the date he attained the age of seventy," from July 1, 1957. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



58 P.D. 12. 

The indemnification benefits provided under G. L. c. 16 §§ 4D and 4-E, are 
granted ivithout deduction for any part of an individual's accumulated 
sick leave. 

Dec. 16, 1958. 

Mr. Clement A. Riley, Registrar of Motor Vehicles. 

Dear Sir: — In your recent letter, relative to the construction of St. 
1956, c. 654, you pose the following question: Is a person who is entitled 
to indemnification under the provisions of c. 654 (now G. L. c. 16, §§ 4D 
and 4E) entitled to the benefits thereof without deduction for the whole 
or any part of his accumulated sick leave under the rules and regulations 
governing sick leave authorized by G. L. c. 7, § 28, as now in effect? 

In my opinion he is. These sections, in accordance with the usual rules 
of construction, having a beneficent purpose, are to be construed broadly 
in order to effectuate the intent of the General Court. It seems clear that 
the indemnification provisions are for wholly different purposes than the 
vacation leave rules and regulations. The former is to protect the person 
benefited from injury and damage caused by or resulting from the hazards 
of his occupation. Sick leave provisions afford some protection from the 
vicissitudes of life. It would tend to frustrate the purpose of the General 
Court in enacting these indemnity sections to hold that accumulated sick 
leave is or may be deducted from the benefits under those sections, when 
in truth and in fact the General Court carefully omitted any such provision 
in the legislation. In this connection it may be noted that the amount of 
indemnity under both sections is, as a practical matter, more or less under 
the control of the Registrar. Section 4D provides that the "registrar of 
motor vehicles may authorize the payment." Section 4E provides that 
"the registrar of motor vehicles shall, subject to appropriation, indemnify 
an employee in the registry of motor vehicles ... to an amount not more 
than the amount recommended by said registrar ..." 
Very truly yours, 

Edw^\rd J. McCoRMACK, Jr., Attorney General, 

By Feed W. Fisher, 

Assistant Attorney General. 



St. 1958, c. 605, providing an independent board for setting up community 
colleges, and repealing G. L. c. 73, § 9, terminated the authority of De- 
partment of Education under the section to continue the operation of the 
Community College at Fitchburg established thereunder. 

Dec. 16, 1958. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have requested an opinion relative to the Community 
College program now operating in Fitchburg and pose the following 
question : 

"My specific question to you is whether St. 1958, c. 605, § 4, in any way 
modifies the action of the Board of Education in the conduct of the Com- 
munity College program now operating in Fitchburg?" 



P.D. 12. 59 

I answer in the affirmative. The operation of the Community College 
you refer to stems from, as you are aware, G. L. c. 73, § 9, which provides 
that: 

"The department, in its sole discretion, may at any time and place 
establish a community college . . . providing a program of general and 
vocational education designed to serve the educational needs of one or 
more communities ... A community college may be established as a 
division of any existing state teachers college. Such community colleges 
may have differing forms of organization and may provide curricula of 
varying lengths." 

I have noted carefully j^our statement that: "The Community College 
at Fitchburg has been in operation since the college year 1956--57 and 
students are advancing toward the completion of sixty semester hours 
which we believe qualifies them for the awarding of an associate in arts or 
associate in science degree." 

A reading of St. 1958 c. 605, makes it quite clear that the General Court 
intended by this legislation to create a new independent board for the 
purpose of determining 

"... the need for education at the community and junior college level 
throughout the commonwealth, and the development and execution of an 
over-all plan to meet this need. The board shall then establish and main- 
tain regional community colleges at suitable locations in accordance with 
this plan." 

The legislation further provides that the board established is in the De- 
partment of Education, "but not subject to its control." 

I note also that § 4 completely wipes out, by express repealer, § 9 of c. 73, 
upon which the Department of Education formerly relied for its authority 
to establish a community college. It is my opinion that upon the effective 
date of c. 605 no power longer remains in the Department of Education 
to operate a community college which in your letter is described as "a 
community college at the State Teachers College at Fitchburg." The 
General Court had the power to grant the authority in your department 
to establish a community college. It has equal power to terminate it, I am 
constrained to rule. 

In this connection, I do not understand that the Community College 
you refer to was established as a money-making or commercial venture. 
I assume that the authority was granted and the college organized in 
recognition by the Commonwealth of its governmental obligation to assist 
in the education of its people. While it might appear that there is a serious 
moral obligation upon the State to continue the operation of the Corn- 
munity College until its present students, at least, may complete their 
courses and obtain degrees, I see no legal obligation to do so. Some means 
should be found administratively to deal with the situation. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



60 P.D. 12. 



A veteran, employed both hij the State and a city during the same period, is 
entitled to credit for such period only for a single veteran^ s pension either 
from the State or the city. 

Dec. 17, 1958. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir : — In your recent letter, relative to the Secretary of the Board 
of Registration in Medicine, you pose the following questions: 

"1. May the twenty years of creditable service in Boston which the 
city of Boston is using in computing the employee's thirty years of serv- 
ice again be applied in computing the applicant's creditable service on his 
request to the State for retirement under the same § 58 of G. L. c. 32? 

"2. May the applicant retire as a veteran from both the Commonwealth 
and the city of Boston under the provisions of G. L. c. 32, § 58?" 

You state that the secretary has applied to be retired as a veteran under 
the provisions of G. L. c. 32, § 58. I assume that this person is a "veteran" 
within the meaning of § 58 and other applicable provisions of law. 

I notice from your letter that he has ten years of creditable service with 
the Commonwealth and thirty-three j^ears of service with the city of Bos- 
ton as the surgical member of the Medical Panel in the city's Retirement 
Board and that as already stated the last ten years of service with both 
city and State have been concurrent. I further note that in processing the 
veteran's retirement you are adding twenty years (1928-1948) of credit- 
able service in Boston to his ten years of State service to meet the thirty- 
year requirement prescribed by § 58. 

Section 3 (7) of c. 32 deals Avith contributory retirement allowances 
(with which the Secretary has had nothing to do); in this subdivision 
rather elaborate and complete provisions are made for the retirement of 
persons employed by two or more governmental units. Section 58, under 
which retirement is sought in this matter, dealing with noncontributory 
retirements, contains no such provisions. This omission should not be 
looked upon as a legislative oversight. I am more inclined to believe that 
it was intentional inasmuch as, generally speaking, a superannuation re- 
tirement now has certain contractual benefits going with it; whereas the 
right to a noncontributory veteran's retirement allowance appears to be 
more or less discretionary. 

General Laws c. 32, § 56, provides for a veteran's retirement allowance 
" with the consent of the retiring authority." A veteran's retirement allow- 
ance is provided for in G. L. c. 32, § 57, wherein it is provided that "A 
veteran . . . who has been in the service of the commonwealth . , . for a 
total period of ten years in the aggregate, may, upon petition to the re- 
tiring authority, be retired, in the discretion of said avthority, . . . ." 

Again, G. L. c. 32, § 58 provides that "A veteran who has been in the 
service of the commonwealth, or of any county, city, town or district, for 
a total period of thirty years in the aggregate, shall, at his own request, 
with the approval of the retiring authority, be retired from active serv- 
ice .. . ." 

In other words, superannuation allowances under the provisions of G. L. 
c. 32, §§ 1-28, inclusive, are now more or less a matter of right, while vet- 
erans' retirements under the provisions of G. L. c. 32, §§ 56-60 are, gen- 
erally speaking, a matter of grace. 



P.D. 12. 61 

It is my opinion that this lack is due to the fact that retirements, such 
as I have said, under § 58 are largely, if not wholly, in the discretion of the 
retiring authority under all the circumstances of the particular case. 

In answer to your question 2, it is my opinion that under the circum- 
stances you have stated, the applicant may retire as a veteran from the 
service of the Commonwealth. 

In answer to your question 1, it is my opinion that the applicant is not, 
as a matter of law, entitled to use the same periods of time in making up 
the "total period of thirty years in the aggregate" for the purpose of ob- 
taining two retirements, the first from the employ of the Commonwealth 
and the second from the city of Boston. Whether the city of Boston de- 
termines to award this gentleman a retirement allowance under § 58 after 
his retirement by the Commonwealth is a matter to be determined by the 
proper authorities of the city. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Whether an extra work order should be issued largely depends upon the de- 
termination of questions of fact, and the Attorney General does not 
review such factual determination and does not render opinions on which 
public officials are no longer required to act. 

Dec. 17, 1958. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — ^ Your letter to the late Attorney General George Fingold 
concerning an extra work order issued by your department in connection 
with contract No. 5992 has been referred to me for reply. The contract 
provides for construction of a portion of the Southeast Expressway, in- 
cluding the Ro3^ C. Smith bridge over the Neponset River at the Boston- 
Milton line. The extra work order relates to said bridge. 

You call attention to a letter to you dated April 25, 1958, from Attorney 
General Fingold advising your department in regard to certain legal issues 
arising out of the sinking of the abutments of the said Roy C. Smith bridge. 
Based on information then made available to the Attorney General, he 
advised that the contractor might be required to remedy the defect and 
that an extra w^ork order should not be issued. 

You now state that your department has engaged the services of Spencer, 
White and Prentice, of New York City, specialists in foundation work. 
You state that this firm has recommended that the original design and 
specifications for support of the abutment be altered because such design 
and specifications were, in their opinion, inadequate. It was recommended 
that steel caissons filled with cement be driven to support the abutments 
in place of the compacted fill specified in the original contract. 

You state that on May 27, 1958, you issued an extra work order to the 
contractor calling for the use of such steel caissons, and that the Comp- 



62 P.D. 12. 

troller has requested that such extra work order be approved by the At- 
torney General in view of the aforesaid opinion dated April 25, 15)58. 

This office has re-examined in detail the opinion of the late George Fin- 
gold relating to this matter. In commenting on the conclusions there 
expressed, Mr. Fingold added the following words of caution: 

"It is not the province of this office to adjudicate facts nor predict with 
certainty the outcome of any litigation. It is my opinion, however, that 
the foregoing is a proper disposition of this matter if the facts found are as 
recited heretofore." 

You now state that the decision to issue the extra work order in question 
was based on the report and recommendation of the aforesaid engineering 
firm, which report was not available to the then Attorney General at the 
time he rendered his opinion. The decision of your department to issue the 
extra work order was based on facts other than those originally submitted 
to the Attorney General. For this reason we have reviewed the matter in 
the light of present events and note the following additional pertinent facts. 

Your department submitted to the Comptroller in August of 1958 two 
so-called "alterations" relating to the abutments in caissons of the Roy C. 
Smith bridge. These alterations appear to cover the work here in question. 
The first alteration was in the approximate amount of $240,000, and the 
second in the approximate amount of $300,000. By September 18, 1958, the 
first alteration had been certified by the Comptroller, approved by the 
Governor and Council, and, except for a minor amount, paid to the con- 
tractor. By this same date the second alteration had been similarly cer- 
tified and approved, and approximately one-half of the amount due there- 
under had been paid to the contractor. An additional $80,000 was paid to 
the contractor on this second alteration by October 9, 1958. 

In effect, then, the extra work order which you now seek to have ap- 
proved by the present Attorney General has already been processed through 
channels to payment by means of the aforesaid alterations. Under these 
circumstances there is no longer a question before you concerning which 
the Attorney General might be asked to render an opinion. It has been a 
long-standing practice of this department to aid officers of the Common- 
wealth in the performance of their official duties by advising them in respect 
to matters on which they are then required to act. It is not the practice 
to render opinions in respect to matters on which public officials are no 
longer required to act. It is noted also that the question of whether or not 
an extra work order should be issued in the present circumstances de- 
pends largely on a determination of fact to be made by your department. 
It is not the function of this office to review such factual determinations. 
In the absence of any indication to the contrary, it will be presumed that 
public officials have performed the duties incumbent upon them. 
Very truly yours, 

Joseph H. Elcock, Jr., Assistant Attorney General. 



P.D. 12. 63 

The escape clauses of mosquito control projects date from enactment of statute. 

Dec. 18, 1958. 
Mr. Charles F. Shelnut, Acting Commissioner of Agriculture. 

Dear Sir : — In your recent letter, relative to the Bristol County and 
Essex County Mosquito Control Projects, you pose the following questions: 

1. Are the escape provisions of those acts [St. 1958, cc. 432 and 516] 
to be computed from their effective date or from the date when funds are 
made available thereunder? 

2. May the two organizations referred to in those acts carry on the 
ground work of setting up the projects prior to the initial appropriations? 

Both these acts apparently were intended to become operative upon 
their effective dates, although at the same time it was provided that the 
monies to be expended thereunder "were subject to appropriation." In 
this connection I note your remark that no funds were appropriated during 
the 1958 session. However that may be, the framework of the acts ap- 
parently envisions forthwith operation. The escape clauses, in my opinion, 
date from the effective dates of the acts, namely, July 1, 1958, and August 
11, 1958. 

You will note in this connection the phrases "one year from the effective 
date of this act" and "within such time" and "prior to the expiration of 
one year from the effective date of this act." 

I answer your question 2 by stating that the board, of course, is without 
power to incur liabilities before there is an appropriation of funds. I know 
of no prohibition against such preliminary volunteer unpaid work as may 
be undertaken in order to accelerate actual operation of the act. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The 1958 initiative act for the refund of excess of pension and earnings over 
salary of persons retired for disability, impliedly repealed the similar 
1957 legislative act and the provision of the latter as to filing of statements 
of 1958 income. 

Dec. 23, 1958. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir: — You have called my attention to the provisions of G. L. 
c. 32, § 91A, as inserted by c. 766 of the Acts of 1957. Said section provides 
in effect that persons pensioned or retired for disability shall refund a por- 
tion of such pension in the event that the pension, together with other 
earnings of such disabled person, shall exceed the salary to which the per- 
son would have been entitled had he not been pensioned for disability. 

You also call attention to an initiative petition which resulted in a ques- 
tion being placed on the ballot at the last State election on November 4, 
1958. Said initiative petition proposed that G. L. c. 32 be amended by 
inserting a § 91 A, which also provided that persons pensioned or retired 



64 P.D. 12. 

for disability should refund a portion of the pension under the same terms 
as described above. 

The pension provision as it stood prior to the initiative petition related 
only to persons pensioned or retired after the effective date of the act, that 
is, ninety days after September 21, 1957. The amendment brought about 
by the initiative petition, on the other hand, provided that it be applied 
to all persons, whether retired before or after its effective date (December 
3, 1958), except that as to persons retired prior to said effective date the 
refund provisions would not apply to income earned during the year 1958 
or prior years. 

You ask, first of all, whether § 91A of c. 32 of the General Laws, as ap- 
proved at the State election on November 4, 1958, supersedes and takes 
the place of § 91A, as inserted by c. 766 of the Acts of 1957. I answer your 
question in the affirmative. Section 91A, as contained in the initiative 
petition, covers almost the identical subject matter as that covered by the 
original § 91 A. Although ordinarily the repeal of a statute by implication 
is not favored by law, it is a recognized principle that the enactment of a 
statute which seems to have been intended to cover the whole subject 
to which it relates, impliedly repeals all existing statutes touching the sub- 
ject and supersedes the common law. Homer v. Fall River, 326 Mass. 673, 
676 (1951). The new § 91 A, inserted by the initiative petition, does ap- 
pear to cover the entire subject matter and therefore should be considered 
as having repealed by implication the prior provisions of § 91A. 

You ask, secondly, whether a person retired for disability between the 
effective date of c. 766 of the Acts of 1957 and the effective date of the 
statute approved in the recent election must file a statement of income 
from gainful occupation before January 1, 1959. My answer to this ques- 
tion is in the negative. The requirement that such persons file a statement 
of income for the period prior to January 1, 1959, was contained in the 
earlier provisions of § 91A which, as stated above, have now been repealed. 
The new statute specifically exempts income earned prior to January 1, 

1959. „ ^ , 

Very truly yours, 

Edward J. McCormack, iv., Attorney General. 



Increase in quantity over that estimated for an item under a unit price con- 
tract, is permissible under G. L. c. 29, § 8A (Competitive Bidding 
Law). 

Jan. 8, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir: — You have requested an opinion regarding contract # 1871 
entered into by the Department of Public Works with the New England 
Dredge & Dock Co. relating to proposed harbor improvements and dredg- 
ing basin at Little Harbor, Marblehead. You have questioned the legality 
of a proposed "alteration" whereby Item 3 of the contract, calling for an 
estimated quantity of ledge removal and disposal of 20 cubic yards at a 
unit price of $75 per cubic yard for a total of $1500, has been increased to 
2,008 cubic yards at the same unit price, thus increasing the cost of Item 3 
to $150,600. You have asked two questions, more or less hypothetical in 
nature, but which are assumed to refer to the specific problem proposed 



P.D. 12. 65 

by your entire letter, as to whether the approval of the proposed "alter- 
ation" would constitute a violation of the bid statute as embodied in G. L. 
c. 29 § 8A. 

Your letter, containing a copy of a letter written by your office to the 
Department of Public Works on December 5, 1958, and their reply dated 
December 9, 1958, as well as a copy of the contract and plan in question, 
have been considered, and members of the Division of Waterways, De- 
partment of Public Works, have been consulted concerning the exact nature 
of the work performed under the "alteration." It is necessary to consider 
all the special provisions of the contract as well as those indicated in your 
letter. 

The special provisions of the contract refer to a plan entitled : "Proposed 
Harbor Improvements, Dredging Basin, Little Harbor, Marblehead," 
dated February, 1958, and marked ACC 03459. Reference to the plan 
shows certain defined areas marked in red with a statement on the plan 
as follows: "Location of Proposed Work Shown in Red To Be Dredged 
To Six (6) Feet at jVIean Low Water." The work to be done, according 
to your letter and the contract, calls for the dredging of the basin to a 
depth of six feet at mean low water. It is also provided on page 1 of 
special provisions of the contract that "all work shall be done in accord- 
ance with the plans and directions given from time to time by the Engi- 
neer." 

Under the special provisions on page 5 of the contract relative to Item 3 
it is provided: 

1 . Ledge or boulders in excess of five cubic yards in volume encountered 
within the dredging limits shall be removed and disposed of, upon direction 
of the Engineer. 

2. Material removed under this item shall be removed at least down to 
the payment limit {i.e. one foot below the dredging depth specified). 

3. Ledge encountered within the dredging limit, but allowed to remain, 
upon the direction of the Engineer shall have all overlying material re- 
moved and the ledge shall be left bare. 

4. The contractor will be paid the contract unit price per cubic yard for 
ledge removed and disposed of, as therein specified, which unit price shall 
mclude all tools, labor and equipment and all incidental work. 

5. The quantity to be so paid for shall be based upon measurements 
taken by the Engineer. Payments under this item will be allowed for 
material removed down to eight feet below mean low water. 

It seems clear that the ledge removed and disposed of was material in 
areas shown on the plan, and specified under the contract, and required 
to be removed in order to reach the depth required l^y the contract. The 
contractor was required by the terms of the contract to remove such ledge 
and is entitled to be paid for such removal and disposal at the unit price 
set forth in the contract. 

The removal of such ledge constituted no change in the original con- 
tract, and was removed and disposed of at the direction of the Engineer 
in accordance with the provisions of the contract. The contract required 
the removal and disposal of whatever ledge was within the limits of the 
area to be dredged, and shown on the contract plan to a specific depth 
under a unit contract price. The payment for such work at the unit con- 
tract price is not a violation of the bid statute as embodied in G. L. c. 29, 
§ 8A. The contractor bid on the proposed work on the basis of estimated 



66 P.D. 12. 

quantities on the express understanding that actual quantities under the 
contract might be more or less than the estimates as indicated in your 
letter and on page 1 of the special provision. 

This is clearly stated in Article 3 of Standard Specifications of the De- 
partment of Public Works which is quoted as follows: 
"A. All bids will be compared on the estimate of quantities of work to be 
done, as shown in the Proposal. 

"These ciuantities are approximate only, being given as a basis for the 
comparison of bids, and the Party of the First Part does not expressly or 
by implication agree that the actual amount of work will correspond 
therewith, but reserves the right to increase or decrease the amount of 
any portion of the work, as may be deemed necessary or expedient by the 
Party of the First Part." 

Section B of Article 3 states in part: "Parts of the work have been 
divided into classes and items in order to enable the bidder to bid on 
different portions of the work in accordance with his estimate of their 
cost, so that in the event of an increase or decrease in the quantities of a 
particular class of work the actual quantities executed may be paid for at 
the bid price for that particular class of work." 

It does not appear that the work performed in the removing and disposal 
of ledge was beyond the scope of the work contemplated by the contract; 
that is, to create a basin in a specified area, to a specified depth by removing 
all material within the specified area, including ledge. If material or ledge 
was removed beyond the limits specified in the contract and plan it might 
then constitute "extra work" as stated in the opinion of the Attorney 
General to the Commissioner of Administration dated August 12, 1955, 
to which you referred in your letter. 

The principle of law involved in this matter is basically the same prin- 
ciple that was the subject of an opinion of the Attorney General to Fred A. 
Moncewicz, State Comptroller, on August 8, 1957. The precedent of that 
opinion is consistent with the facts of this case and must be followed. 

Whether the Division of Waterways of the Department of Public Works 
could or should have taken additional soundings, surveys or made borings 
before letting this contract, or whether, having become aware during the 
progress of the work, that a substantial amount of ledge was present within 
the area to be dredged, it might have terminated the contract, and possibly 
should have terminated the contract, is a matter of fact, judgment and 
discretion based on all the circumstances. The office of the Attorney 
General is not a fact-finding or determining agency and cannot by hind- 
sight suggest what might have been the preferred procedure, after the acts 
have been completed. 

The difference between the estimated cost of the work and the actual 
co.st is substantial and possibly contrary to good practice. There does not, 
however, appear to be a violation of the bid statute as embodied in c. 29, 
§ 8A, because the work performed is within the terms of the contract and 
the provision of the Standard Specifications, particularly the article above 
quoted, and the special provisions of the contract. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Charles E. Frazier, Jr., 

Assistant Attorney General. 



P.D. 12. 67 

An exemption by the Board of Education to a local school committee under 
G. L. c. 71, § 38G (Teacher Certification Law), is for all teaching posi- 
tions in the local system, not for individual teachers. 

Jan. 8, 1959. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — In your recent letter you request an opinion relative to an 
interpretation concerning exemptions under the Commonwealth's Teacher 
Certification Law and pose the following question, in substance : 

Are the local school committees entitled to be exempt from the require- 
ments of § 38G [of G. L. c. 71] in general as to employments within the 
meaning of said section, or are the local school committees required to 
obtain special approval of the Board of Education for each individual 
employment? 

Your enclosures state that the superintendent of schools has substan- 
tially submitted this question to your local corporation counsel and has 
received his opinion, a copy of which was enclosed. I cannot disagree 
with the opinion of the corporation counsel. The statute does not pur- 
port to deal with individual employments. Not at all. It simply pro- 
vides that: 

"... a school committee may upon its request be exempt from the 
requirements of this section . . . for any one school year when com- 
pliance therewith would in the opinion of the department constitute a 
great hardship in the securing of teachers for the schools of a town. . . ." 

Under this statute, as I interpret it, the Board of Education may upon 
request exempt the local school committee from the requirements of G. L. 
c. 71, § 38G, for any one school year when compliance therewith would, in 
the opinion of the Department of Education, constitute a great hardship. 
The department determines the great hardship. The statute authorizes 
the employments necessary to meet the hardship. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Buildings transferred to the Massachusetts Port Authority are not owned by 
the Commonwealth within G. L. c. 142, § 21. 

Jan. 8, 1959. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — You have requested an opinion on the following 
question : 

"Does G. L. c. 142, § 21, apply to buildings under the control of the 
Massachusetts Port Authority in accordance with the provisions of 
St. 1956, c. 465?" 



68 P.D. 12. 

Acts of 1956, c. 465, § 6, headed "Port Properties," reads in part as 
follows : 

"Upon the issuance of revenue bonds under the provisions of section 
eight and the application of the proceeds of said bonds as provided in 
said section eight (1), (2), (3) and (4), title to the port properties shall be 
vested in the Authority and the possession of the port properties shall be 
transferred to the Authority; . . ." 

I am therefore of the opinion that § 21 does not apply to any properties 
owned by and under the control of the Massachusetts Port Authority, 
inasmuch as § 21 applies only to "plumbing work in buildings owned and 
used by the commonwealth." Generally speaking, buildings owned by 
the Port Authority are not owned by the Commonwealth. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Under G. L. c. 271, § 4'^, as amended, (1) a gaming violation prior to the 
effective date of the 1958 amendment should not he considered; {2) rein- 
stallation of a telephone before such date is not within the section; 
(3) a transfer of a telephone is not a reinstallation. 

Jan. 16, 1959. 

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

Dear Sir: — You have requested an opinion relative to the phraseology 
of G. L. c. 271, as most recently amended by the addition of § 47 by St. 
1958, c. 347. 

The questions upon which you seek ad\dce, and the answers thereto, 
are as follows : 

"1. Is a gaming conviction prior to the effective date of the statute, a 
conviction within the meaning of the statute?" 

The answer to this question must be in the negative, because considera- 
tion of a conviction prior to the effective date of the statute would con- 
stitute an ex post facto application increasing the penalty for such previous 
conviction. 

"2. If a telephone has been removed from premises prior to the effective 
date of the statute, does the reinstallation at the same premises within one 
year come within the provisions of the statute?" 

The answer to this question is also in the negative for the same reasons 
indicated in the answer to question No. 1. In addition, the entire context 
of the statute indicates that it was the intent of the Legislature to have the 
act operate prospectively, and application of the criminal sanction of the 
recent act would operate in an ex post facto manner. 

"3. If a telephone is requested to be transferred by a subscriber who has 
a prior conviction for a gaming offense, is such reinstallation at a new ad- 
dress one that comes within the purview of the statute?" 



P.D. 12. 69 

The answer to this question is also in the negative, and conceivably the 
assumed situation may not come within the purview of the statute at all 
since the first part thereof applies to installation and the second part only 
to the premises from which the telephone was removed. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



A single notice of the time and place of the regular meetings of the State Public 
Works Commission is sufficient under St. 1958 c. 626 {Open Meetings 
Law). 

Jan. 27, 1959. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion relative to the notifica- 
tion of meetings of your board under the provisions of St. 1958, c. 626. 
You pose the following question, in substance : 

May a single notice of the time and place of regular meetings in the future 
of your board constitute a compliance with the provisions of St. 1958, 
c. 626? 

As you know, the second paragraph of § 2 of c. 626 of the Acts of 1958 
provides as follows: 

"Except in an emergency, no meeting of any state board or commission 
subject to this section shall be held unless a notice of such meeting has been 
filed with the secretary of state, and copies thereof posted m the public 
office of the commissioner of administration and finance at least twenty- 
four hours prior to the time of such meeting. . . ." 

Construed strictly, a reading of this provision would seem to indicate a 
statutory notice of each meeting. However, if you find it impossible to 
comply literally with the statute and wish to handle it on a single notice 
basis, I would respectfully suggest that the notice be limited as to time. 
That is the least that should be done. For instance, it might be well to 
word your notice so as to cover the year 1959 unless other notice was given 
in the meantime. I do not recommend this practice, but it seems to be 
the only solution to your problem. You will observe that under the pro- 
vision above referred to, the notice is "filed" with the Secretary of State 
and copies thereof posted in the public office of the Commissioner of Ad- 
ministration and Finance at least twenty-four hours prior to the meeting. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



70 P.D. 12. 

A corporation may he licensed under G. L. c. Ill, ^ 51, to operate a clinic. 

Jan. 27, 1959. 

A. Daniel Rubinstein, M.D., Director of Hospital Facilities, Department 
of Public Health. 
Dear Sir: — In your recent letter you referred to an earlier letter to 
the late Attorney General George Fingold, and have asked for an opinion 
on the question you stated in the earlier letter, which question reads as 
follows: 

"... Whether the licensing of a corporation under [G. L. c. Ill] § 51 
by the Department of Public Health and whether the granting of a charter 
for such a corporation by the Commissioner of Corporations and Taxation 
is a legal procedure." 

I answer your question in the affirmative. Chapter 111 provides two 
weapons for your department, both designed for the protection of the 
health, safety, and welfare of sick, decrepit or invalid members of society. 
Reasonable legislation for such purposes is, in my opinion, well within the 
police power of the Commonwealth. General Laws c. Ill, § 5(3, provides 
a criminal penalty for any person who advertises, conducts, manages or 
maintains a dispensary unless it is duly licensed under § 53 of that chapter. 

Section 53 requires the licensing by your department of a dispensary. 
A dispensary is defuied in G. L. c. Ill, § 51 as '' . . . any place or establish- 
ment, not conducted for profit, where medical, surgical or dental advice or 
treatment, medicine or medical or dental apparatus, is furnished to persons 
not residing therein; or any place or establishment, whether conducted 
for charitable purposes or for profit, advertised, announced, conducted or 
maintained under the name 'dispensary' or 'clinic', or other designation 
of like import; except that it shall not include a clinic conducted by a 
hospital, which is licensed under section seventy-one, as an integral part 
of such hospital." 

The license issued under § 53, as I view it, is not intended to deal with 
the professional relations which may exist between the physician and his 
patient. It is a license to a person to conduct a "place or establishment. " 
I take it that the applicant may be an individual or a corporation. 

I see nothing improper in the requirements of § 53. Chapter 441 of the 
Acts of 1958 supports the conclusion to which I have come. In addition 
to the licensing provisions given your department by the above sections, 
another weapon has been given you for the protection and safety of those 
to whom I have referred. It consists of an entirely new § 2B in G. L. 
c. 155 which relates to the corporation laws of this Commonwealth, and 
provides among other things that "before approving articles of organiza- 
tion in connection with the proposed incorporation of a . . . clinic ... or 
like institution requiring a license from the department of public health 
or before approving an amendment to such articles of organization of an 
existing corporation which will give it such power ..." the Commissioner 
of Corporations must refer the proposed article of amendment to your 
department, which must make an investigation as to the applicants for 
incorporation, the corporation or the petitioners as the case may be, and 
the purposes thereof, "and of all material facts, including facts tending to 
show that the probable purpose is to cover any illegal business, or that the 



P.D. 12. 71 

applicants, corporation or petitioners are not suitable persons from lack of 
financial ability or from an\^ other cause, and facts as to the present need 
for an organization with such purposes at the time and place and with 
respect to the special circumstances set forth in such articles, amendment, 
or petition. ..." Your department must then give the applicant a public 
hearing after notice. After the hearing the Commissioner of Public Health 
shall make findings of fact and "shall approve or disapprove such articles, 
amendment or petition" and the Commissioner of Public Health must 
then report his findings and action to the Commissioner of Corporations 
and Taxation. If any doubts about the subject referred to in your letter 
have existed, they are, in my opinion, dispelled bj^ a careful reading of 
c. 441; that chapter clearly envisions the incorporation of a clinic. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The Milk Control Commission in proceedings on a review ordered hy the 
Governor must comply with all provisions applicable to the original order. 

Feb. 2, 1959. 

Mr. Park Carpenter, Secretary, Milk Control Commission. 

Dear Sir: — On November 28, 1958, an opinion from this office was 
sent to you concerning certain aspects of G. L. c. 94A, § 12. The opinion 
was prepared as the result of a request submitted by you by letter dated 
November 25, 1958, in which you stated that the Governor had ordered 
your commission to review its action relating to the fixing of minimum 
milk prices. Minimum prices had been adopted by the commission under 
General Order No. G 17-505. The Governor had ordered the review 
under the provisions of G. L. c. 94A, § 12. The prior opinion related to 
whether notice of the review should be published, whether there should 
be a general hearing, and whether the record of the initial proceedings 
would be a part of the review proceedings. 

Subsequent to the aforesaid opinion, questions have arisen between 
your commission and the office of the Attorney General concerning other 
aspects of the review being conducted by your commission. In confirma- 
tion of my oral statements concerning this matter please be informed that 
the review being conducted by j^our com_mission under § 12 should in all 
respects comply with the detailed provisions of said section as they relate 
to the original price-fixing action of the commission undertaken in accord- 
ance therewith. Upon the filing of a petition by milk producers, as de- 
scribed in the section, the commission was initially directed by its pro- 
visions to make an examination and investigation, and to hold a public 
hearing. Subject to the approval of the Milk Regulation Board, the 
commission might then declare that a state of emergency existed and 
thereafter was authorized to issue orders, rules and regulations fixing the 
minimum wholesale or retail price of milk. The statute specifically re- 



72 P.D. 12. 

quires that any alteration, revision or amendment of the prices so fixed 
shall be carried out in like manner as was the initial setting of the prices. 
It is my opinion that the procedure followed by the commission in initially 
setting the price, based upon the petition filed by milk producers, must 
also be followed by the commission in carrying out the review of its action 
as ordered by the Governor. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The Civil Defense Claims Board is bound hy St. 1958, c. 626 {Open Meetings 

Law). 

Feb. 4, 1959. 
Mr. John J. Devlin, Director of Civil Defense. 

Dear Sir : — You have requested my opinion relative to the status of 
the Civil Defense Claims Board under the provisions of St. 1958, c. 626. 

As you are aware, G. L. c. 30A, § 11 A, inserted by St. 1958, c. 626, § 2, 
provides in part that ''All meetings of every state board and commission 
shall be open to the public and to the press unless such board or commission 
shall vote to go into executive session." 

Under the provisions of St. 1951, c. 547, it is my opinion that the Civil 
Defense Claims Board is a very important State board and comes within 
the purview of c. 626. You are doubtless aware of the waiver of notice 
provisions of § llA in "cases of emergency." Also the impounding of the 
records of any executive session if "their publication would defeat the 
lawful purposes of the executive session ..." 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Automobile warranty certificates are contracts of insurance. 

Feb. 6, 1959. 

Hon. Joseph M. ^vuvYm^YS, Commissioner of Insurance. 

Dear Sir: — In a letter you sent to the late Attorney General George 
Fingold you enclosed a photostatic copy of two contracts relating to auto- 
mobile warranty certificates and requested "advice and opinion" on the 
following; 

"1. Do either or both of the attached documents constitute an insur- 
ance contract within the meaning of G. L. c. 175, § 2? 

"2. Does either the issuance or sale of such documents constitute the 
transaction of insurance business in the Commonwealth of INIassachu- 
setts?" 



P.D. 12. 73 

You further stated that these so-called "warranties" or "guarantees'* 
are sold in Massachusetts by independent inspection companies unrelated 
to the automobile dealer. These warrantor organizations purport to 
inspect and test the automobile prior to the sale of the "warranty" and 
then promise, for a consideration, to bear the auto purchaser's cost of 
repair and replacement of designated parts in the event of failure thereof 
during a specified period. 

In a letter under date of December 29, 1958, you renewed this request. 

My answer is in four parts : 

I. Legal definitions of the terms "contract of insurance," "warranty' 
and "guarantee" together with interpretive cases and text. 

II. A comparison of the three terms noting similarities and differences. 

III. Application of the legal principles involved to the documents and 
situation in question. 

IV. Conclusion. 

I. Legal definitions of the terms "contract of insurance,'' "warranty" and 
"guarantee" with interpretive cases and text. 

A. Contract of Insurance. — The definition of a "contract of insurance" 
is contained in G. L. c. 175, § 2. "A contract of insurance is an agreement 
by which one party for a consideration promises to pay money or its 
equivalent, or to do an act valuable to the insured, upon the destruction, 
loss or injury of something in which the other party has an interest." 

This section was adopted in 1887, and constituted a declaration of the 
common law definition of insurance, which was already the law in Massa- 
chusetts. Commonwealth v. Wetherbee, 105 Mass. 149. Claflin v. U. S. 
Credit System Co., 165 Mass. 501. 

The court in Commonwealth v. Wetherbee, 105 Mass. 149, at page 160, 
said: "A contract of insurance is an agreement, b}^ which one party, for a 
consideration, . . . promises to make a certain payment of money upon 
the destruction or injury of something in which the other party has an 
interest .... All that is requisite to constitute such a contract is the 
payment of the consideration by the one, and the promise of the other to 
pay the amount of the insurance upon the happening of injury to the 
subject by a contingency contemplated in the contract." 

Vance on Insurance (3d Ed.), at page 2, says the contract of insurance is 
distinguished by the presence of five elements: 

1 . The insured possesses an interest of some kind susceptible of pecuniary 
estimation, known as an insurable interest. 

2. The insured is subject to a risk of loss through the destruction or im- 
pairment of that interest by the happening of designated perils. 

3. The insurer assumes that risk of loss. 

4. Such assumption is part of a general scheme to distribute actual 
losses among a large group of persons bearing similar risks. 

5. As consideration for the insurer's promise, the insured makes a ratable 
contribution to a general insurance fund, cahed a premium. 

Vance states further: "A contract possessing only the three elements 
first named is a risk-shifting device, but not a contract of insurance, which 
is a risk-distributing device; but, if it possesses the other two as well, it 
is a contract of insurance, whatever be its name or its form." 



74 P.D. 12. 

B. Warranty. — An express warranty is defined in G. L. c. 106, § 2-313 
(1) (a): "Any affirmation of fact or promise made by the seller to the 
buyer which relates to the goods and becomes part of the basis of the bar- 
gain creates an express warranty that the goods shall conform to the af- 
firmation or promise." 

According to Black's Law Dictionary (4th Ed.), on page 1758. a warranty 
is defined as follows: "A statement or representation made by the seller 
of goods, contemporaneously with and as a part of the contract of sale, 
though collateral to the express object of it, having reference to the char- 
acter, quality, or title of the goods, by which he promises or undertakes 
that certain facts are or shall be as he then represents them." 

"A 'warranty' is a collateral obligation accompanying a contract of sale, 
relating to the character or fitness of the article sold." Crane Co. v. Collins, 
167 N. Y. 48. 

C. Guarantee. — "A guarantee is a promise to answer for the pa3^ment 
of some debt, or the performance of some duty, in case of the faihire of 
another person, who, in the first instance, is liable to such payment or per- 
formance." Black's Law Dictionary (2nd Ed.) page 550. 

"The word 'guarantee' appearing in the memorandum suggests, not a 
primary, but a collateral undertaking. The ordinary meaning of the word 
is that someone else is primarily liable for a debt and that the guarantor 
will pay it if the primary debtor does not." Charlestown Five Cents Savings 
Bank v. Wolf, 309 Mass. 547, 549. 

II. Relationship among contract of insurance, warranty and guarantee. 

Vance on Insurance (3d Ed.), at page 5, expresses concisely the relation- 
ship among insurance, warranty and guarantee: 

"In every contract of risk-shifting, three elements are conspicuously 
present: First, one part}^ possesses an interest susceptible of pecuniary 
estimation; secondly, that interest is subject to some well-defined peril 
or perils, the happening of which will destroy or impair it, thereby caus- 
ing loss to the risk-bearer; thirdl}^, there is an assumption of this risk of 
loss by the other party to the contract. Thus, in a contract of guaranty, 
of indorsement, or of warranty on a sale of goods, an interest possessed by 
the creditor, the note holder, or the vendee, is exposed to impairment by 
the happening of contingent events, and the risk of the interest owner is 
assumed by the guarantor, indorser, or warranting vendor. But these are not 
contracts of insurance, which are more than risk-shifting devices. For the 
insurance contract, additional elements are required; that is, the contract 
for assuming the risk must be an integral part of a general scheme for dis- 
tributing a loss that may be suffered by any individual interest owner 
among a considerable group of persons exposed to similar perils, and the 
insured must make a ratable contribution, called a premium, to the gen- 
eral insurance fund. The same idea is e.xpressed when we say that an in- 
demnitor becomes an insurer only when he goes into the business of indem- 
nifying. While a policy under seal for no premium paid would at common 
law be enforceable as an indemnity bond, it could scarcely be considered a 
proper insurance contract." 

It has been stated that a warranty promises indemnity against defects 
in the article sold, while insurance indemnifies against loss or damage re- 



P.D. 12. 75 

reulting from perils outside of and unrelated to defects in the article itself. 
State ex rel. Duffy v. Western Auto Supply Co. (Ohio) 16 XE2d 256, 259. 
But the Ohio Court in State ex rel. Herbert v. Standard Oil Co., 35 NE2d 
437, while refusing to overrule the Duffy case, stated its doctrine was not 
to be extended beyond the facts of that case. 

According to Patterson on Essentials of Insurance Law (2nd Ed.), at 
page 10, "A warranty (commonly called a guaranty) of the qualities of 
goods or services is distinguished from an insurance contract by the degree 
of control that the promisor has over the happening of the contingent 
event." 

The Attorney General of New York in a recent opinion (N. Y. Attorney 
General's Report, 1957, p. 221) which supports the contention that the 
activity in question does not constitute insurance seemed to rely on Patter- 
son when he stated that the warranty company "contends that since its 
inspection is designed to determine whether the parts warranted will 
operate as expected, its obligation is not dependent upon a fortuitous event 
but is limited to matters essentially within its control. Thus, the under- 
lying issue is whether National, [the warranty company] upon its inspection 
of a vehicle, can be said to have performed an act constituting an exercise 
of control sufficient to eliminate the fortuitous event element. If yes, the 
warranty is not insurance; if no, it is." Control, however, does not appear 
in the usual definition of warranty or insurance, and in my opinion "con- 
trol" is not the determinative test. This is like saying that a medical ex- 
amination of a person eliminates the fortuitous event of his physical im- 
pairment or death. 

III. Application of the legal principles involved to the documents and situa- 
tions in question. 

The information you supplied in your letter, together with an examina- 
tion of the documents under consideration, reveal that a typical used car 
warranty business operates in the following way: 

A corporation enters into a contract with a dealer. The dealer agrees to 
sell "warranty" certificates on certain cars reconditioned by him. He 
agrees to send a certain amount to the corporation for each certificate he 
sells. Part of this amount is retained by the corporation to cover its 
expenses and the balance is retained by the corporation as a reserve fund 
to cover claims under the "warranty." The corporation agrees to make 
necessary repairs on the "warranted" parts of each car which are im- 
paired or destroyed within the "warranty" period. It agrees to return to 
the dealer a percentage of the reserve fund remaining after claims have 
been paid. There are certain provisions for making up losses in excess of 
the reserve fund and for cancellation of the contract. 

The dealer then sells "warranty" certificates to the purchasers of cer- 
tain reconditioned cars for a certain fee. The certificate states that the 
car has been reconditioned by the dealer and that the corporation will 
indemnify the purchaser for the cost of repairs on specified parts which 
become impaired within the "warranty" period. 

The corporation reserves the right to determine the necessity for repair 
or replacement. Cars used for commercial purposes are excluded by the 
terms of the "warranty." Liability for personal injury or property damage 
caused by defective parts of the car; the cost of tune-ups or adjustments; 
repairs arising out of or revealed by collision; and repairs resulting from 



76 P.D. 12. 

neglect, misuse, acts of God, or major alteration not recommended by 
the manufacturer are also excluded. 

The certificate is neither transferable nor assignable. It contains a 
statement that it is not an insurance policy and is not to be construed as 
such. 

Applying the Massachusetts statute (G. L. c. 175, § 2), which admittedly 
is very broad, to the operation of the used-car "warranty" business we 
find as follows: 

1. There is an agreement between the company issumg the "warranty" 
and the purchaser of it. 

2. The purchaser pays a consideration for the agreement. The fact that 
the payment may be made indirectly is of no consequence, since the money 
for the "warranty" comes from the purchaser of the car in the final 
analysis. 

3. The company promises to pay moneij or to do some act of value to the 
insured. 

4. The company promises to pay the money or perform the act upon 
the destruction or injury of something in which the purchaser has an interest. 

The five necessary elements constituting a contract of insurance out- 
lined by Vance may be applied as follows: 

1. Does the insured possess an insurable interest? 

Yes. He owns an equity in the car which is the subject of the 
"warranty" contract. 

2. Is the insured subject to a risk of loss through the destruction or 
impairment of that interest by the happening of designated peril? 

Yes. The "warranted " parts of the car may be injured or destroyed 
through normal use of the car. 

3. Does the insurer assume that risk of loss? 

Yes. He promises to indemnify the purchaser for all or part of the 
cost of repairs. 

4. Is this assumption part of a general scheme to distribute actual losses 
among a large group of persons bearing somewhat similar risks? 

Yes. The company seeks to issue these "warranties" to the pur- 
chasers of all cars which meet age and inspection requirements. 

5. Does the insured make a ratable contribution, called a premium, to a 
general insurance fund? 

Yes. He pays a fee either directly or indirectly to the company 
which retains a certain part of it to cover losses and expenses. 

IV. Conclusion. 

In order to ascertain the true nature of the documents in question it is 
necessary to go beyond the language and form and examine them in the 
light of all the attendant circumstances. The language itself is not con- 
trolling. Thus, although the word "guarantee" does appear frequently, 
these contracts cannot properly be considered guarantees since they fail 
to answer for the debt or obligation of another. It should also be noted 
that consideration must be given to the fact that we are dealing here with a 
third party unrelated to the vendor of the automobile who has as the 
other party of the contract the purchaser of the automobile. 

The basic test in the instant case is whether or not these documents 



P.D. 12. 77 

come within the meaning of G. L. c. 175, § 2, as stated above, which sets 
out the requirements of an insurance contract. In my opinion, these 
documents come within the statute and therefore are insurance contracts. 
In every case they agree, for a consideration, to do an act valuable to 
another upon the loss or injury to specified parts of an individual's car. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggax, 

Assistant Attorney General. 



A police officer having approved part-time private employment requiring that 
he carry a revolver is not required to have a license to carry, etc., the weapon. 

Feb. 10, 1959. 

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

Dear Sir: — You have requested an opinion as to whether police 
officers of a city or town who accept outside employment with the permis- 
sion of their chiefs may carry weapons, under the provisions of G. L. c. 41, 
§ 98. 

It appears from your letter that these officers, as I have said, have the 
permission of their superior to accept such employment. Naturall}^, the 
officers under those circumstances are not paid by municipalities. 

You ask my opinion as to whether the right to carry weapons under 
G. L. c. 41, § 98, extends to the situation of an officer carrying a weapon 
under such circumstances, or whether he must be licensed under G. L. 
c. 140, § 131. 

In my opinion, G. L. c. 41, § 98, does extend far enough to allow a police 
officer to carry weapons in the above circumstances. 

I have come across no case in this State answering the question you 
refer to. Accordingly, we must examine the history of § 98 to determine 
the legislative intent. 

The third sentence of § 98 of c. 41, as it appears in the Tercentenary 
Edition of the General Laws, provides that police officers "... when on 
duty carry such weapons as the mayor or selectmen shall determine ..." 
A significant change was made by the General Court by the provisions of 
St. 1954, c. 162. This was an act entitled "An Act authorizing police 
officers to carry weapons when off duty." Section 1 of that chapter amends 
§ 98 of c. 41 by striking out the third sentence therein, which I have re- 
ferred to above, and inserting the following sentence: "They may carry 
within the commonwealth such weapons as the mayor or selectmen, the city 
or town manager, shall determine." 

This very significant change of language indicates clearly that, as stated 
in the title of c. 162, it was intended to extend to police officers the right 
to carry weapons "when off duty." The third sentence of § 98 remains 
in the same form so far as this sentence is concerned and still contains the 
phrase "within the commonwealth" in place of the former words "when 
on duty." It is my opinion, therefore, that the statute in its present form 



78 P.D. 12. 

is broad enough to include the carrying of weapons in the above circum- 
stances under § 98, without the necessity of compliance with G. L. c. 140, 
§131. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A person employed in September, 1958, in a teaching position at the University 
of Massachiisetts who contracted tuberculosis is not entitled to the maxi- 
mum two-year leave with pay provided for under G. L. c. 71, § 65B, for 
teachers, etc., in "public schools," contracting tuberculosis. 

Feb. 10, 1959. 

Hon. J. Paul Mather, President, University of Massachusetts. 

Dear Sir : — In your recent letter you refer to a teacher in the univer- 
sity, who is a new employee with very little sick leave credit accumulated 
under the State sick leave provisions, and inquire whether, under the pro- 
visions of G. L. c. 71, § 55B, as amended by St. 1958, c. 15, — 

"1. This individual is entitled to sick leave with pay for up to two 
years, as stated in the statute, even though he has insufficient accumulated 
sick leave credits, or 

"2. He is entitled only to sick leave credits he has earned prior to his 

illness." 

I answer your question 1 in the negative. You will notice carefully 
that the first portion of the sentence you refer to in § 55B, as it appears in 
St. 1958, c. 15, provides that "Any teacher, other than a teacher in the public 
schools, or any other employee excluded or removed from employment on 
account of tuberculosis in a communicable form shall be carried on sick 
leave with pay for such period as he may be entitled to under the regidations 
of the school committee or other school officers; ..." The sentence then goes 
on, as set forth in your letter, ". . . and any tea^cher i7i a public school . . . 
shall, if excluded or removed from employment on account of tuberculosis 
in a communicable form be carried on sick leave with pay for the entire 
period of such exclusion or removal, but in no case for more than two years, 
and for such further additional period as he may be entitled to under the 
regulations of the school committee or other school officers." 

It seems quite clear, whatever the reasons may be, that the General 
Court dealt with the teachers in two different ways. In the first portion 
of the sentence we are discussing, provisions are made for "any teacher, 
other than a teacher in the public schools ..." and then proceeds to deal 
with ". . . any teacher in a public school." The words "public school" 
have long since had a verj^ definite connotation as distinguishing them from 
other institutions of learning. In the case of Lynch v. Commissioner of 
Education, 317 Mass. 73, the Supreme Court in this connection said: 
"Public schools never have been understood to include higher institutions 



P.D. 12. 79 

of learning like colleges and universities." The court went on to say fur- 
ther: "In Kayser v. St. Louis Board of Education, 273 Mo. 643, 657 it was 
held that a teachers college is not a public school in the sense of a grade or 
high school in spite of the fact that it is supported by public funds." The 
court further said in this case: "'Common schools' or 'public schools' 
embrace only the grade schools and high schools. These terms 'are never 
applied to the higher seminaries of learning, such as incorporated acad- 
emies and colleges.'" Moreover, the Supreme Court in its Opinion of the 
Justices, 214 Mass. 599, at p. 601, said: "Public schools never have been 
understood to include higher institutions of learning like colleges and 
universities." 

I am constrained, therefore, to advise you that the provisions set forth 
in your letter for the benefit of "any teacher in a public school, or other 
employee therein . . ." do not include a teacher in the University of 
Massachusetts. Whether the person you refer to has any rights under the 
first part of the sentence referred to, I offer no observation as none is re- 
quested. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Meetings of the South Essex Sewerage District Board are subject to the pro- 
visions of G. L. c. 39, § 23 A (Open Meetings Law). 

Feb. 10, 1959. 

Mr. Elihu a. Hershenson, Treasurer and Clerk, South Essex Sewerage 

Board. 

Dear Sir : — You have requested my opinion, in substance, whether 
your board is subject to the provisions of St. 1958, c. 626. In my opinion, 
it is. 

General Laws, c. 39, § 23A, inserted by St. 1958, c. 626, § 4, provides 
that: 

"All meetings of every district, city and town board . . . shall be open 
to the public and to the press unless such board . . . shall vote to go into 
executive session. Such executive session may be held only for the pur- 
pose of discussing, deliberating or voting on those matters which by gen- 
eral or special statute, or federal grant-in-aid requirements, cannot be made 
public, and those matters which if made public might adversely affect the 
public security, the financial interest of the district ... or the reputation 
of any person." 

The second and third paragraphs of § 23A, with which you are doubtless 
familiar, provide for giving notice of such meetings except in cases of 
"emergency" as therein defined, and the keeping of accurate records of 
such meetings and making the same available promptly. The records 
of such meetings shall become a public record and available to the public. 



80 P.D. 12. 

The South Essex Sewerage District, as you know, was created under 
the provisions of St. 1925, c. 339, which provides in § 1 that "A sewerage 
district to be known as the South Essex Sewerage District ... is hereby 
created and shall include all of the territory of the cities of Salem, Peabody 
and Beverly and of the town of Danvers . . ." Section 2 provides: "Said 
South Essex Sewerage District shall be managed by a board, which is 
hereby created and which shall be known as the South Essex Sewerage 
Board, hereinafter called said board, and shall consist of seven members, 
except as hereinafter provided." The last paragraph of § 2 provides that: 
''Said district shall have such powers, not inconsistent with the provisions 
of this act, as are given bj^ law to fire, water, light and improvement dis- 
tricts and such other powders as may be specifically given by this act." 

There is obviously, then, created by c. 339 a sewerage district managed 
by a board known as the South Essex Sewerage Board. Since the new 
§ 23A of c. 39 relates to "all meetings of evenj district . . . board," I see 
no reason why your board does not come under its provisions and recom- 
mend a careful reading of this legislation and a close adherence to its 
provisions. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



St. 1958, c. 626 {Open Meetings Law) is not applicable to Office of Commis- 
sioner of Veterans' Services nor to local veterans' offices or districts. 

Feb. 10, 1959. 

Hon. Charles N. Collatos, Cornmissioner of Veterans' Services. 

Dear Sir : — You have requested my opinion relative to the provisions 
of St. 1958, c. 626, and ask the following question: 

"Whether the subject law applies to the office of the Commissioner of 
Veterans' Services or to any of the municipal subdivisions of the Common- 
wealth including districts formed under St. 1946, c. 599." 

Your question involves two phases of your activities and those of the 
local subdivisions of the Commonwealth, the first relating to the status of 
papers and records in your hands and those of the local officials, and 
secondly the status of the records of meetings. 

These sections of c. 626 providing for notice of meetings and records of 
the same are directed clearly to "state boards and commissions." I do 
not understand that the Commissioner of Veterans' Services has either a 
"board" or a "commission." 

Moreover, as you well point out, G. L. c. 66, § 18, expressly provides: 

"... nor shall declarations, affidavits and other papers filed by claim- 
ants in the office of the commissioner of veterans' services, or records kept 
by him for reference by the officials of his office, be public records." 



P.D. 12. 81 

I find no repealer of § 18 in e. 626, and do not believe that such was 
intended. The General Court seems to have gone to great pains to pro- 
tect the private affairs of needy veterans from public scrutiny. This is 
made clear by the provisions of § 18 of c. 66, already referred to, and is 
further illustrated by the provisions of G. L. c. 40, § 51, which I shall refer 
to hereafter. 

This purpose is further illustrated by the new § llA of G. L. c. 30A, 
inserted by c. 626, § 2. This provides, among other things, that an "execu- 
tive session may be held only for the purpose of discussing, deliberating or 
voting on those matters which by general or special statute . . . cannot 
be made public, and those matters which if made public might adversely 
affect . . . the reputation of any person." 

Section 2 further provides that ; 

''A summary of all matters voted shall be made available with reason- 
able promptness after each meeting; provided, however, that votes taken 
in executive session may remain secret so long as the publication would 
defeat the lawful purposes of the executive session, but no longer." 

Section 4 of c. 626 inserts a new § 23A of c. 39 of the General Laws, 
which provides in part as to district, city or town boards that: 

"All board meetings shall be open to the public and to the press unless 
such board, commission or school committee shall vote to go into execu- 
tive session. Such executive session may be held only for the purpose of 
discussing, deliberating or voting on those matters which by general or 
special statute . . . cannot be made public . . ." 

Section 23A further provides that: 

"The records of each such meeting shall become a public record and be 
available to the public upon being approved; provided, however, that the 
records of any executive session may remain secret so long as their publica- 
tion would defeat the lawful purposes of the executive session, but no 
longer." 

I note further that § 11 of c. 626 provides that: 

"Upon the effective date of this act, the provisions of all special acts 
which are inconsistent with the provisions of this act shall, only to the 
extent that they conflict with this act, become null and void." 

Section 18 of c. 66 is not a special act. It is a general act enacted in 1945, 
obviously to protect the affairs of distressed and needy veterans who 
fought for their nation in a time of stress. Such provisions of one kind or 
another primarily for the benefit of veterans are not unusual nor improper. 
Quite the contrary, as the Supreme Court said in its Opinion of the Justices, 
175 Mass. 599, at page 601, in discussing the propriety of veterans' pen- 
sions after a war. 

"The soldiers have been paid all to which they are entitled, yet the 
State may grant them a partial or total support for disabilities contracted 
in service. Such a gift may be intended primarily for an object which is 
no more private than is a memorial hall. ... It may be meant to bring 
home to all minds by visible facts that now, as of old, the courage of the 



82 P.D. 12. 

battlefield is honored, and that if a man will risk his life for his country, 
his country afterwards will not necessarily hold him to the letter of his 
generous bond and deem him fully paid at thirteen dollars a month." 

Now a word as to the local set-up. The local official in charge of "vet- 
erans' benefits" is not a ". . . district, city or town board . . .", within 
the provisions of c. 626. He is an individual and cannot conveniently 
hold a meeting with himself. He is described in § 3 of c. 115 as a "veter- 
ans' agent." He is required under the provisions of c. 115, § 4, to forth- 
with transmit applications filed with him to the Commissioner of Veterans' 
Services. 

General Laws, c. 115, § 10, authorizes the creation of districts comprised 
of adjoining municipalities for the purpose of administering the provisions 
of c. 115. Section 12 of c. 115 authorizes appointment of "an unpaid ad- 
visory board" in the various cities and towns and districts to "render such 
assistance to the director of veterans' services of the municipality or dis- 
trict relative to the provisions of this chapter, except as to sections one to 
nine, inclusive, as said director may request." 

It is my opinion that said advisory board acting only for such assistance 
as the Director of Veterans' Services may request, is not a "district . . . 
board . . ." within the provisions of c. 626. 

The conclusions to which I have already come are re-enforced by the 
provisions of G. L. c. 40, § 51, which contain a special reference to the 
subject matter we are discussing by prohibiting under substantial penalty 
the publication of: 

"Any report for general distribution to the public or to its citizens . . . 
the names of any persons residing in such town who received benefits under 
chapter one hundred and fifteen. ..." 

And further providing that: 

"No department, board or commission, or agent thereof, of a town pro- 
viding aid, guidance or advice solely to persons who are in active military 
or naval service during the time of war, or who were formerly in such 
service, or to the dependents of any such persons, shall furnish any records 
or information to any social service index, so called, or exchange informa- 
tion with any other agency, except as hereinbefore provided." 

It is therefore my opinion, for reasons outlined above, that the subject 
law does not apply to the office of the Commissioner of Veterans' Services 
nor to any of the municipal subdivisions of the Commonwealth including 
districts formed under St. 1946, c. 599. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



P.D. 12. 83 

A lumbar puncture cannot be forced on a person under indictment committed 
to a State Hospital for observation under G. L. c. 123, § 100 {The Briggs 
Law), without his consent. 

Feb. 17, 1959. 

James W. Dykens, M.D., Assistant Commissioner of Mental Health. 

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

"A question has arisen as to the legality of performing a lumbar punc- 
ture on patients sent to the State hospitals for observation under G. L. 
c. 123, § 100." 

I note in your letter that it is sometimes difficult to get permission from 
the patient to perform this operation. I notice also that you make the 
following observation : 

"Would it be possible to say that the performing of a lumbar puncture, 
for example, to rule out brain tumor or nervous system infection, would be 
included in 'determination as to any mental illness?'" 

I assume, in view of your question and observation, that you wish an 
opinion as to whether a lumbar puncture can be forced upon a patient 
under § 100 against his will. In mj^ opinion it may not. 

This question is not a new one to this department. In IV Op. Atty. 
Gen. 531 substantially the same question was posed to the then Attorney 
General by the State Board of Insanity. In ruling that an involuntary 
lumbar puncture could not be imposed upon a patient, the Attorney Gen- 
eral concluded his opinion with the following sentence: 

"While the State undoubtedly has broad power over its insane wards, 
it is unnecessary to consider whether the Legislature could provide for 
compulsory lumbar punctures, as, in my judgment, no act relating to the 
treatment of the insane indicates an intent on the part of the Legislature 
so to provide." 

This opinion was written in 1916. In view of the use of force with its 
resulting impact upon the liberty of the citizen, under the usual rules of 
statutory construction § 100 should be construed strictly. Libby v. New 
York, New Haven & Hartford Railroad, 273 Mass. 522, at 525. 

It should be observed in reading this section that it provides for the 
commitment of persons under indictment or complaint. If it is necessary 
for the patient's "proper care or observation pending a determination as to 
any mental illness ..." the court may commit him to a State hospital. 
Section 100 then goes on to authorize the court to employ experts in mental 
illness to "examine" the person complained of. The phrase "care or ob- 
servation" and the word "examine" have been in this statute for about 
half a century in one form or another. They were in St. 1909, c. 504, § 103, 
at the time of the earlier opinion of this office above referred to and were 
doubtless in the mind of the Attorney General when he said that "no act 
relating to the treatment of the insane indicates an intent on the part of 
the Legislature so to provide," referring to compulsory lumbar punctures. 
The General Court in limiting the activities of the experts in mental illness 



84 P.D. 12. 

referred to in § 100 "to examine the person or child complained of," by 
implication delimited as well as defined their power. Expressio unius est 
exclusio alterius. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The person licensed to operate a clinic or hospital is responsible for the care 
of the records when the clinic ceases operation, and the responsibility is 
still his though he transfers the records to a transferee of clinic. 

Feb. 17, 1959. 

A. Daniel Rubenstein, M.D., Deputy Commissioner, Bureau of Hospital 
Facilities, Department of Public Health. 

Dear Sir; — You have requested my opinion relative to the disposition 
of hospital and clinical records and you pose, in substance, the following 
question; Who is responsible for keeping and disposing of the records 
referred to in G. L. c. Ill, § 70? In this connection you state that: 

"The question I am faced with at the present time concerns the respon- 
sibility for maintaining these records and whether this responsibility falls 
upon the last holder of the license or whether it is transferred to the per- 
son or persons who subsequently assume ownership." 

General Laws, c. Ill, § 70, provides that: 

"Hospitals, dispensaries or clinics, and sanatoria licensed by the de- 
partment of public health shall keep records of the treatment of the cases 
under their care and the medical history of the same." 

This section then goes on to describe the manner in which such records 
are kept, and further provides that : 

"... the licensee, upon notifying in writing the supervisor of public rec- 
ords referred to in chapter sixty-six, may destroy the original records. . . . 
Such records and similar records kept prior to April twenty- fifth, nine- 
teen hundred and five, shall be in the custody of the licensee. Section ten 
of chapter sixty-six shall not apply to such records; provided, that such 
records and similar records kept by the licensee ..." may be inspected by 
the patient or his authorized attorney. 

A careful reading of this section discloses, in my opinion, quite clearly 
the intent of the General Court. Each licensee must keep records of the 
treatment of the cases under his care and the medical history of the same. 
You will notice with reference to the various records the use of the words 
"shall be in the custody of the licensee" and "similar records kept by the 
licensee." Accordingly, it is my opinion that each licensee must keep the 



P.D. 12. 85 

records of the treatment of the cases under his care and the medical history 
of the same. Whether he lieeps the records in his own custody or trans- 
mits them to a transferee of the institution Hcensed, is in his own hands. 
The responsibility, nevertheless, is his. Section 70 contains specific pro- 
vision for the destruction of original records, provided copies have been 
photographed or microphotographed and notification in writing is given 
to the Supervisor of Public Records, referred to in c. 66. Since the General 
Court has laid down particularly the circumstances under which the records 
referred to in § 70 may be destroyed, according to the usual rules of statu- 
tory construction they may not otherwise be so disposed of. Expressio 
unius est exclusio alteriiis. 

The statutes do not adequately, however, deal with the subject matter 
you have in mind and I would respectfully suggest that those interested 
should have a simple amendment made to § 70 clarifying the subject 
matter you write about. 

Very truly yours, 

Edw^\rd J. McCoRMACK, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A person serving a sentence at the Massachusetts Correctional Institution, 
Concord, given a "forthwith" sentence to the Walpole Institution, is to 
he discharged at the expiration of the latter sentence. 

March 3, 1959. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You have requested my opinion regarding the following 
facts: 

On May 19, 1953, a person was sentenced to the Massachusetts Correc- 
tional Institution, Concord, following his conviction for assault with intent 
to rape. He was sentenced to a term of nme years and was paroled on 
February 5, 1957. While on parole he committed a crime and on July 11, 
1958, his parole was revoked and a warrant issued upon which he was re- 
turned to the same institution on October 20, 1958. On January 12, 1959, 
he was brought before the Suffolk Superior Court, on a writ of habeas 
corpus, charged with assault with intent to rape and sentenced to Massa- 
chusetts Correctional Institution, Walpole, for a term of ten to twelve 
years, forthwith, and notwithstanding sentence then being served at the 
Concord institution. 

You inquire: If the result of St. 1955, c. 770, § 98, amending § 28 of 
G. L. c. 279 by striking out the sentence — "The convict shall thereupon 
be removed accordingly, and shall be discharged at the expiration of his 
sentence thereto" — is not that the Walpole sentence wipes out the Con- 
cord sentence, how, upon the expiration of the forthwith sentence, may the 
return of the convict to the Concord institution be effected? 

In my opinion, although the Legislature struck out the aforementioned 
sentence, it may well be assumed that the Court intended, having knowl- 



86 P.D, 12. 

edge of the pendency of another sentence, that the ordinary result should 
follow. Ordinarily, two or more sentences run concurrently, in the ab- 
sence of specific provisions in the judgment to the contrar3^ In the in- 
stant case the court was well aware of the pendency of the previous sen- 
tence, a Avrit of habeas corpus having been issued to bring the defendant 
from Concord. 

We must also bear in mind that the defendant, having been returned to 
custody after the revocation of his parole, was serving his sentence, and it 
would appear that said sentence would not be suspended while he served 
another sentence unless he, by his own conduct, committed some act to 
remove him from either actual or constructive custody under the first 
sentence. (Harding v. State Board of Parole, 307 Mass. 217, 220.) 

It has been held on numerous occasions that where a defendant is al- 
ready in execution of a former sentence and where the second sentence does 
not state that the term is to begin at the expiration of the former, the second 
will run concurrently with the first in the absence of a statute providing a 
different rule. Accuracy in the statement of the terms of the sentence is a 
right which is accorded every defendant. Ex Parte Lamar, 274 F. 160, 170. 

It is therefore my opinion that the defendant in the instant case should 
be discharged at the expiration of his term at Walpole. 

Insofar as the opinion herein rendered is distinguishable from the opin- 
ion previously rendered on September 22, 1958, the former is hereby 
modified. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



A person committed by a District Court after a finding that he was a "sex 
offender," prior to the revision of G. L. c. 123 A, by St. 1958, c. 646, 
determined after examination as provided in ^ 3 of the 1958 act to be 
"a sexually dangerous person," may be continued in custody at a treat- 
ment center, although his original sentence has expired. 

March 5, 1959. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir : — Your predecessor requested an opinion concerning the 
status of an inmate at the treatment center for sexually dangerous persons 
established under G. L. c. 123A, § 2, as appearing in St. 1958, c. 646. 

Said inmate was originally committed by the Haverhill District Court 
for a sixty-day observation period, after which the psychiatrists concluded 
that he was "a sex offender." He was then sentenced to serve a six-month 
term in the house of correction and at the same time adjudicated a "sex 
offender" by the court. Subsequently he was transferred to the treatment 
center where he was re-examined and determined to be a sexually dangerous 
person. Although his original six-month sentence has run, he is presently 
being held solely on the basis that he is a sexually dangerous person. 



P.D. 12. 87 

Two questions have been posed by the Superintendent: 

(1) Can he be retained as a sexually dangerous person on a court order 
specifying him to be a sex offender? 

(2) Is his present retention as a sexually dangerous person procedurally 
proper? 

In answer to the first question, it would appear that he can be retained 
as a sexually dangerous person despite the fact that the court order specifies 
him to be a sex offender. 

Section 2 of St. 1958, c. 646, specifically provides for just this type of 
situation. Although the body of c. 646 establishes a new procedure in 
committing individuals who have been involved in sex crimes, the legisla- 
tive intent seems to be that § 2 of this act was an attempt to catch all such 
individuals who were committed under c. 123 A and not the present act. 
The new statute states in part that "any person who was committed to the 
treatment center for sexual offenders . . . under the provisions of chapter 
one hundred and twenty-three A of the General Laws as in effect imme- 
diately prior to the effective date of this act, shall, within sixty days after 
said effective date, be given a psychiatric examination by the department 
of mental health. ... If such examination shows that such a person is a 
sexually dangerous person ... he shall have the privilege of subjecting 
himself to the provisions of section nine of said chapter one hundred and 
twenty-three A, as so appearing." Section 9 of c. 123 A simply provides 
the parole and discharge procedure. 

Even under the old act he could be held as a sex offender until dis- 
charged as a result of an examination which indicated that the individual 
was no longer a "sex offender." 

All the new act has done is to provide that sex offenders be given new 
examinations within sixty days for the purpose of a new classification and 
to entitle them to broader examination and discharge rights. 

As to the second question, whether or not his present retention as a 
sexually dangerous person is procedurally proper, in view of the restriction 
placed upon district courts by § 3 of c. 646, such retention would appear to 
be procedurally proper. Chapter 646, § 3, is inapplicable. Since the de- 
fendant in the instant case committed an offense long before the effective 
date of c. 646, his conviction and commitment were controlled by the law 
then in effect. 

Although the facts do not indicate when the new examination showing 
that the inmate was a sexually dangerous person took place, it is assumed, 
for purposes of this opinion, that it was made within the required sixty 
days after the effective date of the new act. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



P.D. 12. 



A New Hampshire trucker, with an office or telephone and loading platform 
here, can he held to have a place of business in Massachusetts, within G. L. 
c. 90, § 3, providing for the registration of vehicles of non-residents op- 
erated in connection with such places. 

March 13, 1959. 

Mr. Clement A. Riley, Registrar of Motor Vehicles. 

Dear Sir: — You have requested an opinion relative to the construc- 
tion of G. L. c. 90, § 3. 

In your letter, after setting forth a portion of § 3 relative to the registra- 
tion of motor vehicles of non-residents, you pose the following question : 

"What, under this section, constitutes a place of business? . . . We 
have held in our dealings that if a New Hampshire trucker, even though 
he garages his vehicles in New Hampshire, maintains an office or telephone 
and a loading platform in this Commonwealth, he has a place of business 
here." 

The provision you refer to provides, in substance, for the registration 
of a motor vehicle or trailer owned by a non-resident and used in direct 
connection with "a place of business" of such non-resident within this 
Commonwealth. 

Provision is further made for the registration of a portion of the vehicles 
of a non-resident where his vehicles are used both in direct connection with 
"his place of business" in this Commonwealth and in connection with a 
place of business outside the Commonwealth. It goes on to provide that: 

"For the purposes of such registration, the registrar may determine 
what vehicles or what proportion of vehicles owned by such non-resident 
are so used." 

At the outset it may be noted that the portion of § 3 you refer to does 
not contain the words "principal place of business." It merely refers to 
"a place of business" and "his place of business" and again "a place or 
places of business." 

As stated by the Attorney General in VIII Op. Atty. Gen. 402: 

"The word 'business' and the phrase 'place of business,' when used in 
statutory enactments, may have, respectively, more than one meaning, 
depending largely upon the context and the purpose and design of the 
statutes wherein they occur, as the latter throw light upon the legislative 
intent in employing the words. In its general or broadest sense the word 
'business' denotes the employment or occupation in which a person is 
engaged to procure a living, and that irrespective of whether such person 
be in the service of another or not. . . . Such general meaning should be 
given to the word as used in the phrase 'place of business' unless the con- 
text or the design of the statute wherein it occurs indicates that the word 
is to be interpreted in a more restricted sense ..." 

Generally speaking, whether a person has a place of business may be a 
question of fact or a question of law. This office does not adjudicate ques- 
tions of fact. 

In the case of Collector of Ta.tes of Boston v. New England Trust Co., 
221 Mass. 384, our Supreme Court, in interpreting the phrase "principal 
place of business," used the following language: 



P.D. 12. 89 

"'Business' is 'anything which occupies the time and attention and 
labour of a man for the purpose of profit. ... It is a word of extensive 
use and indefinite signification.' Jessel, M. R., in Smith v. Anderson, 
15 Ch. D. 247, at page 258. And a person has a place of business where 
he 'has an office or known or settled place of business for the transaction 
of his monied concerns.' Sussex Bank v. Baldwin, 2 Harrison, 487, 488. 
A person may have a place of business which is not exclusively his own, 
when he is allowed to occupy the office of another where he receives busi- 
ness calls and directs them to be made. West v. Brown, 6 Ohio St. 542." 

In my opinion, a court could properly find that a non-resident who 
maintained an office or telephone and a loading platform in this Common- 
wealth comes within the purview of that portion of § 3, of c. 90 to which 
you have referred. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



A license for the sale of firearms may be issued only to an individual and not 
to a corporation, and each license may be exercised at only one location. 

March 13, 1959. 

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

Dear Sir: — You have requested my opinion "as to the right of a 
mail-order firm to sell firearms, rifles or shotguns, utilizing the facilities 
and services offered by branch offices located in different cities and towns 
of the Commonw^ealth, and operating under the one license issued to the 
General Manager at the main office or plant." 

I note that you say that the mail-order firm you refer to "has many 
'catalog and telephone offices' located in different cities and towns in the 
Commonwealth." I note also your reference to the fact that orders for 
firearms are received at the various branch offices and that conditional 
sales agreements are made out by an agent and signed by the customer, 
partial or full payment made and the order is then referred to the main 
office for approval or disapproval. 

I note also that you say "on final approval the firearm desired by the 
customer is delivered in any one of several manners depending on the 
wishes of the customer." 

It may be delivered directly to the customer's home by mail, by common 
carrier or by trucks, or it may be delivered at the branch office of the firm 
to be picked up by the customer. 

General Laws, c. 140, § 122, provides that: 

"The chief of police or the board or officer having control of the police 
. . . may, after an investigation, grant a license to any person ... to 
sell, rent or lease firearms. . . . Every license shall specify the street or 
number, if any, of the building where the business is to be carried on, 
and the license shall not protect a licensee who carries on his business in any 
other place." 

Section 122 further provides that the licensing authority shall cause 
a copy of the applicant's fingerprints to be forwarded to the Commissioner 



90 P.D. 12. 

of Public Safety who shall thereafter advise the authority in writing of any 
criminal record of the applicant. 

Section 122 A provides for the keeping of record books for all licenses 
issued under § 122. Section 123 contains a full page and a quarter of con- 
ditions of said licenses which shall be expressed to be and are subject to 
such conditions. The second condition provides that: 

"Every licensee shall before delivery of a firearm make or cause to be 
made a true, legible entry in a sales record book to be furnished by the 
commissioner of public safety and to be kept for that purpose, specifying 
the complete description of the firearm, including the make, number, type 
of firearm, type of ignition, if any, whether sold, rented or leased, the date 
of such sale, the sex, residence and occupation of the purchaser, renter or 
lessee, and shall before delivery, as aforesaid, require the purchaser, renter 
or lessee personally to write in said sales record book his full name ..." 

Section 124 provides that such licenses shall expire on April 30th of each 
year. Section 125 provides for the forfeiture or suspension of such licenses 
for violation of any condition thereof or the violation of any law. 

This statute indicates very clearly an intent on the part of the General 
Court to employ every conceivable means of preventing deadly weapons 
in the form of firearms coming into the hands of evildoers. The legislation 
should be construed with that object in mind. Technicalities or hyper- 
technicalities ought not to be received with sympathy. 

In my opinion, a careful reading of the provisions above referred to 
indicates a clear legislative intent that each and every source of supply of 
firearms must be licensed and by an individual. 

As Attorne}^ General Paul A. Dever said in an opinion dated June 30, 
1936, to Hon. Paul G. Kirk, Commissioner of Public Safety (Attorney 
General's Report, 1936, p. 74) : 

"The entire context of the provisions relative to licenses or permits to 
carry and to purchase or sell pistols, revolvers and machine guns, as 
embodied in G. L. (Ter. Ed.), c. 140, §§ 121-131, indicates that the Legis- 
lature did not intend that the words 'person' or 'persons,' as used with 
relation to the purchaser or possessor of such firearms, who might receive 
a license to carry or a permit to buy, rent or lease should apply to a cor- 
poration ..." 

This is not a statute to tax the sale of a firearm. It must run to an in- 
dividual and not a corporation. Each license is good for one location only. 
In the circumstances you set forth, one corporation is pouring out instru- 
ments of destruction through various sources at various locations. Whether 
these sources are operated by agents or not, the fact remains the same. 
Instruments of destruction are being fed to the public from many different 
sources. 

In my opinion, compliance with the sections I have referred to requires 
a personal license for each source of supply. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



P.D. 12. 91 



The Commission Against Discrimination cannot under the penal provision 
of G. L. c. lolB, § 7, that employers, etc., post certain notices explaining 
that chapter, require persons operating places of public accommodation 
to post notices as to the effect of G. L. c. 272, §§ 92 A and 98. 

March 18, 1959. 

Mrs. Mildred H. Mahoney, Chairman, Massachusetts Commission Against 
Discrimination . 

Dear Madam : — In your recent letter you refer to a notice prepared by 
the Commission Against Discrimination to be displayed in places of pub- 
lic accommodation, and state that certain proprietors have challenged the 
commission's authority to require that the notice be posted. The notice 
referred to, as shown by the sample enclosed with your letter, takes the 
form of a printed card on which under the seal and name of the Common- 
wealth are printed in varying sizes of type statements evidently intended 
to express the effect of the provisions of G. L. c. 272, §§ 92 A and 98, pro- 
hibiting discrimination. 

You state that the commission was given jurisdiction over said §§ 92A 
and 98, by St. 1950, c. 479, § 4. 

You ask whether the posting requirements of G. L. c. 151B, § 7, apply 
to places of pubhc accommodation. 

Said § 7 reads as follows: 

"Every employer, employment agency and labor union subject to this 
act, shall post in a conspicuous place or places on his premises a notice to 
be prepared or approved by the commission, which shall set forth excerpts 
of this chapter and such other relevant information which the commission 
deems necessary to explain the act. Any employer, employment agency 
or labor union refusing to comply with the provisions of this section shall 
be punished by a fine of not less than ten dollars nor more than one hun- 
dred dollars." 

It is apparent from a reading of the section that it specifically refers 
only to employers, employment agencies and labor unions. It is a crim- 
inal statute which imposes a penalty, and as was said in Libby v. New 
York, New Haven and Hartford Railroad, 273 Mass. 522, 525, 526: 

"Penal statutes must be construed strictly 'and not extended by equity, 
or by probable or supposed intention of the legislature as derived from 
doubtful words; but that in order to charge a party with a penalty, he 
must be brought within its operation, as manifested by express words or 
necessary implication.' Cleaveland v. Norton, 6 Cush. 380, 383." 

Section 4 of St. 1950, c. 479, to which you refer and by which, you state, 
"the Commission was given jurisdiction of the Public Accommodations 
Law (G. L. c. 272, §§ 92A and 98)," amended § 5 of G. L. c. 151B, to pro- 
vide that the commission should receive, initiate and take action on com- 
plaints for alleged violations, among others, of §§ 92A and 98 of G. L. 
c. 272. There is nothing in the section referred to, or in any other section 
of said c. 479, expressly referring to the provisions of § 7 of G. L. c. 151B, 
as to the posting by employers, employment agencies and labor unions 
of the notices referred to, or extending the operation of said § 7 to places 



92 P.D. 12. 

of public accommodation. In the absence of any such express provision 
and in view of the fact that as a penal statute the section must be con- 
strued strictly and not extended by implication, it is my opinion that the 
penal provisions of the section would not be applied to make the refusal 
by a proprietor of a place of public accommodation to post the notice pre- 
pared by the commission punishable by fine as therein provided. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



The Massachusetts Port Authority is required to bargain collectively with its 
employees hut is not subject to supervision by the Labor Relations Com- 
mission. 

March 18, 1959. 

Mr. Martin F. Fay, Chairman, Labor Relations Commission. 

Dear Sir: — You have recjuested my opinion on the following question: 

"Does the State Labor Relations Commission have jurisdiction to ad- 
judicate all the issues raised by the petitions for certification of representa- 
tives for certain employees of the Massachusetts Port Authority including 
the authority to conduct any and all elections necessary to determine the 
question of representation?" 

The petitions referred to by you are two petitions filed by the same per- 
son, for different locals of the same international union. The petition for 
one local seeks certification as bargaining agent for all, except supervisory, 
employees of the Massachusetts Port Authority, evidently including even 
those employees who are members of the other local of the same union. 
The petition for the other local seeks certification of that local as bar- 
gaining agent only for the persons employed in the power house and 
pumping station and excludes clerical and supervisory employees and all 
other persons employed by the employer. 

It is specifically provided in G. L. c. 150A, § 2 (2), that the term "em- 
ployer" as used in that chapter "shall not include the commonwealth or 
political subdivision thereof." 

In the Opinion of the Justices to the Senate, under date of June 19, 1956, 
334 Mass. 721, speaking of a bill providing for the creation and establish- 
ment of the Massachusetts Port Authority, with similar powers and duties 
to those contained in St. 1956, c. 465, the Justices stated, at page 735, 
"We regard the Authority as a purely public corporation for public pur- 
poses — an arm of the State — analogous to a municipal corporation." 

As pointed out in the opinion cited, it is expressly provided in the act 
creating the Authority that "it is constituted 'a public instrumentality,' 
and the exercise" by the Authority of the powers conferred by this act 
"shall be deemed and held to be the performance of an essential govern- 
mental function." 



P.D. 12. 93 

In view of the fact that, as pointed out by the court, the Massachusetts 
Port Authority is a purely public corporation — an arm of the State — 
analogous to a municipal corporation, and the provision in G. L. c. 150A, 
§ 2, (2), that, as used in the chapter, "employer" should not include 
"the commonwealth or political subdivision thereof," I am of the opinion 
that the commission does not have jurisdiction to adjudicate the issues 
raised by the petitions referred to and does not have the authority to 
conduct elections. 

The conclusion that the Port Authority is excluded from the operation 
of the act is supported by the decision made by the Labor Relations Com- 
mission in 1951 that the Mystic River Bridge Authority, an Authority 
similar in many respects to the Port Authority, was excluded from G. L. 
c. 150 A, under the provision that the term "employer" should "not in- 
clude the commonwealth" on the ground that the Authority was a part 
of the Commonwealth and to be excluded as such. That decision of the 
commission is in complete accord with the later expression of the Opinion 
of the Justices, referred to above, that authorities such as the Port Authority 
are to be regarded as purely public corporations for public purposes, are 
arms of the State and analogous to municipal corporations. I do not mean 
to intimate that the exclusion could not be put on the ground that the 
Authority is excluded from the operation of G. L. c. 150A, under the 
latter part of the provision of cl. (2) of § 2 of the chapter that the term 
"emplo3^er" should not include "the commonwealth or political subdivision 
thereof" (emphasis supplied). In this connection it should be pointed out 
that the language quoted from G. L. c. 150A, § 2 (2), was evidently taken 
from the similar provision of the National Labor Relations Act and under 
that act it has been held that an Authority is a "political subdivision" of a 
State. See Abaci v. Puerto Rico Communications Authority, 88 F. Supp. 34. 
The decision cited illustrates that "political subdivision" can be taken as 
meaning a subdivision of political authority of the State as well as a 
territorial division of the State. 

As far as the decision of the Labor Relations Commission that the Met- 
ropolitan Transit Authority was not excluded from the jurisdiction of the 
commission under definition of "employer" in G. L. c. loOA, § 2 (2), is 
concerned, it clearly appears from the copy of that decision submitted to 
me that the commission based the decision on the ground that it was pro- 
vided by the act creating the Metropolitan Transit Authority that the 
term "employees" should apply in the same manner and to the same ex- 
tent as though the Authority were a street railway. The fact that the act 
relating to the Massachusetts Port Authority contains no provision re- 
motely resembling the provision relied on by the commission in the Metro- 
politan Transit Authority case entirely differentiates the decision of the 
commission with regard to the Transit Authority from the situation of 
the Port Authorit3^ 

Section 24 of St. 1956, c. 465, provides that the Massachusetts Port 
Authority shall have authority to bargain collectively with labor organi- 
zations representing employees of the Authority and to enter into agree- 
ments with such organizations. It is then provided that the employees of 
the Authority shall submit all grievances and disputes to arbitration pur- 
suant to the arbitration provisions in agreements existing or subsequently 
entered into, or, in the absence of such provisions, to the State Board of 
Conciliation and Arbitration or other board or body having similar powers 
and duties whose decision should be final and binding. 



94 P.D. 12. 

The provisions referred to are entirely consistent with the conclusion 
that the Port Authority is not subject to the jurisdiction of the State 
Labor Relations Commission. The authority given to the Port Authority 
to bargain collectively with organizations representing employees of the 
Authority, in view of its public nature and the status of its employees as 
public employees, includes the power in the Authority to determine the 
representative character of any organization seeking to enter into collec- 
tive bargaining agreements with the Authority, and that power and au- 
thority is not in any way subject to the supervision of any other public 
officials. 

The provisions as to the submission of grievances and disputes to arbi- 
tration expressly state that such submission shall be pursuant to the pro- 
visions of collective bargaining agreements, and only in the absence of 
provisions as to submission in such agreements, that is, agreements al- 
ready entered into, is submission to the Board of Conciliation and Arbitra- 
tion or other board or body having similar powers and duties required. 
It is only after agreements have been entered into by the Authority with 
organizations representing its employees that the State Board of Conciha- 
tion and Arbitration, or any other body, can have any jurisdiction, and 
even then the said board will only have jurisdiction if the agreement does 
not contain provisions for arbitrating disputes and grievances in some 
other way. 

It is clearly implied from the declaration of labor relations policy for the 
Authority contained in the first paragraph of § 24 of St. 1956, c. 465, es- 
tablishing the Authority, that it is not merely permitted, but is required, 
to enter into collective bargaining agreements with organizations repre- 
senting its employees, and is reciuired to protect the exercise by its em- 
ployees of full freedom of association, self-organization and designation of 
representatives of their own choosing. 

The members of the governing board of the Authority are appointed by 
and are removable for cause by the Governor with the advice and consent 
of the Council. They are public officers. The labor policy declared by 
the Legislature was a labor policy which the members of the Authority 
were to carry out as public officers and there is no reason for implying 
they should be subject to the members of the State Labor Relations Com- 
mission, who are also public officers, in the exercise of the duties of the 
Authorit}^ in carrying out the labor policy declared for it by the Legisla- 
ture. If there had been any such legislative intention it could easily have 
been expressly set forth. 

In the performance of its duties in carrying out the labor relations policy 
required, the Authority can make its own arrangements as to the designa- 
tion by its employees of representatives of their own choosing or, if it 
deems it advisable to do so, may request the services of the commission. 

The authority has now been in actual operating existence for only about 
a month, and the petitions filed with the State Labor Relations Commis- 
sion, to which reference has been made, were filed about two weeks after 
the Authority began actual operation of the facilities transferred to it. 
Undoubtedly the members of the Authority are fully cognizant of their 
duties with regard to according recognition to the representatives of its 
employees and to bargain collectively with those representatives and are 
taking steps to fulfill their duties and responsibilities in that regard. As 
was said in Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 
464, 465, "It is not to be assumed that . . . public officials will not carry 



P.D. 12. 95 

out their duties under the law." See also City Manager of Med ford v. 
Civil Service Commission, 329 Mass. 323, 331. 

In the event that there should arise occasion to do so, the Legislature, 
of course, retains complete authority to remed}' any failure by the Massa- 
chusetts Port Authority to execute the labor relations policy ordained for 
the Authority in the act creating it. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The same person may not he paid the salaries provided hy statute for the offices 
of Commissioner of Public Health and State Surgeon. 

March 23, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir: — You have requested an opinion as to whether the pay- 
ment of the salary fixed by G. L. c. 17, § 2, for the Commissioner of Public 
Health, and the payment of the salary fixed by G. L. c. 33, § 15, for the 
State Surgeon, to the same person, would be a violation of the restriction 
contained in G. L. c. 30, § 21. 

Said G. L. c. 30, § 21, reads as follows: 

"A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth." 

General Laws c. 33, § 15 (e), provides for the appointment of a State 
Surgeon, as a member of the State Staff, to act as adviser to the Military 
Division on all matters pertaining to the medical services of the armed 
forces of the Commonwealth. Paragraph (j) of said § 15 provides that 
except when ordered on duty under certain sections of the chapter the 
officers of the State Staff shall receive the salaries set forth, and the salary 
for the State Surgeon is fixed at the sum of $2,500. Provision is also made 
that he may receive additional compensation up to a maximum of $1,200 
per annum for services rendered to the Commissioner of Veterans' Services 
in cases of State or military aid and soldiers relief. 

General Laws c. 17, § 2, as amended, providing for the appointment of 
the Commissioner of Public Health expressly states, "The commissioner 
shall receive a salary of fourteen thousand dollars." 

Each of the provisions of the General Laws referred to creates an office 
and attaches a salary- thereto, and in each case the salary is payable from 
the treasury of the Commonwealth. I therefore am constrained to advise 
you that G. L. c. 30, § 21, quoted above, would forbid the payment to the 
same person of the salary for the office of Commissioner of Public Health 
and the salary for the office of State Surgeon. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



96 P.D. 12. 



Department of Public Safety has no authorization or jurisdiction over wrestling 
matches shown on television since no licenses are required by the Mayor's 
office because no admission fee is charged. 

March 26, 1959. 

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

Dear Sir : — - You have requested my opinion as to whether or not the 
Department of Pubhc Safety has any jurisdiction with respect to wrestUng 
matches shown on television from stations within the Commonwealth. 

It would appear that there is no statutory law regulating wrestling in 
this Commonwealth. 

With reference to the wrestling matches which are being conducted in 
Boston, this office has been advised that the office of the mayor of the city 
of Boston issues licenses for those wrestling matches to which an admission 
fee is charged. However, insofar as the television wrestling matches are 
concerned, we are advised that in view of the fact that no charges are 
made for such, no licenses are required by the mayor's office. It would 
therefore appear that no control is being exercised over television wrestling 
at the present time by any licensing authority and that the Department 
of Public Safety has no authority or jurisdiction over the same. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



The -provisions of Article 82 of the Standard Specifications for Highway 
Contracts entitling a contractor to payment on account of extra work as 
it is done is applicable to such an order for accelerating the completion 
date of a contract for a fixed sum, and entitles the contractor to periodical 
payments on account of such sum as the work progresses; where it is 
not provided that the fixed amount is to be paid only if the new date is 
met the extent of liability in the event of failure can be determined only 
after breach. The desirability of issuing extra work orders and the 
methods of payment thereunder are for the contracting department to 
determine. 

March 27, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir: — You have requested my opinion concerning an extra 
work order issued by the Department of Public Works. 

You state that a voucher has been submitted to your office which in- 
cludes an amount representing a partial payment on a lump sum extra 
work order providing for the acceleration of the completion date of a con- 
tract. In connection therewith you ask the following questions: 



P.D. 12. 97 

"1. Can the Commonwealth make a partial paj^ment in the amount 
of $46,902.31 on Extra Work Order #10 for $673,033 which is a lump sum 
for advancing the completion date from February 23, 1960, to June 30, 
1959? 

"2. Can payment be made only in the full amount of the lump sum in 
accordance with Extra Work Order #10 after June 30, 1959? 

"3. If the work is not completed in accordance with Extra Work Order 
#10 on June 30, 1959, would the Commonwealth be liable to pay the con- 
tractor any amount under said Extra Work Order?" 

The question of the authority of the Commissioner of Public _ Works to 
issue a lump sum extra work order providing for the acceleration of the 
completion date in a contract has been the subject matter of several com- 
munications from the office of my predecessor, the late George Fingold, 
directed both to the Commissioner of Public Works and to you. Those 
communications indicated that a lump sum payment for the purposes 
stated could be issued subject to the various limitations set forth therein. 
In the letter from the former Attorney General to you, dated August 18, 
1958, reference was made to Standard Specifications for Highways and 
Bridges isssued by the Department of Public Works. 

Article 23 of those specifications was referred to as allowing a lump sum 
extra work order. Articles 77 through 83 were referred to as controlling 
the method of paying amounts due under contracts, including amounts 
to be paid under extra work orders. Your attention is specifically invited 
to the last sentence of Article 82 which provides as follows : 

"For any item for which the payment is made on a lump sum basis, 
the Engineer will determine at any stage before completion the propor- 
tionate "amount of work that has been done and for which payment may be 
allowed if the Contractor requests partial payment on such an item." 

In accordance with the foregoing sentence, the answer to your fu'st ques- 
tion is in the affirmative. 

Having answered your first question in the affirmative, the answer to 
your second question must of necessity be in the negative. 

Your third question raises the problem of contract damages in the event 
of non-compliance with the work order. A conclusive answer to this 
question cannot be given unless the contract, the extra work order and 
other documents relating thereto are examined in detail. For present 
purposes, however, it appears from a reading of the two letters accompany- 
ing your request that the extra work order, as accepted by the contractor, 
constitutes an amendment to the contract by accelerating the completion 
date. It does not appear that the extra work order provides for a bonus 
which is to be paid only in the event of satisfactory performance. Under 
these circumstances, the change in the completion date of the contract 
imposes an obligation on the contractor to complete the work involved as 
of the accelerated date. In the event of failure to so complete the contract, 
the contractor would be in default under his contract and would suffer the 
consequences thereof. The scope of such potential liability cannot be de- 
termined until actual facts surrounding any such breach have been as- 
certained. 

The foregoing opinion is limited to n determination of the legal issues 
raised by your questions in light of the facts presented. The desirability 



98 P.D. 12. 

of issuing the extra work order and the selection of the method of making 
payments under it are matters within the discretion and judgment of the 
Department of Pubhc Works. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



A physician employed on a temporary basis at the Soldiers' Home was not 
within the provision of G. L. c. 30, § 9 A, providing tenure for certain 
veterans, since he did not have the required period of active service, nor 
of G. L. c. 30, § 9B, since the latter is applicable only to "permanent" 
employees who are not rendering professional service. 

March 31, 1959. 

Mr. John P. Harrington, Superintendent, Soldiers' Home, Holyoke, Mass. 

Dear Sir: — You have requested my opinion relative to the status of 
Dr. Charles H. Shamlian. In it you state that Dr. Shamlian has been 
employed at the Soldiers' Home in Holyoke as an assistant physician on a 
temporary basis from October 4, 1953, to the present time, part of the time 
to provide coverage during the leave of absence of Dr. Dwyer and latterly 
to fill a vacancy caused by the retirement of Dr. Bostick. He was first 
employed under Personnel Requisition 46136 October 4, 1953, to June 
30, 1954; extensions from July 1, 1954, to June 30, 1955, and from July 

1, 1955, to December 31, 1955, were approved by the Division of Per- 
sonnel and Standardization. He was further emploj'-ed, with the approval 
of the division, for the periods of January 1, 1956, to June 30, 1956, from 
July 1, 1953, to June 30, 1957, from July 1, 1957, to June 30, 1958, and from 
July 1, 1958, to June 30, 1959. You further state that Dr. Shamlian was 
on active duty as a Lieutenant U. S. N. R. from April 11, 1941, to June 

2, 1941, a total of not more than 53 days, and that his total service was from 
February 28, 1941, to July 1, 1941, a total of not more than 124 days. 

Under these circumstances you pose the following questions : 

1. Is Dr. Shamlian, as a temporary employee on a yearly basis, entitled 
to the benefits of G. L. c. 30, § 9A? 

2. Is Dr. Shamlian entitled to the benefits of G. L. c. 30, § 9B? 

General Laws c. 30, § 9A, provides for ''a veteran, as defined in section 
twenty-one of chapter thirty-one, who holds a . . . position in the service 
of the commonwealth not classified under said chapter thirty-one, other 
than ... an appointive office for a fixed term . . . and has held such 
office ... for not less than three years . . ." the benefits of G. L. c. 31, 
§§43 and 45. At the outset it is necessary to determine whether Dr. 
Shamlian is a "veteran" within the provisions of § 9A. It is to be noted 
that only veterans as defined by § 21 of c. 31 are entitled to the protection 
of § 9A. Section 21 of c. 31 defines the word "veteran" as meaning any 
citizen who " (1) (a) is a veteran as defined in clause Forty-third of section 
seven of chapter four ..." and further qualifications therein set forth. 



P.D. 12. 99 

General Laws c. 4, § 7, cl. 43rd, defines the word ''veteran" as meaning 
"any person, male or female . . . who served in the . . . navy . . . for 
not less than ninety days' active service, provided that ten days thereof was 
for wartime service . . ." "Wartime service" shall mean service per- 
formed by a "World War II veteran" during any of the periods of time 
described in cl. 43rd. "World War II veteran" shall mean any veteran 
who performed such wartime service between September 16, 1940, and 
December 31, 1946. 

So it seems that one of the statutory prerequisites for qualifying as a 
veteran is "not less than ninety days' active service, provided that ten days 
thereof was for wartime service ..." Dr. Shamlian's record does not 
indicate that he had at least ninety days' active service. His record, which 
you enclose from the Department of the Navy, states that he "had active 
duty: from 11 April 1941 to 2 June 1941." I therefore answer your 
Question No. 1 in the negative. 

Moreover, had Dr. Shamlian complied with the statute in the respect 
above referred to, it is not at all clear that, in view of the fact that he has 
never been permanently appointed but has been holding under successive 
terms of appointment approved by the Division of Personnel and Standard- 
ization, he would be holding "an appointive office for a fixed term . . ." 
thus excluding him from the benefits of § 9A. 

Replying to your second question as to the application to this gentleman 
of the provisions of § 9B of c. 30, it is clear that the Legislature has given 
him no protection. That section applies to persons "permanently em- 
ployed ... in the soldiers' homes in Massachusetts . . . except an 
employee . . . rendering professional service, who is not classified under 
chapter thirty-one ..." Dr. Shamlian, according to your letter, was 
never "permanently employed" and he is clearly "an employee . . . 
rendering professional service . . ."' He has been, therefore, excluded 
by the General Court from the benefits of § 9B for two reasons: first, he 
is not a permanent employee and, secondly, he is an employee rendering 
professional service. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The towns maintaining a district vocational school are not entitled to the 
additional reimbursement provided by G. L. c. 70, § 3B, to towns compris- 
ing a regional school district. 

Marcpi 31, 1950. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have requested my opinion as to whether G. L. c. 70, 
§ 3B, which provides that each town comprising a regional school district 
shall be paid an additional amount equal to fifteen per cent of the amount 
which such town would have been entitled to under the chapter if the 
regional school district had not been formed, is applicable to vocational 
districts. 



100 P.D. 12. 

Although you do not so state, and it is not clearly so stated in the letter 
to you from the superintendent of schools in the town of We.ymouth which 
you enclosed in your letter to the Attorney General, it w^ould appear that 
the "South Shore Regional Vocational School" referred to in the superin- 
tendent's letter is maintained by the member towns as a vocational school 
district established under the provisions of G. L. c. 74, § 4, as amended, 
and is not a regional school district established under the provisions of 
G. L. c. 71, §§ 15 to 161, inclusive. 

It is clear from the provisions of G. L. c. 70, § 3B, as amended by St. 
1953, c. 547, § 2, and particularly from the reference in said amendment 
to "the regional district school committee" and from the provision added 
to § 4 of said c. 70 by § 1 of the 1953 act, that only a town which is a mem- 
ber of a regional school district established under §§ 14 to 161, inclusive, 
of G. L. c. 71 is entitled to the additional reimbursement provided for in 
G. L. c. 70, § 3B. I must advise you, therefore, that a town which is one 
of several towns maintaining a district vocational school under the pro- 
visions of G. L. c. 74, § 4, but which is not a member of a regional school 
district established under G. L. c. 71, §§ 14 to 161, inclusive, would not be 
entitled to the additional reimbursement provided for by G. L. c. 70, § 3B. 
Very truly yours, 

Edward J. JMcCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



The provision added to G. L. c. 75 A, § 12, providing tenure for persons having 
completed three years of creditable service is applicable to those who had 
such service on the effective date of the amendment. 

April 13, 1959. 

Mr. Martin J. Lydon, President, Lowell Techiological Institute. 

Dear Sir:^ — In your recent letter you have requested my opinion 
relative to the effect of the provisions of St. 1958, c. 538, § 3. Your letter 
poses the following question : 

"Would you please tell us if the provisions of c. 538 become immediately 
applicable, after a 90-day period following the date of approval of the act, 
to those teachers who will have completed three or more years of creditable 
service as defined in the act on that date; or, do the teachers begin on 
such date to accrue service toward the three-year requirement for tenure 
of office?" 

Prior to the enactment of c. 538, G. L. c. 75A, § 12, provided that "The 
trustees shall elect the president, the necessary professors, tutors, instruc- 
tors, teachers and other officers and assistants of the institute and shall 
define the duties and tenure of office in accordance with the appropriate 
laws of the commonwealth. ..." Section 3 of c. 538 amended § 12 by 



P.D. 12. 101 

adding after the word "commonwealth" the words ''provided, that a 
professor, tutor, instructor or teacher, who is not employed in a position 
classified under chapter thii'ty-one, and who has served as such for three 
consecutive school years, shall not be dismissed from such employment 
except for just cause, and for reasons specifically given him in writing by 
the trustees." Further protection is afforded by a requirement for a full 
hearing, proper notice thereof being given and right to answer charges 
either personally or by counsel. Chapter 538 was approved by His Ex- 
cellency the Governor on August 15, 1958. Accordingly, at the expiration 
of ninety days after that time G. L. c. 75A, § 12, provided that a professor, 
tutor, instructor or teacher referred to in that section "who has served 
as such for three consecutive school years, shall not be dismissed from 
such employment except for just cause, . . ." There seems to be no 
ambiguity in this section. On and after the effective date of c. 538 the 
protective measures therein contained are thrown around the teachers 
you refer to, regardless of whether such three-year period of service was 
obtained before, after, or partly before and partly after such effective date. 
Very truly yours, 

Edward J. IVIcCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The -provisions of G. L. c. 58, § 20 A , and c. 59, § 20, requiring the deduction 
of amounts due the Commonwealth from sums distributable to munici- 
palities, do not impose conflicting duties on the State Treasurer. 

April 17, 1959. 

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

Dear Sir: — You have requested my opinion concerning your duty to 
withhold moneys due to various cities and towns in circumstances where 
the cities and towns owe moneys to the Commonwealth. You state that 
assessments have been made in the city of New Bedford, the town of Fal- 
mouth, the town of Nantucket and the County of Dukes County to cover 
deficiencies created by the operation of the Nantucket Steamship Author- 
ity. The provisions of St. 1956, c. 747, authorize such assessments. You 
state that the County of Dukes County has made only a partial payment 
on its assessment and the town of Nantucket has made no pa3^ment on its 
assessment. 

You call my attention to a part of § 20 of G. L. c. 59 providing as follows: 

"The state treasurer may deduct at any time from any moneys which 
may be due from the commonwealth to any city or town, the whole or any 
part of the sum so assessed or any other sum or sums which may be due 
and payable to the commonwealth from such city or town with the inter- 
est accrued thereon." 



102 P.D. 12. 

You state that the foregoing section contains the words "may deduct." 
Although you do not so state, it appears that you have considered the 
statute as being permissive and have not made the deduction authorized. 
You also refer to G. L. c. 58, § 20A, which provides: 

"If, at the time any tax is distributable to any city or town pursuant 
to section eighteen or twenty or at the time any other sum is payable by 
the commonwealth to any city or town, there is due to the commonwealth 
any sum from such city or town, for any service or cause whatsoever, such 
sum so due to the commonwealth shall be deducted by the state treasurer 
from the amount so distributable or payable to the city or town, and shall 
be applied to the payment of the sum so due to the commonwealth." 

The foregoing section provides that moneys "shall be deducted by the 
treasurer." You ask what procedure to follow in light of the apparent 
conflict between the two statutes — one being permissive, and one being 
mandatory. 

In my opinion the statutes in question do not impose any conflicting 
duties upon you, as treasurer. It is apparent that the last quoted section 
above (§ 20 A of c. 58) imposes an obligation on the treasurer to deduct 
from amounts distributable any sum which such municipalities in turn 
owe the Commonwealth. If you, as treasurer, carry out this obligation 
you will also in turn be complying with the provisions of c. 59, § 20. The 
excerpt which you have quoted from § 20 of c. 59 constitutes only a single 
sentence from a section dealing with the method of making assessments on 
cities and towns. If such assessments are not paid, it is provided that the 
treasurer "may" file an information in court to collect the assessment and 
"may" make a deduction at any time for moneys otherwise due such de- 
faulting city or town. The treasurer is thus given two means of collecting 
moneys due the Commonwealth from municipalities. Although the word 
"may" is used in the section, such word "embodies a requirement and 
imposes (a) duty . . ." Commonwealth v. N. Y. Central and H. R.R. Co., 
206 Mass. 417, 424 (1910). 

It would appear from the foregoing that the two statutes each impose 
similar obligations on the treasurer requiring that he effect an offset be- 
tween sums due from the Commonwealth to municipalities against sums 
due from municipalities to the Commonwealth. It is my opinion that 
these statutes impose no conflicting duties on you as treasurer. 

It is noted that the statutes above mentioned concern only cities and 
towns but do not extend to counties. A similar offset may be achieved 
in relation to counties by proceeding in accordance with the provisions of 
G. L. c. 29, § 17. Although this section allows the Commonwealth to make 
an offset against sums due from the Commonwealth to "persons," the 
word "persons" as there used would undoubtedh^ be interpreted as ex- 
tending to counties. Cf. Lowell v. Oliver, 90 Mass. (8 Allen) 247 (1864). 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



P.D. 12. 103 



April 17, 1959. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — Forwarded to you, herewith, is my opinion relating to 
the issuance of special hauling permits on State highways. Your attention 
is called to the fact that Federal funds are involved in this case. I must 
caution you that in giving the opinion which you have requested, I have 
made an interpretation of a Federal statute. 

For any final determination concerning such Federal statute reference 
should, of course, be made to the proper Federal officials. 

It is suggested that you take no action on my opinion until you have 
first obtained an opinion from the Federal authorities. 
Very truly yours. 



Edward J. McCormack, Jr., Attorney General. 



The issuance by the Department, and the Massachusetts Turnpike Authority, 
of permits for the operation of certain vehicles on interstate highways, 
similar to permits being issued on or before July 1, 1956, would not residt 
in the loss to Massachusetts of any federal aid highway funds. 

April 17, 1959. 

Hon. Anthony N. DiNatale, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion concerning the right of 
the Commonwealth through the Department of Public Works and the 
Massachusetts Turnpike Authority to issue special hauling permits allow- 
ing the operation of trucks on State highways and on the Massachusetts 
Turnpike. In particular, you call attention to U. S. Code, Title 23, § 127, 
which provides that Federal funds to be allocated to the States under the 
Federal- Aid Highway Act of 195G shall be withheld in the event that a 
State allows the interstate highway system to be used by vehicles with a 
weight in excess of certain maximum weights specified under that section 
or in excess of maximum weights permitted under Stat? laws or regulations 
established by appropriate State authority in effect on July 1, 1956, which- 
ever is greater. 

In respect to the maximum weights allowed under State law as of July 1 , 
195(5, you call attention to the provisions of G. L. c. 85, § 30 and G. L. c. 90, 
§§19 and 19A. These sections allow the operation of vehicles on State 
highways with a maximum weight somewhat in excess of the maximums 
set forth under U. S. Code, Title 23, § 127, referred to above. These 
statutes also provide that vehicles in excess of the maximum weights 
therein set forth may still operate on State highways provided a permit 
so to operate has been obtained from the Department of Public Works. 
You ask first whether the continued issuance of such special permits by the 
department would affect the Commonwealth's right to Federal funds in 
the light of the limitations set forth in the sections of the Code referred to 
above. It is my opinion that your department may continue to issue 
special permits similar to those which were being issued on or before July 



104 P.D. 12. 

1, 1956, without causing the Commonwealth to lose Federal-Aid High- 
way Act funds. 

You ask, secondly, whether the issuance of special permits by the Massa- 
chusetts Turnpike Authority would affect the Commonwealth's right to 
Federal funds under the aforesaid provisions of Title 23, in view of the fact 
that the Massachusetts Turnpike was first opened to public traffic on 
May 15, 1957. It is my opinion that the issuance of such permits similarly 
would not affect the Commonwealth's right to Federal funds. It is noted 
that the Massachusetts Turnpike Authority was established by St. 1952, 
c. 354, and by special legislation was given full authority to issue regulations 
concerning the use of the Massachusetts Turnpike. Under such legisla- 
tion, the Authority has established regulations concerning the issuance of 
special hauling permits. It is noted also that the Turnpike Authority was 
instituted as a public instrumentality performing an essential govern- 
mental function ; and that the Turnpike has been designated and approved 
by the Federal Government as part of the interstate highway system here 
in Massachusetts. It has been placed in the Department of Public Works; 
and upon retirement of the bonds issued by the Authority, the Authority 
will go out of existence, but the Turnpike will remain in your department. 
It would appear from the foregoing that the Massachusetts Turnpike 
Authority is a State agency in the Department of Public Works, and did 
have authority as of July 1, 1950, to issue special hauling permits. Under 
these circumstances it would appear that the issuance of such special per- 
mits by the Authority would not jeopardize the Commonwealth's right 
to Federal funds. 

I call your attention to a letter from C. W. Enfield, General Counsel 
of the Federal Bureau of Public Roads, dated January 29, 1959, directed 
to the Superintendent of the Department of Public Works for the State 
of New York. In such letter he states that the issuance of special permits 
by the New York Thruway Authority would not jeopardize the appor- 
tionment of interstate funds to the State of New York because of the fact 
that the right to issue such permits in New York existed as of July 1, 1956. 
It is my opinion that a similar ruling would be forthcoming in respect to 
the rights of the Commonwealth, through its Department of Public Works 
and its Turnpike Authority, to issue such special permits. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



On the facts presented, the per diem rate established by the Director of Hospital 
Costs and Finances to be paid by public bodies was based upon substan- 
tial evidence and did not appear to have been set improperly. 

April 17, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir: — You have requested my opinion concerning the validity 
of a rate established by the Director of Hospital Costs and Finances under 
the provisions of G. L. c. 7, § 30L, governing the payment of Common- 
wealth funds to certain nursing or convalescent homes. You enclose copy 
of a letter with memorandum attached from the director in which he out- 



P.D. 12. 105 

lined briefly the procedure followed by him in establishing the rate. In 
that memorandum the director states that only 50 per cent of the 599 nurs- 
ing homes involved submitted financial reports. Of the reports submitted 
only 40 per cent could be used. You state that the director apparently 
reviewed financial statements of only 20 per cent of the nursing homes and 
yet established a rate of 16.50 per diem for all nursing homes. You ask 
the following questions relative to these facts: 

"1. Did the Director of Hospital Costs and Finances determine the rate 
in accordance with the law?" 

In order to answer this question it would be necessary for me to review 
many facts in addition to those which you have presented. For example, 
the statutory provisions authorizing the director to set rates require that 
he conduct a hearing and issue a "regulation" in accordance with the pro- 
visions of G. L. c. 30A, § 1 (5). I have no way of determining, on the in- 
formation submitted to me, whether there has been compliance with c. 30A. 
It is assumed that you are seeking advice only in relation to the factual 
situation outlined in your request. The problems posed by these facts are 
better answered in connection with the remaining questions : 

"2. Was the rate which was established by the Director of Hospital 
Costs and Finances supported by substantial evidence when he states that 
only 20% of the financial reports of the nursing and convalescent homes 
were usable in determining the rates?" 

I have examined the copy of the memorandum submitted by the di- 
rector relating to his adoption of the rate in question. Page 1 of the mem- 
orandum indicates that he conducted three different public hearings. Page 
2 of the memorandum indicates that there was evidence submitted to the 
director, both in the form of exhibits and also in the form of oral testimony. 
In connection with the exhibits the director has listed six different items 
that were submitted. The second of the six items relates to a summary of 
financial reports filed. In the absence of any information to the contrary, 
it would appear that this item covers the reports described in your letter. 
In addition to the one item relating to a summary of the financial reports 
filed, there were five additional exhibits and fifteen additional items listed 
under oral evidence. The memorandum does not purport to summarize 
the evidence, but instead is described in a letter from the director to you 
as a memorandum which briefly outlines certain information. 

It would appear from the foregoing that the determination of the di- 
rector was not based only upon a survey of the financial reports submitted 
by the nursing homes, but was also based on additional evidence presented 
to him. From the facts submitted I cannot say that the determination of 
the director was not supported by substantial evidence. 

"3. Does the Director of Hospital Costs and Finances have authority 
under law to establish a uniform rate for all nursing and convalescent 
homes?" 

The first sentence of G. L. c. 7, § 30L, under which the rates in question 
were established provided as follows : 

"The director of hospital costs and finances shall, after hearing, deter- 
mine at least as often as annually, the per diem rate or rates to be paid 
to nursing or convalescent homes, as defined in section seventj^-one of 



106 P.D. 12. 

chapter one hundred and eleven, by the various departments, boards or 
commissions of the commonwealth, or by the various subdivisions of the 
commonwealth receiving reimbursement therefor, in whole or in part, from 
the commonwealth and may establish fair and reasonable classification or 
classifications of such rate or rates." 

The foregoing language authorizes the director to establish either a 
single rate or multiple rates. The answer to question No. 3 is "Yes." 
Although the director may establish a single rate it is noted that the sec- 
tion in question requires that rates be adequate and reasonable and shall 
include a fair return on invested capital. In the event that the rate for 
any nursing or convalescent home is inadequate or does not include such 
fair return for that particular nursing home, the statute contains provi- 
sions for an appeal to the director, and thereafter for an appeal to the 
courts. 

"4. Does the law require that the Director of Hospital Costs and Fi- 
nances examine the books of each nursing and convalescent home in order 
to determine the rate to be paid to such homes?" 

The second paragraph of the aforesaid § SOL contains the following 
sentence : 

"The director shall have the power to examine the books and accounts 
of any such nursing or convalescent home, if in his opinion such examina- 
tion is necessary to determine such rates." 

The foregoing sentence authorizes the director to examine the books of 
nursing homes but does not require that he examine all of them. Such 
examination is made "if in his opinion such examination is necessary." 

"5. If your answer to Question No. 1 is in the negative, can the Com- 
monwealth, through its agencies, reimburse the nursing homes at the rate 
of $6.50 per diem for services rendered up to and including the date on 
which it is determined that the rate was not properly established?" 

From the facts presented it does not appear that the rates have been 
adopted improperly. For this reason an answer to question No. 5 is not 
required. 

It is noted that the Director of Hospital Costs and Finances was first 
authorized to set rates by c. 696 of St. 1956 and then by c. 480 of St. 1958. 
These two sections authorize the director to establish only a minimum rate. 
Thereafter, St. 1958, c. 600, for the first time authorized the director to 
set rates which would include a fair return on invested capital for each 
particular nursing or convalescent home. It may be that eventually a 
whole series of varying rates may be established in order to comply with 
this section, but the action of the director in initially establishing a single 
rate does not appear improper. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



P.D. 12. 107 



A person convicted in the Superior Court of a sex offense who is found to be a 
"sexually dangerous person" can he sentenced, or committed for treatment, 
and if sentenced the Commissioner of Correction is not required to transfer 
him to the Treatment Center. 

April 21, 1959. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir: — You have renewed a request for an opinion asked by 
your predecessor on questions concerning the imprisonment of a person 
referred to by him. 

The person referred to was adjudicated to be a sexuall}^ dangerous person 
in the Plymouth Superior Court on January 19, 1959. However, the court 
did not commit him to a sex treatment center for an indeterminate period, 
but instead sentenced him to the Massachusetts Correctional Institution 
for assault to rape a child under sixteen. 

The questions asked are as follows: 

"1. Should the notice to the Commissioner of Correction of the court's 
finding that the person referred to is a 'sexually dangerous person' be re- 
garded as an 'order' from the court which requires the Commissioner to 
transfer the person to a treatment center or branch for the purpose of treat- 
ment and rehabilitation? 

"2. If the answer to our first question is in the affirmative, should he 
be confined thereafter as a sexually dangerous person for an indeterminate 
period of one day to life unless released in accordance with the provisions 
of §9?" 

In answer to the first question it is necessary to decide exactly what 
G. L. c. 123A, § 5, as appearing in St. 1958, c. 646, § 1, authorizes the court 
to do. In my opinion this section empowers the court to do four things as 
follows: 

1. If the court decides that a person is not sexually dangerous, it will 
proceed against him criminally. 

2. If the court finds he is a sexually dangerous person, it may commit 
him indefinitely to a center for treatment. 

3. Although the court decides a person is sexually dangerous, it still may, 
in its discretion, sentence him criminally. 

4. The court may order that a person receive outpatient treatment such 
as recommended by the Department of Mental Health. 

In the case you present, the court elected to select the third possibility 
as stated above. Since said G. L. c. 123A, § 5, says the court "may, in lieu 
of the sentence required by law for the original offense, commit such per- 
son . . .", such commitment is discretionary with the court. Therefore, it 
had the authority to sentence him as a criminal rather than commit him. 

The word "order," as set forth in § 5 of c. 123A of the General Laws, 
refers exclusively to commitment orders. The provisions relating thereto 
apply only if the court elects to commit a prisoner. However, the court in 
the case presented, elected instead to sentence him criminally. Therefore, 
the commissioner was not required to transfer the person to a treatment 
center. 



108 P.D. 12. 

In answer to the second question, it logically follows that the prisoner 
should not be confined as a sexually dangerous person for an indefinite 
period but on the contrary should merely serve out his sentence. 

Two other questions listed below as 3 and 4 were also asked by your 
predecessor and I have enclosed a copy of an opinion which I sent to the 
Commissioner of Mental Health [opinion dated April 16, 1959] which 
covers the law on this subject. 

"3. Does the Commissioner of Correction or Commissioner of Mental 
Health, or both, have the authority to transfer a committed sexually dan- 
gerous person from one sex treatment center or branch to another 

(a) established within a Department of Correction institution? 

(b) established in a Department of Mental Health institution outside 
the Department of Correction? 

"4:. Does the Commissioner of Correction or Commissioner of Mental 
Health, or both, have the authority to transfer a person who has been 
temporarily committed for observation as a potentially sexually dangerous 
person from one sex treatment center or branch to another 

(a) established within a Department of Correction institution? 

(6) established in a Department of Mental Health institution outside 
the Department of Correction? " 

Briefly, the answer to the third question section (a) is that the Commis- 
sioner of Correction has the authority to transfer sexually dangerous 
persons to an institution within the Department of Correction. The answer 
to section (6) is that the Department of Mental Health has the authority 
to transfer individuals within institutions in the Department of Mental 
Health. 

The answers to the fourth question, sections (a) and (5), are the same as 
the answers to the respective sections of question 3. 

It should also be noted that when there is an interdepartmental transfer 
by the Department of Mental Health and the Department of Correction, 
then the approval of both commissioners would be necessary. The power 
to so transfer is implied in the construction of the statutes dealing with 
transfers. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



P.D. 12. 109 



A member of a retirement system cannot, by make-up payments, obtain credit 
for service as a temporary employee of less than six months' duration 
during which period he could not have become a member of the applicable 
system under the provisions of G. L. c. 32, % 3 {2 ) (a) {iv) . 

April 21, 1959. 

Hon. Owen B. Kiernan, Chairman, Teachers' Retirement Board. 

Dear Sir: — ^ In your recent letter you have requested my opinion 
relative to make-up payments for a former temporary employee. 

You state that one of your regular teachers, prior to his employment 
as such, was employed as a temporary senior statistical machine operator 
in the State Division of Employment Security from June 1, 1954, to August 
4, 1954, and during this service he lost pay for eight days. You further 
state that this gentleman was not enrolled at the time of his temporary 
service as a member of the State Employees' Retirement System and that 
no deductions were made from his salary for said system and that he now 
wishes to be allowed to pay for and receive credit for this temporary service. 

In view of the foregoing, you pose the following question : 

"The Teachers' Retirement Board would like your opinion as to whether 
or not this teacher should be permitted to pay and receive credit for his 
temporary service from June 1, 1954 to August 4, 1954." 

In my opinion the answer to your question must be in the negative, 
because your man had no right and could not become a member of the con- 
tributory retirement system while serving not over one month and three 
days as a temporary employee in the State Division of Employment Se- 
curity. 

The General Court in 1945 went to great pains to provide for eligibility 
for membership in the contributory retirement system. G. L. c. 32, § 3 
(2) (a) (iv), provides specifically for the status of temporary employees; 
it says that, 

"... any such person who becomes regularly employed, as determined 
by the board as provided for in paragraph {d) of this subdivision, on a 
part-time, provisional, temporary, temporary provisional, seasonal or 
intermittent basis shall become a member in service, if he is to be classified 
in Group 1, upon the completion of six calendar months of service, and any 
other such person shall become a member in service upon his entry into 
service; ..." 

The General Court doubtless had in mind in enacting this provision 
that many, many instances might come up where temporary employees 
were employed for a short period of time. The Legislature doubtless knew 
that great confusion might well ensue if every temporary employee, how- 
ever long or short his period of service, must be taken into the retirement 
system only to be removed from the system after a comparatively short 
time. Confusion alone would result from such a situation. 

That is doubtless the reason why it was provided that temporary em- 
ployees should become members of retirement systems only "upon the 
completion of six calendar months of service." Such a period of employ- 



no P.D. 12. 

ment served to stabilize, to a certain extent at least, the status of the 
employee. 

The General Court, I am sure, had a serious purpose in providing for 
this period of employment for temporary employees before permitting 
them to become members of the contributory retirement system. That 
purpose should not be frustrated. 

Since the gentleman you inquire about would not and could not become, 
as a temporary employee, a member of a contributory retirement system 
when employed only slightly over a month, it naturally follows that he is 
not entitled to be credited for such service and thus obtain the benefits of 
G. L. c. 32, §§ 1 to 28, inclusive. 

In this connection it may be further noted that by the provisions of 
§ 3 (2) (d), the retirement boards have full jurisdiction to determine an 
employee's eligibility for membership if his service is on a temporary basis. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A penalty provision of a lease with the United States would impose no liability 
upon the Commonwealth in the absence of an appropriation authorizing 
payment of such penalty. 

April 22, 1959. 

Mr. Elwood S. McKenney, Executive Secretary, Governor's Council. 

Dear Sir: — In your recent letter you have requested my opinion 
concerning a proposed lease between the Commonwealth of Massachu- 
setts (Air National Guard) and the United States of America (Department 
of the Army — Corps of Engineers) . The lease as initially submitted to 
this office was not approved as to form because of language contained in 
paragraph 12 thereof which might impose an obligation on the Common- 
wealth to pay a penalty to the United States Government. I have been 
unable to find any appropriation which would authorize the payment of 
any such penalty. For this reason the lease cannot impose such a liability 
on the Commonwealth in view of G. L. c. 29, § 26, which provides in part 
as follows: 

"No obligation incurred by any officer or servant of the commonwealth 
for any purpose in excess of the appropriation or allotment for such pur- 
pose for the office, department or institution which he represents, shall 
impose any liability upon the commonwealth." 

A conference was arranged by representatives of this office which was 
attended by an Assistant Attorney General; Colonel Ralph T. Noonan, 
State Quartermaster; Colonel John F. Kane, U. S. A., United States 
Property and Fiscal Officer for Massachusetts; and Mr. O. F. Humphrey, 
Realty Officer, Corps of Engineers, U. S. A. During the conference tele- 
phone communications were also had with Mr. Frank V. Bonzagni, Chief 
of the Legal Section, Corps of Engineers, U. S. A. 



P.D. 12. Ill 

The limitations on the authorit}^ of the representatives of the Common- 
wealth to enter into the lease in question were explained to these various 
officials. The Federal officials, in turn, called attention to provisions of 
Federal statutes requiring that the language in question be inserted in all 
Federal contracts calling for the expenditure of money. (Public Law 719, 
Ch. 458, 83rd Congress.) 

Where it appears that the Federal Government has been warned as to the 
limitations of the State officials in connection with the instrument in ques- 
tion, and where such officials are still willing to proceed with the trans- 
action, it would appear that there is no legal obstacle to the lease being 
executed at the present time. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



A proposed form of "license" agreement between the Civil Defense Agency 
and the town of Wilbraham for the purpose of erecting model air raid 
shelters is a lease within the provisions of G. L. c. 8, § 10 A. 

April 24, 1959. 

Mr. John S. Nolan, State Superintendent of Buildings. 

Dear Sir: — In your recent letter you have requested my opinion con- 
cerning an agreement by and between the Commonwealth of Massachu- 
setts, acting through its Director of Civil Defense, and the town of Wil- 
braham. You asked whether or not this agreement constitutes a lease and 
comes within the provisions of G. L. c. 8, § lOA. 

Under this agreement the town of Wilbraham purports to "license" to 
the Commonwealth for a period of five years a certain plot of land (of 
vague legal description) for the purpose of erecting and maintaining a so- 
called model family air raid shelter with signs, entrance and walks. This 
agreement provides for no rent or assumption of liability by the Common- 
wealth, which agrees to keep the premises in a neat and orderly condition 
at all times and to do other things indicative of a possessor of land. 

The "license" purports to be irrevocable during the five-year term of 
this agreement, but gives either party a right to terminate upon the giving 
of 90 days' notice. 

The fact that the agreement refers to itself at various places as a "li- 
cense" does not convert it into a license. That is to say, the responsibilities 
and relationship created between the parties are controlling rather than the 
name assigned to the agreement by the parties. 

The distinction between a lease and a license is plain although at times 
it is difficult to classify a particular instrument. 

A lease of land conveys an interest in land and transfers possession. A 
license simply excuses acts, done by one on land of another, which would 
constitute trespass without such license, and conveys no interests in the 
land. 

The controlling question raised by the agreement would seem to be 
"which party will be in possession of the land during the term of the agree- 
ment?" The agreement places upon the Commonwealth the responsi- 
bility for keeping the premises in a neat and orderly condition at all times, 



112 P.D. 12. 

to clear the sidewalk adjacent to the premises of ice and snow, and cut 
the grass on the premises. It gives to the Commonwealth the right to erect 
a structure with identifying signs, entrance and exit walks. It compels 
the Commonwealth upon termination of the agreement to restore the prem- 
ises to substantially the condition they were in at the commencement of 
the agreement. 

It would seem that the attached agreement constitutes a lease. Baseball 
Publishing Co. v. Bruton, 302 Mass. 54. 

The answer to your question is as follows: The attached agreement con- 
stitutes a lease and comes within the scope of G. L. c. 8, § lOA. 
Very trulj^ yours, 

Edward J. McCoemack, Jr., Attorneij General, 

By Leo Sontag, Assistant Attorney General. 



A license can be issued under G. L. c. 94, § 65H, for manufacturing frozen 
desserts on a mobile unit. 

April 30, 1959. 

Hon. Alfred L. Frechette, Commissioner of Public Health. 

Dear Sir : — In your recent letter you requested an opinion relative 
to the operation and effect of the provisions of G. L. c. 94, § 65H, as to 
the licensing of "plants" for the manufacture of frozen desserts and ice 
cream mix. 

In the letter you state that at the time the "Frozen Desserts Law," 
G. L. c. 94, §§ 65G to 65S, inclusive, was enacted, frozen desserts plants 
were fixed places of business occupying some form of building. You fur- 
ther state that during the past few years a modern sanitary mobile unit 
from which customers can be served directly at the roadside, or at a fair 
or beach, has been developed, and that a question has arisen as to whether 
a mobile unit can be licensed under G. L. c. 94, § 65H. 

General Laws c. 94, § 65H, requires that persons manufacturing frozen 
desserts in the Commonwealth file, upon a form prescribed and furnished 
by the Department of Public Health, an application for a license to manu- 
facture the product with the board of health of the town in which the 
product is to be manufactured, and it is provided that the application 
state "that the apphcant will manufacture such products only from pure 
and wholesome ingredients and only under sanitary conditions," and 
"shall show the location of each plant in such town at which such products 
are to be manufactured; ..." 

In G. L. c. 94, § 651, it is provided that if the local board of health is 
satisfied, after inspection, that the plant referred to in an application for 
a license is maintained in accordance with the standards of sanitation pre- 
scribed in the rules and regulations of the department, it may grant a 
license to any suitable applicant. 

It is apparent from a reading of the provisions of G. L. c. 94, §§ 65H 
and 651, referred to, that the paramount interest of the Legislature in the 
enactment of the sections comprising the "Frozen Desserts Law" was, as 



P.D. 12. 113 

you state, "to require an adequate sanitary facility for the manufacture of 
frozen desserts." 

There is no manifestation of any legislative interest in where the manu- 
facture takes place other than that the place comply with applicable sani- 
tary requirements, and no manifestation of any legislative interest that 
manufacture should be restricted to a plant having a fixed location. 

In the case of Chambeiiand v. Selectmen of Middleborough, 328 Mass. 
628, it was held that a board of health had exceeded its authority under 
G. L. c. 94, § 65H, in rejecting an application for a license for a plant for 
manufacturing frozen desserts because the location proposed for the plant 
would constitute a traffic hazard. In the case cited the court said at 
page 631: 

''The power entrusted to the board by the Legislature concerned only 
matters which related to the public health. . . . The board had no au- 
thority to consider traffic and was acting beyond its power in denying the 
application on that ground." 

In the case of Commonwealth v. Rivkin, 329 Mass. 586, the court set 
aside the conviction of a person, who was a hawker and pedler and held a 
State license, under a regulation of the board of health of the city of 
Northampton, adopted under what is now G. L. c. 94, § 146, prohibiting 
the sale of ice cream on any street, sidewalk or other public place. It was 
held that, so far as the regulation prohibited sales, it was not authorized 
under the statute which merely delegated a power to make rules relative 
to the manner in which food should be kept or exposed for sale in order 
to prevent contamination thereof and injury to the public health. The 
court said, at pages 587 and 588, "The object of such rules was to prevent 
the contamination of food intended for sale by prescribing the sanitary 
conditions under which it was to be kept and exposed for sale. . . . The 
statute said nothing about regulating the sale of food." 

It is clear that the statutory provisions contained in G. L. c. 94, §§ 65G 
to 65S, inclusive, were framed with a single-minded purpose to assure that 
the frozen dessert and ice cream mix products dealt with are manufactured 
only under sanitary conditions. If frozen desserts can be manufactured 
in mobile units under such conditions, and you state that "from a public 
health point of view, this department would consider a mobile sanitary 
unit satisfactory as a manufacturing plant," there would be no objection 
to granting a license for manufacture in such a plant merely because the 
location of the unit in the city or town would be transitory and not fixed. 

I therefore advise you that the provisions of G. L. c. 94, § 65H, permit 
the issuance of a license for manufacturing frozen desserts in a plant 
mounted on a mobile unit if the plant meets the requirements of anj^ rules 
and regulations which the Department of Public Health has adopted and 
promulgated, or which it may hereafter adopt and promulgate applicable 
to such manufacture in such units. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



114 P.D. 12. 



A71 erroneous sentence can he corrected only by court action. The Attoimey 
General will, however, co-operate in determining the validity of the sen- 
tences of six juvenile offenders imposed under somewhat similar circum- 
stances to those found objectionable in Metcalf v. Commonwealth. 

May 2, 1959. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir: — In your recent letter you have requested my opinion as 
to what, if any, action you should take in view of the decision of the Su- 
preme Judicial Court in the case of Metcalf v. Commonwealth (decided 
March 3, 1959, 338 Mass. 648) with regard to six prisoners in your custody, 
the validity of whose sentences may be open to the same objections which 
the court found as to Metcalf's sentence. 

It appears from the information furnished in your letter that the six 
cases have the following points in common with Metcalf's case: 

(1) Each prisoner was originally charged with murder in the first degree 
and in each case a plea of guilty was accepted to murder in the second 
degree and accordingly each is now serving a life sentence. 

(2) In each case the offense was committed while the prisoner was under 
seventeen years of age. 

(3) In each case no proceedings were brought against the prisoner as a 
delinquent child. 

Although the six prisoners referred to by you were, like Metcalf, under 
seventeen years of age at the time of the commission of the homicides in 
which they were involved, it would appear that they were, while Metcalf 
was not, over fourteen years of age at that time. Since, as was pointed 
out by the court in the Metcalf case, there is a complete prohibition of 
criminal proceedings being taken against youths under fourteen, except 
for murder in the first degree, but no such complete prohibition when 3, 
youth is over fourteen, it is apparent that there is at least one possible 
distinguishing feature between Metcalf's situation and that of the six 
persons referred to in your letter. 

An even more important distinction between the situation of some of 
the prisoners referred to in your letter and the situation of Metcalf is that 
it appears that the homicides in which two of the prisoners you refer to 
were involved occurred prior to the enactment of the amendment to G. L. 
c. 119, § 74, and effected by St. 1948, c. 310, § 12, and, in fact, that the sen- 
tences which they are serving were imposed in proceedings concluded before 
the date that amendment took effect, which, as provided in § 31 of said 
c. 310, was January 1, 1949. Prior to the amendment referred to, G. L. 
c. 119, § 74, permitted criminal proceedings against a child between four- 
teen and seventeen, without the necessity for prior proceedings against him 
as a delinquent child, for offenses punishable, as murder in the second de- 
gree is, for life, as well as for offenses punishable by death. 

The commitments under which you are holding the six persons referred 
to were issued upon sentences of the Superior Court, and until you are 
ordered by the courts to do otherwise you must carry out the order of 
commitment. 

Although there are, as stated, features in the cases of the six persons 
referred to by you distinguishing their situations from that of Metcalf, 
it may well be that the Supreme Judicial Court would hold, at least as to 



P.D. 12. 115 

some of them, that, as was held as to Metcalf, theh^ sentences were invahd 
because no proceedings were taken against them as juveniles after their 
pleas of guilty to murder in the second degree were accepted. 

Some steps should be taken to present the problem of the application 
of the holding in Metcalf s case to the two groups referred to in your letter, 
that is, those sentenced before January 1, 1949, and those sentenced after 
January 1, 1949. Petitions for writs of error could be brought in the Su- 
preme Judicial Court for determination of the validity of the sentences 
imposed. If the prisoners referred to by you have counsel, this office will 
be most willing to co-operate with such counsel to have the cases presented 
and decided. If the prisoners cannot retain counsel, or cannot be furnished 
counsel in any other way, I should be glad, upon being so informed, to 
request the Supreme Judicial Court to appoint counsel to present the nec- 
essary petitions. 

Although it would be desirable to have petitions filed for each individual 
concerned, that would not be absolutely necessary, for if the questions at 
issue as to each group should be finally determined by the Supreme Judi- 
cial Court for the Commonwealth in favor of prisoners for whom petitions 
had been brought, I would myself have petitions presented to make such 
determinations effective as to prisoners in the same situation for w^hom no 
petitions were brought. 

I would be happy to have you refer to me counsel representing any of 
the persons referred to in your letter, and to co-operate in every possible 
way to have the cases heard and determined as quickly as a thorough con- 
sideration of the rights of the prisoners and the public requires. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



A -pardon may he granted only after a conviction, and a record of a complaint 
for drunkenness with a suspension of further proceedings pursuant to 
G. L. c. 272, § 1^5, is not the subject of a pardon. Records of the Board 
of Probation of such complaints are not records of convictions and should 
not be made available for public inspection. 

May 6, 1959. 

Mr. Cornelius J. Twomey, Chairman, Advisory Board of Pardons. 

Dear Sir : — In your recent letter you have requested my opinion con- 
cerning the following: 

Whether a court record of a complaint for drunkenness with a suspen- 
sion of further proceedings, as provided in G. L. c. 272, § 45, after an 
arrest and a release under said section is the subject of a pardon by the 
Governor. 

May the Board of Probation properly report such court records on 
inquiry by agencies inquiring at the Board? 

This is to advise as follows: 

1. In my opinion a court record of a complaint for drunkenness with 
suspension of further proceedings as provided in G. L. c. 272, § 45, is not 
the subject for a pardon by the Governor in that the Governor under the 
Constitution may pardon an offense after conviction but not before. 



116 P.D. 12. 

"The word 'conviction' . . . implies 'a judgment and sentence of the 
Court upon a verdict or confession of guilt.' . . . 'Nothing less than a 
final judgment, conclusively establishing guilt, will satisfy the meaning 
of the word "conviction" as here used.'" Attorney General v. Pelletier, 
240 Mass. 264, 311. 

The mere fact that a man has been arrested has very little, if any, 
probative value in showing that he has engaged in any misconduct. An 
arrest shows nothing more than that someone suspected the person appre- 
hended of an offense. In view of the fact that the persons involved in 
the question which you have raised have not been tried and convicted, 
the Governor is precluded from granting a pardon to them. 

2. As to your second question, it is my opinion that the Board of Pro- 
bation may not properly enter such arrests as court records of convictions 
nor give them out as court convictions. Although under the provisions 
of G. L. c. 276, § 100, they may keep a record of the work of the probation 
officers, it would seem that the records dealing with persons arrested and 
released under G. L. c. 272, § 45, should be kept separate and distinct from 
the regular court records and not made available to public inspection. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



The provisions of G. L. c. 30 A, § 13 {the Administrative Procedure Act), op- 
erate to require notice and hearing prior to the revocation of a license under 
G. L. c. 175, § 5; seven days' notice of hearing would he reasonable. 

May 12, 1959. 

Hon. Otis M. Whitney, Commissioner of Insurance. 

Dear Sir: — In your recent letter you request an opinion upon the 
following two questions : 

"(1) In connection with a proceeding initiated by the Commissioner of 
Insurance under G. L. c. 175, § 5, for the revocation of the license of a 
foreign insurance company, is it necessary that the requirements of G. L. 
c. 30A (commonly referred to as the State Administrative Procedure Act), 
relative to notice and hearing, be observed?" 

Section 13 of c. 30A of the General Laws provides that, in general, a 
license shall not be revoked without prior notice and hearing. An excep- 
tion is made for cases where a provision of the General Laws expressly 
provides that no hearing in regard to revocation need be held. G. L. c. 
175, § 5, does not expressly provide that no hearing need be held in regard 
to revocation of a license referred to therein. 

The provisions of c. 30A, § 13, require a hearing prior to the revocation 
of a license except in the instance already referred to and except when 



P.D. 12. 117 

revocation is required on the basis of a court conviction or judgment or 
where revocation is based solely upon failure of the licensee to file timely 
reports, schedules or applications, or to pay laA\^ully prescribed fees, or to 
maintain insurance coverage as required by any law or by regulation. 

Subject to the aforementioned exceptions, the answer to your first ques- 
tion is in the affirmative. 

Your second question is: 

"(2) If the requirements of G. L. c. 30A as to notice and hearing must 
be complied with in a proceeding conducted by the Commissioner of In- 
surance under G. L. c. 175, § 5, for the revocation of the license of a foreign 
insurance company, would a seven-day or a ten-day notice of such hearing 
comply with the 'reasonable notice' provisions of (1) of § 11 of said c. 30A, 
or is it necessarv that a twenty-one-day notice similar to that required by 
(1) of § 2of c. 30A, be given?" 

Chapter 30A, §2 (1), deals with the adoption or amendment of regula- 
tions by an agency and does not relate to the conduct of adjudicatory pro- 
ceedings. 

Sections 10 to 13, inclusive, of c. 30A deal with the conduct of adjudica- 
tory proceedings. A hearing required under the provisions of § 13 of c. 30A 
is governed by §§ 10 to 12, inclusive, of the Administrative Procedure Act. 
Section 11 (1) of the Administrative Procedure Act sets forth a require- 
ment of ''reasonable notice of the hearing." 

The answer to your second question is as follows: 

The provisions of c. 30 A, § 2 (1), do not apply to a hearing as to the 
revocation of a license held under the provisions of c. 175, § 5. The pro- 
visions of c. 30A, § 11 (1), providing for "reasonable notice of the hearing," 
do apply to such a proceeding. What constitutes "reasonable notice" 
usually depends upon the facts and circumstances of each particular case. 
In proceedings under G. L. c. 175, § 5, the alleged grounds for revocation 
deal with the conduct of the licensee, its business policies, management 
and financial condition, that is, matters that are or should be within the 
knowledge of the licensee. 

In criminal proceedings in the Commonwealth, defendants are often put 
on trial within a week of being charged. In numerous civil proceedings no 
more than seven days' notice is usually required. 

In answer to your question, it would appear that a seven-day notice of 
hearing would be reasonable. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Leo Sontag, Assistant Attorney General. 



118 P.D. 12. 



A licensed operator must he in attendance at all times during which a steam 
boiler requiring a licensed operator is in operation, including periods of 
operation for heating purposes only. 

May 12, 1959. 

Hon. Henry J. Goguen, Commissioner of Public Safety. 

Dear Sir ; — In a recent letter your predecessor in office requested my 
opinion on the following: 

"May the holder of a Massachusetts license, who is in charge of the 
boiler or boilers, who signs the Engineers Record Book on Steam Boilers, 
leave the boiler or boilers in operation and unattended for heating pur- 
poses after everyone has gone home?" 

General Laws c. 146, § 46, provides that it is unlawful for any person to 
have charge of or operate a steam boiler or engine (with certain exceptions) 
unless he is licensed. This statute has already been determined as intended 
for the safety and security of the public. I Op. Atty. Gen. 485. 

In view of the necessity for the safe operation of these steam boilers, it 

is the opinion of this office that a licensed operator must be in attendance 

at all times during which said steam boiler is in operation, and it may not 

be left unattended for heating purposes after everyone has left the premises. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



A sentenced prisoner adjudicated a sexually dangerous person and given an 
indeterminate life commitment as such, suspended on condition that he 
receive outpatient treatment, is to receive such treatment while a prisoner, 
and his sentences will run concurrently with his commitment. 

May 14, 1959. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir: — In your recent letter you request an opinion as to the effect 
G. L. c. 123 A, § 6, has on the present sentence of a person referred to by 
you. Please be advised as follows: 

As you mention, the person in question was sentenced for a term of 
12 to 20 years for each of the crimes of robbery, rape and sodomy to be 
served concurrently. Subsequently, while serving the above sentences, 
he was adjudicated a sexually dangerous person and the court ordered that 
he "be committed to the treatment center at the Massachusetts Correc- 
tional Institution, Walpole, for an indeterminate period of a minimum of 
one day and a maximum of natural life." "The Department of Mental 
Health having recommended . . . [the prisoner] ... as a suitable sub- 



P.D. 12. 119 

ject for out-patient treatment, this commitment is suspended upon condi- 
tion that . . . [the prisoner] . . . receive such out-patient treatmient." 
Two issues are raised by your letter: 

(1) May the person referred to be discharged from the Massachusetts 
Correctional Institution for outpatient treatment despite the fact that his 
sentences totaling 12 to 20 years have not expired? 

(2) What effect, if any, does the order of commitment as a sexually 
dangerous person have on his prison sentence? 

In short, St. 1958, c. 646, § 6, provides for a procedure in dealing with 
prisoners under sentence who become sexually dangerous. Under this sec- 
tion, if the court finds that a prisoner is sexually dangerous, it must do one 
of four things: (1) commit him to the center for an indeterminate period 
of a minimum of one day and a m.aximum of such person's natural life; 
(2) commit such person to a mental institution ; (3) place such person upon 
outpatient treatment; and (4) make such other disposition upon the rec- 
ommendation of the Department of Mental Health consistent with the 
purpose of treatment and rehabilitation. 

The court in the instant case elected to place the prisoner upon out- 
patient treatment. This raises the question as to whether this outpatient 
treatment is to be received as a prisoner at Walpole or as a citizen at large. 
This problem is partially answered in St. 1958, c. 646, § 6, as follows: "Such 
'prisoner shall he held in custody under sufficient security to protect society, and 
he shall be subject to all laws, rules and regulations which govern inmates 
of the institution to which he has been committed, in so far as may be com- 
patible with the treatment provided for by this chapter, and he shall be 
entitled to such rights and privileges of such inmates, in so far as may be 
compatible with such treatment." 

It should also be noted in determining the legislative intent that in § 5 
of the above-mentioned act it is expressly provided that the court niay 
commit a sexually dangerous person for an indeterminate period of a mini- 
mum of one day and a maximum of such person's natural life, in lieu of 
the sentence required by law. However, § 6 of this act does not provide 
that a commitment order is to be served in lieu of the original sentence. 
Therefore, it would appear that if the legislators intended a commitment 
be served in place of a sentence, they would have used the words ''in lieu 
of" as they did in § 5. 

This being the case, it may be concluded that a commitment as a sexually 
dangerous person does not in any way abrogate the original sentence. Of 
course, a commitment order would not toll the running of a sentence since 
his commitment is involuntary on his part. 

It should also be noted that § 9 of the aforementioned act provides for 
the parole and discharge procedure for persons committed under § 6 of 
this act. Therefore, the prisoner would be entitled to the benefits of this 
section. In the event that he was paroled or discharged under this sec- 
tion, he would immediately be returned to serve out the remainder of his 
sentence. 

It would appear from the over-all reading of this chapter that the 
legislative intent was one of rehabilitation for a prisoner who is sexually 
dangerous. In the similar situation of a prisoner who becomes insane the 
Legislature has specifically provided that said prisoner be returned to the 
prison once his commitment for insanity is no longer necessary. Like- 
wise, in the instant case the Legislature impliedly provides for the same 
result in the case of the sexually dangerous person. 



120 P.D. 12, 

In turning our attention to the problem of outpatient treatment, it 
would appear from the above reasoning that a sexually dangerous person 
shall receive his outpatient treatment as a prisoner and not as a citizen at 
large. 

In answer to your first ciuestion, the prisoner in ciuestion would not be 
discharged as a citizen at large but on the contrary would receive his out- 
patient treatment while still serving his sentence at the Massachusetts 
Correctional Institution. 

In answer to your second question, the order of commitment as a sexu- 
ally dangerous person would have no effect on his prison sentences but 
would run concurrent therewith. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



The provision of G. L. c. 127, § 129 A, added by St. 1959, c. 224, allowing a 
prisoner of any correctional institution of the Commonwealth time off for 
a donation of blood, does not include prisoners in county institutions. 

May 28, 1959. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir: — -Your letter of recent date reciuests the opinion of this 
department upon the question: 

''Whether or not the language 'a prisoner of any correctional institution 
of the commonwealth ' restricts the donation of blood to prisoners who are 
confined in the institutions of the Commonwealth; namely, M.C.I. , Wal- 
pole; M.C.I. , Concord; M.C.I. , Norfolk; M.C.I., Bridgewater; M.C.I., 
Framingham; M.C.I. , Monroe and M.C.I., Plymouth." 

It is my opinion that the new legislation is limited to State institutions 
and does not include any county penal institutions, in view of the provi- 
visions of the first paragraph of G. L. c. 125, § 1, and more specifically, 
the following sentence: "The above-named institutions together with such 
other state prison camps as may be established under sections eighty- 
three A and eighty-three E of chapter one hundred and twenty-seven, 
shall constitute the correctional institutions of the commonwealth." I 
am of the opinion, therefore, that corrective legislation will have to be 
introduced if it is the desire of the Legislature that prisoners in county 
penal institutions be given credit under the statute. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 



By Joseph C. Duggan, 

Assistant Attorney General. 



P.D. 12. 121 

A final decision of the Contributory Retirement Appeal Board is binding on 
the State Retirement Board and the questions determined cannot be re- 
examined by the Attorney General. 

June 3, 1959. 

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

Dear Sir: — In your recent letter you requested an opinion with ref- 
erence to a decision of the Contributory Retirement Appeal Board, pro- 
mulgated on April 17, 1959. The decision referred to reversed a decision 
of the State Retirement Board denying the widow of a deceased em- 
ployee of the Department of Correction accidental death benefits under 
the provisions of G. L. c. 32, § 9. 

In your letter you point out that the Contributory Retirement Appeal 
Board in making their decision applied the presumption of service con- 
nection of heart disease provided for by G. L. c. 32, § 94. You further 
point out that the amendment to G. L. c. 32, § 94, making said § 94 ap- 
plicable to employees in the Department of Correction, which change was 
enacted by St. 1956, c. 580, did not become effective until after the death 
of the employee in question, which occurred on July 20, 1956, and you 
ask for an opinion on the question of "whether the presumption can 
legally be applied retroactively as has been done by the Contributory Re- 
tirement Appeal Board . . .." 

General Laws c. 32, § 16, which provides for appeals to the Contribu- 
tory Retirement Appeal Board from decisions of the retirement boards of 
the various contributory retirement systems, expressly provides in clause 
(4) that a decision of the Appeal Board "shall be final and binding upon 
the board involved and upon all parties in interest, and shall be complied 
with by such board and by such parties." 

The request of the State Retirement Board for an opinion as to the cor- 
rectness of the decision of the Contributory Retirement Appeal Board is, 
in effect, an attempt to obtain a re-examination of the decision of the 
Appeal Board. Not only is such a re-examination specifically forbidden by 
the express wording contained in G. L. c. 32, § 16 (4), quoted above, as 
you were informed in a letter to you dated September 19, 1958, from As- 
sistant Attorney General Fred W. Fisher, but as is shown by the decision 
of our Supreme Judicial Court in Casieri's Case, 286 Mass. 50, even apart 
from such a specific provision, after a decision of an administrative board 
has become final it is not subject to re-examination. In the case cited it 
was held that a decision of the Industrial Accident Board which had final 
effect under the provisions of law in effect at the time it was rendered could 
not be re-examined under the provisions of a statute enacted at a later 
date. 

Not only is the decision of the Contributory Retirement Appeal Board 
final and binding on the State Retirement Board but the decision of the 
Appeal Board does not, under established rules of statutory construction, 
give retroactive effect to the amendment to G. L. c. 32, § 94, effected by 
St. 1956, c. 580. Statutes such as G. L. c. 32, § 94, relating to evidence in 
support of, and the burden of proof as to, matters in issue, are procedural 
and remedial statutes. See Duggan v. Bay State Street Raihoay, 230 Mass. 
370, so holding as to the statute providing for a presumption of due care 
on the part of the plaintiff, and certain others, in actions to recover damages 
for death or for injuries to the person or property. 



122 P.D. 12. 

It is well settled that such statutes are applicable to causes of action 
existing on the effective date of the statute which are the subject matter 
of actions pending on, or brought after, such effective date. As was 
stated in the case of Smith v. Freedman, 268 Mass. 38, at pages 41 and 42: 

"The general rule, in civil cases at least, as to the interpretation of stat- 
utes dealing only with evidence, is that in the main they are remedial and 
should be construed liberally in order to effectuate that purpose, and that 
they are applicable to all causes coming on for trial after they became oper- 
ative, whether the cause of action arose before, or after, and whether the 
writ was brought before, or after, the statutes became operative, unless a 
contrary legislative design is plainly expressed. Brooks v. Holden, 175 
Mass. 137, 139. Stocker v. Foster, 178 Mass. 591, 003. Hall v. Reinherz, 
192 Mass. 52. Woodvine v. Dean, 194 Mass. 40, 43. Devine's Case, 236 
Mass. 588, 594. Easterling Lumber Co. v. Pierce, supra. See also Para- 
boschi V. Shaiv, 258 Mass. 531, 533; H oiling sworth & Vose Co. v. Recorder 
of Land Court, 262 Mass. 45, 47. Since the statute is one relating solely 
to evidence and the conduct of trials in court, the question for decision 
accurately stated is, whether it is applicable to all cases or only to a re- 
stricted class of cases falling within the scope of its language and coming 
on for trial after it becomes operative, and not whether it is retroactive or 
prospective in effect. As the statute is one relating to the conduct of trials 
and not to substantive rights, it is of no consequence whether it takes effect 
upon its passage, or in accordance with G. L. c. 4, § 1, or with art. 48 of the 
Amendments to the Constitution, the Referendum, Parts I, II, III, or at 
some other specified date." 

As is pointed out in the case of Wijnn v. Board of Assessors, 281 Mass. 
245, at page 249, the application of a procedural or remedial statute in 
trials occurring after the effective date of the statute, of causes of action 
or claims v/hich arose before said effective date, is actually a prospective 
application of the statute. 

In the case last cited the court also points out that aside from the fact 
that the application of a procedural or remedial statute in proceedings 
brought after the effective date of the statute, although with reference to 
causes existing prior to such effective date, is prospective and not retro- 
active, if a statute were more than a procedural statute there would be 
no constitutional objection to retroactive effect being given to the stat- 
ute, if it made the requirements for enforcing a claim against the State, or 
a political subdivision thereof, less stringent, because the control of pro- 
cedural requirements as far as concerns the rights of the State in such 
cases rests entirely with the General Court. 

The statute in question, like the similar Federal statutes relating to 
compensation to veterans for wartime and peacetime disabilities provid- 
ing certain presumptions as to sound condition and that certain diseases 
were incurred or aggravated by military service (see United States Code, 
Title 38, §§ 2312, 2313, 2333 and 2334) is intended to serve a beneficent 
purpose and should be given a liberal interpretation. 

As was said of the remedial statute under consideration in the case of 
Wynn v. Board of Assessors, 281 Mass. 245, at page 250, the manifest pur- 
pose of the 1950 amendment to G. L. c. 32, § 94, was to give injured em- 
ployees or their dependents less restricted means of enforcing their claims, 
and no reason appears why the considerations leading to tlie changes in 



P.D. 12. 123 

policy effected by the amendment are not applicable to pending cases. 
Nothing in the 1956 amendment indicates a legislative intention to ex- 
clude from its benefits any employee or a dependent of an employee, 
''whose rights had not been finally adjudicated and who brings himself 
within its terms. If such exclusion had been intended it could readily 
have been accomplished by an express provision to that effect" (emphasis 
supplied). 

I therefore advise you that not only is the decision of the Contributory 
Retirement Appeal Board final and binding on the State Retirement 
Board and not open to re-examination in any event but that if the deci- 
sion were open to re-examination it is in accord with the established rules 
of statutory construction. 

Very truly yours, 

Edw^ard J. McCoRMACK, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



The provision of the Separation Act of 1820 that the charter of Bowdoin College 
may he amended only with the consent of the Massachusetts Legislature 
has no effect as to scholarships or loan funds provided by our statutes, 
since they are not limited to students attending Massachusetts institutions. 

June 3, 1959. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir : — You have referred to this office copy of a letter from the 
President of Bowdoin College, Brunswick, Maine, in which he states that 
that institution is subject to the control of the Massachusetts Legislature 
by virtue of the Act of Separation of 1820. In view of this fact the institu- 
tion requests that it be recognized as having the same rights and privileges 
to participate in scholarship and loan programs of the Commonwealth as 
may be enjoyed by institutions geographically located Avithin the Common- 
wealth. 

We have examined the various statutes relating to scholarship and loan 
funds and find that the benefits provided are not limited to students attend- 
ing institutions located in this Commonwealth. For this reason it would 
appear that the rights which Bowdoin College might enjoy as an institution 
geographically located in Maine are the same as it would enjoy if geo- 
graphically located here in Massachusetts, at least in so far as such rights 
pertain to scholarship and loan funds provided by this Commonwealth. 
The pertinent chapters appear to be as follows : 

Chapter 690 of the Acts of 1957 established a board of educational assist- 
ance which, according to § 26 "shall administer a scholarship program for 
the purpose of furnishing aid and assistance to students domiciled in the 
commonwealth and enrolled in and pursuing a program of higher education 
in any approved public or private college, normal school, scientific or tech- 
nical institution, or any other approved institution furnishing a program 
of higher education. Such aid and assistance shall consist of the awarding 



124 P.D. 12. 

of one quarter, one half, or full scholarships to worthy and qualified students 
in need of financial assistance, provided that not less than ten nor ynore than 
twenty-jive per cent of the total amount of scholarships awarded in any one year 
shall he allotted to students at institutions of higher education supported by the 
commomvealth. ..." 

The foregoing section has the limitation in favor of institutions supported 
by the Commonwealth. We do not understand that Bowdoin College 
contends that it is so supported. 

Chapter 691 of the Acts of 1957 provides for the creation of a Medical, 
Denial and Nursing Scholarship Board for the awarding of one quarter, 
one half and full scholarships "to worthy and qualified students who have 
been residents of the commonwealth for a period of four years immediately 
prior to receiving such award and who are in need of financial assistance in 
order to pursue a course of study in medicine, dentistry or nursing. . . ." 

Aid under this statute is limited to residents of the Commonwealth. No 
condition at all is attached with regard to geographical location of the 
institution attended. 

Chapter 298 of the Acts of 1956 created the Massachusetts Higher Edu- 
cational Assistance Corporation, which is a private group chartered by 
legislative enactment. The function of the corporation is to provide 
collateral for loans made to students through local commercial banks. 
Section 4 of the act states: 

"The purposes of the corporation shall be to aid and assist students to 
fulfill a program of higher education. 

" (a) . . .to make contracts and incur liabilities for any of the purposes 
of the corporation, including any secondary liability by way of guaranty 
or endorsement of the obligations of any student, his parent or guardian, 
or of any approved educational institution. 



" (c) To make loans to any student, his parent or guardian, or to any 
approved educational institution, . . ." 

With respect to the above-quoted material, section 1 of the act defines 
an approved educational institution as "any educational institution ap- 
proved by the state-approving agency for the state where such educational 
institution is situated, ..." It would appear from the foregoing that the 
provisions of c. 298 are not limited to institutions located in Massachusetts 
but to institutions in any State, provided the institution is approved as 
required. It may be that there is some particular public scholarship fund 
in which Bowdoin College is interested, where geographical location or 
control by the Commonwealth may be significant. Such a fund has not 
been called to our attention. If such a fund exists, we will be happy to 
review the terms thereof in relation to Bowdoin College as you request. 
Very truly yours, 



Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



P.D. 12. 125 



A State agency may lease space outside the State House when provision for 
the rent due in the current fiscal period is made by transfer from another 
appropriation subsidiary account of the agency to its rent subsidiary ac- 
count, although none of the appropriation was originally allocated to the 
latter account. 

June 11, 1959. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir: — You have requested my opinion on the question of the 
authority to execute a lease for quarters outside the State House for the 
Division of Banks and Loan Agencies in the circumstances hereinafter 
stated. 

It appears that it is felt that the space occupied in the State House by 
the Division of Banks and Loan Agencies should be assigned for the use 
of other State offices, with the result that it is necessary that other quar- 
ters be obtained for the division. It is clear that under the provisions of 
G. L. c. 8, § 10, providing that the State Superintendent of Buildings, 
under the supervision of the Governor and Council and with the approval 
of the Commission on Administration and Finance, shall assign the rooms 
in the State House and determine the occupancy thereof in such manner 
as the public service may require, the space presently assigned to the 
Division of Banks and Loan Agencies can lawfully be assigned for the use 
of other State offices. 

In these circumstances it is proposed that quarters for the Division of 
Banks and Loan Agencies be provided for by leasing premises in non-State 
ownership, the lease to commence on June 15, 1959, and to extend for a 
period of two years. 

You refer to the provision of G. L. c. 29, § 29, providing for transfers 
between subsidiary accounts set up as prescribed in the schedules referred 
to in § 27 of said c. 29, and state that it is proposed that a transfer be made 
from available balances in other subsidiary accounts within the current 
appropriation account for the Division of Banks and Loan Agencies to 
provide funds for the payment of the rent which will be due under the 
proposed lease for the period of the term falling within the current fiscal 
year and ask whether, if that is done, the lease can be approved under the 
provisions of G. L. c. 8, § lOA. 

General Laws c. 29, § 27, referred to above, forbids an expenditure of 
funds by a State officer unless an appropriation has been made and funds 
have been allotted by the Governor to cover it. The section further pro- 
vides that appropriations and allotments shall be expended only in the 
amounts prescribed in subsidiary accounts established for the several appro- 
priation accounts in schedules established by, and on file with, the Joint 
Committee on Ways and Means. It appears that under the general ac- 
counting and appropriation plan for the Commonwealth subsidiary ac- 
counts for specified purposes are set up for each appropriation account, 
and that one of the subsidiary accounts, number 16, is for rent. 

General Laws, c. 29, § 29, provides that any subsidiary account set up 
as prescribed in the schedules referred to in § 27 may be increased or de- 
creased by interchange with any other such subsidiary account within the 



126 P.D. 12. 

same appropriation account, with the approval of the Budget Commis- 
sioner. 

Under the provisions of §§ 27 and 29 of G. L. c. 29, referred to above, 
provision has been made for such flexibility in the expenditure of the total 
amount appropriated for an agency, as to provide an appropriation for any 
of the purposes represented by any subsidiary account set up under the 
general accounting and appropriation plan of the Commonwealth so long 
as there are balances in any of the other subsidiary accounts of the appro- 
priation account available to be transferred to the subsidiary account from 
which an expenditure is desired to be made, and the approval of the Budget 
Commissioner to the transfer is obtained. 

If, as you state, there are unexpended balances in one or more of the 
subsidiary accounts for the Division of Banks and Loan Agencies available 
for transfer in accordance with the provisions of G. L. c. 29, § 29, sufficient 
to provide for the payment of the rent which will become due for so much 
of the term of the proposed lease referred to by you as falls within the 
current fiscal year, and such a transfer is made, it is my opinion that pro- 
vision for the rent of the premises for so much of the term of the lease as 
falls within the current fiscal year "has been made by appropriation," 
within the meaning of the phrase quoted as used in said G. L. c. 8, § lOA, 
and, therefore, that the execution and approval of the lease referred to will 
be authorized under that section. 

The opinion stated herein is in agreement with that expressed by former 
Attorney General Clarence A. Barnes in an unpublished opinion dated 
May 4, 1948, to the then Chairman of the Committee on Ways and Means 
of the House of Representatives. In the opinion referred to, the members 
of the said Committee on Ways and Means were assured that their under- 
standing was correct that under §§ 27 and 29 of c. 29 of the General Laws 
a transfer could be made to a subsidiary account listed under an appro- 
priation account to which subsidiary account no allocation of funds was 
made at the time the appropriation and the allocations of the appropria- 
tion to other subsidiary accounts were made. See also the opinion of 
former Attorney General Barnes to the Commissioner of Administration 
under date of November 29, 1948 (Attorney General's Report, 1948, p. 47) 
to the effect that a statutory requirement that an "appropriation" have 
been made to cover a particular expenditure, is satisfied "if there is an 
available over-all appropriation in a particular department or division 
sufficient to cover, . . ." the proposed expenditure. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



P.D. 12. 127 



Registered operators applying for registration as hairdressers after the effective 
date of the 1958 act, allowing experience credit for certain periods of work 
under temporary permits, are entitled to credit for such periods of work 
prior to the said effective date. 

June 22, 1959. 

Mrs. Helen E. Sullivan, Director of Registration. 

Dear Madam : — In your recent letter you have requested my opinion 
relative to the effect of the amendment to G. L. c. 112, § 87W, enacted by 
St. 1959, c. 343, which was approved on May 26, 1959. 

Your question is whether the amendment referred to, which takes effect 
on August 26, 1959, applies to registered operators who have been employed 
since August 26, 1958, as well as to students now registered in the beauty 
schools. 

Section 2 of St. 1950, c. 540, amended G. L. c. 112, § 87W, to provide that 
any registered operator who had not less than one year's practical experi- 
ence as such could be so registered by the board as a hairdresser and there- 
after could practice hairdressing in a registered shop for compensation and 
supervise operators. Previous to the amendment, said § 87 W provided 
that "any operator who has had not less than six months' practical ex- 
perience" could be so registered. 

Section 3 of St. 1950, c. 540, provided that within one year after the 
effective date of that act (September 15, 1950) any registered operator 
who had not less than one year's practical experience as such, and who 
made application therefor, accompanied by a fee of ten dollars and passed 
a practical examination satisfactory to the board could be registered as a 
hairdresser. 

Chapter 343 of the Acts of 1959 amends G. L. c. 112, § 87W, by adding 
the sentence, "In computing practical experience under this paragraph, 
time which an operator has worked as such under a temporary permit shall 
be included in computing such period [i.e., not less than one year's practical 
experience] ; provided, however, that credit for such work shall not exceed 
three months." 

The provisions quoted, that in computing practical experience the time 
in which an operator has worked under a temporary permit may be in- 
cluded, except that credit allowed for such work shall not exceed three 
months, w^ould apply to registered operators who have been employed as 
such prior to the effective date, August 26, 1959, as well as to persons 
qualifying as operators after August 26, 1959. Its operation is not restricted 
to students now registered in beauty schools becoming registered operators 
after the effective date of the 1959 act. 

Under the provisions, any graduate of a beautj^ school who has been 
working under a temporary permit and who, in addition to not more than 
three months' work under such permit, has an additional nine months' 
practical experience, upon complying with the other requirements of the 
first paragraph of said § 87W may be registered as a hairdresser. 
Very truly yours, 



Edward J. McCormack, Jr., Attorney General, 

By Lucy Broderick Brady, 

Assistant Attorney General. 



128 P.D. 12 



Workmen's compensation benefits are required to be set off against a dis- 
ability pension or retirement allowance only when the same injury is the 
basis for both allowances. 

June 24, 1959. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir: — Your letter of recent date posed the following question: 

"Shall an employee, to be retired under §§ 56 to 60 as a veteran, have his 
lump sum Workmen's Compensation settlement, allocable to the period 
following his retirement, offset against his pension allowance granted under 
these sections, provided that the retirement is for physical causes or in- 
juries other than the injury for which the Workmen's Compensation 
settlement vvas received?" 

As you are doubtless aware, there are today in existence in this Common- 
wealth, in general, two types of retirement benefits for public employees. 
First, contributory retirement allowances in cases where the employee 
contributes a portion of his earnings regularly toward his retirement allow- 
ance, and secondly, provisions in certain limited cases for non-contributory 
pensions. Many, if not most, of the laws relating to both types of retire- 
ment allowances are to be found in G. L. c. .^2. In both types, different 
benefits are usually provided, both in cases of superannuation retirements 
and retirements by reason of incapacity resulting from injuries received in 
the course of duty. At the same time many provisions may be found in 
G. L. c. 152, commonly called the Workmen's Compensation Act, providing 
modest compensation provisions for public employees who are injured in 
the course of their employment but not necessarily permanently. These 
compensation benefits are limited to "employees" and also limited as to 
amounts. Compensation claims for incapacity may be and often are 
settled by the claimant by the payment of a lump sum in full of liability 
(G. L. c. 152, § 48), and provisions are found in both c. 152 (§ 73) and c. 32 
(§ 14) for offsetting lump sum payments against retirement allowances. 

Most of the applicable provisions of law relating to contributory retire- 
ment allowances for public employees are found in G. L. c. 32, §§ 1 to 28, 
inclusive. General Laws, c. 32, §§ 56 to 60, inclusive, to which you refer, 
provide for non-contributory pensions for veterans. Under § 25 of c. 32, 
a member of a contributory retirement system who is also entitled to the 
benefits of §§ 56 to 60, inclusive, may at his option elect at the time of re- 
tirement whether he will take his contributory retirement allowances un- 
der §§ 1 to 28, inclusive, or waive them and receive his contributions back 
and take his veteran's pension under and subject to the provisions of 
§§56 to 60. 

The elective provisions I have referred to are only available to the 
veterans referred to therein as a reward to those who have played their 
parts honorably and well in the Armed Forces of the Nation. My predeces- 
sor in ofiice, Attorney General Fingold, in an opinion dated December 16, 
1955, to the then Commissioner of Administration in answering a query 
something like yours, said: "I find a general legislative intent not to have 
public servants benefit from Workmen's Compensation payments for in- 
juries under chapter 152 of the General Laws and at the same time receive 
pensions for disabilities originating from the saine source. '^ The detailed 



P.D. 12. 129 

offset provisions of c. 152, § 73, c. 32, § 14, and c. 32, § 3 (7) {g), leave no 
doubt in my mind upon that subject. However, the question you pose is 
different in at least one important aspect from the one I have referred to. 
In substance, you wish to know if a lump sum settlement for injuries aris- 
ing out of and in the course of his employment may be offset against his 
veteran's pension for an incapacity resulting from a different source, hav- 
ing nothing whatever to do with the former. My answer to your question 
is in the negative. You will notice that the elective provision between 
compensation and pension found in G. L. c. 152, § 73, is predicated in the 
very first sentence to persons entitled to receive compensation from the 
Commonwealth w^ho are also entitled to a pension "by reason of the same 
injury.'^ You may also observe that the offset provisions found in c. 32, 
§ 14 (2) (a), provide that the compensation payments "shall be offset 
against and payable in lieu of any pension payable on his account under 
the provisions of section six, seven or nine by reason of the same injury." 
You have stated clearly that the pension in the case you refer to w^ill be 
not for the same injury for which compensation was awarded but for a 
different injury. 

It is not easy to reconcile all the provisions of G. L. c. 32, §§ 1 to 28, 
inclusive, relative to contributory retirement allowances, with § 73 of 
c. 152, relating to offset provisions, and §§ 56 to 60 of c. 32, relating to 
veterans' pensions, and it may be that legislation may be necessary to 
cover the situation you refer to. However, it is not the function of this 
office to write legislation nor speculate upon a legislative intent not clearly 
expressed. My opinion, therefore, is as above written. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



The increase in pensions granted under St. 1951, c. 781, as amended, is ap- 
plicable to a person given a three-fourths pension by a special act. 

June 24, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir : — In your letter of recent date you requested an opinion rela- 
tive to Mr. William L. Searle. You state that Mr. Searle, by the provisions 
of Res. 1939, c. 56, was given an annuity for five years equal to his salary 
which was $2,040; that under Res. 1943, c. 37, he was given an annuity of 
three-quarters of said salary after the period covered by said c. 56, to cease 
upon his death. 

You call attention to the provisions of St. 1951, c. 781, as amended by 
St. 1952, c. 536, St. 1955, c. 670, § 2, and ask my opinion on the following 
question : 

''1. Is the amount provided for in Res. 1943, c. 37, authorized to be in- 
creased by the provisions of St. 1951, c. 781, as amended by St. 1952, 
c. 536, and by the provisions of St. 1955, c. 670?" 



130 P.D. 12. 

Chapter 56 which you refer to was a resolve providing that "... there 
be allowed and paid out of the treasury of the commonwealth an annuity 
for a period of five years ... to William L. Searle of Concord, who has 
served the commonwealth faithfully and is now permanently disabled for 
further performance of duty on account of injury sustained, while in the 
performance of duties as a guard at the Massachusetts reformatory, by 
reason of being assaulted by certain inmates of said reformatory. Said 
annuity shall be equal to the salary received by him during the last year 
of his active service, shall be paid in equal monthly installments, and shall 
cease upon the decease of said Searle if it occurs prior to the expiration 
of said period of five years." 

Chapter 37 of the Resolves of 1943 provides "That for the purpose of 
discharging a moral obligation of the commonwealth . . . and after an 
appropriation has been made therefor there be allowed and paid ... to 
William L. Searle . . . who served the commonwealth faithfully and is 
now permanently disabled for further performance of duty on account of 
injury sustained, w^hile in the performance of duties as a guard at the 
Massachusetts reformatory, by reason of being assaulted by certain in- 
mates of said reformatory, an annuity ecjual to three-fourths the salary 
received by him during the last year of his active service. Said annuity 
shall be payable in equal monthly installments . . . and shall cease upon 
the decease of said Searle . . . ." 

Chapter 781 of St. 1951 is entitled, "An Act relative to increasing the 
amounts of pensions and retirement allowances payable to certain former 
public employees." It provides that "The annual amount of every pen- 
sion, retirement allowance, annuity or other benefit payable under any 
general or special law by the commonwealth ... to any former employee 
. . . who was separated from the service by retirement prior to November 
first, nineteen hundred and forty-nine, . . . including any former em- 
ployee retired because of accidental disability . . . shall be increased by 
one hundred dollars; ..." It is further provided that no increase shall 
be made of any annuity if it exceeds $2,000 and no increase shall be made 
which will make an annuity exceed $2,000 annually. The increase granted 
by c. 781 with respect to annuities payable by the Commonwealth takes 
effect on December 1 in the then current year. Chapter 536 of St. 1952 
amends c. 781 by including in its benefits persons receiving pensions or 
annuities under the provisions of G. L. c. 32, §§ 89 and 89A. Chapter 670 
of St. 1955 provides that the annual amount of every annuity payable under 
any general or special law by the Commonwealth to any former employee 
who was separated from the service prior to April 1, 1951, whose sole or prin- 
cipal employment was in the service of the Commonwealth, be increased 
by $200, but the increased total should not exceed $2,000. Section 2 pro- 
vides that the annual amount of any annuity payable under any general or 
special law by the Commonwealth to any former employee who was retired 
from the service for disability caused by accident or hazard undergone while in 
the performance of his duties shall be increased by $200. It is further pro- 
vided that no increase shall be paid which will make the total annuity 
exceed $2,000. It is still further provided that no person entitled to an 
increase under § 1 may receive the increase under § 2. Section 4 provides 
that the increase granted under this act shall take effect January 1, 1956. 

There are numerous statutory provisions relating to retirement allow- 
ances, pensions and annuities of public servants. Most of the General 
Laws relating to that subject matter are to be found in G. L. c. 32, some 



P.D. 12. 131 

relating to contributory retirement allowances under the provisions of 
§§ 1 to 28, inclusive, of that chapter and others under numerous sections 
relating to non-contributory pensions, annuities or retirement allowances. 
In addition, many pensions or annuities are provided by special acts or 
resolves of the General Court covering specific cases, of which Resolves 37 
and 56 are typical examples. It now remains to construe the legislation 
I have referred to and its application to the facts of the matter at hand. 

The resolves in favor of Mr. Searle and cc. 781, 536 and 670 are to be 
interpreted in the light of their purpose and so far as reasonably may be 
to promote the accomplishment of their beneficent design, namely, to en- 
courage worthy and dependable men and women to enter the public serv- 
ice by providing for them protection against want and despair resulting 
from the vicissitudes of life and the hazards of their employment. Sla- 
vinsky v. National Bottling Torah Co., 267 Mass. 319. Statutes of the 
kind we are describing, of course, are to be construed so as to effectuate 
the intent and purpose of the Legislature. While some of the language of 
cc. 781, 536 and 670 refers to contributory retirement allowances under 
G. L. c. 32, §§ 1 to 28, inclusive, much of it is not so limited. These chap- 
ters repeatedly refer to "every" annuity payable to former State em- 
ployees under a general or "special" law. The two provisions before re- 
ferred to for the benefit of Mr. Searle are exactly that — "special" laws. 
I see no reason consistent with the over-all purpose of the legislation I have 
referred to for saying that the intent of the General Court was to provide 
a cost of living increase for superannuated former public servants and 
nothing whatever for former public servants who have been incapacitated 
from the performance of their duties by reason of an accident or hazard 
undergone in the performance of their duty. Quite the contrary is true. 
Every reason which would prompt the General Court to increase the re- 
tirement allowances to those who may be sound and well would seem to 
apply equally to those who may be helpless by reason of injuries received 
in their employment. I am assuming from the history of this legislation 
that Mr. Searle was permanently disabled for further performance of his 
duties and retired for that reason. 

Subject to the foregoing, I answer your question in the affirmative. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



132 P.D. 12. 



In determining whether an ''emergency^' exists under G. L. c. 94A, § 12, as 
regards milk supply, consideration of the supply from all inspected 
sources, rather than from Massachusetts producers only, is required. 

June 30, 1959. 

Dr. Alfred L. Frechette, Commissioner of Public Health. 

Dear Sir: — You have requested an opinion as to "whether or not the 
maintenance of a regular, continuous and adequate supply of fresh, pure 
milk sufficient to meet the requirements of the market and to protect the 
public health therein refers to milk being received in the over-all market 
from all inspected sources or whether it refers to milk arriving on the 
market from Massachusetts producer sources," under the provisions of 
G. L. c. 94A, § 12. 

In answer to your request, § 12 sets forth that one of the prerequisites 
for the establishment of an emergency is that "the maintenance of such 
price is necessary in order to secure a regular, continuous and adequate 
supply of fresh, pure milk sufficient to meet the requirements of the market 
named in said petition. ..." 

The only reference to Massachusetts producers in § 12 is the requirement 
that an investigation must be initiated upon petition by not less than 
twenty-five per cent of Massachusetts producers supplying a given area. 

Therefore, it is my opinion that the requirement of the section refers to 
milk being received from all inspected sources and does not refer only to 
Massachusetts sources. It also appears that Massachusetts producers 
supply only three per cent of the market needs of Area 17. This supply 
in and of itself would not be sufficient to meet the requirements of the 
market. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



INDEX TO OPINIONS 



PAGE 

Administration, Commissioner of: 

Authority of state agency to lease space when provision for rent is made 

by transfers within appropriation item for agency 125 

Day off, or compensation, for officers and employees of Commonwealth 

working on Saturdays and holidays 32 

Elected official is eligible for retirement as a veteran despite election of 

option (c) applicable to contributory retirement system .... 53 
1958 initiative act for refund of excess of pension and earnings over salary 

of persons retired for disability repealed similar 1957 act ... 63 

Veteran, employed by both State and city during same period, entitled to 
credit for such period for single veteran's pension either from State or 

city 60 

Workmen's compensation benefits required to be set off against disability 
pension or retirement allowance only when same injury is basis for both 

allowances 128 

Administrative Procedure Act; requires notice and hearing prior to revoca- 
tion of license under G. L. c. 175, § 5; seven days' notice of hearing rea- 
sonable 116 

Agriculture, Department of; escape clause of mosquito control projects 

statute dates from enactment of statute 63 

Attorney General : 

Does not re-examine questions determined by administrative boards . 121 

Does not review determinations of fact nor render opinions on questions 
on which public officials are no longer required to act . . . . 61 
Automobile warranty certificates. See Insurance, Commissioner of. 
Barber College. See Education, Department of. 
Bowdoin College; scholarship or loan funds provided by Massachusetts 

statutes not limited to Massachusetts institutions 123 

Buildings, State Superintendent of; proposed form of "license" agreement 

to erect model air raid shelter as constituting lease within G. L. c. 8, § lOA 111 
Civil defense agency; proposed form of "license" agreement to erect model 

air raid shelter as constituting lease within G. L. c. 8, § lOA . . .111 
Civil Defense, Director of; Civil Defense Claims Board is bound by Open 

Meetings Law 72 

Clinic. See Public Health, Department of. 

Clinic; records of, ceasing operation. See Public Health, Department of . 84 
College. See Education, Department of. 

Community College at Fitchburg; termination of authority of Department 
of Education under St. 1958, c. 605; independent board for setting up 

community colleges 58 

Comptroller. See State Comptroller. 
Contracts: 
Article 82 of Standard Specifications for State Highway Contracts en- 
titling contractor to payment for extra work as completed is applicable 



134 P.D. 12. 

PAGE 

to order accelerating completion date of contract for a fixed sum, and a 
j;; contractor is entitled thereunder to periodic payments as the work 
progresses; issuance of extra work orders and method of payment is for 
contracting department to determine 96 

Authority of Department of Public Works to issue extra work order for 
the acceleration of the completion date of a State highway contract . 34 

Automobile warranty certificates are contracts of insurance ... 72 

Extra work order accelerating completion date of a State highway con- 
tract may be on a lump sum, or unit price basis; payment or partial 
payment to be made only after work covered is performed ... 36 

Extra work order; factual determinations to be made by Department of 
Public Works to authorize issuance 35 

Increase of quantity over estimate in unit price contract permissible under 
Competitive Bidding Law 64 

Issuance of extra work order dependent upon factual determination; the 
Attorney General does not review determinations of fact nor render 
opinions on questions on which public officials are no longer required to 

act 61 

Contributory Retirement Appeal Board; decisions of, are binding on State Re- 
tirement Board; questions determined by, are not re-examined by the 

Attorney General 121 

Correction, Department of: 

Allowance of time off to prisoners for donation of blood does not include 
prisoners in county institutions 120 

Convict serving sentence at Massachusetts Correctional Institution, Con- 
cord, given "forthwith" sentence to Walpole Institution is to be dis- 
charged at expiration of latter sentence 85 

Erroneous sentences corrected only by court action; the Attorney General 
will cooperate in determining validity of questionable sentences of juve- 
nile offenders 114 

Increase in penalty not appUcable to one whose sentence was suspended 
under earlier law 31 

One convicted of sex offense and determined a "sexually dangerous person" 
can be sentenced or committed for treatment; if sentenced, Commissioner 
of Correction not required to transfer him to Treatment Center . . 107 

One determined to be a "sexually dangerous person" may be continued in 
custody at Treatment Center, though original sentence has expired . 86 

Sentence for escape must begin on expiration of sentence being served at 
time of escape 50 

Suspension of indeterminate life commitment of sentenced prisoner adju- 
dicated sexually dangerous on condition he be given outpatient treat- 
ment; sentences run concurrently with commitment . . . .118 
Counties; allowance of time off to prisoners for donation of blood does not 

include prisoners in county institutions 120 

Discrimination. See Massachusetts Commission against Discrimination. 
Drunkenness. See Pardon. 



P.D. 12. 135 

PAGE 

Educat-ion, Department of: 

Portion of profit paid by concessionaires of student cafeteria at State 

college must be paid into Treasury of Commonwealth .... 48 
Retirement allowance rights of school teacher under provisions of St. 1958, 

c. 617 56 

Scholarship or loan funds provided by Massachusetts statutes not limited 

to Massachusetts institutions 123 

Teacher Certification Law; exemption by Board of Education under, is for 

all teaching positions in local system, not individual teachers ... 67 
Termination of authority of Department under St. 1958, c. 605, to continue 
Community College at Fitchburg; independent board for setting up com- 
munity colleges 58 

Towns maintaining district vocational school not entitled to additional re- 
imbursement provided to towns comprising regional school district . 99 
Use of "college" by a "Barber College" not prohibited by G. L. c. 266, § 89 46 
Elections : 

Death of convention and sole party nominee for Governor before primary; 

validity of sticker nomination 39 

Secretary of Commonwealth determines whether provision as to public 

policy questions have been complied with 44 

Employment Security, Division of; "most recent promotion" within St. 1957, 

c. 753, § 2, defined 37 

Extra work order. See Contracts; PubUc Works, Department of. 

Firearms. See Public Safety, Department of. 

Food and Drugs; hcense may be issued for manufacturing frozen desserts in 

a mobile unit 112 

Frozen desserts. See Public Health, Departjment of. 

Gaming. See Public Safety, Department of. 

Governor; death of convention and sole nominee for, before primary; validity 

of sticker nomination 39 

Hairdressers; registered operators applying for registration as hairdressers 
entitled to experience credit for certain periods of work prior to effective 

date of 1958 act 127 

Highway contracts. See Contracts; State Comptroller; Public Works, De- 
partment of. 
Hospital : 

Corporation may be licensed to operate clinic 70 

Records of, ceasing operation; see Public Health, Department of . . 84 
Hospitals; per diem rate established by Director of Hospital Costs and Fi- 
nances to be paid by public bodies on facts presented was based upon sub- 
stantial evidence and not set improperly 104 

Insurance, Commissioner of: 

Administrative Procedure Act requires notice and hearing prior to revoca- 
tion of license under G. L. c. 175, § 5; seven days' notice of hearing rea- 
sonable 116 

Automobile warranty certificates are contracts of insurance ... 72 



136 P.D. 12. 

PAGE 

Labor Relations Commission; the Massachusetts Port Authority is required 
to bargain collectively with employees but is not subject to supervision 

by the Labor Relations Commission 92 

Lease of premises by Commonwealth : 

Authority of State agency to lease space when provision for rent is made 

by transfers within appropriation item for agency 125 

Penalty provision of, with United States imposes no liability upon Common- 
wealth in the absence of an appropriation 110 

Proposed form of "license" agreement to erect model air raid shelter as 

constituting lease within G. L. c. 8, § lOA HI 

License: 

Administrative Procedure Act requires notice and hearing prior to revoca- 
tion of license under G. L. c. 175, § 5; seven days, notice of hearing rea- 
sonable 116 

For sale of firearms. See Public Safety, Department of. 

Licensed operator must be in attendance at all times during which steam 

boiler requiring licensed operator is in operation 118 

Lowell Technological Institute; amendment to G. L. c. 75A, § 12, providing 
tenure for persons having completed three years' creditable service is 
applicable to those who had such service on effective date of amendment 100 
Lumbar puncture. See Mental Health, Department of. 
Massachusetts Commission Against Discrimination; commission cannot, 
under penal provisions of G. L. c. 151B, § 7, require persons operating 
places of public accommodation to post notice as to effect of G. L. c. 272, 

§§92Aand98 91 

Massachusetts Port Authority; Buildings transferred to, are not owned by 

Commonwealth within G. L. c. 142, § 21 (Plumbing Law) ... 67 
Required to bargain collectively with employees but is not subject to super- 
vision by the Labor Relations Commission 92 

Massachusetts Turnpike Authority; permits for operation of certain vehi- 
cles on. See Public Works, Department of. 
Massachusetts, University of. See University of Massachusetts. 
Mental Health, D(?partment of; lumbar puncture cannot be forced upon 

one committed to State hospital for observation under G. L. c. 123, § 100 83 
Milk Control Commission : 

Determination of "emergency" as regards milk supply requires considera- 
tion of supply from all inspected sources 132 

Review ordered by Governor of minimum retail" price order of Commission 
requires same notice, hearing and publication as an original order; origi- 
nal record may be considered on review 51 

Review proceedings of, must comply with the provisions applicable to 

original order 71 

Mosquito control projects; escape clause of, statute dates from enactment of 

statute 63 



P.D. 12. 137 



PAGE 



Motor vehicles; issuance of permits for operation of certain vehicles on inter- 
state highways and Massachusetts Turnpike similar to those issued on 
or before July 1, 1956, would not cause loss to Massachusetts of Federal 

aid highway funds 103 

Motor Vehicles, Registrar of: 

Indemnification benefits under G. L. c. 16, §§ 4D and 4E, granted without 

deduction for accumulated sick leave 58 

New Hampshire trucker, with office or telephone and loading platform 
here, can be held to have place of business in Massachusetts within 

G. L. c. 90, § 3 88 

Open Meetings Law: 

Civil Defense Claims Board is bound by 72 

Meetings of South Essex Sewerage Board subject to provisions of . .79 
Not apphcable to office of Commissioner of Veterans' Services, nor to local 

veterans' offices or districts 80 

Single notice of time and place of regiUar meetings of Public Works Com- 
mission sufficient under St. 1958, c. 626 69 

Pardon; granted only after a conviction; record of complaint for drunken- 
ness with suspension of further proceedings is not subject of a pardon; 
Board of Probation records not available for public inspection . . 115 
Pardons, Advisory Board of. See Pardon. 

Personnel and Standardization, Division of; emergency employees not en- 
titled to full pay under sick leave rules of 49 

Plumbing law. See Registration, Director of. 
Police officers: 
See State Police. 
Not required to have license to carry revolver in course of approved 

part-time private employment 77 

Port Authority, Massachusetts. See Massachusetts Port Authority. 
Prisons and prisoners. See Correction, Department of. 
Probation, Board of; records of, of complaints for drunkenness with sus- 
pension of further proceedings are not available for public inspection . 115 
Public Health, Department of : 

Corporation may be licensed to operate clinic 70 

Determination of "emergency" as regards milk supply recjuires consider- 
ation of supply from all inspected sources 132 

License may be issued for manufacturing frozen desserts in a mobile unit. 112 
Licensee of clinic or hospital responsible for care of records when clinic or 

hospital ceases operation 84 

Public policy. See Secretary of the Commonwealth; Elections. 
Public Safety, Department of: 

Gaming violation prior to 1958 amendment to G. L. c. 271, § 47, not 
within statute ; telephone reinstallation prior to amendment not within 
statute ; transfer of telephone not reinstallation 68 



138 P.D. 12. 

PAGE 

Has no jurisdiction over wrestling matches on television .... 96 

Licensed operator must be in attendance at all times during which steam 
boiler requiring licensed operator is in operation 118 

Licenses for sale of firearms issued only to individuals; license to be ex- 
ercised at only one location 89 

Option (d) under Contributory Retirement Law is not applicable to State 
Police 52 

Police officers are not required to have license to carry revolver in course of 
approved part-time private employment 77 

Provision for witness fee to arresting officers for first attendance at court 

is not applicable to State Police officers 42 

Public Works, Department of: 

Authority of department to issue extra work order for acceleration of com- 
pletion date of a State highway contract 34 

Extra work order; factual determinations to be made by department to 
authorize issuance 35 

Extra work order accelerating completion date of a State highway contract 
may be on lump sum or unit price basis; payment or partial payment to 
be made only after work covered is performed 36 

Issuance of extra work order dependent upon factual determination; the 
Attorney General does not review determinations of fact nor render 
opinions on questions on which public officials are no longer required to 
act 61 

Issuance of permits for operation of certain vehicles on interstate highways 
and Massachusetts Turnpike similar to those issued on or before July 1, 
1956, would not cause loss to Massachusetts of Federal aid highway 
funds 103 

Limitation of land use on Route 128 under St. 1950, c. 491, cannot be 
changed by local amendments of zoning laws; only by State ... 49 

Single notice of time and place of regular meetings of Public Works Com- 
mission sufficient under St. 1958, c. 626 (Open Meetings Law) ... 69 
Records, of drunkenness releases. See Probation, Board of. 
Records of hospital or clinic ceasing operation. See Public Health, Depart- 
ment of. 
Regional school districts. See Education, Department of. 
Registrar of Motor Vehicles. See Motor Vehicles, Registrar of. 
Registration, Director of: 

Buildings transferred to Massachusetts Port Authority not owned by Com- 
monwealth within G. L. c. 142, § 21 (Plumbing Law) .... 67 

Registered operators' applying for registration as hairdressers entitled to 
experience credit for certain periods of work prior to effective date of 1958 

act 127 

Retirement: 

Decisions of the Contributory Retirement Appeal Board are binding on the 
State Retirement Board ; questions determined by Appeal Board not re- 
examined by Attorney General 121 



P.D. 12. 139 

PAGE 

Elected official is eligible for retirement as a veteran despite election of op- 
tion (c) applicable to contributory retirement system .... 53 

Increase in pensions granted under St. 1951, c. 781, applicable to person 
given three-fourths pension by special act 129 

Member of a contributory system cannot, by make-up payments, obtain 
credit for service of less than six months' duration as temporary employee 109 

1958 initiative act for refund of excess of pension and earnings over salary 
of persons retired for disability repealed similar 1957 act .... 63 

Option (d) under Contributory Retirement Law is not applicable to State 
Police 52 

Retirement allowance rights of school teacher under provisions of St. 1958, 
c. 617 56 

Veteran, employed by both State and city during same period, entitled to 
credit for such period for single veteran's pension either from State or city 60 

Workmen's compensation benefits required to be set off against disability 
pension or retirement allowance only when same injury is basis for both 

allowances 128 

Schools; towns maintaining district vocational school not entitled to addi- 
tional reimbursement provided to towns comprising regional school 

district 99 

Secretary of the Commonwealth : 

Death of convention, and sole, party nominee for Governor before pri- 
mary; validity of sticker nomination 39 

Determines whether provisions as to public policy questions have been 

complied with 44 

Sentence : 

Convict serving sentence at Massachusetts Correctional Institution, Con- 
cord, given "forthwith" sentence to Walpole Institution is to be dis- 
charged at expiration of latter sentence 85 

Erroneous sentences corrected only by court action; the Attorney General 
will cooperate in determining validity of questionable sentences of 
juvenile offenders 114 

Increase in penalty not applicable to one whose sentence was suspended 
under earlier law 31 

One convicted of sex offense and determined a "sexually dangerous per- 
son" can be sentenced or committed for treatment; if sentenced. Com- 
missioner of Correction not required to transfer him to Treatment Center 107 

One determined to be a "sexually dangerous person" may be continued in 
custody at Treatment Center, though original sentence has expired . 86 

Sentence for escape must begin on expiration of sentence being served at 
time of escape 50 

Suspension of indeterminate life commitment of sentenced prisoner ad- 
judicated sexually dangerous, on condition he be given outpatient treat- 
ment; sentences run concurrently with commitment . . . .118 
Sewerage Board, South Essex; meetings of board subject to provisions of 

Open Meetings Law 79 



140 P.D. 12. 

PAGE 

Sex offenders. See Sentence; Correction, Department of. 
"Sexually dangerous person." See Sentence; Correction, Department of . 
Sick leave. See State officers and employees. 

Soldiers' Home; tenure rights under G. L. c. 30, § 9A (Veterans' Tenure 
Law), and § 9B (Institution Employees' Tenure Law) of physician em- 
ployed on a temporary basis at 98 

State Comptroller: 

Article 82 of Standard Specifications for State highway contracts en- 
titling contractor to payment for extra work as completed, is applicable 
to order accelerating completion date of contract for a fixed sum and a 
contractor is entitled thereunder to periodic payments as the work pro- 
gresses; issuance of extra work orders and method of payment is for 
contracting department to determine 96 

Competitive Bidding Law; increase in quantity of item over estimated 
amount under unit price contract is permissible 64 

Extra work order accelerating completion date of a State highway con- 
tract may be on lump sum or unit price basis; payment or partial pay- 
ment to be made only after work covered is performed .... 36 

Increase in pensions granted under St. 1951, c. 781, applicable to person 
given three-fourths pension by special act 129 

Per diem rate established by Director of Hospital Costs and Finances to 
be paid by public bodies on facts presented was based upon substantial 
evidence and not set improperly 104 

The same person may not be paid salaries provided by statute for offices of 

Commissioner of Public Health and State Surgeon 95 

State finance : 

Duties imposed on State Treasurer in statutes requiring deductions of 
amounts due Commonwealth from sums distributable to municipalities 
do not conflict 101 

1958 Capital Outlay Bill, provision that municipalities provide 25 per 
cent of amount appropriated for certain work to be done by Federal 
Government supersedes 50 per cent requirement in c. 29 of Resolves of 
1946 45 

Portion of profit paid by concessionaires of student cafeteria at State col- 
lege must be paid into treasury of Commonwealth 48 

State highway contracts. See Contracts; State Comptroller; Public Works, 

Department of. 
State officers and employees: 

Day off or compensation for officers and employees of Commonwealth 
working on Saturdays and holidays 32 

Emergency employees not entitled to full pay under sick leave rules of 
Division of Personnel and Standardization 49 

Indemnification benefits under G. L. c. 16, §§ 4D and 4E, granted without 
deduction for accumulated sick leave 58 

"Most recent promotion" within St. 1957, c. 753, § 2, defined ... 37 



P.D. 12. 141 

PAGE 

Tenure rights under G. L. c. 30, §§ 9A and 9B, of a veteran employed as a 

physician on a temporary basis at a Soldiers' Home 98 

The same person may not be paid salaries provided by statute for offices of 
Commissioner of Public Health and State Surgeon 95 

State police; provision for witness fee to arresting officer for first attendance 

at court is not applicable to State police officers 42 

State Treasurer; duties imposed on, in statutes requiring deduction of 
amounts due Commonwealth from sums distributable to municipalities 
do not conffict 101 

Statutes: 
Amendment to G. L. c. 75A, § 12, providing tenure for persons having com- 
pleted three years' creditable service is applicable to those who had such 

service on effective date of amendment 100 

Registered operators applying for registration as hairdressers entitled to 
experience credit for certain periods of work prior to effective date of 
1958 act 127 

Steam boilers; licensed operator must be in attendance at all times during 

which boiler requiring licensed operator is in operation . . . .118 

Teacher Certification Law; exemption by Board of Education under, is for 

all teaching positions in local system, not individual teachers ... 67 

Teachers : 

Leave for, contracting tuberculosis. See University of Massachusetts. 
Retirement allowance rights of school teacher under provisions of St. 1958, 
c. 617 56 

Teachers, etc., at Lowell Technological Institute; tenure rights of, under G. L. 

c. 75A, § 12. See Lowell Teclinological Institute ; Statutes. . . . 100 

Teachers' Retirement System; credit, by make-up payments, for service of 

less than six months' duration as temporary employee. See Retirement. 109 

Telephone. See Public Safety, Department of. 

Television, wrestling matches. See Public Safety, Department of. 

Treasurer and Receiver General. See State Treasurer. 

Tuberculosis ; leave for teacher contracting. See University of Massachusetts. 

United States, lease of premises of, by Commonwealth. See Lease of premises 
by Commonwealth. 

University of Massachusetts; teachers at the University of Massachusetts 
contracting tuberculosis are not entitled to maximum two-year leave with 
pay under G. L. c. 71, § 55B, applicable to "pubhc schools" ... 78 

Veteran : 

Elected official is eligible for retirement as a veteran despite election of op- 
tion (c) applicable to contributory retirement system .... 53 
Employed by both State and city during same period, entitled to credit for 

such period for single veteran's pension either from State or city . . 60 
Tenure rights under G. L. c. 30, § 9A, of a veteran employed as a physician 
on temporary basis at Soldiers' Home 98 

Veteran's benefits; veteran on strike does not have available to him amounts 

held for his benefit in an employee's savings and retirement fund . . 43 



142 P.D. 12. 

PAGE 

Veterans' Services, Commissioner of: 

Open Meetings Law not applicable to office of, nor to local veterans' oflfices 

or districts 80 

Veteran on strike does- not have available to him amounts held for his bene- 
fit in an employee's savings and retirement fund 43 

Vocational school district. See Education, Department of. 

Waterways, Division of; 1958 Capital Outlay Bill, provision that municipali- 
ties provide 25 per cent of amount appropriated for certain work to be 
done by Federal Government supersedes 50 per cent requirement in c. 29 
of Resolves of 1946 45 

Workmen's Compensation; benefits required to be set off against disability 
pension or retirement allowance only when same injury is basis for both 
allowances 128 

Wrestling; Department of Public Safety has no jurisdiction over wrestling on 

television 96 

Youth Service, Director of; Emergency employees are not entitled to full pay 

under sick leave rules of the Division of Personnel and Standardization 49 

Zoning. See Public Works, Department of. 



STATUTES CITED 



PAGE 

United States Code. 
Title 23, § 127 .= . . . . 103, 104 
38, §§ 2312, 2313, 2333, 2334 . 122 

Massachusetts Constitution. 

Part 1st, Art. XII 31 

XXIV ..... 31 

Amend. 48, The Referendum, Parts 

I, II, III . 122 

Amend. LXIII 48 

Massachusetts Statutes. 

1909, c. 504, § 103 83 

1925, c. 339 80 

§1 80 

§ 2 80 

1938, c. 265 . . . .... 31 

c. 321,- § 1 ..... . 31 

1939 (Res.) c. 56 . . . 129, 130, 131 

1943 (Res.) c. 37 . . . 129, 130, 131 

1945, c. 565 32 

1946 (Res.) c. 29 45, 46 

1946, c. 411 32 

c. 599 ..... . 80,82 

1948, c. 310, § 12 114 

§31 114 

c. 498 32 

c. 548 ...... . 48 

1950, c. 479, § 4 91 

c. 491 49 

c. 540, § 2 127 

§ 3 127 

1951, c. 547 72 

c. 781 .... 129, 130, 131 

1952, c. 354 104 

c. 536 . . . . 129, 130, 131 

1953, c. 400 32 

c. 547, § 1 100 

§ 2 100 

1954, c. 162 77 

C.348 56 

1955, c. 494 . 53 

c. 670 .... 129, 130, 131 

■ § 1 . . . . . . 130 

§ 2 .... . 129, 130 

§4 130 

c. 770, § 98 85 



page 

1956, c. 298 124 

§ 4 124 

c. 465 67,92 

§§6, 8(1), 8(2), 8(3), 

8(4) 68 

§ 24 93, 94 

c. 580 . . . . 121, 122, 123 

c. 654 58 

c. 696 106 

c. 715, §24 ...... . 31 

c. 729 ...... . 37 

c. 747 ....... 101 

1957, c. 605 . 42 

c. 660 31 

c. 661 56, 57 

c. 690 123 

■ § 26 123 

c. 691 124 

c. 753, § 2 . . . . 37, 38, 39 

c. 766 63, 64 

1958, c. 15 78 

C.374 68 

c. 422 42 

c. 432 ...... . 63 

c. 441 70, 71 

c. 480 106 

c. 516 63 

c. 538, § 3 100, 101 

c. 600 106 

c. 605 59 

§ 4 58, 59 

C.614 52 

§§ 1, 2 53 

c. 617 56, 57 

c. 626 . . 69, 72, 79, 80, 81, 82 

§ 2 . . . . 69, 72, 81 

§ 4 79, 81 

§§ 11, 18 . . . . 81 

c. 646 86, 87 

§ 1 107 

§§ 2, 3 87 

§§ 5, 6, 9 . . . . 119 

c. 650, § 2 46 

1959, c. 343 127 

General Laws. 
c. 4, § 1 122 

§7, cl. 43rd 99 



144 



P.D. 12. 



PAGE 

c. 7, § 28 50, 58 

§ SOL 104, 105, 106 

c. 8, § 10 125 

§ lOA . . . . Ill, 112, 125, 126 

c. 16, §§ 4D, 4E 58 

c. 17, § 2 95 

c. 29, § 2 48 

§ 8A 34, 65, 66 

§ 17 102 

§ 20A 34, 35, 36 

- §26 110 

§§ 27, 29 125, 126 

c. 30, §§ 9A, 9B 98, 99 

§21 95 

- § 24A 32, 33 

c. 30A 116, 117 

§ 1 (5) 105 

§§2(1), 11(1) . . . . 117 

§§ 10-13 117 

§ llA 72, 81 

§ 13 116 

c. 31, §§ 21, 43, 45 98 

c. 32 128, 130 

§§ 1-28 54, 60, 110, 

128, 129, 131 

§§3(l)(c), 12(1), 25 (3) . 55 

- §3(l)(a)(i) .... 54,55 
§ 3 (2) (a) (iv) 109 

§3(2)(d) 110 

§§3 (2) (f), 6, 7, 12 (2) (d), 

26(2) 53 

§§ 3 (7), 56, 57 .... 60 

§§3(7)(g), 14 (2) (a) . . 129 

§ 5 53, 54 

§§5(l)(d), 25(3)(a) . . 54 

§5(l)(f) 56 

- §§ 9, 16, 16 (4) .... 121 

§ 12 (2) (c) . . . . 53, 54, 55 

§ 14 128, 129 

§ 25 54, 55, 128 

§ 26 52, 53 

§§ 56-60 . 53, 54, 60, 128, 129 

§§56-60A 54 

§ 58 60, 61 

§§89, 89A ...... 130 

§ 91A 63, 64 

§94 121, 122 

c. 33, § 15 95 

§§ 15(e), 15 (j) .... 95 

c. 39, § 23A 79, 80, 81 

c. 40, § 51 81, 82 



PAGE 

c. 41, § 98 77, 78 

c. 53 40 

§§ 6, 7, 11, 12, 22A, 27 . . 45 

§§ 15, 40, 49 40 

§§ 18-22 44, 45 

§§ 44, 46 . . . . . 40, 41 

c. 58, § 20A 102 

c. 59, § 20 101, 102 

c. 66 . 84, 85 

§ 18 80, 81 

c. 70, § 3B 99, 100 

§ 4 100 

c. 71 100 

§§ 14-161 100 

§38G 67 

§55B 78 

§72 48 

c. 73, § 1 48 

• §9 59 

c. 74, § 4 100 

c. 75A, § 12 100, 101 

c. 85, § 30 103 

c. 90, § 3 88, 89 

§§ 19, 19A 103 

c. 94, §§65G-65S . . . . 112, 113 

§ 65H 112, 113 

§651 112 

§ 146 113 

§211 31 

c. 94A, § 12 . . . .51, 52, 71, 132 

§§ 16 (b), 17, 19 . . . . 52 

§ 17 (a) 51, 52 

§ 19(b) 51 

c. 106, § 2 74 

c. Ill, §§ 51, 53, 56 70 

§ 70 84, 85 

c. 112, §87P 46, 47,48 

§87W 127 

c. 115 43,44 

§§ 3, 4, 10, 12 .... 82 

§ 5 43 

c. 119, §74 114 

c. 123, § 100 . . . . . . 83, 84 

c. 123A 87 

§2 86 

§5 107 

§6 118 

§9 87 

c. 125, § 1 ........ 120 

c. 140, § 122 89, 90 

§§ 122A, 123, 124, 125 . . 90 



P.D. 12. 



145 



PAGE 

c. 140, § 131 77, 78 

c. 142, § 21 67, 68 

c. 146, §46 118 

c. 150A 93 

§ 2 (2) 92, 93 

c. 151B, §§ 5, 7 91 

c. 152 128 

§48 128 

§ 73 128, 129 

c. 155, § 2B 70 

c. 175 116 

§ 2 72, 73, 76, 77 




PAGE 

§5 116, 117 

26 31 

53, 53B 42 

;9 46, 47 

§ 16A 51 

47 68 

45 115, 116 

92A, 98 91 

1 31 

100 116 

18 31 

§28 85