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

Y- 
Public Document No. 12 



Clje Commontoealti) of ^a00acj)U0ett0 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1960 



^. 




Public Document No. 12 

^tt Commontuealti) of ^a!8i$ac|)U0ett$ 

REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1960 



Publication or this Document Approved by Alfred C. Holland, State Purchasing Agent. 
1100-6-61 -930783 ESTIMATED COST PER copy: $1.22 



STATE IJBHURY OF MASSADIIUSETTS 

APR 26 1962 

STATE HOUSE, BOSTOM 
>iASS. OFFICIAtS 



h ^1 ^ 

5 



Ciie Commontaealtg of Siassaci)usett$ 



Boston, December 7, 1960. 

To the Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1960. 

Respectfully submitted, 

EDWARD J. McCORMACK, Jr., 

Attorney General. 



Cl)e Commontoealtlj of 0^as0ac|)ugett0 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
EDWARD J. McCORMACK, Jr. 

First Assistant Attorney General 
Fred Winslow Fisher 



Assistant Attorneys General 

George W. Arvanitis John M. Hart" 

James W. Bailey^ David S. Hoar 

Gerald A. Berlin James J. Kelleher 

Lucy Broderick Brady Edwin Livingstone, Jr. ® 

George Bregianes William F. Long, Jr. 

Charles M. Burwick^ Nathan S. Paven 

Francis R. Dobrowski William H. Sullivan 

Joseph C. Duggan^ Roy F. Teixeira^ 

Joseph T. Doyle * Robert H. Tobin 

Saul Gurvitz Herbert E. Tucker, Jr. 

Assistant Attorney General; Director, Division of Public Charities 
Richard H. Gens 

Assistant Attorneys General assigned to Department of Public Works 

Domenico J. Alfano Joseph F. Lyons 

Charles E. Frazier. Jr. John W. McGarry 

Daniel P. Kiley, Jr. William D. Quigley 

Philip Lemelman Joseph P, Zajac 

Assistant Attor7ieys General assigned to Metropolitan District Commission 

Daniel W. Carney John J. Grigalus^ 

Joseph H. Elcock, Jr. 

Assistant Attorneys General assigned to Division of Employment Security 
Joseph S. Ayoub William C. Ellis 

Assistant Attorney General assigned to Veterans' Division 
Leo Sontag 

Chief Clerk Head Administrative Assistant 

Russell F. Landrigan Edward J. White ^ 



1 Appointed, May 2, 1960. * Appointed, Dec. 22, 1959. 

2 Resigned, Dec. 14, 1959. « Leave of Absence, Apr. 15, I960. 

3 Resigned, Sept. 11, 1959. ' Appointed, Sept. 1, 1959. 
* Appointed, Sept. 14, 1959. 



P.D. 12. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1959, to June 30, 1960 



A ppropriaiions. 



Attorney General's Salary .... 

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

Veterans' Legal Assistance .... 



Total 



$15,000 00 

337,653 00 

90,000 00 

10,000 00 

18,600 00 

$471,253 00 



Expenditures. 

Attorney General's Salary .... 

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

Veterans' Legal Assistance .... 

Total 



$15,000 00 

335,661 73 

89,999 40 

10,000 00 

18,600 00 

$469,261 13 



By 



Approved for publishing. 



JOSEPH T. O'SHEA, 

For the Comptroller, 



FREDERICK J. SHEEHAN, 

Comptroller. 



P.D. 12. 



Cl)e Commontoealtf) of ^^asmCbu^tm 



Department of the Attorney General, 
Boston, December 7, 1960. 

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, 19G0, totaling 18,944, are tabulated as follows: 

Extradition and interstate rendition ........ 119 

Land Court petitions .......... 176 

Land damage cases arising from the taking of land: 

Department of Public Works ........ 1,547 

Metropolitan District Commission ....... 170 

Civil Defense ........... 2 

Department of Mental Health ........ 1 

Department of Natural Resources ....... 20 

Department of Public Safety ........ 1 

Department of Public Utilities ........ 1 

Lowell Technological Institute ........ 2 

Massachusetts Maritime Academy ....... 7 

Massachusetts Turnpike Authority ....... 1 

State Reclamation Board ......... 2 

Miscellaneous cases, including suits for the collection of money due the Com- 
monwealth ........... 6,599 

Estates involving application of funds given to public charities . . . 1,660 

Settlement cases for support of persons in State institutions . . . . 12 

Pardons : 

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

as amended ........... 80 

Small claims against the Commonwealth ....... 266 

Workmen's compensation cases, first reports ...... 5,957 

Cases in behalf of Division of Employment Security ..... 501 

Cases in behalf of Veterans' Division ........ 1,820 



Introduction. 

The fiscal year covered by this report began on the first day of the 
seventh calendar month of my service in the office for the two-year term 
to which I was elected at the State election in November, 1958. During 
the period a wide variety and great number of legal matters arising in the 
ordinary course of the operation of the State government required the at- 
tention of the staff. The office engaged in extensive litigation in all the 
State and Federal courts, and advised State officers, departments, bureaus, 



8 P.D. 12. 

boards and commissions. The work involved the interpretation of exist- 
ing statutes as well as drafting, and assisting in the drafting of, new legis- 
lation. As in the past, we rendered opinions to the Governor on bills re- 
lating to legal matters coming before him for his signature. In addition 
to the handling by the staff of the great volume of business coming before 
the office in the ordinary course, the Division of Civil Rights and Liber- 
ties, and the Division of Consumer Counsel, both of which I established, 
continued their programs for the protection of the civil rights of citizens, 
and the protection of the consumer. Statements of the more important 
activities of those divisions, and of the other divisions and units of the 
department, are set forth below. 



Consumer Council and Division of Consumer Counsel. 

The Advisory Consumer Council consisting of ten leading economists 
and experts in the field of consumer problems which I appointed in 1958, 
continued its efforts on behalf of the consumer, and, working in conjunc- 
tion with my Division of Consumer Counsel, concentrated on five main 
fields of activity, namely, (1) Milk, (2) Transportation, (3) Antitrust, 
(4) Consumer Fraud, (5) Public Utilities. 



Milk. 

As a result of the challenge by the Attorney General's Advisory Con- 
sumer Council of the legality of the price-fixing order entered by the 
Milk Control Commission, the commission made findings purporting to 
show continued need for price regulation of retail sales. Under the stat- 
utes, this finding had to be submitted to the Milk Regulation Board for 
review and approval. On July 1, the board met and by a 2-2 tie ended the 
price regulations. 

Several dealers then commenced a price war which threatened the 
financial security of the smaller dealers. Because the commission was 
unable or unwilling to stop these price wars, I called upon the Federal 
Trade Commission for assistance. In cooperation with my oflfice, we de- 
veloped sufficient facts to enable us to start actions at State and Federal 
levels to attempt to stop the unfair competition. Most of these cases 
were still pending at the end of the current fiscal year. 

Professor Philip Gamble, a member of the Consumer Council, and I 
appeared before a special Congressional Subcommittee on Small Business 
Problems in the Dairy Industry, to review for the committee the whole 
problem of milk control and milk prices in the Commonwealth. Also, 
with the concurrence of the Advisory Consumer Council, I announced 
my unalterable opposition to proposed legislation which would impose 
permanent milk price fixing in the greater Boston area. 

I again sponsored legislation to constitute the Consumer Council as a 
statutory body with rights to appeal rate decisions in the courts. This 
bill passed the House but was defeated in the Senate. Because I feel very 
strongly that there is an urgent need to protect the consumer from vmfair 



P.D. 12 9 

and unethical practices which may exist, and because there is need for 
pubhc representation before administrative and legislative bodies, I again 
urged the General Court to enact such legislation. 

Railroad and Mass Transportation. 

A continuing and a constantly more troublesome problem has centered 
around the deterioration of mass transportation facilities in the Common- 
wealth. 

Repeatedly, I have had to appear before the Department of Public 
Utilities to protest cuts in railroad passenger service. This problem con- 
tinues to be one of the major obstacles to metropolitan growth in Massa- 
chusetts. 

One of the areas where I have had to take increasing action has been 
that concerned with the so-called "Old Colony option." The option 
granted to the Commonwealth in the New Haven reorganization proceed- 
ings was to have expired on August 15, 1959. As a result of the inability 
of the State and the railroad to agree to an extension of rights, I recom- 
mended that the State proceed to exercise its rights. On August 13, 1959, 
a bill was enacted authorizing the State to exercise its rights and notifica- 
tion was sent to the railroad. 

On August 14, 1959, I presented a report to the Federal District Court 
in New Haven asking that our exercise of the option be approved. The 
court approved the exercise contingent upon our enacting further legis- 
lation spelling out the facilities required and providing for payment of the 
salvage price set in the option to the railroad. 

Numerous questions arose concerning the Commonwealth's rights in 
the property and the geographic boundaries of the property subject to 
option. This required many appearances at hearings in New Haven with 
lengthy trials. 

At the same time, the Boston Terminal Company attempted to sell the 
South Station. In behalf of the Commonwealth, I entered my appearance 
in opposition to the attempted sale as being against the public interest. 

The majority of these problems continued into the next fiscal year. 

Antitrust. 

My ofiice was very active in the antitrust field. Some eighteen corpora- 
tions in the bituminous and asphalt industry were indicted by the Federal 
Grand Jury for allegedly rigging bids and fixing prices in the sale of road 
materials to the State and cities, towns and counties of Massachusetts. I 
appeared in the United States District Court in Boston to oppose the ac- 
ceptance of a plea of "nolo contendere" in these cases. I pointed out to 
the court that acceptance of a "nolo" plea would deprive the Common- 
wealth of Massachusetts and its political subdivisions of substantial rights 
provided for a treble damage litigant under the Sherman Antitrust Act. 
I also opposed the acceptance of a consent decree by the Justice Depart- 
ment in the Federal Government civil cases against the eighteen corpora- 



10 P.D. 12. 

tions because, like a plea of "nolo contendere," consent decrees prevent 
the treble damage litigant from obtaining a prima facie case against the 
defendant. Subsequently, I met with the Justice Department and was 
successful in persuading the Antitrust Division to refuse to accept such 
consent decrees, and in April, 1960, I filed antitrust suits for treble damages 
of several millions of dollars against the eighteen separate corporations on 
behalf of the Commonwealth of Massachusetts and the cities and towns in 
Massachusetts. 

Consumer Frauds. 

Activities of the Division of Consumer Counsel in the field of consumer 
fraud increased considerably over the previous year. Every day my office 
received complaints from irate citizens who felt that they had been cheated 
in some business transaction. Many of these complaints involved strictly 
civil matteis between the parties wherein no fraud or violation of law was 
involved, and in these cases the consumers were advised to seek private 
counsel. However, in many of these cases my Division of Consumer Coun- 
sel made diligent efforts to affect a compromise between the parties with a 
great deal of success. In a number of cases in disputes between customers 
and dealer over the quality of work performed, we have been able to in- 
tercede and effect a mutually agreeable compromise. 

In two cases my office acted against firms for violations of law. One 
particularly bad case involved an aluminum siding company which ad- 
vertised side wall work at a price which was clearly impossible to substanti- 
ate. When a customer called with reference to the particular advertise- 
ment, the salesman would call at the home and convince the customer that 
he should sign a contract at a much higher price. This is the type of bait 
advertising which the Division of Consumer Counsel is attempting to 
stamp out. 

In another case the Division of Consumer Counsel took court action 
against an automobile dealer who was engaged in a violation of our "end- 
less chain statute." This company was selling cars under an agreement 
with the buyer that he would be paid a bonus for every new customer he 
produced with the provision that he could pay off the full amount of the 
car in this manner. 

In the field of legislation the Advisory Consumer Council sponsored a 
bill to give buyers an opportunity to defend on frauds. We had discovered 
that one of the grave problems in consumer fraud cases was the ease with 
which the sellers could discount their contracts with finance companies, 
leaving the buyer without the opportunity to avail himself of the defense 
of fraud. Under this bill sponsored by the Consumer Council the buyer 
would have available to him the defense of fraud against any subsequent 
holders of his note. 

The Consumer Council also sponsored a bill which would require anyone 
engaged in the business of extending credit to furnish to each person to 
whom such credit is extended prior to the consummation of the transaction 
a clear statement in writing (1) setting forth the total of the finance charges 



P.D. 12. 11 

to be borne by such person in connection with such extension of credit, and 
(2) stating the percentage that such amount bears to the unpaid balance 
expressed in terms of simple annual interest. 

During the year, the Division of Consumer Counsel sponsored a forum 
on "Bait Advertising" at which a number of representatives of business 
organizations met with consumer groups and discussed the avenues whereby 
such unethical practices could be terminated or corrected. 

In March, 1960, I participated in a national conference on Consumer and 
Investor Protection, sponsored in Washington by the United States De- 
partment of Justice. As a result of our program of Consumer protection 
in Massachusetts, the Attorneys General of several other States have now 
seen fit to set up similar Divisions of Consumer Counsel in their depart- 
ments. 

Division of Civil Rights and Liberties. 

One of the most important and far-reaching projects undertaken by the 
division was the compilation and distribution of the pamphlet "If You Are 
Arrested." This publication, which was issued as a public service in co- 
operation with the Boston Bar Association and the Civil Liberties Union 
of Massachusetts, is a highly effective summary of citizens' rights and the 
rights of the Commonwealth. It covers the acts of arrest, rights in the 
police station, rights in court, and the ways a detained person can get help. 
It was prepared with meticulous care, with the aid of judges, criminal 
lawyers, law school deans, editors, journalists, police officials, and civic 
organization executives. It has been widelj^ hailed by scores of newspapers 
not only throughout Massachusetts but the entire country. Said The 
Boston Herald: 

"It should be required reading in our high schools. It should be made avail- 
able by the police to every person arrested in the Commonwealth." 

Now in its third printing, the pamphlet has been distributed to over 
50,000 people, and there is presently a waiting list of 200,000. Radio Free 
Europe has used it. The National Better Business Bureau has reprinted 
the publication and has distributed it nationally, and six other States have 
adapted it for their own purposes. Copies may be obtained free of charge 
on request to the office of the Attorney General. 

The division has been vitally concerned with introducing and supporting 
Civil Liberties legislation. The Attorney General, with the co-operation 
of Suffolk District Attorney Garrett H. Byrne, and the Massachusetts 
Police Chiefs Association, was instrumental in securing legislation which 
helped to curb abuses of unrestricted wire tapping, yet did not interfere 
with effective law enforcement. The Attorney General also sponsored 
with the co-operation of Suffolk County District Attorney Byrne, legisla- 
tion permitting persons arrested on a felony the right to use a telephone to 
communicate with relatives, friends, or attorneys. Previously this right 
had been restricted only to those held for misdemeanor violations. And it 
was mainly through the efforts of this office that the law was finally enacted 



12 P.D. 12. 

providing represeiitatioii for indigent defendants in criminal cases — a 
truly major realization of equal justice under the law irrespective of eco- 
nomic circumstances. 

Masf^achusetts enjoys the most comprehensive set of laws outlawing 
discrimination because of race, creed, color and national f)rigin, of any State 
in the Union. These laws apply to discrimination in employment, public 
housing, most types of private housing, public accommodations, education 
admissions, and age. The law is administered by the Massachusetts State 
Commission Against Discrimination, and the Division of Civil Rights and 
Liberties, since its establishment, has been counsel for the commission. 

Last year, at the request of the commission, the Attorney General 
rendered an historic opinion, which has since become a national landmark, 
which holds that real estate brokers' offices are places of public accom- 
modation and hence do not have the luxury to discriminate against our 
citizens. The division has assisted the commission in processing a number 
of complaints against large real estate developers, with far-reaching con- 
sequences which have been largely reported in the press thi'oughout the 
nation. Negroes who have been persecuted by vandals and social mal- 
contents after moving into previously all-white neighborhoods have suc- 
cessfully sought and received the aid of the division. One culprit was suc- 
cessfully prosecuted and jailed. 

In order to improve the administration of justice at the administrative 
level and to furnish a statutory foundation for fairness, clarity, simplicity 
and some degree of uniformity, the Division of Civil Rights and Liberties, 
in cooperation with the Boston Bar Association and the Legislative Re- 
search Bureau, is making a long-range study of the laws governing these 
agencies. The study is intended to assure that the public will have reason- 
able access to administrative rules and regulations so that any interested 
person can find out just what conduct is expected of him. The importance 
and fairness of such opportunity are underlined by the fact that the penalty 
for violations of these rules is often criminal and is almost always serious in 
nature. The study is also intended to show that persons required to deal 
with the particular administrative agency will be able to find out what the 
proceedings of that agency are so that they can abide by and utilize them. 
Many of these procedures are now so complex and little-known that even 
a lawyer is likely to be in the dark about them unless he has become a 
specialist. 

When Massachusetts municipal police officials on a number of occasions 
sought to interfere with the right of students to engage in peaceful picketing 
in sympathy with the lunch-counter sit-downs in the South, in a memoran- 
dum prepared by the division, the Attorney General advised the officials 
that such interference is almost invariably illegal and unconstitutional. 
He pointed out that picketing, so long as it is peaceful and not coercive, is 
an expression of opinion under the First Amendment which has been held 
lawful by the United States Supreme Court. As a result, interference by 
officials ceased, and the picketing was allowed to continue unmolested. 

In the matter of religious freedom, the division has also been active. One 
of the most far-reaching matters has concerned the rights of Mohammedan 



P.D. 12. 13 

prisoners in the State Penal System. The office has worked with the De- 
partment of Correction to see that the religious freedom of these prisoners 
is protected, consistent with administrative efficiency and prison security. 
Finally, the office was instrumental in having the infamous cage at Norfolk 
Superior Court removed, and in having the Sheriff of Middlesex County 
undertake to do likewise with the cage in the Cambridge Superior Court. 
This marks the beginning of the end of a situation in which Massachusetts, 
alone among the fifty States and the Federal jurisdiction, countenances the 
medieval and barbaric practice of obliging unbailed defendants to sit in 
cages during trial, while their bailed counterparts sit in chairs in the court 
room. The favorable editorial comment on the removal of the cages was 
intense, and was widely noted nationally. 

Criminal Division. 

The Criminal Division continued its effective work in the field of crim- 
inal investigation and in answering complaints and requests for assistance 
from local enforcement officers as well as requests from law enforcement 
officers of the Federal Government and other States. 

With the co-operation of the State and local police and the Federal 
Bureau of Investigation many investigations and prosecutions were con- 
ducted. Some investigations had interstate ramifications. The more 
significant cases handled by my office are: 

Tri-County Murder Investigation. My office was involved in co-ordinating 
the investigation of the murders of Gaetana J. DiNicola, alias Joe "Kiki" 
Cuyler and Angelo DeMarco. Involved in this investigation were the 
District Attorneys of Middlesex, Worcester and Berkshire Counties, as 
well as the police chiefs of Framingham, Worcester and State Police offi- 
cials and detectives. The investigation extended over a three-month 
period. Witnesses were interviewed in Boston, Cambridge, Worcester 
and Springfield. As a result of the investigation, raids were made in 
Springfield breaking up a million dollar gambling syndicate with ramifica- 
tions in many cities and States. The probe of the murder extended not 
only beyond county lines but also across State lines into Connecticut, 
Rhode Island and New York. The record of telephone calls investigated 
indicated a connection with persons engaged in criminal activity from 
Canada in the North to Miami in the South and across country to In- 
dianapolis and Chicago. 

Taunton Municipal Lighting Plant Case. As a result of an investigation 
by my office, indictments were returned against certain individuals in- 
volved in the administration of the Taunton Municipal Lighting Plant. 
The criminal case which was presented to the Grand Jury by an Assistant 
Attorney General is now pending in the Supreme Judicial Court. 

Indictments were returned for the crimes of soliciting presents or gra- 
tuities from contractors, embezzlement of public funds as city officers, 
refusal and neglect to account for public funds, noncompliance with the 
public bidding act for contracts for public building and acceptance of 
gratuities from a contractor. In addition to the criminal aspects of the 



14 P.D. 12. 

case, the investigation disclosed glaring deficiencies in the statutes which 
precluded prosecution of many aspects of improper conduct by public 
officials. There was a lack of legal safeguards to protect the public interest 
in the handling of large amounts of public funds by municipal light com- 
missions. Consequently, I introduced legislation advocating the following 
five major proposals covering so-called "conflict of interest" situations: 

(1) that contracts involving over $1,000 be accompanied by a bond, 

(2) that commissioners furnish to the city clerk and city auditor a copy of 
every contract, (3) that contracts for the purchase of equipment, supplies 
and materials in an amount of $1,000 or more be open to public bid, 

(4) granting the appointing authority the power of removal for cause, and 

(5) that records and contracts of the commission be made a public record. 
I appeared before the Legislative Committee on Power and Light to urge 
the enactment of these proposals. 

Doris E. Rahlin Case. On October 5, 1959, indictments were returned 
against Doris E. Rablin, alias Doris E. Barrett, for larceny and em- 
bezzlement by a trustee. The case was investigated and prosecuted by 
my office by an Assistant Attorney General and a Special Assistant At- 
torney General. The case involved an approximate shortage of $14,000 
in the funds of the Prospect Hill Cemetery Association, Inc. The de- 
fendant who was an official of said Prospect Hill Cemetery Association, 
Inc., was found guilty on six indictments. 

Obscene Literature. Studies by criminologists as well as experience of 
the police, clergy and prosecutors have revealed that an increasing number 
of so-called sex crimes and crimes of violence are traceable to obscene 
literature of a puerile or sadistic nature. Active co-operation between 
this office and local law enforcement agencies has resulted in many prose- 
cutions. Since the problem is one of education as well as law enforcement, 
an Assistant Attorney General has been assigned to lecture to civic groups 
on the nature of this evil, what steps are being taken to combat it, as well 
as what each citizen can do to help fight this type of crime. In addition, 
the Obscene Literature Control Commission, created under G. L. c. 6, 
§ 101, has had numerous meetings in my office. My staff has provided 
secretarial, clerical and such other services as was necessary for the func- 
tion of said commission. In addition, through my efforts there was or- 
ganized a State Police Pornographic Bureau. 

Report of the Criminal Laws Passed During the Legislative Session. In 
accordance with G. L. c. 12, § GA, a digest of all new laws was prepared, 
printed and distributed to sheriffs and local law enforcement officials. In 
addition, this department had referred to it many requests for legal opinions 
from State agencies involved in law enforcement activities. Requests were 
received from the Department of Corrections, the Department of Public 
Safety and other related law enforcement activities too numerous to men- 
tion. These opinions were drafted by my Criminal Division after extensive 
legal research. 

Gaming Activities. In addition to the investigation and prosecutions 
arising from the Tri-County Murder Investigation referred to previously, 
investigations were carried out and interstate information exchanged with 



P.D. 12. 15 

other States which resulted in many prosecutions. Various methods have 
been used to proceed against gaming operators. One successful method 
has been to discontinue phone service to the alleged gaming operator. My 
office has been successful before the courts in upholding telephone service 
discontinuances. Another method is to proceed against the gaming oper- 
ator for income tax evasion. In the case of Edward G. Bowler, the Com- 
monwealth received .f 20,000 as a result of a stipulation in the case of United 
States V. Bowler, in the Federal District Court for Massachusetts. This 
case is typical of the co-operation between State and Federal officials, be- 
cause the original seizure of $160,000 was made by State Police in the apart- 
ment of the defendant, lifter this seizure, claims by both the United States 
and the Commonwealth were made and collected. 

Narcotics and Harmfid Drugs. One of the most nefarious types of crime 
is the peddling and use of narcotics and other harmful drugs and barbit- 
urates often called "tranquilizers." The abuse of these drugs has been a 
serious menace to public health and safety. 

With respect to the narcotics problem I sponsored a seminar on July 17, 
1959, on "Narcotics and Harmful Drugs" at the Museum of Science. The 
seminar was attended by various police, district attorneys, attorneys and 
medical men. The complex aspects of the problem were taken up with 
particular reference to addicts and police problems by outstanding au- 
thorities in the field. Participating in this seminar were Inspector Carey, 
Commanding Officer, Narcotics Bureau, Police Department, City of New 
York; Wayland L. Speor, Assistant to the Commissioner of Narcotics, 
U. S. Treasury Department, Bureau of Narcotics; George Michaels, Di- 
rector of Food and Drug Division, Public Health Department of Massa- 
chusetts ; and Dr. Alfred Frechette, Commissioner of Public Health, Massa- 
chusetts. I am pleased to report that we have been advised by Federal 
agencies that the problem of narcotics in Massachusetts is very minor and 
well under control. My objective is to keep the problem under control in 
the Commonwealth by widespread dissemination of information on the 
various aspects of narcotics as well as speedy action and investigation of 
cases when they arise. 

As to the abuse of "tranquilizers," many highway deaths and juvenile 
crime can be traced to the use of these drugs. I am happy to report that 
because of widespread information, the number of highway deaths traceable 
to barbiturates is declining. 

Anti-Trust Cases. In an unprecedented action in this Commonwealth 
my office took part in anti-trust proceedings against defendants under the 
Clayton Anti-Trust Act. It is the first time that any State has sought to 
take part in a substantial anti-trust case. My office is proceeding in in- 
dependent civil proceedings in the United States District Court for Massa- 
chusetts under section 5 of said Clayton Act for treble damages arising out 
of an alleged conspiracy to fix prices, rig bids, and suppress competition 
in the sale of asphalt, tar and bituminous concrete to the Commonwealth 
and its subdivisions including cities and towns. The case involves eighteen 
corporate defendants, fourteen of which have a usual place of business in 
Massachusetts. The case is of overwhelming importance because said de- 



16 P.D. 12. 

fendants are among the principal suppliers of tar, asphalt and bituminous 
concrete to the Commonwealth for road building purposes. 

Racing Commission Cases. My ofhce represented the State Racing Com- 
mission in several cases wherein the acts of said commission in granting 
licenses were reviewed by the Superior and Supreme Judicial Court. The 
most significant case was Bay State Harness and Breeding Association, Inc. v. 
State Racing Commission, et al., 340 Mass. 776, wherein the court denied 
relief against said commission after said commission had granted a license 
for twenty-three nights of harness racing in 1959 to the Eastern Racing 
Association, Inc., thereby limiting the petitioner to sixty-seven nights of 
racing. 

Extraordinary Writs and Similar Matters; Renditions; Pardon Recom- 
mendations. The great bulk of the duties of the Criminal Division is taken 
up with representing the Commonwealth in various proceedings in the 
courts as well as investigating and prosecuting work. A brief statistical 
table of its activities in such matters is as follows: 

Defective Delinquent Cases: 

(Includes petitions for release in probate court, petitions for release in the 

Supreme Court, and habeas corpus petitions in the superior court) . . 8 

Petitions to be Adjudged Sane ........ 4 

Writs of Error ........... 24 

Writs of Mandamus 2 

Writs of Habeas Corpus: 

(Superior Court, Supreme Court) ........ 6 

Petitions for Discharge ......... 4 

Writs of Certiorari .......... 2 

Bills for Declaratory Judgment ........ 3 

Writs of Mandamus (Tax Case) ........ 1 

Petitions for Review (Racing Commission) ...... 3 

Gaming Cases ............ 3 

Petition for Failure to File Inventory ...... 1 

Pardon Petitions Recommended upon ....... 80 

Rendition Cases: 

(This figure includes requests from other States and requests by us to other 

States) 116 



Division of Public Charities. 

At the inception of my administration, a program was inaugurated to 
improve the operation of the Division of Public Charities within the De- 
partment of the Attorney General. 

Highlighting this program was a state-wide probe of "Charitable 
Trusts" conducted tliroughout the Commonwealth. Assistants in the 
Attorney General's office were sent to the probate registries in Barnstable, 
Plymouth, Taunton, Salem, Cambridge and Greenfield. These men con- 
ducted a complete survey and check of every record of every trust on file 
in each of the six counties involved in the initial phase of this probe. 

As a result of this sweeping investigation more than $5,000,000 of chari- 



P.D. 12. 17 

table funds were uncovered and proceedings taken to put these funds to 
use. In Barnstable County, a petition was filed with the co-operation of 
the town of Barnstable for permission for the town to use the excess of 
the income of the million and one half dollar Ivirkman fund for charitable 
purposes. In Plymouth County a million dollars, earmarked for the bene- 
fit of crippled children, was uncovered. And as a result of a petition filed 
by the Attorney General, a new "board of trustees" was appointed to put 
these funds to use for the benefit of crippled cliildren. In Essex County, 
a million and one quarter dollars was, upon petition of the Attorney Gen- 
eral, freed to be used for scholarships for students of Marblehead and 
Swampscott High Schools for medical training and art study. 

The division has participated in the establishment of new trust funds 
for charitable purposes including the estate of Harold Whitworth Pierce 
consisting of six million dollars bequeathed for charitable purposes, the 
"Valley Charitable Trust" consisting of one half million dollars estab- 
lished by the Valley Bank and Trust Company in Springfield, and one half 
million dollars to the Frank Wood Memorial Home and the Arthur T. 
Nelson Memorial fund. 

The Division also spearheaded proceedings to put to use one hundred 
eighty-five thousand dollars of a trust fund created in 1919 for the "De- 
fenders of Public Safety." As a result of the efforts of the Attorney Gen- 
eral, persons entitled to these funds will have an opportunity to receive 
assistance. 

The division was also of help to various charitable and governmental 
agencies. In Essex County the division was successful in preventing the 
trustees of the estate of Da^-id Smith from retaking the Rowley Town 
Hall. 

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. 

In Hampden County, the division intei'vened in an effort to allow the 
Ludlow Hospital to conform to the requirements of the Department of 
Public Health. This action played a part in allowing the hospital to re- 
main open. 

In Barnstable County, the division used its offices to help the Wam- 
panong Indians in Mashpee to save their church, a 275 year old structure 
which is the fu'st Indian church in the United States. 

In Suffolk County, the division assisted the city of Chelsea in freeing 
cemetery funds for the perpetual care of graves in the Chelsea Cemetery. 

The division was also successful in preventing termination of the trust 
fund established by Benjamin Franklin. 

During the course of the past two years, the division investigated many 
cases of charitable frauds and mismanagement of charitable funds. In 
Nantucket County, the division uncovered an embezzlement of the per- 
petual care funds of the Prospect Hill Cemetery Association, and the mat- 
ter was referred to the Criminal Division which successfully prosecuted 
indictments for larcenv. 



18 P.D. 12. 

An attempt to solicit funds by a bogus organization going under the 
name of "State Inspectors-Commonwealth of Massachusetts" was stopped 
by the action of the division. 

The division's policy of greater and more efficient supervision of chari- 
ties was implemented by complete revision of existing procedures. 

During the year the Division of Public Charities has continued its ac- 
tivities and efforts in obtaining the use of dormant charitable funds for 
the benefit of the citizens of this Commonwealth. 

As a result of the revision of the reporting Form 12, we have received 
much more detailed financial reports. Two thousand two hundred and 
fifty-two charitable associations, organizations, and corporations filed re- 
ports with the division during the year, and the filing fees obtained 
amounted to $6,756. 

Since this is perhaps only a small fraction of the charities which should 
be filing with this office, a letter was prepared and mailed to all city and 
town solicitors asking for lists of charitable organizations within the con- 
fines of their particular communities. Letters were also mailed to the 
clerk of every city and town for a copy of the annual financial report of 
said city or town in order to secure some idea as to the number of restricted 
funds which are being administered by them. The statute is not quite 
clear as to whether cities or towns having such restricted funds for man- 
agement should report to the Attorney General's office. An interesting 
fund being held by the city of Newton came to our attention as a result of 
our survey, namely, that known as the Horace Cousens Industrial Funds, 
which is over a million dollars and its principal use is for mortgage loans 
to people settling in the city of Newton. There are many funds such as 
this which should be given wide publicity so that they might come to the 
notice of those citizens who might benefit therefrom. 

The division also supervises the estates handled by public adminis- 
trators. Many petitions involving the appointment of public adminis- 
trators, receivers, etc., the allowance of their accounts, and petitions for 
sale of assets of estates of individuals leaving no heirs, were reviewed by 
the personnel of the Division of Public Charities during the year. During 
the past fiscal year $55,079 escheated to the Commonwealth from these 
estates. 

Great emphasis was placed upon checking on accounts of trustees to 
determine whether all the income derived from charitable trusts was used 
for the charitable purpose. Many cases were found where for some reason 
the income could not or was not used for the charitable purpose and was 
simply kept on deposit in a commercial account. This was called to the 
attention of the trustees, and invariably some disposition was made of the 
income. For example, the Charles G. Pringle Foundation kept an income 
balance of $24,534.24 out of a $265,000 trust fund for the benefit of the 
inhabitants of Lawrence, in a commercial account. When this matter was 
called to the attention of the trustees, $17,000 was immediately distributed 
for the benefit of the people of Lawrence. The trustees stated that they 
have "deemed it advisable, however, to allow unexpended income to ac- 



P.D. 12. 19 

cumulate over a period of years to cover unexpected situations which might 
arise such as a flood similar to that which occurred in 1938 or 1939 doing 
great damage and rendering families homeless, or an emergency such as a 
disastrous fire rendering families homeless without any furniture." 

In summation, under my administration, the Division of Public Charities 
within the Department of the Attorney General has been recognized 
throughout the country as the leading State agency in the effective and 
efficient supervision of charitable funds. Through the intensive efforts of 
the department, more than five million dollars in dormant funds have been 
put to use; over a million dollars in inactive funds have been activated; 
and the rights of the public in the more than five billion dollars devoted to 
charitable purposes in the Commonwealth have been protected and those 
found to be mishandling such funds have been promptly dealt with. 

Town By-Laws. 

Approximately six hundred and fifty by-laws were submitted to this 
office by over two hundred towns for action under the provisions of G. L. 
c. 40, § 32. Relatively few were disapproved. It is interesting to note that 
zoning by-laws now constitute the bulk of those submitted. This neces- 
sarily requires an examination of each by-law in order that we may de- 
termine if the adoption complied with the provisions of the zoning enabling 
act, G. L. c. 40A. Almost without exception the few disapprovals of 
zoning by-laws are occasioned because of failure of the planning board to 
give proper notice of their hearing on the proposed changes. 

General Laws c. 40 A, § 6, as amended in the 1959 session of the General 
Court, requires two public notices, the first being not less than twenty-one 
days before the day of the planning board hearing. For some reason this 
provision is often overlooked and the notice is defective either because the 
twenty-one days required was not complied with or only one such notice 
was published. When that is the case this office is constrained to dis- 
approve. 

The municipal division has continued to successfully expedite the 
processing of these bj^-laws when submitted. 

Prudential Center. 
Early in 1960 it was brought to my attention that the Prudential In- 
surance Company was definitely considering abandoning its projected, 
and in fact then rather substantially already initiated, development in 
Boston's Back Bay. The contemplated project envisioned a planned de- 
velopment of some thirty acres in the heart of the Back Bay with build- 
ings of such design and with such surrounding areas as to benefit not only 
the immediate area but the whole city. The construction of the buildings 
planned to be erected involved the employment of thousands of local 
skilled and unskilled workmen as well as purchases of goods and services 
in Massachusetts totalling millions of dollars. In addition, the completed 
project was to include buildings for housing a regional office of the Pru- 



20 P.D. 12. 

dential Insurance Company in which thousands of office workers would be 
employed. 

The abandonment of such a project would have been a major tragedy 
not only to Boston but to the Commonwealth, and I determined to do 
everything in my power to avert such a tragedy and to bring the project 
with its benefits to fruition. I arranged for meetings at my office at the 
State House with representatives of the Company, members of my staff, 
State legislative and State and city executive officials to consider possible 
solutions to make the way clear for the company to go on with the project. 
After much thought and work by my staff, the company representatives 
and the legislative and executive officials, a plan was prepared and, with 
the assistance of the leaders and members of the Legislature and the Gov- 
ernor, was presented to the Legislature, and by the Legislature to the 
Supreme Judicial Court. The court in an opinion which was one not only 
of great legal learning but, more than that, was of great judicial statesman- 
ship, went into the whole problem and outlined a course of acceptable pro- 
cedure which could be followed so that the Prudential's Back Bay develop- 
ment could be carried on to completion. 

The newspapers, civic and business leaders and company officials were 
most generous in according to me a large measure of credit for initiating 
the measures taken to save the huge project for Boston. While I cer- 
tainly did everything I possibly could as Attorney General, as an elected 
constitutional officer of the Commonwealth and as a citizen to save the 
project, I would like to make it clear that final success was due to the 
co-operation of all the officials concerned, and the measures initiated could 
not have succeeded had it not been for the whole-hearted efforts of the 
President of the Senate, the Speaker of the House, the members of the 
House and Senate, the Governor, Mayor of Boston and Supreme Judicial 
Court. 

Senatorial and Councillor Redistricting Test Cases. 

Proceedings seeking to set aside the redistricting of senatorial and 
councillor districts, adopted by the Legislature by chapter 432 of the 
Acts of 19G0, were brought in the Supreme Judicial Court. The Attorney 
General answered alleging the validity of the redistricting and made ar- 
rangements to have agreements entered into as to the material facts and 
to have the cases reported to the Supreme Judicial Court for the Com- 
monwealth. That court sustained the validity of the legislation on all 
points. Lamson v. Secretary of the Commonwealth, 341 Mass. 264. 

After the decision of the Supreme Judicial Court and before the State 
election, the Attorney General co-operated with the city officials of Newton 
in having a statute enacted to solve a problem the election officials of that 
city were facing in conducting the State election because of the fact that 
parts of three of the city's new voting precincts were in different districts 
for electing representatives than the other parts of the precincts. Under 
the legislation enacted each of these areas was made a separate precinct 
and the city officials were enabled to conduct the election without any 
difficulty. (See St. 1960, c. 587.) 



P.D. 12. 21 



Mount Geeylgck State Resf.rvation and Tramway Authority. 

The Legislature by St. 1959, c. 608, legislated with reference to the Mount 
Grejdock State Reservation and also amended the provisions of the Mount 
Greylock Tramway Authority Act to provide for a guarantee by the Com- 
monwealth of the payment of interest on the bonds of the Authority and 
for borrowings by the Commonwealth to raise funds to make payments 
under the guarantee. 

A petition for a referendum on the act was filed, which was found to be 
defective in form and in proceedings brought seeking to sustain the validity 
of the referendum petition the Supreme Judicial Court for the Common- 
wealth ruled that the petition was not in proper form in that the circulator's 
affidavit required by G. L. c. 53, § 22B, did not appear thereon. Newman v. 
Secretary of the Commonwealth, 339 Mass. 749. 

A petition for a declaratory judgment was also brought seeking to in- 
validate the 1959 act on the ground that it authorized the borrowing of 
money by the Commonwealth but had not been enacted in the manner re- 
quired by the Constitution. In defending the proceedings it was pointed 
out that the act did more than authorize the borrowing of money, it also 
legislated with regard to the Mount Greylock State Reservation and pro- 
vided that the Commonwealth guaranteed the payment of interest on the 
bonds of the Tramway Authority, and it was argued that those provisions 
were separable and were validly enacted even if the borrowing provisions 
had not been properly enacted. The Supreme Judicial Court for the Com- 
monwealth did not hold the entire act to be invalid. The court held only 
that the borrowing provisions had not been properly enacted. Singleton v. 
Treasurer & Receiver General, 340 Mass. 646. 



Division of Employment Security. 

During the fiscal year a total of 499 cases required the attention of the 
Assistant Attorneys General assigned to the division. Employers who 
failed to pay their employment security taxes accounted for 397 of these 
cases. Ninety-eight cases involved fraud on the part of claimants who 
collected unemployment benefits illegally, and four cases were entered in 
the Supreme Judicial Court on appeal from decisions rendered by the 
Board of Review in the agency. 

With respect to employers who were delinquent in making payment of 
taxes, before proceeding with criminal action numerous letters were sent 
and repeated warnings given. After all methods had been exhausted and 
every opportunity given, and the employers still neglected to make pay- 
ment, it then became necessary to enforce payment through an active pro- 
gram conducted under the provisions of G. L. c. 151A, § 47. This involved 
the issuance of 341 criminal complaints against forty -four employers. Find- 
ings of guilty were entered against the employers; and the court imposed 
jail sentences or ordered the defendants to make full payment of the taxes 
owed. This program resulted in substantial sums of money being obtained 
for the Commonwealth which could not otherwise have been recovered. 



22 P.D. 12. 

Of the four cases in the Supreme Judicial Court, decisions were handed 
down by the court in favor of the Commonwealth in the following cases: 

1. Western Electric Co., Inc. v. Director of the Division of Employment 
Security. 340 Mass. 190. 

2. Francis H. Conley v. Director of the Division of Employment Security, 

340 Mass. 315. 

3. Frank A. Meyers v. Director of the Division of Employment Security, 

341 Mass. 79. 

One case is still pending. 

A total of 175 cases of all types was disposed of during the year, and as of 
June 30, 19G0, the inventory of cases numbered 324. The sum of $104,- 
839.34 was collected during the year; of this amount, $99,940.34 was paid 
by delinquent employers, and $4,899 was recovered on unemployment 
benefits collected fraudulently. 



Contributory Retirement Appeal Board. 

Under the provisions of G. L. c. 32, § 16, an Assistant Attorney General 
is designated by me to sit with a designee of the Commissioner of Corpora- 
tions and Taxation and a designee of the Commissioner of Insurance. The 
board, thus formed, has the important obligation of adjudicating appeals 
by the members of the various contributory retirement systems from de- 
cisions of local retirement boards. The board meets once each week to hear 
appeals, the greater portion of which deal with applications concerning 
either accidental disability benefits or accidental death benefits. Since, 
even now, legal precedents are sparse in this field, a great burden is placed 
upon the members to weigh the evidence carefully and deal fairly with the 
parties. 

Much time is devoted to hearing the appeals and for arriving at decisions 
which will withstand legal attack. The importance and difficulty of the 
cases justify setting up a more formal board, with administrative and 
clerical help, permanent quarters and personnel. 

Approximately forty appeals were heard during this period. During the 
year cases involving three legal principles as to retirement ruled on by the 
board were decided by the Supreme Judicial Court for the Commonwealth, 
the views of the board being sustained except as to one of them. 

The citizens of the Commonwealth underwrite the various public re- 
tirement systems and this fact is kept in mind in all deliberations of the 
board. 

Insurance Matters. 

Following a complaint by the Commissioner of Insurance, and after 
joint investigation by my office and the Division of Insurance concerning 
the financial affairs of a foreign insurance company licensed to write motor 
vehicle liability policies and bonds in the Commonwealth, I determined 
that the best interests of the policyholders of the company required im- 
mediate action. Accordingly, T filed a bill in equity in the Superior Court 
against the American Fidelity & Casualty Co., Inc., a corporation or- 



P.D. 12. 23 

ganized under the laws of Virginia, and trusteed all its funds in the Com- 
monwealth. This action was necessary to prevent the company from 
withdrawing its assets and leaving policyholders and claimants unpro- 
tected. Subsequent to the institution of suit, many conferences were held 
by this office and the Commissioner of Insurance with representatives and 
attorneys of the company with a view to resolving the difficulties and pro- 
tecting the rights of policyholders and claimants. My position was that 
Massachusetts policyholders and claimants must be given the utmost 
protection. Receivership was to be avoided, if at all possible, because it 
would leave Massachusetts policyholders of the company without effective 
coverage for the balance of the policy year after they had paid their full 
premiums, and would require them to obtain new policies for the balance 
of the calendar year 1959 at long-term rates. 

With the active co-operation of the Insurance Commissioner, 1 finally 
suggested and worked out the following plan. American Fidelity funds 
which had been trusteed were put under the effective control of trustees 
and were to remain under such control until April 1, 1960, or until such 
time as the company could solve its financial difficulties. In addition, I 
insisted that American Fidelity continue to process and pay claims in the 
normal course of business, using funds outside the Commonwealth. The 
trusteed funds were not permitted to be used for the payment of Massa- 
chusetts claims. Subsequently, the company straightened out its financial 
difficulties and the bill in equity was not further pursued. This solution 
gave full protection to all claimants and policyholders of the company in 
the Commonwealth. 

On March 2, 1960, the Supreme Judicial Court decided Liberty Mutual 
Fire Insiirance Co. v. Commissioner of Insurance, 340 Mass. 413. The 
litigation involved the interpretation of the word "deviation" as contained 
in G. L. c. 174 A, known as the fire, marine and inland marine rate regu- 
latory law. The court decided that the word "deviation," as employed in 
the statute, was synonymous with "variation" and ordered the Commis- 
sioner of Insurance to hold further hearings on the application of Liberty 
Mutual for a deviation from certain windstorm insm-ance rates, rules and 
schedules filed by the New England Fire Insurance Rating Association. 
The effect of the decision is that an insurance company which is a sub- 
scriber to a fire rating organization can now avail itself of the uniform rates 
filed by the rating organization and at the same time seek a deviation from 
the same uniform rates, putting it in the position of offering two rates for 
the same kind of coverage. 

This was a case of first impression in the United States, construing the 
meaning of the word "deviation," although chapter 174A, the fire rate 
regulatory law, so called, is a uniform law in effect in a number of States. 

Land Title Cases. 

The Attorney General's office is charged with the duty of protecting 
the rights of the Commonwealth in the lands owned by the Commonwealth 
and in lands owned by private individuals where public rights are con- 
cerned. 



24 P.D. 12. 

This includes the protection of pubhc rights in the great ponds and in 
the tidewaters of the Commonwealth. An Assistant Attorney General 
sits in on all hearings of petitions pertaining to the establishment of access 
to great ponds. 

During the year 185 Land Court cases were processed. 

In all cases where land has been taken in eminent domain proceedings 
and a settlement is made to the owner of the land because of such taking, 
the title abstract is reviewed to make certain that the individual who re- 
ceives the payment is the rightful owner, that he is entitled to the dam- 
ages awarded, and that all outstanding encumbrances, municipal liens and 
inheritance taxes have been paid. 

During the current fiscal year approximately 800 eminent domain case 
agreements were processed. 

In addition to the above, all deeds conveying title to land owned by 
the Commonwealth and all deeds, leases and easements conveying prop- 
erty and property rights to the Commonwealth were checked as to form 
and title. 

Tort Cases. 

Under G. L. c. 12, § 3B, the Attorney General defends State employees 
operating State-owned motor vehicles in the course of their employment. 
The Attorney General may adjust or settle any such action at any time 
— before, during or after trial — in an amount not greater than $10,000 
on account of injury to or death of one person, and not exceeding $5,000 
on account of damage to property. It may be noted here that the annual 
expenditure for these claims approximates $90,000. There are approxi- 
mately 4,000 State-owned motor vehicles in operation at the present time. 

The Attorney General, in addition to the motor tort cases, defends the 
Commonwealth in the matter of highway defects (c. 81, § 18). 



Workmen's Compens.\tion Division. 

During the year the Workmen's Compensation Division received (3,124 
First Reports of Injury. This resulted in 810 agreements for compensa- 
tion being submitted for approval. Seven hundred and eighty-eight 
agreements were approved for payment and twenty-two were held for 
further investigation, further medical reports, etc. 

Payments made by the Commonwealth to injured employees totaled as 
follows : 

For Compensation $778,597.09 

Medical Payments to Doctors 149,263.37 

Hospital Payments 147,108.55 

$1,074,969.01 

Under G. L. c. 152, § 65, this office collected $5,850 in non-dependent 
death cases. The balance on hand at the beginning of the fi^^cal year in 
the special fund under said section was $46,696.23, making the total amount 



P.D. 12. 25 

of funds available !$52,o4:6.23. Payments out of this fund on insurer's 
petitions brought under G. L. c. 152, § 37, for fifty per cent reimbursement 
of payments for further disability resulting from a subsequent injury 
totaled $31,676.83, leaving a balance on hand at the end of the fiscal year 
of $20,969.40. 

Under G. L. c. 152, § 65N, requiring payments into a special fund in all 
death cases, this office collected $80,275 during the year. The balance on 
hand in the fund at the beginning of the fiscal year was $365,938.52, mak- 
ing the total amount of funds available $446,213.52. Payments out of this 
fund on insurer's petitions brought under G. L. c. 152, § 37A, for partial 
reimbur!«ement for payments made to disabled war veterans receiving in- 
juries totaled $72,629.52 leaving a balance on hand of $373,584. 

The Workmen's Compensation Division of the Attorney General's office 
represented the Commonwealth on 297 hearings and conferences before 
the Industrial Accident Board involving State employees' cases, hearings 
and conferences on §§ 65 and 65N cases involving insurers, and on peti- 
tions luider §§ 37 and 37 A brought by insurers. 

Veterans. 

The volume of business handled by the Veterans' Division increased 
slightly over the previous year. The division is staffed with personnel 
especially equipped to handle every conceivable type of legal problem in- 
volving or affecting veterans and their dependents. The division continues 
to function efficiently in furnishing legal advice to thousands of veterans 
who appear in person or write the office of the Attorney General. 

The volume of veterans' legislation and the countless amendments 
thereto are often confusing not only to veterans but to public officials 
who deal with veterans and their rights. Many times a telephone call may 
be sufficient to clear up any confusion that exists. More often, a personal 
interview is required to elicit all the pertinent facts on which sensible and 
proper legal advice can be based. 

T have directed the personnel of the division to give special attention 
and extra prompt service to disabled and hospitalized veterans who are 
limited to making written inquiry regarding their problems. This attention 
and service is also furnished to members of the armed forces of the United 
States who are on active duty. 

Overall, the tempo of the Veterans' Division is geared to quick and effi- 
cient service. In many cases, the veteran or his dependents come to the 
office at the last minute; sometimes they come too late, having wasted 
valuable time in exhausting all other remedies and services. We urge 
veterans' organizations and public officials to advertise the services offered 
by the division. We are available to help and advise veterans and their 
dependents as to legal problems. We can best fulfill our function if they 
come to us before it is too late. 

The work load of the division shows that it continues to serve an indis- 
pensable function. 



$84,442.98 


19,185.42 


5,461.42 


2,516.57 


326.17 


13.50 


277.85 


184.35 


153.13 


65.50 


43.46 


441.98 


241.32 


76.10 


9.40 


$113,439.15 



26 P.D. 12. 



Collections. 

Collections for the year totalled $113,439.15. Listed below is a break- 
down for each department: 

Mental Health 63 

Public Works 141 

Metropolitan District Commission 28 

Public Health 12 

Natural Resources 8 

Agriculture 1 

Education 12 

Labor and Industry 1 

Public Safety 1 

Public Welfare 2 

Treasury Department 4 

Correction 2 

Massachusetts Port Authority 1 

Registry of Motor Vehicles 1 

Youth Service Board 1 

278 

Springfield Office. 

The Springfield office of the Department of the Attorney General, lo- 
cated at 95 State Street, Springfield, Hampden County, Massachusetts, 
is staffed by a secretary, two assistants and one State police officer. 

A member of the Springfield staff covered all hearings conducted in 
Springfield by the Motor Vehicles Lisurance Appeal Board. The Spring- 
field hearings cover all appeals in the four Western counties. 

The Springfield staff handled, either by trial or settlement, all eminent 
domain cases arising in the four Western counties. 

Hearings before the Workmen's Compensation Board were covered by 
a member of the Springfield staff, as they were assigned to it by the Boston 
office. 

Contract actions or suits in equity that were brought against the Com- 
monwealth or its various agencies were either defended by a member of 
the Springfield staff, or in a number of cases, were presented in behalf of 
the Commonwealth, by a member of the Springfield staff. 

Actions were brought by this office to recover funds for the Department 
of Mental Health, the Department of Agriculture, and any other agencies 
requesting this service. 

The Springfield ofhce worked in conjunction with the district attorneys 
in the four Western counties of Massachusetts on various criminal matters, 
and also rendered service to various city solicitors and town counsels, with 
respect to legal rulings requested by said persons. All criminal investiga- 
tions arising in the four Western counties were handled by the State police 
officer assigned to the Springfield staff. 

Many citizens and officials of the Western communities requesting vari- 



P.D. 12. 27 

ous services were interviewed and assisted, and if the matters in which 
they were interested could not be completely handled by the staff of the 
Attorney General's Springfield office they were channeled to other agencies 
of the Commonwealth. 

Worcester Area. 

During the year the Assistant Attorney General and Legal Assistant 
assigned to handle Worcester County matters devoted much of their time 
and efforts to the preparation and disposition of eminent domain cases. 
Along with these activities the two assistants dealt with motor tort cases, 
workmen's compensation cases and all other Worcester County matters in 
which the Attorney General's office became involved. The Assistant At- 
torney General attended all hearings of the Motor Vehicles Insurance Ap- 
peal Board held in Worcester. 

Although, as in previous years, no official office was set up in Worcester, 
the members of the bar, the courts, and the public became increasingly 
aware that the two assistants assigned to the area were readily available to 
serve them. Their availability and familiarity with Worcester's problems 
made more manageable the handling of cases and problems which the 
members of the bar and public had in their relations with the office of the 
Attorney General in Boston. 

Conclusion. 

It has been a privilege and an honor to serve the Commonwealth and 
its people in the high office of Attorney General, and I wish to express my 
appreciation to the Governor, the Legislature, and other vState officials for 
their co-operation, and to the Assistant Attorneys General and the other 
members of the staff for their faithful and efficient services and assistance 
during the year. 

Respectfully submitted, 

EDWARD J. McCORMACK, Jr., 

Attorney General. 



OPINIONS. 



The rules of the Board of Boiler Rules as to boilers in atomic energy installations 
must, under G. L. c. 6, § 89, be subrnitted to the Co-ordinator of Atomic 
Energy, thirty days prior to their effective date. 

July 1, 1959. 

Hon. Raymond I. Rigney, Chairman, Commission on Atomic Energy. 

Dear Sir : — You have requested my opinion concerning the effective 
date of rules promulgated for the construction, installation and inspec- 
tion of steam boilers as used in atomic energy installations and authorized 
under G. L. c. 14G, § 2, as amended by St. 1958, c. 525. It is the opinion 
of this department that the effectiveness of any such rule promulgated 
under this section must be postponed for the thirty-day period provided 
in G. L. c. 6, § 89. 

The latter statute sets forth the power and duties of the Co-ordinator of 
the Massachusetts Commission on Atomic Energy and provides that all 
regulations pertaining specifically to atomic energy matters which are 
proposed by any department or agency of the Conmionwealth must be 
submitted to the Co-ordinator, and cannot become effective until thirty- 
days after such submission. 

There is no patent or latent conflict between the provisions of St. 1958, 
c. 525, and G. L. c. 6, § 89, because as a matter of practical administra- 
tion, the terms of each statute can be harmoniously reconciled so as to 
give effective operation to both. All that is required is that any rule 
promulgated by the Board of Boiler Rules under St. 1958, c. 525, be sub- 
mitted first to the Co-ordinator of Atomic Energy for the thirty-day 
period required by c. 6, § 89, prior to its transmittal to the Commissioner 
of Public Safety for filing in the office of the State Secretary. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



Rights of members of the Board of Registration of Hairdressers to work at 
hairdressing while serving thereon. 

July 9, 1959. 

Miss Gladys L. Garofano, Chairman, Board of Registration of Hairdressers. 

Dear Madam : — The Board of Registration of Hairdressers has re- 
quested an opinion as follows: 

"We are herewith requesting your written opinion on the rights of a 
person working at hairdressing while serving on a statutory appointment 
as one of the members of the Board under Section 42, Chapter 13, of the 
General Laws under Section 1 of Chapter 428 of the Acts of 1935." 

General Laws c. 13, § 42, authorizes His Excellency the Governor to 
appoint, with the advice and consent of the Council, a Board of Regis- 



30 P.D. 12. 

tration of Hairdressers consisting of three members, each of whom shall 
be a practical hairdresser with at least three years' practical experience 
as such. The General Court goes on to provide in that section that at 
least two members of the board shall be independent hairdressers oper- 
ating their own establishments, but such members shall not, 

"while in office, actually do the work of hairdressing for compensation. 
No two members of the board, while in office, shall be in any way inter- 
ested in any hairdressing establishments in the same town, nor shall any 
member, while in office, be a teacher at, or have any financial interest in, 
any school giving courses of instruction in hairdressing or manicur- 
ing. . . ." (Emphasis supplied.) 

Section 44 of c. 13 provides that the members of the board shall devote 
their full time to the duties of the offices, and further fixes the salaries of 
the members. 

You will note that the legislative requirements are that two members, 
at least, of the board shall be independent hairdressers operating their own 
establishments, and further provides that such members shall not, while 
in office, actually do the work of hairdressing for compensation. It is sig- 
nificant that the General Court has placed no such limitation on the third 
member of the board, who is not required to be an independent hairdresser 
operating his own establishment. Since the Legislature in its wisdom has 
not prohibited a member of the board who is not an independent hair- 
dresser operating his own establishment from actually doing the work of 
hairdressing for compensation, it is not within the province of this office 
to insert such a qualification. You do not state in your letter whether the 
board member in whose status you are interested is one of the independent 
hairdressers on the board or not. Be that as it may, the legislative intent 
is clear. The independent hairdressers on the board who operate their own 
establishments "shall not, while in office, actually do the work of hair- 
dressing for compensation." There is no such limitation as to the third 
member of the board. 

The only qualification upon all of the members is found in § 41, which 
provides that "the members of the board shall devote their full time to the 
duties of their offices ..." " Full time," of course, does not mean twenty- 
four hours a day. It means, in my opinion, the regular working hours 
during which the offices of your board are kept open. Nothing more. 
General Laws c. 30, § 24, describes in some detail the office hours of the 
various departments of the State Government. General Laws c. 149, 
§ 30A, in much detail, sets forth the ordinary working hours of State 
employees. I find nothing in § 42 which prohibits a non-operator board 
member, if he is industrious enough to do so and desirous of earning an 
honest dollar to support himself and his family, from working at his 
profession in off hours, provided his v*'ork does not interfere with the 
performance by him of his obligations to the Commonwealth. Expressio 
unius est exclusio alterius. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



P.D. 12. 31 

A certain letter of a retired veteran was not to be considered an appeal; so con- 
sidered it was not authorized; the veteran should not be given credit for 
certain military service. 

July 28, 1959. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir : — You have posed the following questions concerning the 
retirement of Leo M. Harlow. 

1. Does the letter dated May 7, 1957, from Mr. Harlow to the Governor 
constitute an appeal under the provisions of c. 32 of the General Laws, 
as amended? 

2. If such letter does constitute an appeal, was the appeal reasonable 
under the statute? 

3. Should Mr. Harlow be given credit for seven years of military service? 

I observe that your first and second queries relate to the validity of the 
so-called appeal letter dated May 7, 1957. The papers you have forwarded 
with your letter reveal a somewhat unusual situation. From them it 
appears that Mr. Harlow's original application for retirement was for a 
veteran's allowance under the provisions of G. L. c. 32, § 58, which pro- 
vide for a retirement allowance after a total period of service of thirty years. 
However, under date of March 20, 1957, the then Commissioner of Ad- 
ministration forwarded to His Excellency the Governor ''application for 
the retirement of Leo M. Harlow . . . under the provisions of § 57 of 
c. 32 of the General Laws as amended." In his letter dated May 7, 1957, 
from Mr. Harlow to His Excellency, he stated that "as of February 28, 
1957, I was retired for superannuation with retirement pay for disability 
in accordance with General Laws, chapter 32, section 57. . . ." 

There is no requirement of disability under § 58. Thirty years' serv- 
ice is the principal requirement. There is a requirement of incapacity 
and only ten years' service for retirement under § 57. In the letter of 
May 7, Mr. Harlow sets forth the basis for his claim, and requests "that 
additional retirement credit should be given for military service in excess 
of seven j'^ears in the Army of the United States ..." with an increase 
of his retirement allowance accordingly. 

Your first two questions relate to the letter of May 7. It does not pur- 
port to be a formal appeal from the action of the Acting Governor, to the 
Governor, but is more in the nature of a request for reconsideration and 
review. If it was to be considered as an appeal or attempted appeal, I am 
aware of no provision authorizing or justifying it. If Mr. Harlow was 
retired under § 57, as appears to be the case, he might have taken an ap- 
peal ■ — but not to the Governor. 

By the provisions of G. L. c. 32, § 57A, the General Court has expressly 
provided an appeal from the Governor's decision under the provisions of 
G. L. c. 32, § 16 (4), within fifteen days to the Contributory Retirement 
Appeal Board. 

The decision in this matter was made over two years ago. In the light 
of the foregoing, I answer your questions 1 and 2 in the negative. Insofar 
as it is a question of law, I am also constrained in the light of the foregoing 
to answer your third question in the negative. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 
By Fred W. Fisher, Assistant Attorney General. 



32 P.D. 12. 



The Attorney General does not render opinions on hypothetical questions. 
Views expressed that a section of the General Appropriation Bill for 1959 
(St. 1959, c. 4S3, § 19) would restrict transfers between subsidiary ac- 
counts to those necessary to m.eet ^'unforeseen emergencies.^^ ''Emer- 
gency^^; "unforeseen emergency,'^ etc. discussed. 

July 28, 1959. 

Mr. Kermit C. Morrissey, Budget Commissioner. 

Dear Sir: — You have called my attention to the budget bill (St. 1959, 
c. 433) which is currently pending before the Massachusetts Senate, and 
you ask my interpretation of a new proposed § 19 recently adopted by 
the Senate. Section 19 reads as follows: — 

"Notwithstanding the provisions of section twenty-nine of chapter 
twenty-nine of the General Laws, the budget commissioner is hereby 
directed to limit the transfer of funds between subsidiary accounts, es- 
tablished as provided in section twenty-seven of said chapter twenty- 
nine, to those transfers required to meet unforeseen emergencies where 
funds other\\ise are not available to protect the public interest. The 
budget commissioner shall file forthwith, on the approval of any such 
transfer, a copy of the authorization with the House and Senate com- 
mittees on Ways and Means." 

You have asked to be advised as to the limits on the power to transfer 
funds between subsidiary accounts within the meaning of the foregoing 
language. 

I must state to you in the first instance that the proposed § 19 as 
adopted by the Senate does not as yet have the force of law. Between now 
and the time that the budget bill is enacted into law the proposed section 
may be altered in its terms or may be dropped entirely from the budget bill. 
Under these circumstances, it would appear that your question is based 
upon the hypothesis that the above-quoted section will be enacted into law. 

As you are aware, the office of the Attorney General does not render 
opinions on hypothetical questions. 

In order to be of some assistance to you, however, I may state that the 
proposed section, if enacted into law, would impose further limitations on 
the right to transfer funds between subsidiary accounts beyond the restric- 
tions which are currently imposed by G. L. c. 29, § 29. 

Under the present law the budget commissioner may approve a transfer 
of funds from one subsidiary account to another, provided that any pro- 
posed expenditure is in accordance with the appropriation made by the 
General Court, and provided further that the expenditure would not ex- 
ceed the unencumbered balances which may be available. 

The new proposed § 19 would add one additional requirement, i.e., 
it would require that the transfer be necessary to meet "unforeseen 
emergencies." Whether this additional limitation would apply to all 
transfers in subsidiary accounts or whether it would apply only to the 
amounts which were appropriated by the present budget bill is a matter 
which cannot be answered imtil the full budget bill as enacted into law is 
available for examination. 

An "emergency," however, as the word is used in the phrase "unfore- 
seen emergency" in the proposed section is susceptible to legal definition. 



P.D. 12. 33 

Obviously, in the context in which the phrase is used in the proposed legis- 
lation, it is contemplated that transfers between subsidiary accounts shall 
be permissible only upon the occasion of "a sudden unexpected happening; 
an unforeseen occurrence or condition; specifically, perplexing contin- 
gency or complication of circumstances; a sudden or unexpected occasion 
for action; exigency; pressing necessity." (Black's Law Dictionary, 
4th Ed., p. 615.) On the basis of such definition, it would appear that, 
negatively, the legislative intent in using the phrase is to prohibit any 
transfer of funds the need for which can be reasonably anticipated in the 
budget or within the appropriation limits. In this connotation, the word 
"unforeseen," as modifying the word "emergency," clearly means an 
unanticipated set of circumstances. Consequently, if the reason or neces- 
sity for a future transfer can be envisaged, or if past or customary practice 
would dictate the possibility of its future necessitj^ then it would seem 
that the legislative intent would be to forbid it. 

It further appears that another restriction intended by the proposed 
section is that one of the criteria justifying a transfer is that it be necessary 
"to protect the public interest." 

The question of whether an "unforeseen emergency" exists or not at a 
given time is a question of fact to be determined by the officials called 
upon to make the transfer in question. This office is not in a position to 
make anticipatory determinations of fact. In making such determination 
of an emergency it is presumed that the public officials in carrying out their 
duties will have acted properly. This office ordinarily will accept such 
determinations of fact as have been made by public officials so acting. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



What is an "unforeseen emergency" justifying a transfer between subsidiary 
accou7its, binder St. 1959, c. 438, ^19, is a question of fact for final decision 
by the Bridget Commissioner on the facts reported to him. 

Aug. 11, 1959. 

Mr. Kermit C. Morrissey, Budget Commissioner, Administration and 

Finance. 
Dear Sir : — You have called to our attention the Appropriation Act 
for the current year embodied in St. 1959, c. 433, with particular refer- 
ence to § 19 thereof. Said § 19 limits the transfer of funds between sub- 
sidiary accounts to those transfers required to meet unforeseen emer- 
gencies. In connection therewith you state that an employee of the Board 
of Retirement has been temporarily reallocated, requiring that he be paid 
from the so-called "02" account. There are not sufficient funds in this 
account at the present time to make the payment required. The Board 
of Retirement has requested that you approve a transfer of $1,044 from 
the "01" account to the "02" account in order to make sufficient funds 
available. You state that the individual in question was employed prior 
to the adoption of § 19 referred to above, and you ask whether or not 
this request for transfer constitutes an unforeseen emergency. 



34 P.D. 12. 

In a recent letter to you, dated July 28, 1959, the Attorney General dis- 
cussed the scope of said § 19 and pointed out to you that the question of 
whether an unforeseen emergency exists or not is a cjuestion of fact to be 
determined by the officials called upon to make the transfer in question. 
In the present case it would appear that the Board of Retirement should 
first determine this question. If the Board finds there is an unforeseen 
emergency, then the whole matter would be referred to you as Budget 
Commissioner for such approval as may be required under § 19. 

This office is not in possession of facts which will enable us to make the 
determination for you. We do not know why the employee was reallocated. 
We do not know what the effect would be if he were transferred back to his 
regular position. We cannot tell whether the emergency to which you 
ief(M- is an emergency for the particular employee or whether it is an emer- 
g(^ncy affecting the public interest. These and many other similar ques- 
tions are questions of fact to be determined by the proper officials as set 
forth in the aforementioned letter of July 28. We are attaching herewith 
a copy of the aforementioned letter of the Attorney General which appears 
to be self-explanatory. 

Very truly yours, 

Edwakd J. McCoRMACK, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



A civil service employee granted a leavi of absence subject to his recall who, after 
having been recalled, does not take np his employment is to be deemed to 
have resigned and an appointment to the position on a permanent basis 
may be made. 

Aug. 13, 1959. 

Hon. Stephen E. McCloskey, Chairman, Labor Relations Commission. 

Deak Sir : — You have requested an opinion as to the effect of the 
termination by your commission of a leave of absence granted to an em- 
ployee of the commission under certain circumstances stated -by you. 

It appears from the statements made in your letter that a person em- 
ployed by the commission under a permanent appointment as assistant 
attorney who was given an extension, until June 9, 1959, of a leave of 
absence previously granted to him on the condition that he would return 
to service if recalled by the commission, was so recalled by a letter de- 
hvered to him in hand on February 25, 1959, requesting him to return to 
service with the commission within one week from the date of the letter. 
The employee in question did not return to service with the commission 
as requested, and on April 6, 1959, he was notified by letter by the com- 
mission that it considered his services to have terminated on the basis of 
his failure to report for his official duties. The employee never replied to 
the letter of April 6, 1959. On the same day, April G, 1959, a copy of the 
letter to the employee was sent to the Director of Civil Service, and about 
the same time the commission sought to make a permanent appointment 



P.D. 12. 35 

to the position of assistant attorney, but the requisition therefor was held 
up as a result of the administration's "no hire, no fire, poHcy." The 
Director of Personnel and Standardization did approve a temporary ap- 
pointment for the purpose of "filling the vacancy" of the employee in 
question. 

Despite the fact that, as stated, the employee did not return to service 
within one week of the request of the commission by its letter of February 
25, 1959, and did not reply to its letter of April 6, 1959, that it considered 
his services to have terminated, in the latter part of May, 1959, the em- 
ployee in question sent a letter to the commission requesting a renewal of 
his leave of absence from June 9, 1959, to June 9, 1960. The commission 
took no action on the request. 

The question raised by the commission is whether a vacancy exists in 
the position of the employee in question so that it may be filled by per- 
manent appointment, which in turn depends upon the question also raised 
by the commission as to whether the employee is to be deemed to have 
resigned from his position. 

General Laws c. 31, § 1, defines "resignation" as a permanent volun- 
tary separation from the service. In an opinion of the Attorney General 
dated August 28, 1951 (Attorney General's Report, 1952, p. 24), it was 
held that an employee who overstayed a leave of absence had created 
"a voluntary permanent separation from the service." and had "vir- 
tually resigned within the meaning of the statute." In the opinion re- 
ferred to it was stated, "The resignation does not have to be in writing. 
A separation from the service may be determined by an oral or written 
declaration or by no declaration at all. It may be evidenced by a failure 
to return to work after a leave of absence has expired." 

In the case of Ferrante v. Higgiston, 296 Mass. 208, the respondent was a 
plumbing inspector who was given a leave of absence for six months, from 
April 1, 1935, to October 1, 1935. He did not return to service on the latter 
date, and on October 10, 1935, the petitioner was appointed as his suc- 
cessor. On October 12, 1935, the respondent notified the board of health 
that he would resume his duties on October 31, 1935. He did not do so. 
On November 7, 1935, the board of health granted the respondent an in- 
definite leave of absence not to exceed six months. On January 31, 1936, 
he notified the board of health he would resume his duties as plumbing 
inspector on February 1, 1936. After the latter date both parties claimed 
the office. It was held that if a vacancy existed on October 10, 1935, the 
petitioner was entitled to the office, and that since the respondent neither 
resumed work nor obtained a further leave of absence, until October 12, 
1935, "considerably more than six months after he ceased to perform his 
duties on April 1, 1935," he became separated from the service and the 
petitioner was properly appointed. 

The Attorney General's opinion, and the decision of the Supreme Judi- 
cial Court referred to, make it clear that a failure to return to work after 
a leave of absence has expired is, in effect, a resignation within the meaning 
of the word as used in G. L. c. 31. The leave of absence given to the em- 
ployee in question was expressly subject to termination by the commis- 
sion, and the effect of the letter of the commission of February 25, 1959, 
was to terminate the leave of absence at the expiration of one week after 
the date of that letter. 



36 P.D. 12. 

In answer to your specific inquiries, I inform you that in my opinion 
failure of the employee in ciuestion to resume the performance of the duties 
of his position upon the termination of his leave of absence by the letter of 
the commission of February 25, 1959, created a vacancy in his position, 
and an appointment, in accordance with the Civil Service Law and other 
applicable statutes, can be made to fill the vacancy on a permanent basis. 
The letter of the commission to the Director of Civil Service of April 6, 
1959, enclosing a copy of the letter of the commission to the employee of 
the same date setting forth all the pertinent facts of the situation, consti- 
tutes a notice to the director of the termination of the services of the em- 
ployee involved and the circumstances thereof. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



The Lawrence Airport Commission's authority to make leases would not 
authorize it to grant a perpetual easement, for a nominal consideration, 
to Andover of a portion of the airport therein for water wells. 

Aug. 13, 1959. 

Massachusetts Aeronautics Commission, Logan Airport. 

Gentlemen: — You have requested vay opinion relative to the Law- 
rence Airport Commission - Town of North Andover matter. 

In your letter you state that the city of Lawrence through the Lawrence 
Airport Commission owns property in the town of North Andover which is 
used for the purpose of a public airport which has been developed with 
State and Federal financial aid. You state that the town of North Andover 
desires a perpetual easement in a portion of the airport land for the purpose 
of installing w^ater wells and related equipment and pipe lines to connect 
the well field with its present distribution system, and that the commission 
is willing to grant such right for a nominal consideration. In view of this 
fact you pose the following question : 

"May the Lawrence Airport Commission grant such a perpetual ease- 
ment, or perhaps a ninety-nine year lease, for the purpose outlined, for a 
nominal consideration?" 

It is the opinion of this office that the present statutory authority 
granted to the commission does not authorize the granting of the perpetual 
easement described b}'' you. There is authority under the provisions of 
G. L. c. 90, § 5 IF, for the commission to make leases under certain condi- 
tions, but the interest which is created by a lease is different than the inter- 
est which is created under an casement. For this reason, authority to 
grant a lease is not authority to grant an easement. 

It is noted also that the provisions of § 51 H of c. 90 require that the 
commission shall make reasonable charges for the use of its properties. 



P.D. 12. 37 

Even if it were determined that your commission had a right to grant an 
easement, the granting of such easement should not be for a nominal con- 
sideration but should be based upon a reasonable charge. 
In conclusion, j^our question is answered in the negative. 
Very truly yours, 

Edw'ard J. McCoRMACK, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistmit Attorney General. 



Application of the section of the General Appropriation Act of 1959 as to ap- 
proval of rates of compensation for consultant services (St. 1959, c. 433, 
§ 20) discussed generally. 

Aug. 19, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir: — You have called to my attention § 20 of the Appropriation 
Act for the current year, which is embodied in St. 1959, c. 433, and have 
asked several questions concerning its interpretation. The section in 
question provides as follows : 

"Section 20. Except as otherwise provided in section thirteen of chap- 
ter seventy-five of the General Laws, no agency of the commonwealth re- 
ceiving an appropriation under section two of this act shall make any 
expenditure for consultant services, so called, of services coded in accord- 
ance with the expenditure code manual under the subsidiary title '03 
Services — Non-employees' unless the rate of compensation for such serv- 
ices shall have been approved by the commission on administration and 
finance upon the recommendation of the director of the division of per- 
sonnel and standardization. The said director shall, immediately upon the 
approval of any such rate or rates, file copies of the schedule or schedules of 
approved rates with the comptroller and with the House and Senate com- 
mittees on Ways and Means." 

Your questions are general in nature and for this reason any answer that 
I give to you must also be in general terms. Particular facts relating to 
any given transaction may affect the generality of the following answers : 

Subject to this limitation I advise you as follows: 

First, you ask whether the expenditure of funds for consultants or for 
non-emplo\^ee services under the "03" account are subject to the limita- 
tions set forth in § 20 of said c. 433 under circumstances where the funds 
involved are not appropriated by said c. 433 but instead have been made 
available by other specific bond issue statutes. 

I answer this question in the negative. It is clear that the provisions of 
§ 20 apply only to agencies receiving funds under the terms of that par- 
ticular act. The act does not purport to make any permanent change in 
the method of engaging consultants or in the method of making expendi- 
tures under the "03" account. The limitation applies only insofar as 



38 P.D. 12. 

funds are received by an agency under the terms of c. 433. For this reason, 
§ 20 should be interpreted as applying only to funds which ar(» appropriated 
by c. 433. It would be unreasonable to apply this very limited section 
to other appropriation acts where the Legislature has not specifically so 
required. 

Second, you ask whether the provisions of § 20 apply to the expenditure 
of funds for architects or engineers for capital outlay projects authorized 
by St. 1958, c. 650. To the extent that an}^ such expenditures are made 
from funds appropriated by c. 433, the limitation does apply — otherwise 
it does not. 

Third, you ask whether the Commissioner of Administration requires 
the prior recommendation of the Division of Personnel and Standardiza- 
tion before contracting for designer services under the provisions of G. L. 
('. 7, § 30B. The answer to this question is predicated upon the same 
principle that governed the answers to questions 1 and 2. If the com- 
mission is using funds appropriated by c. 433, the limitation of § 20 thereof 
apphes. 

Fourth, you ask whether the Commission on Administration and Finance, 
acting under the provisions of § 20, may approve consultant rates in 
amounts larger or smaller than those approved by the Director of the 
Division of Personnel and Standardization. In those instances where 
§ 20 is applicable, it is my opinion that the Commission on Administra- 
tion and Finance may not exceed the rate so approved. If the director has 
approved a specific rate relating to a particular contract, then the contract 
should be awarded in accordance with approval. If the director has ap- 
proved a general rate for a type service, then it is possible that such ap- 
proval may be interpreted as the maximum amount that may be paid for 
services in that category. The answer to this question, then, depends 
somewhat upon the nature of the approval given by the director. In 
general, the Commission on Administration and Finance may not exceed 
such rate, but under some circumstances it may be able to award con- 
tracts at a lower rate. 

Fifth, you ask whether the limitation of § 20 applies to already written 
contracts for consultant services where such services are not to be com- 
pleted prior to June 30, 1960. It is assumed that moneys were available 
for the purposes of these contracts at the time they were entered into, as 
required by the provisions of G. L. c. 29, § 26. It would appear, therefore, 
that funds other than those appropriated by the 1959 Appropriation Act 
would be used to pay for these services. For this reason the limitation of 
§ 20 would not be appUcable as previously stated. 

Sixth, you ask whether particular vouchers already presented to you arc 
subject to the limitations. I answer again that if vouchers are to be satis- 
fied imder moneys appropriated under the provisions of St. 1959, c. 433, 
the limitation is applicable — otherwise it is not. 

Seventh, you ask whether the limitation is applicable to the Legislative 
and .ludicial departments. In general, the limitation of § 20 is applicable 
to all agencies of the Commonwealth. Many of the limitations on engag- 
ing personnel which may be imposed upon the Executive branch of the 
government are not necessarily applicable to the Legislative. Likewise, 
there are certain differences in the right to hire personnel that may exist 
between the Executive and the Judicial branches. For this reason, it is 
not desirable to make a general statement as to whethc^r the limitation of 



P.D. 12. 39 

§ 20 is in all circumstances applicable to hiring by the Legislature and the 
Judiciar,y. If a particular cjuestion arises concerning the engaging of a par- 
ticular individual by either the Legislature or the Judiciary, then I will 
attempt to answer your questions predicated upon the particular facts 
presented. 

Eighth, you have asked whether the limitations of § 20 apply to Federal 
grants and to trust funds. For the reasons previously stated, the hmitation 
is not applicable to these moneys but is applicable only to funds recoi^-ed 
under the provisions of St. 1959, c. 433. 

I must caution you again that your questions are general in scope and 
do not appl}' to an 3^ particular factual situation. 
Very truly yours, 

Edward J. McCokmack, Jr., Attorney General. 



G. L. c. 94, % 14^, requiring a lieense from the Department of Public Works for 
work done in tidewaters is recognized by the Massachusetts Port Authority 
Act, but that act excepts the Authority from the requirement of a license as 
to work within the "port of Boston" but not for work outside said port. 



Aug. 20, 1959. 

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

Dear Sir: — You have recently requested an opinion relative to the 
powers of the Massachusetts Port Authority in connection with tidewaters 
of the Commonwealth, and the necessity of the Authority to obtain licenses 
for work to be done in tidewaters from the Division of Waterways of the 
Department of Public Works. 

General Laws c. 91, § 14, provides; 

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

This section of the law clearly establishes a broad power in the Depart- 
ment of Public Works to license and control structures and other work 
in tidal flats, and is exclusive to the Department of Public Works unless 
other statutory provisions are enacted by the Legislature. 

Section 5, paragraph 6, of the Massachusetts Port Authority enabling 
act, St. 1956, c. 465, as amended by St. 1958, c. 599, recognizes the au- 
thority of the Department of Public Works, acting through the Division 
of Waterways 

" . . . to excavate and dredge mooring basins for yachts and small craft, 
dredge channels, construct shore protection, remove hulks and wrecks, 



40 P.D. 12. 

issue licenses and permits for filling, dredging, l)viildiiig of structures or 
excavating within the port of Boston as defined in section one (of the act) 
'providing no such license or permits shall he rerjuired to be obtained by the 
Authority." (Emphasis supplied.) 

Section 1, subsection (i), of the Massachusetts Port Authority enabling 
act defines the terms "port properties" and "port of Boston." 

It is clear that the enabling act establishing the Port Authority pro- 
vided a limitation of the authority of the Department of Public Works with 
respect to the tidelands within the area given to the control of the Port 
Authority, at least to the extent that the Authority was not required to ob- 
tain licenses to work in tidewaters. 

Therefore, the answer to your first question is in the negative and the 
Port Authority is not required to secure a license from the Division of 
Waterways for work in tidewaters within the port of Boston, as defined 
in section 1 of the enabling act. 

In answer to your second question as to whether or not the Massachusetts 
Port Authority is required to secure a license or permit from the Division 
of Waterways for work in tidewaters outside the limits of the port of 
Boston, as defined in section 1 of the enabling act, the answer is in the 
affirmative. The broad power of the Department of Public Works acting 
through the Division of Waterways is limited only by the express language 
of the enabling act and is strictly confined to the port of Boston as defined 
by § 1, subsection (i), of the act. 

Ver3^ truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Charles E. Frazier, Jr., 

Assistant Attorney General. 



A corporation is eligible as a bidder, or sub-bidder, for plumbing work on State 
building construction projects, but the plumbing work involved must he 
done by licensed plumbers. 

Aug. 27, 1959. 

Mr. Hall Nichols, Director, Division of Building Construction. 

Dear Sir : — You have requested my opinion in connection with the 
award of a contract for the construction of a building at the University of 
Massachusetts. You state that a sub-bid for plumbing work has been 
filed by the Mutual Plumbing and Heating Company of Amherst, and that 
said company is a corporation. A protest against this sub-bidder has 
been filed by another sub-bidder, alleging that work of a master plumber 
cannot be performed by a corporation. In view of this protest, you ask 
whether or not a corporation may be an eligible bidder or sub-bidder on 
State building construction projects for plumbing work. 

I answer your question in the affirmative. It is correct that the work of a 
master plumber may not be performed by a corporation {Attorney General 
V. Union Plumbing Co., Inc., 301 Mass. 86, [1938]). The aforementioned 
case, at page 89, recognizes, however, that a corporation may enter into a 



P.D. 12. 41 

contract for the performance of such plumbing work, provided, that the 
corporation contracts with a registei'ed or hcensed plumber to perform the 
work and does not itself enter into the business of a master plumber. 

Subject to the hmitations that the work must actually be done by a 
master plumber, there is no prohibition against a corporation entering 
into a contract for such work. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Notes given by the State Treasurer under G. L. c. 29, § 47, for borrowings in 
anticipation of receipts must, under G. L. c. 29, § 48, be approved by the 
Governor and, countersigned by the Comptroller. 

Aug. 31, 1959. 

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

Dear Sir : — You state that as Treasurer, you contemplate borrowing 
the sum of $20,000,000 on behalf of the Commonwealth in anticipation of 
receipts, as provided by G. L. c. 29, § 47. You also state that notes are to 
be issued for this sum, and you ask whether it is mandatory for the Gover- 
nor to sign said notes and for the Comptroller to countersign the same. 

Your attention is called to G. L. c. 29, § 48, which provides as follows: 

''Notes for money borrowed in anticipation of the receipts shall be 
signed by the state treasurer, approved by the governor, and counter- 
signed by the comptroller." 

From the foregoing statute it is clear that a note issued under § 47 and 
signed by the Treasurer alone would not be vahdly issued. Section 48 
makes it mandatory that the approval of the Governor also be obtained 
and that the Comptroller countersign the note. 
Yery truly 3''0urs, 



Edward J. McCormack, Jr., Attorney General. 



A person retired from the service of a city may not, under G. L. c. 32, ^91, be 
employed by the Commonwealth, and the waiver by him of his city pension, 
under G. L. c. 32, § 90B, does not operate to make the prohibition of § 91 
inapplicable. 

Sept. 8, 1959. 

Mr. Frederick J. Sheehan, State Comptroller. 

Dear Sir : — You have requested an opinion whether payment can be 
made for services rendered, as an employee of the State Department of 
Public Works, by a person who, prior to his employment, had been retired 
from the service of the city of Boston. 

You state that the person referred to has been employed by the State 



42 P.D. 12. 

since May 16, 1951, and that you have been informed b\^ the Retirement 
Board of the city of Boston that he "Waived Pension of $1400.00 per 
annum, in accordance with section 90B of chapter 32, G. L." You also 
state that you have received from the State Retirement Board, a copy of a 
letter dated April 17, 1959, which the board sent to the employee in 
question informing him that it had ruled that he was not eligible for 
membership in the retirement system for State employees, and had ordered 
that any and all contributions made by him during his employment with 
the State be refunded to him. 

Apparently, the person you refer to retired from the service of the city of 
Boston some time prior to May 1(), 1951, the date upon which he began 
service with the Department of Public Works of the Commonwealth. 

You refer to G. L. c. 32, § 91, which provides, so far as material here, 
that no person while receiving a pension or retirement allowance from a 
citj' shall, after the date of his retirement, be paid for any service rendered 
to the Commonwealth, except upon his return and restoration to active 
service as ordered by the appropriate retirement board after re-examination 
in case of retirement for disability, and except in certain other situations 
not applicable here. 

The provisions of G. L. c. 32, § 91, referred to, were in effect in the same 
form in 1951. 

The express prohibition of G. L. c. 32, § 91, against the payment of a 
person receiving a retirement allowance from a city for services rendered 
to the Commonwealth, after the date of his retirement, prevents the pay- 
ment of compensation to the employee you refer to, unless the fact that 
he has waived his city of Boston pension under G. L. c. 32, § 90B, operates 
to make the prohibition contained in said G. L. c. 32, § 91, inappHcable. 

Said section 90B provides that any person retired from the service of the 
Commonwealth, or any of its political subdivisions, may waive and re- 
nounce for himself, his heirs and legal representatives "an^^ portion " of the 
pension or retirement allowance payable to him from the Commonwealth, 
or any of its political subdivisions, for such period as he may specify, or 
until further notice. 

If the provisions permitting a waiver or renunciation of "any portion" 
of a pension or retirement allowance, properly construed, permit a waiver or 
renunciation of only a "portion" of the amount due to a former employee, 
and not of the entire amount due, no action taken by a retired employee 
under G. L. c. 32, § 90B, could possibly operate to relieve the employee 
from the prohibition in G. L. c. 32, § 91, against re-employment in the 
public services mentioned in said section of retired public employees re- 
ferred to therein. 

There are strong reasons for the conclusion that G. L. c. 32, § 90B, does 
not permit a total waiver or renunciation of a pension or retirement allow- 
ance by a retired public employee. General Laws c. 4, § 6, cl. 3rd, pro- 
vides that in the interpretation of statutes the words used are to be con- 
strued according to their "common and approved usage." Construed 
according to that standard, the word "portion" means a part which is less 
than the whole. Furthermore, the history of the provisions of G. L. c. 32, 
§ 90B, demonstrates that the purpose sought to be effected by the enact- 
ment of G. L. c. 32, § 90B, was not to effect any change in the provisions 
of G. L. c. 32, § 91, but was to permit veterans retired from the service of 
the Commonwealth, or its political subdivisions, whose pensions or retire- 



P.D. 12. 43 

nient allowances exceeded $1,400 in the case of unmarried veterans, or 
$2,700, in the case of married veterans, to reduce the amount of their re- 
tirement allowances below said amounts of $1,400 and $2,700, so as to 
take the veteran out of the operation of provisions of Federal statutes 
such as thos'e contained in 38 U.S.C. § 2422, providing that no pension 
under 38 U.S.C. §§ 2421 to 2423, should be paid to an unmarried veteran 
whose annual income exceeded $1,400, or to a married veteran, or any- 
veteran with children, whose annual income exceeded $2,700. (See now 
38 U.S.C. § 522.) 

It is not necessary, however, to decide whether G. L. c. 32, § 90B, per- 
mits the waiver or renunciation of an entire pension or retirement allow- 
ance, for if it did, such a waiver or renunciation w-ould not have the effect 
of permitting payment to a person who, like the person referred to by you, 
was retired from the service of the city of Boston, for services rendered to 
the Commonwealth after the date of such waiver or renunciation despite 
the provisions of G. L. c. 32, § 91. 

The provisions of G. L. c. 32, § 90B, cannot reasonably be construed to 
have been mtended to so affect the provisions of G. L. c. 32, § 91, as to 
permit persons retired from one of the governmental units referred to in 
said § 91 to drop their pensions and retirement allowances and be em- 
ployed in the same or one of the other governmental units referred to. 
The purpose of § 91, which has been on our statute books in some form for 
over fifty years, is to prevent a retired employee of one of the goverrmiental 
units referred to in the section from being re-employed in one of the other 
governmental units referred to therein. The strictness of the general pro- 
hibition is moderated, to a limited extent, by permitting a retired person, 
under specified conditions, to accept one of certain other appointive public 
positions if he "waives and renounces" his pension or retirement allow- 
ance. If a total waiver of a pension or retirement allowance under G. L. 
c. 32, § 90B, were to have the effect of removing the bar against re-employ- 
ment contained in G. L. c. 32, § 91, the limited right to waive or renounce 
a pension or a retirement allowance contained in § 91, as a condition to 
service in the appomtive positions in the public service specified therein, 
would be entirely mmecessary. 

Construing G. L. c. 32, § 91, according to the estabhshed rules of statu- 
tory construction, that a statute must be construed as a whole, giving effect 
to all its provisions so far as possible, and that every w'ord of a legislative 
enactment must be given force and effect so far as reasonably practicable, 
and no part is to be treated as superfluous unless no other rational course 
is open {Hinckley v. Retirement Board of Gloucester, 316 Mass. 490), and 
that the various provisions of a statute, if reasonably possible, should be 
read together so as to make the statute a consistent and harmonious 
whole {Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430), 
the provision of § 91, that despite the prohibition against re-employment 
of retired persons such a person can be re-employed in certain positions 
if he "waives or renounces" his pension or retirement allowance, must be 
considered as stating the only conditions under which a waiver or renunci- 
ation of a pension or retirement allowance can operate to permit a retired 
person to be re-employed. The fact that there are no provisions in c. 32 
fixing a method for the re-establishment of membership in a retirement 
system, and for obtaining credit for subsequent service, by a retired person 
returning to the public employ, is a strong indication that the Legislature 



44 P.D. 12. 

felt that no such provisions were necessary because G. L. c. o2, § 91, pre- 
vented the re-employment of retired persons, and made retirement a final 
termination of public employment, with the few exceptions stated in the 
section. 

I advise you, therefore, that the provisions of G. L. c. 32,* § 91, forbid 
payment to the retired city of Boston emploj^ee referred to in your letter 
for services rendered to the State Department of Public Works, despite the 
fact that he waived payment to him by the city of the entire amount of the 
pension or retirement allowance which he was granted by the city of 
Boston, either for a definite or indefinite period. 

The opinion expressed herein is not in conflict with the opinion of the 
Attorney General to the Comptroller, dated April 27, 1943 (see Attorney 
General's Report, 1944, p. 45), nor with the opinion to the Governor, 
dated July 8, 1953 (see Attorney General's Report, 1954, p. 21). The 
conclusions reached m the opinions referred to were predicated on the 
fact that the employee there involved was re-employed prior to receiving 
any payment imder his pension, and, at the time, G. L. c. 32, § 91, pro- 
hibited payment for services rendered by a retired employee "after the 
date of the first payment of such pension." The section now prevents 
payment for services rendered by a retired employee "after the date of 
his retirement." The opinion of the Attorney General to the State Board 
of Retirement dated August 17, 1949 (see Attorney General's Report, 
1950, p. 17), does not refer to G. L. c. 32, § 91, the provisions of which, as 
hereinbefore stated, forbid the re-employment of retired persons in the 
pubhc service under the circumstances stated in the section, except as 
otherwise expressly provided therein. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



It is the duty of the superintendent of a State hospital fa cause applications for 
the co7nmitment of persons temporarily held who are determined to he in 
need of further treatment to be made. 

Sept. 11, 1959. 

James' W. Dykens, M.D., Assistant Commissioner, Department of Mental 

Health. 
Dear Sir : — You have requested an opinion on the following question : 

"We would hke very much to have an opinion as to the definition of the 
word 'cause' as used in sections 79, 77 and 86 of chapter 123 of the Gen- 
eral Laws, as the word 'cause' is used in the sentence, 'cause application 
to be made.' 

"Does that word mean that the Superintendent has the right or obhga- 
tion to make application or docs it mean that he is onty the agent in getting 
some interested relative to make the application?" 

General Laws c. 123, § 77, provides, in part, "... If, however, the 
superintendent or manager determines within said fortj^-day period that 



P.D. 12. 45 

the person is in need of further treatment, he may forthwith cause applica- 
tion to be made for prolonged judicial commitment under section fifty- 
one . . ." 

General Laws c. 123, § 79, provides, in part, "... The superintendent 
or manager shall either cause every such patient to be examined by two 
physicians, qualified as provided in section fifty-three, and cause appli- 
cation to be made for his admission or commitment to such institution, or 
cause him to be removed therefrom before the expiration of said period 
of ten days ..." 

Section 77 pro\ddes for the commitment of individuals for observation 
purposes for a temporary period not to exceed forty days, while § 79 
provides for temporary care of mentally ill persons who are in need of 
immediate confinement for a period not to exceed ten days. Both these 
sections anticipate further proceedings during the confinement of these 
individuals. 

It would appear that the legislative purpose, as expressed in the afore- 
mentioned sections, was to outline the fmictions and duties of the managers 
and superintendents of these institutions once a mentally ill person was 
admitted thereto. This being the case, it would follow that the legislative 
intent was to place the responsibility upon the superintendent or manager 
to see that certain steps were taken. 

The use of the word ''cause" by the Legislature in these sections was 
for the purpose of authorizing a manager or superintendent to perform 
those duties personally, or to delegate them to a subordinate. 

In conclusion, it would appear that the Legislature in the above-men- 
tioned statutes place these duties squarely on the shoulders of the super- 
intendent or manager of these mental institutions, but at the same time 
authorize them to delegate their actual performance to someone else. 
Very truly yours, 

Edward J. McCorxMAck, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



A licensed dealer in firearms is subject to the conditions of his Massachusetts 
license in making sales to out-of-state buyers. 

Sept. 11, 1959. 

Hon. J. Henry Goguen, Commissioner of Public Safety. 

Dear Sir: — You have requested my opinion as follows: 

"An opinion is respectfully requested as to the right of a Hcensed dealer 
to sell firearms under the following conditions: 

"The dealer, properly licensed under the provisions of G. L. c. 140, 
§ 122, receives a mail or telephone order from a person residing in another 
State, in which the prospective buyer requests that a weapon be shipped 
to his home or place of business. 

"If the interstate shipment is completed with the dealer complying mth 
any existing Federal Regulations, would he still be subject to the condi- 
tions of his Massachusetts license, and in particular, to the second, fourth, 



46 P.D. 12. 

sixth, seventh, eighth or ninth conditions, as set forth in G. L. c. 140, 
§ 128?" 

The presumption of compliance with the existing Federal regulations 
would preclude any answer as to the compliance with the State Hcense. 
Title 15, § 902, subdivision (c) of the U. S. Code states: 

"It shall be unlawful for any licensed manufacturer or dealer to trans- 
port or ship any hrearm in interstate or foreign commerce to any person 
other than a licensed manufacturer or dealer in any State the laws of which 
require that a license be obtained for the purchase of such firearm, unless 
such hcense is exhibited to such manufacturer or dealer by the prospective 
purchaser." 

The effect of this section is to incorporate in mterstate commerce the 
same license restrictions as to the sale of firearms which apply in the 
selling State. Therefore, it w^ould be a non-sequitur to presume compli- 
ance with the Federal regulations without first considering the Massa- 
chusetts licensing requirements. 

In view of the aforementioned statute, the dealer would be subject to 
the conditions of his Massahcusetts license and in particular to the second, 
fourth, sixth, seventh, eighth and ninth conditions as set forth in G. L. 
c. 140, § 123. 

Very truly yours, 

Edward J. McCokmack, Jr., Attorney General, 

By Joseph C. Duggan, 

Assistant Attorney General. 



The State Finance Advisory Board is subject to the "Open Meeting Law'^ 
(G. L. c. 30A, § llA), but said law contains provisions for executive 
sessions and secret records in certain circumstances. 

Sept. 28, 1959. 

Mr. Sherwin C. Badger, Chairman, Finance Advisory Board. 

Dear Sir : — You have requested my opinion relative to the applica- 
tion of St. 1958, c. 626, to your board. 
In this letter you state : 

"Except by special invitation our meetings have always been in execu- 
tive session for the very obvious reason that the matters we are dealing 
with have principally to do with anticipated State financing through the 
issuance of bonds, etc. Very obviously, such matters must be kept con- 
fidential until the Treasurer has made his final decision as to the terms 
which competitive bidding of proposed issues will follow. Also, our 
board has no authority whatsoever but acts merely in an advisory ca- 
pacity." 

However, this board, by virtue of the provisions of G. L. c. 6, § 98, is 
vested with serious responsibilities to the State goverinnent relative to in- 
vestigating and reporting to the Governor and Council, the State Treas- 



P.D. 12. 47 

urer and the General Court its recommendations as to extremely important 
phases of State financing, and furnishing the State Treasurer with advice 
and recommendations as to the investment of funds of the Commonwealth. 

In my opinion your board is a "state board" within the provisions of 
G. L. c. 30A, § 11 A, as inserted by St. 1958, c. 626, § 2. However, under 
the provisions of § 11 A, your board may "vote to go into executive ses- 
sion." The phrase "executive session" is defined in § 11 A as being a 
meeting "held only for the purpose of discussing, deliberating or voting 
on those matters which by general 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 interests of 
the commonwealth or its political subdivisions, or the reputation of any per- 
son." Section 11 A goes on to provide that the board shall maintain ac- 
curate records of its meetings, setting forth the action taken at each 
meeting, including executive sessions, with a proviso that votes taken in 
executive session may remain secret so long as their publication would de- 
feat the lawful purposes of the executive session, but no longer, and a fur- 
ther proviso that "the records of any executive session may remain secret so 
long as their publication would defeat the lawful purposes of the executive 
session, but no longer." The concluding paragraph of § llA as hiserted 
by § 2 of c. 626 contains a number of exemptions from the operation of 
c. 626. Your board is not among the exemptions. 

In conclusion, as before stated, it is my opinion that c. 626 applies to 
your board. Of course, the provisions relating to executive sessions, after 
your board votes to go into executive session, become and are applicable. 
Very truly yours, 

Edward J. McCorm.\ck, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



County Commissioners may not under G. L. c. 35, § 19 A, applicable to classi- 
fied county employees, make payments for the earned but unused vacation 
allowances due deceased probation officers, who are not classified. 

Nov. 3, 1959. 
Mr. Albert B. Carter, Commissioner of Probation. 

Dear Sir : — You have requested my opinion upon the question whether 
county commissioners have the authority under the provisions of G. L. 
c. 34, § 14, to pay the beneficiaries of a deceased district court probation 
officer for vacation allowances earned but not used by the deceased. 

General Laws c. 35, § 19A, as amended by St. 1958, c. 293, provides that 
"upon the death of a county employee who is eligible for vacation under the 
rules of the county personnel board ..." (emphasis suppfied), payment may 
be made for the earned, but unused, vacation allowances of the deceased 
employee either to the retirement system beneficiary designated by the 
employee, if any and if surviving, or to the estate of the deceased. 

General Laws c. 35, § 51, authorizes the County Personnel Board to es- 
tablish uniform rules governing leaves of absence "... for officers and 



48 P.D. 12. 

employees subject to sections forty-eight to fifty-six, inclusive . . ."(emphasis 
supplied) of the chapter. 

General Laws c. 35, § 48, in providing that offices and positions the sal- 
ary whereof is wholly payable from the treasury of one or more counties 
should be classified in the manner provided by §§48 to 56, inclusive, ex- 
pressly excludes "probation officers." 

In view of the specific provision of G. L. c. 35, § 19A, referred to above, 
that the payments therein provided for can be made only to employees 
who are eligible for vacation under the rules of the County Personnel 
Board, which board is authorized to establish rules as to vacation only for 
officers and employees subject to G. L. c. 35, §§ 48 to 56, inclusive, and 
the fact that probation officers are expressly excluded from the operation 
of said §§ 48 to 56, inclusive, G. L. c. 35, § 19A, would not authorize pay- 
ment for accumulated vacation allowances of deceased probation officers. 

While the provisions of G. L. c. 276, § 89, that the compensation paid 
to a temporary probation officer for any excess of thirty days' service in 
any j^ear shall be deducted from the compensation of the probation officer 
in whose place such service is rendered, except that no such deduction 
shall be made for any additional period of not exceeding thirty days in 
anj^ year during which a probation officer is absent because of illness, do 
not specifically designate the first-mentioned period of thirty days as a 
vacation period, it is apparent that such a period would be covered by the 
provisions. 

However, while the provisions referred to would prevent deduction from 
the compensation of a probation officer of amounts paid to a temporary 
probation oliicer appointed to substitute during any period of absence for 
vacation, not in excess of thirt}^ days, of a probation officer, they would 
not authorize payment of any amount which would not have been de- 
ducted from the compensation of a deceased probation officer if he had 
survived and had been absent on vacation for the whole or any remaining 
portion of such thirty-day period either to the estate of the deceased or 
any survivor of the deceased. 

The provision of G. L. c. 34, § 14, that county commissioners shall 
have the management of their county's business and affairs in cases where 
not otherwise expressly provided, could not, in my opinion, be construed 
to authorize county commissioners to make payments to the surviving 
beneficiaries of a deceased probation officer for any period for which, if the 
deceased had survived and had devoted it to vacation, no deduction would 
have been made from the compensation of the probation officer because 
of compensation paid to a temporary probation officer appointed to serve 
in his place. 

It is mifortunate that the provision added by the 1958 amendment to 
G. L. c. 35, § 19A, was phrased in the way it was. Had it provided that 
payment could be made to any county officer or employee who is eligible 
for vacation, payment for the accumulated vacation allowance of the pro- 
bation officer in question would be authorized. The effect of the wording 
used in the 1958 amendment, to restrict payment for accumulated vacation 
allowances to persons whose vacation rights are fixed by the rules of the 
Countj^ Personnel Board undoubtedly was not intended. It would appear 
that the draftsman of the amendment followed the wording of G. L. c. 29, 
§ 31 A, which is applicable to State employees, and overlooked the narrow- 
ing eil'ect of the reference to the rules of the County Personnel Board. 



P.D. 12. 49 

The Commission on Probation could recommend that the provision 
added to G. L. c. 35, § 19A, by St. 1958, c. 293, be amended to give the 
survivors of deceased probation officers, and other county officers and em- 
ployees whose vacation rights are provided for under other provisions than 
the rules of the County Personnel Board, the same rights as to payment 
for earned but unused vacation credits that are given to other county em- 
ployees. Any such recommendation could reasonably be drawn so as to 
provide that it should be retroactive, and take effect from the effective- 
date of the 1958 amendment to G. L. c. 35, § 19A, and so permit payment 
for the earned but unused vacation credits of probation officers, or other 
county officers and employees not included within the present provisions 
of said § 19A, who died on or after the effective date of the 1958 amend- 
ment and prior to the enactment of any extension of the provisions of 
§ 19 A, to probation officers, and such other county officers and employees. 
Very truly yours. 



Edward .J. AIcCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



Under St. 1958, c. 566, tiie Metropolitan District Commission is required to 
take, fill and use the entire Patten's Cove area for recreational purposes and 
not merely a part thereof. 

Nov. 10, 1959. 

Hon. John E. Maloney, Commissioner, Metropolitan District Commission. 

Dear Sir: — - You have reciuested an opinion relative to St. 1958, c. 566, 
and the Patten's Cove project. 

After setting forth in brief the terms of c. 566, you pose the following 
question ; 

"... whether the commission is bound by said -act to take, fill and 
use the entire area for recreational purposes or can it take, fill and use 
part, thereof." 

Chapter 566 provides that the Metropolitan District Commission is 
hereby authorized and directed to cause the area known as Patten's Cove 
adjacent to and westerly of the William T. Morrissey Boulevard in the 
Dorchester district of Boston to be filled and graded and to construct 
thereon and in the immediate vicinity thereof such facilities for recreation 
as may be necessary for the establishment of a suitable recreational area 
at that location; provided, that the recreational area as herein authorized 
shall not include any part of the land described in Certificate of Title #62994 
issued by the Land Court. 

The language of the act requires that the entire cove be filled and graded 
with the exception of that land included in Certificate of Title #62994. If 
the land on which such fill would be placed is not now owned by the Com- 
monwealth, then, of course, it could be acquired for the Commonwealth 
by the commission. 

It is true, as you say, that this act does not set forth that a taking 
is authorized. However, by virtue of the provisions of c. 92, § 33. the 



.50 P.D. 12. 

commission may acquire, maintain and make available to the inhab- 
itants of Boston, and the other municipalities constituting the metropolitan 
parks district, open spaces for exercise and recreation, in this chapter called 
reservations. Moreover, by virtue of the provisions of G. L. c. 92, § 79, 
the commission for the purposes set forth in § 33 may in consultation 
with the proper local boards, in behalf of the Commonwealth, take in 
fee or otherwise, by purchase, gift, devise or eminent domain under c. 79, 
lands and rights in land for reservations within the metropolitan parks 
district. 

While it would have been a little safer for the General Court to have 
given to the commission specific power to take under c. 566, I have no 
doubt that it believed, and, in my opinion properly so, that the provisions 
of § 79 conferred sufficient power in the commission to accomplish the 
purposes set forth in c. 566. 

It is my opinion that the commission is in duty bound to obey the man- 
date of the General Court. Chapter 566 not only authorizes the commis- 
sion but directs it to fill and grade as stated therein. 

Answering your question you will note that c. 566 directs the commis- 
sion to cause 

''. . . the area known as Patten's Cove adjacent to and westerly of the 
William T. Morrissey Boulevard in the Dorchester district of Boston to 
be filled and graded and to construct thereon and in the immediate vicinity 
thereof such facilities for recreation as may be necessary for the establish- 
ment of a suitable recreational area at that location; ..." (Emphasis sup- 
plied.) 

The General Court seems to have treated the project as an undivided 
unit. Although you have not so stated, I assume that adequate funds are 
available to accomplish the result envisioned by the General Court in this 
legislation. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



There is no limitation as to the number of children necessary to constitute a 
'^special class" for the instruction of mentally retarded children. 

Nov. 20, 1959. 

Mr. Joseph Frp:edman, Secretary, Massachusetts Special Commission on 
Retarded Children. 

Dear Sir: — You have requested my opinion relative to classes for 
retarded children. 

It appears from the provisions of G. L. c. 71, § 46, that at the beginning 
of each school year the school committee of every town where there are 
five or more children of school age and resident therein retarded in mental 
development shall, and in every town where there are less than five such 
children may, establish special classes for the instruction of the educable 



P.D. 12. 51 

and trainable mentally retarded children, under regulations prescribed by 
the Department of Education. It appears moreover from the provisions 
of G. L. c. 71, § 46C, that any town having fewer than ten mentally re- 
tarded children may, with the approval of the Department of Education, 
join with another city or town to provide the necessary special classes 
provided for in § 46. 

You now pose the following question: 

"What constitutes a class as related to the education of physically and 
mentally handicapped children?" 

Section 46 clearly authorizes a town school committee to establish a 
special class for the instruction of the mentally retarded children referred 
to therein, under regulations prescribed by the department. This, of 
course, would include any number less than five. Section 46C authorizes 
a town having fewer than ten mentally retarded children, with the ap- 
proval of the department, to join with another city or town to provide the 
necessary special classes provided for in § 46. 

The General Court, therefore, has made it clear that the children re- 
ferred to in the legislation before mentioned may be taken care of in two 
different ways. First, by sp(>cial class as provided in § 46 if the number is 
small, and second, by a joint undertaking between another or other mu- 
nicipalities. General Laws c. 69, § 29B, authorizes reimbursement in the 
above cases "upon approval of the department and certification by it that 
such classes meet the standards and requirements prescribed by it." 

The General Court has placed no limitation on the size of the class 
where there are less than five such children therein referred to. The sub- 
ject of reimbursement is dealt with in § 29B and the approval by the de- 
partment and certification by it as therein provided for is, of course, 
necessary. 

A broad and understanding interpretation of the above legislation is to 
be applied in these matters, since wisdom and knowledge as well as virtue 
diffused generally among the body of our people through education was 
one of the primary concerns of the founding fathers. Mass. Const., 
pt. 2d, c. V, § 11. 

Very truly yours, 

Edwakd J. AlcCoKMACK, Jr., Attorney General, 

By Fked W. Fishek, 

Assistant Attorney General. 



P.D. 12. 



The Trustees of the Lowell Technological Institute may not exempt employees' 
children from tuition charges. 

Nov. 20, 1959. 

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

Dear Sir : — You have requested an opinion relative to the power of 
the board of trustees of your institute and you pose the following question : 

"The board of trustees has been requested by the faculty to establish a 
policy which would forgive tuition and charges to sons and daughters of 
employees of the Institute. 

Is it your opinion that such an action, if taken, would be consistent with 
the provisions of G. L. c. 75A, § 14, and would the action be one within 
the scope of the authority of the board?" 

The authority of your trustees to deal with the matter you refer to is 
set forth in G. L. c. 75A, § 14. In § 14 it is provided that 

"The trustees may fix the rates of tuition to be charged by the institute, 
but the yearly tuition for day-school students who are non-residents of the 
commonwealth shall not be less than one hundred and fifty dollars." 

This subject matter has been of concern to the General Court for over 
a half century beginning with Acts of 1899, Resolve 55. You will notice 
that this section, in the first place, presupposes that students at the in- 
stitute will pay tuition. A "rate" has been defined as a charge set accord- 
ing to a fixed scale. The word "fix" has been defined as — to make 
firm or fast; to set definitely. 

Since the authority resting in the trustees under § 14 relative to this 
subject matter is to "fix rates," it is clear to me that no power rests in 
the board to exempt or "forgive" tuition and charges to sons and daughters 
of employees of the institute. 

I therefore answer your question in the negative. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A new temporary positian in the State service may be temporarily classified 
and allocated under G. L. c. 30, § 4'5, when the Legislature is not in session 
although the position has not been included in a schedide of permanent 
positions as provided in said section. 

Nov. 20, 1959. 

Hon. William D. Fleming, Chairman, Joint Committee on Ways and Means. 

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

"May a new temporary office or position subject to the classification and 
pay plan provided by G. L. c. 30, § 45, and essential for the operation of the 
services of the Commonwealth, be temporarily classified and allocated when 
the Legislature is not in session unless such office or position shall have been 
included in a schedule of permanent offices and positions approved by the 



P.D. 12. 53 

Joint Committee on Ways and Means, a copy of which is on file with the 
Director of Personnel and Standardization?" 

General Laws c. 30, § 4o, providmg for the classification of positions in 
the service of the Commonwealth, provides in clause (5) as appearing in 
St. 1956, c. 729, § 3, that, 

"No permanent allocation or reallocation, in accordance with this sec- 
tion, of any office or position subject to the classification and pay plans 
provided by this section, shall be effected, unless and until 

"(a) a request for such allocation or reallocation shall have been made 
in writing to or by the director of personnel and standardization; 

" (b) the written recommendation, if any, upon such request shall have 
been prepared by said director, which shall include the request, the com- 
ment and recommendation of the appointing authority concerned which he 
is hereby required to make to said director; 

" (c) the written recommendation complying with clauses (a) and (b) 
shall have been filed on or before November fifteenth, and from time to time 
thereafter, by the director of personnel and standardization with the budget 
commissioner and the house and senate committees on ways and means, 
and shall be considered as a part of the budget preparation as provided in 
section six of chapter twenty-nine; 

" (d) it shall have been mcluded in a schedule of permanent offices and 
positions approved by the joint committee on ways and means, a copy of 
which is on file with the director of personnel and standardization; pro- 
vided, however, that during the period when the legislature is not in ses- 
sion, any new temporary office or position subject to the classification and 
pay plans provided by this section and essential for the operation of the 
service of the commonwealth may be temporarily classified and allocated, 
but shall not be effected unless and until clauses (a) and (6) shall have 
been complied with." 

The provisions of G. L. c. 30, § 45 (5), quoted, cannot be fully under- 
stood without reference to certain provisions included in the annual gen- 
eral and other appropriation bills in the current, and recent prior years, 
and to the principle that, under our Constitution, the Legislature is pro- 
hibited from exercising executive power. 

The provision of the general appropriation acts referred to is the so- 
called "salary freeze" provision, which has been included in one form or 
another in each general appropriation act since that of 1943. In the gen- 
eral appropriation act for the current year, St. 1959, c. 433, the provision 
referred to is part of § 6 and, so far as here material, reads as follows: 

"Section 6. Amounts included for permanent positions in sums appro- 
priated in section two for personal services are based upon schedules of 
permanent positions and salary rates as approved by the joint committee 
on ways and means, and, except as otherwise shovrn by the files of said 
committee, a copy of which shall be deposited with the division of person- 
nel and standardization, no part of sums so appropriated in section two 
shall be available for pajmient of salaries of any additional permanent po- 
sition, or for payments on account of reallocations of permanent positions, 
or for payments on account of any change of salary range or compensation 
of any permanent position, notwithstanding any special or general act to 
the contrary; ..." 



54 P.D. 12. 

The reforoiice to tho schedules of pei'manent positions described in the 
provision (juoted, incorporates those schedules in the act and, in efifect, 
makes them a part of the act. In order to have the effect stated, the sched- 
ules to be incorporated by reference would not only have to be identi- 
fied but would have to be in existence at the time the act incorporating 
them b3^ i-eference was acted upon in the General Court. The provision 
(juoted adequately identifies the schedules referred to, and it is to be as- 
sumed that the schedules were in existence at the time the act containing 
them was before the General Court. 

It is to be noted that G. L. c. 30, § 45 (5), requires only that "permanent " 
allocations and reallocations be included in a schedule of "permanent" 
offices and positions, approved and filed as stated, and that the quoted 
provisions of St. 1959, c. 433, also apply only to "permanent" positions. 

In Opinion of the Justices to the Senate, 302 Mass. 605, it is stated at 
pages 615 and 616: 

"... the General Court in the exercise of its legislative power of appro- 
priation has a broad scope for determining whether it will prescribe in detail 
the particular purposes for which money appropriated shall be expended or, 
on the other hand, will permit executive or administrative officers or boards 
to exercise judgment and discretion within a wide field in the expenditiu'e of 
money appropriated for a given object to accomplish the general purposes 
of the appropriation. The choice of the latter alternative has been made 
frequently ..." 

And, at page 619, referring to the question of whether the transfer of 
funds from an appropriation to meet "unforeseen conditions" could be 
made subject to the approval of a recess body compo.?ed of members of the 
General Court, the Justices stated: 

"If the power conferred by the bill on this recess body were to be re- 
garded as legislative in nature, it would l)e a legislative power of appro- 
priation which cannot be delegated." 

Earlier in the opinion, the Justices stated, at pages 614 and 615, that 
the power of transfer provided for in the bill would not be the legislative 
power of appropriation but rather would be an executive or administrative 
power of expenditure. 

The Justices finally i-uled in the opinion cited that the recess body con- 
templated by the bill could not be composed of members of the Legislature 
then in session, nor, since the power of appointment is an executive power, 
could the bill provide that the members of the recess body be appointed 
by the President of the Senate and the Speaker of the House of Representa- 
tives. 

Reading G. L. c. 30, § 45 (5), with the provisions of St. 1959, c. 433, § 6. 
(luoted above, in the light of the method of statutory enactment pursued 
and the observations of the Justices referred to contained in the ophiion 
in 302 Mass. 605, it would appear that, while the Legislature has elected 
to restrict the executive and administrative officers and boards of the 
Commonwealth in expending appropriations so far as regards the creation 
of new permanent positions, or permanent reallocations of permanent 
positions, or changes of salary ranges of permanent positions, it has elected 
to permit the executive and administrative officers and boards of the 
Commonwealth to exercise judgment and discretion as to whether a new 



P.D. 12. 55 

temporary office or position should be created during the period when the 
Legislature is not in session. 

Undoubtedly, the Legislature could have prohibited the creation of new 
temporary positions as well as of new permanent positions. Whether it 
could have provided that the creation of new temporar}^ positions during 
the period when the Legislature is not in session should require the ap- 
proval of the Joint Committee on Ways and Means, would be questionable 
in view of the position taken by the Justices in the opinion in 302 Mass. 
605, referred to above, and perhaps because of that doubt the proviso in 
G. L. c. 30, § 45 (5) (d), does not require that the temporar}^ classification 
and allocation of a new temporary position during the period when the 
Legislature is not in session be approved by the Joint Committee on Ways 
and Means, or the House and Senate Committees on Ways and Means. 
It should be observed here that although the schedules referred to in St. 
1959, c. 433, § 6, are described as approved by the Joint Committee on 
Ways and Means, no delegation of legislative authority is involved, for by 
enacting a bill with such an incoiporation by reference the Legislature as 
a whole approves the schedules, and does not delegate the power of ap- 
proval. 

The net efi'ect of the provisions of G. L. c. 30, § 45 (5), and the provision 
of St. 1959, c. 433, § 0, quoted above, is that while the Legislature has 
forbidden the creation of a new position on a permanent basis, it has left 
the door open for the Director of Personnel and Standardization during 
the period when the Legislature is not in session to temporarily classify 
and allocate any new temporary position the director determines is essen- 
tial to the service of the Commonwealth, subject to the requirement only 
that the provisions of c. 30, § 45 (5), cl. (a) and (6), be complied with, 

I must advise you, therefore, in answer to j^our specific question that a 
new temporary office or position subject to the classification and paj^ plans 
provided by G. L. c. 30, § 45, and essential for the operation of the service 
of the Commonwealth can be temporarily classified and allocated when 
the Legislature is not in session, although such office or position has not 
been included in a schedule of permanent offices and positions approved 
by the Joint Committee on Ways and Means, a copy of which is on file 
with the Director of Personnel and Standardization, 
^^ery truly yours, 



Edward J. IMcCormack, Jr., AtUyrney General. 



The fee for an original real estate broker^ s, or salesman's, license to he in effect 
for more than one bvt less than two years, is to be the yearly rate plus a 
proportionate part thereof. 

Nov. 20, 1959. 

Mrs. Helen C. Sullivan, Director of Registration, Department of Civil 
Service and Registration. 

Dear Madam : — In your recent letter requesting an opinion you refer 
to G. L. c. 112, §§ 87XX and 87ZZ, relating to the registration of real 
estate brokers and salesmen. 

After referring to those sections you pose the following question : 



50 P.D. 12. 

"Assume, for example, that a broker's birth date is April 28. The 
original license to be issued to that hidividual will bear an effective date 
as of January 1, 1960, and an expiration date of April 28, 1961. The Board 
of Registration of Real Estate Brokers and Salesmen requests your opin- 
ion on the following question : 

"In this case does the original fee of $15 cover the entire period from 
January 1, 1960, to April 28, 1961, or should there be added to the $15 a 
proportional fee to cover the four months of 1961?" 

Section 87XX refers to the issuance of licenses to applicants to act as 
real estate brokers or salesmen as the case may be. The section concludes 
with the following sentence : 

"... Notwithstanding the foregoing, the license originally issued to an 
individual shall be valid until the anniversary of the licensee's date of 
birth next occurring more than twelve months after the date of issuance. 
The board shall keep a record of all licensed brokers and salesmen which 
shall be open to inspection by the public." 

Section 87ZZ reads as follows : 

"The following fees shall be paid by individuals in advance to the 
board : — 

"(a) For each examination for a broker's hcense, ten dollars; for each 
examination for a salesman's license, five dollars; pro\'ided, however, that 
a veteran holding an honorable discharge or a blind person shall not be 
required to pa^^ any examination fee. 

"(6) For issuance of a broker's license, original, at the rate of fifteen dol- 
lars for twelve months; renewal, ten dollars . . . 

" (c) For issuance of a salesman's license, original, at the rate of ten dol- 
lars for twelve months; renewal, five dollars . . . 

' (d) (As inserted by St. 1959, c. 455.) The applicable fee for the is- 
suance of a license shall be adjusted by the board on the basis of each 
month during which the license originally issued would be valid unless 
revoked or suspended and, for this purpose, any part of a month shall be 
considered as a full month." 

You will notice from the foregoing that the fee for examination for a 
broker's license is a flat ten dollars and for examination for a salesman's 
license, a flat five dollars. Moreover, you will observe that in subdi^^- 
sion (b) it is provided that the fee for issuance for a broker's license, 
original, is to be "at the rate of fifteen dollars for twelve months" and the 
fee for renewal thereof is a flat sum of ten dollars. 

Under subsection (c) the fee for issuance of a salesman's license, original, 
is "at the rate often dollars for twelve months" and for renewal, five dol- 
lars. Subsection (d) as you have seen provides that "the applicable fee 
for the issuance of a license shall be adjusted by the board on the basis of each 
month during which the license originally issued would be valid unless re- 
voked or suspended, and, for this purpose, any part of a month shall be con- 
sidered as a full month" (Emphasis supplied). 

A careful reading, then, of §§ 87XX and 87ZZ inevitably leads one 
to the conclusion that since the original licenses referred to in § 87ZZ 
run for a year and until the next birthday of the applicant and the fees 
for original licenses are to be at the rate of fifteen dollars for twelve months 



P.D. 12. 57 

in the case of a broker's license and at the rate of ten dollars for twelve 
months in the case of a salesman's license, all payable "in advance," the 
original fee for a broker's license in the supposititious case you refer to 
should be fifteen dollars plus the proportional fee to cover the four months 
until the applicant's birthday. 

Very truly yours, 

Edward J. AIcCormack, Jr., Attorneji General, 

By Fred W. Fisher, 

Assistant Attorney General. 



A local Housing A uthority has the power to take real "state oivned by a rail- 
road when the taking will not seriously interfere icith the enjoyment of the 
franchise. 

Nov. 23, 1959. 

Mr. Frank W. IMorris, Director of Housing and Renewal, State Housing 

Board. 

Dear Sir ; — You have presented to this office the request of the Wil- 
mington Housing Authority for an opinion as to its power to take by 
eminent domain certain real estate owned by the Boston & Maine Rail- 
road "and adjacent to their tracks and right of way . . ." in Wilmington. 

You attached to your letter the file which the Authority submitted to 
you, and Exhibits "A to D" outlining the project site and the opinion of 
the Authority's attorney on the question of the extent of its powers to take 
railroad property for urban redevelopment purposes. 

General Laws c. 121, §§ 261 to 26CCC, constitutes the Housing Au- 
thority Law. The various sections thereof provide for the creation of 
local housing authorities to carry out housing and other projects. One of 
the main purposes of the law is the elimination of substandard, decadent 
or blighted open areas, as defined m § 26J, and in § 26JJ. After declaring 
the menace of such areas and the need for eliminatmg them and the re- 
sulting evils therefrom, it is declared 

"that the acquisition of property for the purpose of eliminating sub- 
standard, decadent or blighted open conditions thereon and preventing 
recurrence of such conditions in the area, the removal of structures and 
improvement of sites, the disposition of the property for redevelopment 
incidental to the foregoing, the exercise of powers b}^ housing authorities 
or redevelopment authorities and any assistance which may be given by 
cities and towns or any other public bodies in connection therewith, are 
public uses and purposes for which public money may be expended and 
the power of eminent domain exercised; that a public exigency exists which 
makes the acquisition, planning, clearance, rehabilitation or rebuilding of 
such sub-standard and decadent areas for residential, governmental, rec- 
reational, business, commercial, industrial or other purposes, including the 
provision of streets, parks, recreational areas and other open spaces, and 
of such blighted open areas for residential, commercial, industrial or 



58 P.D. 12. 

recreational and appurtenant or incidental facilities, public uses and bene- 
fits jor which private 'property may he acquired by eminent domain or regu- 
lated by wholesome and reasonable orders, laws and directions and for 
which public funds may be expended for the good and welfare of this 
commonwealth; and the necessity in the public; interest for the pro- 
visions hereinafter enacted is hereby declared as a matter of legislative 
determination." (Emphasis supplied.) 

In § 26P, among other powers, housing authorities are given the follow- 
ing powers: — 

"to take by eminent domain under chapter seventy-nine or chapter 
eighty A, or to purchase or lease, or to acquire by gift, bequest or grant, 
and hold, any property real or personal, or any interest therein, found by it 
to he necessary or reasonably required to carry out the purposes of the Housing 
Authority Law, or any of its sections, and to sell, exchange, transfer or 
assign the same; provided, that in case of a taking by eminent domain 
under said chapter seventy-nine, the provisions of section forty of said 
chapter shall be applicable, except that the security therein recjuired shall 
be deposited with the mayor of the city or the selectmen of the town in 
which the property to be taken is situated ; . . . (Emphasis supplied.) 

Section 2GYY authorizes a housing authority in a municipality in 
which there is no redevelopment authority to undertake urban renewal 
projects, and provides that projects include undertakings and activities 
for "the elimination (and for the prevention of the development or 
spread) of substandard, decadent or blighted open areas, and may in- 
volve any work or undertaking for such purpose constituting a land as- 
sembly and redevelopment project or any rehabilitation or conservation 
work or any comlDination of such undertaking or work." The section 
further provides that : 

"As used in sections twenty-six XX to twenty-six BBB, inclusive, 
'rehabilitation or conservation work' may include the restoration and 
renewal of a substandard, decadent or blighted open area, or portion 
thereof, in accordance with an urban renewal plan by (1) carrying out 
plans for a program of voluntary repair and rehabilitation of buildings or 
other improvements; (2) acquisition by gift or purchase or by eminent 
domain of real property and demolition, removal or rehabilitation of buildings 
and improvements thereon where necessary to eUminate unhealthfuL unsani- 
tary or unsafe conditions, lessen density, mitigate or eliminate traffic con- 
gestion, reduce traffic hazards, eliminate obsolete or other uses detrimental to 
the public welfare, or to otherwise remove or prevent the spread of blight or 
deterioration, or to provide land for needed public facilities; (3) installation, 
construction or reconstruction of streets, utilities, parks, playgrounds and 
other improvements necessary for carrying out the objectives of the 
urban renewal project; and (4) the disposition, for uses in accordance 
with the objectives of the urban renewal project of any property or part 
thereof acquired in the area of such project; provided, that such dis- 
position shall be in the manner prescribed in the housing authority law 
for the disposition of property in a land assembly and redevelopment 
project area." (Emphasis supplied.) 

Section 26ZZ provides further conditions as to the undertaking of 
urban renewal projects designed to have each project considered in rela- 



P.D. 12. 59 

tion to the general plan for the municipahty. It is also specifically pro- 
^'ided that the Housing Board shall not approve an urban renewal plan 
unless it finds that " (d) the project area is a substandard, decadent or 
blighted open area ..." Section 26 WW, contains a legislative declara- 
tion of the objects of urban renewal projects, which incorporates by ref- 
erence and reaffirms the declarations made in § 26JJ. 

General Laws c. 79, provides a uniform system of procedure for taking 
land by eminent domain. Watertomn v. Dana, 255 Mass. 67. 

Although § 5 of c. 79 contains certain restrictions on the takmg of cer- 
tain State lands, highway, public building, cemetery or park land, there 
is no general prohibition in the section against the taking of property de- 
voted to one public use for another public use. 

In the case of Eldridge x. County Commissioners, 185 Mass. 186. at page 
188. the court says: — 

" It is a general rule that land acquired under the right of eminent domain 
for a public use cannot be appropriated to a different pubHc use which is 
inconsistent with that to which it was first appropriated, vuiless the intention 
of the Legislature so to appropriate it is plainly expressed. Old Colony 
Railroad v. Framingham Water Co. 153 Mass. 561. Boston & Albany Rail- 
road V. Cambridge, 166 Mass. 224. But where the new use is not neces- 
sarih' inconsistent with the old one. authority to take for the new use may 
be inferred from slight indications of intention. Boston v. Brookline, L56 
Mass. 172. Old Colony Railroad v. Framingham Water Co., nbi supra." 
(Emphasis supplied.) 

Further, on the same page, the court, after stating that the law has long 
recognized the right of the pubfic to lay out ways across railroads, states 
that the reason for permitting the exercise of the right to take lands which 
are located by a railroad company "outside of the line of the railroad for 
incidental uses, and which are subject to taxation because these uses are 
not so strictly public as that of the railroad itself, are stronger than the 
reasons for permitting ways across railroads," and saj^s: — 

''This statute authorizing such improvements has stood without fimita- 
tion for nearly fifty years. It contains ample provisions for compensation 
for those whose property is damaged b}^ proceedings under it. We are of 
opinion that it gives authority to lay out a way over land located for rail- 
road purposes outside of the location of the railroad itself." (Emphasis 
supplied.) 

While it is undoubtedly true that a general authority to take by eminent 
domain would not authorize a taking of the railroad property which would 
tend to deprive a railroad company of the full exercise of its franchise, 
there is no reason wh}^ a general authority- to take shoidd not be sufficient 
t(3 take railroad lands outside the line of the railroad where the land is not 
actually necessary to the enjoyment of the franchise of the railroad. Old 
Colony Railroad Co. v. Framingham Water Co., 153 Mass. 561. 

At pages 564 and 565, of the report of the case last cited, the court says: 

'In considering what w^as the intention of the Legislature in regard to 
taking the plaintiff's land, the use to which it was then being put must not 
be overlooked. While it was properly procured and rightly held for the 
accommodation of the plaintiff's growing business at the station, it was not 
necessary to the enjoyment of the plaintiff's franchise, and was not then 



60 P.D. 12. 

actually being used at all. The rights intended to be given by the statute 
are not the same in reference to this land as in reference to land over which 
the main tracks of the railroad are laid. It may well be held that this stat- 
ute does not go far enough to authorize the taking of land without which 
the plaintiff could not operate its railroad. Boston Water Power Co. v. 
Boston A- Worcester Railroad, 23 Pick. 360. But the case last cited is an 
authorit^v which decides that, by mere implication and without express 
statement, the Legislature may be held in a given case to have authorized 
the taking of land held by a corporation for a pubhc use where the taking 
does not seriouslj^ interfere with the enjoj^ment by the corporation of its 
franchise. In the present case the judge found that the land taken is not 
indispensably necessarj'- for the purposes of the plaintiff, and the plaintiff's 
conduct in consenting to the erection of the defendant's works, and in per- 
mitting them to remain there a long time without objection, shows the 
same thing. The judge found at the trial, that the place selected by the 
defendant for its pumping station was the most suitable and proper place 
for it, although it w^ould not have been impracticable to put it elsewhere. 
"7n view of all the circumstances, we are of opinion that the statute author- 
ized the defendant to take the plaintiff's larid for the public use to which it is 
now being put." (Emphasis supplied.) 

With regard to the authority to take the lands of the Boston & ]\Iaine 
Railroad in Wilmington to which your inquiry refers, although the Hous- 
ing Authority Law does not expressly state that railroad property can be 
taken, it does expressly state that substandard, decadent and blighted open 
areas can be taken, and, in fact, that they should be taken, if necessary, for 
their elimination. If, as evidently the Wilmington Housing Authority has 
found, the land of the railroad which the Authority has included within the 
urban renewal project in question is part of a substandard, decadent and 
bhghted area, or required to be taken for the elimination of such an area, 
the right to take is not dependent on mere implication but is, in effect, 
expressly authorized. 

I advise you, therefore, that, in my opinion, the Wilmington Housing 
Authority would not have the right to make any takings within the oper- 
ating right ©f way of the railroad but that it would have the right to take 
any land owned by the railroad which the Authority has found is part of 
a substandard, decadent or blighted open area, the taking of which will 
not seriously interfere with the enjoj^ment by the corporation of its 
franchise. 

^"ery truly yours, 

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

By James J. Kellehek, 

Assista7it Attorney General. 



P.D. 12. 61 



A real estate agency is a "place of public accommodation'^ within the statutes 
{G. L. c. 27 S, §§ 92 A and 98) penalizing discrimination because of 



color, etc. 



Nov. 24, 1959. 



Mrs. Mildred H. Mahoney, Chairman, Commission Against Discrimi- 
nation. 

Dear Madam : — You indicate that the Commission Against Discrimi- 
nation has before it affidavits filed against two real estate agencies alleging 
discrimination because of color. One affidavit concerns the rental of an 
apartment in a two-family house owned and managed by a real estate 
agency which manages and owns a large number of such properties through- 
out the Commonwealth. Because, however, the house in question is not 
contiguous to eight other rental units controlled by the respondent it is- 
not covered by the recently enacted "fair housing law." (St. 1959, c. 239.) 

The second affidavit was filed by the owner of a single family dwelling. 
He alleges that a real estate agency refused to show his house to prospec- 
tive Negro buyers. 

You further indicate that your commission anticipates that it will con- 
tinue to receive affidavits alleging discriminatory practices b}^ real estate 
agencies regarding properties not covered by the housing amendment to 
the Fair Housmg Practice Law. 

You request, therefore, my opinion on the following question: 

"Would the Commission in accepting jurisdiction under the Public Ac- 
commodations Law of complaints filed against real estate agencies which 
allege discrimination because of religion, color or race be abusing its dis- 
cretion or acting arbitrarily or capriciously or otherwise not in accordance 
with law?" 

Under G. L. c. 151B, as amended, the Commission Against Discrimina- 
tion is vested with jurisdiction of the "Public Accommodations Law," so 
called. That law is found in G. L. c. 272, §§ 92A and 98. 

Section 92A reads : 

"No owner, lessee, proprietor, manager, superintendent, agent or em- 
ployee of any place of public accommodation, resort or amusement shall, 
directly or indirectly, by himself or another, publish, issue, circulate, dis- 
tribute or display, or cause to be published, issued, circulated, distributed 
or displayed, in any way, any advertisement, circular, folder, book, pam- 
phlet, written, or painted or printed notice or sign, of any kind or descrip- 
tion, intended to discriminate against or actually discriminating against 
persons of any religious sect, creed, class, race, color, denomination or na- 
tionality, in the full enjoyment of the accommodations, advantages, facili- 
ties or privileges offered to the general public by such places of public 
accommodation, resort or amusement; provided, that nothing herein 
contained shall be construed to prohibit the mailing to any person of a 
private communication in writing, in response to his specific written in- 
quiry. 

"A place of public accommodation, resort or amusement within the 
meaning hereof shall be defined as and shall be deemed to include any place, 
whether licensed or unlicensed, which is open to and accepts or solicits the 
patronage of the general public and, without limiting the generality of the 



02 P.D. 12. 

definition, whether or not it be (1) an inn, tavern, hotel, shelter, roadhouse, 
motel, trailer camp or resort for transient or permanent guests or patrons 
seeking housing or lodging, food, drink, entertainment, health, recreation 
or rest; (2) a carrier, conveyance or elevator for the transportation of per- 
sons, whether operated on land, water or in the air, and the stations, termi- 
nals and facilities appurtenant thereto; (3) a gas station, garage, retail 
store or establishment, including those dispensing personal services; (4) a 
restaurant, bar or eating place, where food, beverages, confections or their 
derivatives are sold for consumption on or off the premises; (5) a rest room, 
barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool; 
(6) a boardwalk or other public highway; (7) an auditorium, theatre, music 
hall, meeting place or hall, including the common halls of buildings; (8) a 
place of public amusement, recreation, sport, exercise or entertainment; 
(9) a public library, museum or planetarium; or (10) a hospital, dispensary 
or clinic operating for profit; provided, however, that no place shall be 
deemed to be a place of public accommodation, resort or amusement which 
is owned or operated by a club or institution whose products or facilities 
or services are available only to its members and their guests nor by any 
religious, racial or denominational institution or organization, nor by any 
organization operated for charitable or educational purposes. 

"Any person who shall violate any provision of this section, or who shall 
aid in or incite, cause or bring about, in whole or in part, such a violation 
shall be punished by a fine of not more than one hundred dollars, or by 
imprisonment for not more than thirty days, or both." (Emphasis sup- 
plied.) 

Section 98 reads: 

""Whoever makes any distinction, discrimination or restriction on account 
of religion, color or race, except for good cause applicable alike to all per- 
sons of every religion, color and race, relative to the admission of any 
person to, or his treatment in, any place of public accommodation, resort 
or amusement, as defined in section ninety-two A of chapter two hundred 
and seventy-tAvo, or whoever aids or incites such distinction, discrimina- 
tion or restriction, shall be punished by a fine of not more than three hun- 
dred dollars or by imprisonment for not more than one year, or both, and 
shall forfeit to any person aggrieved thereby not less than one hundred nor 
more than five hundred dollars; but such person so aggrieved shall not 
recover against more than one person by reason of any one act of distinc- 
tion, discrimination or restriction. All persons shall have the right to the 
full and ecfual accommodations, advantages, facilities and privileges of 
any place of public accommodation, resort or amusement, subject only to 
the conditions and limitations established by law and applicable alike to 
all persons. This right is recognized and declared to be a civil right." 

Although to date twenty-four States have enacted Public Accommoda- 
tions laws similar in their scope to the Massachusetts law, inquiry and re- 
.search have uncovered no decided court cases bearing on the issue herein 
posed. However, the Connecticut Commission on Civil Rights, on De- 
cember 15, 1955, ruled that under its interpretation of the Connecticut 
Public Accommodations statute a real estate agent is covered under the 
definition of a place of public accommodation as "an establishment which 
caters or offers its services or facilities or goods to the general public" 
within the meaning of that law. 



P.D. 12. 63 

It is significant that in the four years which have elapsed since the pro- 
mulgation of the Connecticut ruling there has been no challenge to it in 
that State. 

Obviously, a real estate agency is a " . . . place which is open to and 
accepts or solicits the patronage of the general public . . ." and it may 
well be that a real estate agency is an " estabhshment " in the business of 
"dispensing personal services." Finally, a real estate agency does not 
come within the clearly defined exceptions of a private club or a religious, 
racial, denominational, charitable or educational use set out in the Massa- 
chusetts statute. 

In view of the wording of our Public Accommodations statute, both 
standing alone and in the context of the broad and long-standing public 
policy established by the Massachusetts General Court to prohibit racial, 
religious and ethnic national discrimination, it would seem, and I so rule, 
that it is a violation for a real estate agency to refuse to offer its services 
to any person or to refuse to accommodate any person as a client because 
of his race, creed or color. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



Senate Committee on Rules authorized by statute to fix employees' salaries may 
approve salaries in excess of specific appropriations; in no event, how- 
ever, may the total periodic payments exceed the amount appropriated. 

Nov. 25, 1959. 

Hon. Frederick J. Sheehan, State Comptroller. 

. Dear Sir: — You have written me enclosing a copy of a letter dat«d 
November 9, 1959, sent to you by the President of the Senate advising you 
that the Senate Committee on Rules has voted to increase, as of July 1, 
1959, the salaries of the following employees under its approval and listed 
below : 

Account No. Code 

0101-02 98-009 

0101-03 98-011 

0101-04 98-013 

98-098 

You direct my attention to the following items which appear in St. 1959, 
c. 433, the general appropriation act for the current fiscal year which was 
enacted on July 31, 1959. 

0101-02 For the salary of the clerk of the senate . . $12,000 

0101-04 For clerical assistance to the clerk of the senate, in- 
cluding not more than two permanent positions . 12,480 

After referring to the form of certification on pay rolls signed by the 
public officers authorized to approve them, which reads as follows, — 



Position 


Authorized 


Clerk of the Senate . 


. $13,000 


Assistant Clerk of the Senate . 


10,500 


Clerical Assistant, Senate . 


8,280 


Index Clerk, Senate . 


6.200 



64 P.D. 12. 

"I hereby certify under the penalties of perjury that the persons Hsted 
on the attached Pay Roll supporting this voucher are entitled to the amount 
appearing against their respective names; that the services were properly 
authorized and were rendered during the period stated and are properly 
chargeable to the appropriation designated; that sufficient funds are 
available; and that this Pay Roll voucher of sheets is hereby ap- 
proved in the sum of " 

you quote the following portion of G. L. c. 29, § 18, — • 

"Except as otherwise provided, no money shall be paid by the com- 
monwealth without a warrant from the governor drawn in accordance 
with an appropriation then in effect, and after the demand or account to 
be paid has been certified by the comptroller; ..." 

and then ask: 

"In view of the provisions of this section and also G. L. c. 29, §§ 26 and 
27, c. 30, § 46 (9), and the opinion of the Attorney General dated Decem- 
ber 7, 1937, to His Excellency the Governor and the Honorable Council, 
and the opinion of the Justices of the Supreme Court to the House of 
Representatives in Massachusetts Reports, Volume 323, page 764, I re- 
spectfully request your opmion on the following: 

"1. Where the Legislature has made an appropriation item for the 
salary of one position under a single item for the fiscal year, may the 
Comptroller certify a warrant at a monthly rate based on an approved 
yearly salary in excess of the individual appropriation item? 

"2. Where the Legislature has made an appropriation for two perma- 
nent positions in a fbced amount for the fiscal year, may the Comptroller 
certify a warrant to the Governor and Council when the monthly rate for 
the two employees is based on yearly salaries fixed in excess of the amount 
set forth in the appropriation item? 

"3. Where the Legislature has made an appropriation for a fiscal year 
for more than two permanent positions and included in said item funds 
available for expenses as well as salaries and subsequently salaries of in- 
dividuals properly chargeable to this item are legally authorized by the 
Legislature to be increased over the amount upon which the appropria- 
tion item was based, and this office is in receipt of a certification from the 
head of a department, agency or commission that there are sufficient 
fluids available to pay said salaries, may the Comptroller certify a war- 
rant to the Governor and Council calling for the payment of said salaries 
as certified by the head of the department?" 

First, I would like to point out to you that the conclusion stated in the 
opinion of Attorney General Paul A. Dever, dated December 7, 1937, to 
His Excellency the Governor and the Honorable Council to which you 
refer, that the Governor and Council had no authority to approve an in- 
crease in the salary of the State Librarian which made his salary greater 
than the amount stated in an item of the general appropriation act for the 
fiscal year in which the increase was voted providing for the Librarian's 
salary for that fiscal year, is inconsistent with Opinion of the Justices, in 
323 Mass. 764, to which you also refer. That opinion held that the valid- 



P.D. 12. 65 

ity of an act of the Legislature, passed after the enactment of the general 
appropriation act for the fiscal year 1948-1949, providing for a percentage 
increase in the salaries of all State officers and employees for that fiscal 
year, was not affected by the fact that no funds other than those provided 
by the general appropriation act were made available for payment of the 
expenditures authorized and the fact that it called for expenditures in ex- 
cess of the amounts made available in the general appropriation act. 
At page 708, the Justices said: 

"What will happen when any appropriations now in existence applicable 
to the payment of the increased salaries are exhausted, if no new appropri- 
ations applicable thereto are by that time made, is a matter not within the 
scope of the questions submitted." 

The Senate Committee on Rules is giv'en express statutory authority 
by G. L. c. 3, §§12 and 13, to fix the salaries of the various persons re- 
ferred to in the letter to you from the President of the Senate. Having 
that authority the committee may approve increases in the salaries of the 
personnel referred to. What the effect of the vote is as regards the pay- 
m.ents to be made to the persons involved is another question. 

It is clear that in no event can any amount in excess of the total of an 
appropriation item be expended. That is definitely shown by the pro- 
vision of G. L. c. 29, § 2C), that "expenses of offices and departments for 
compensation of officers, members and employees and for other purposes 
shall not exceed the appropriation made therefor by the general court ..." 
(Emphasis supplied.) 

The Justices in the discussion in the opinion in 323 Mass. 7G4, point out, 
at page 767, that: 

"The General Court has by statute imposed rigid restrictions upon the 
incurring of liability by municipal corporations in excess of appropriations 
made. G. L. (Ter. Ed.) c. 44, § 31, as appearing in St. 1946, c. 358, § 23. 
G. L. (Ter. Ed.) c. 44, § 33A, as appearing in St. 1947, c. 298, § 1. See 
McHenry v. Lawrence, 295 Mass. 119; Barnard v. Lynn, 295 Alass. 144; 
Rock V. Pittsfield, 316 Mass. 348; Allen v. Lawrence, 318 Mass. 210, 213, 
215. Similar rigid restrictions are imposed upon State officers. G. L. 
(Ter. Ed.), c. 29, § 26, as appearing in St. 1947, c. 636, § 1. G. L. (Ter. Ed.) 
c. 29, § 27, as appearing in St. 1947, c. 636. § 2. See Baker v. Common- 
wealth, 312 Mass. 490, 492-493." 

It would appear that the word ".similar" was used advisedly by the 
Justices in lieu of the word "same." It has been held under G. L. c. 44, 
§§31 and 33 A, that municipal officers cannot incur a liability which may 
exceed a particular appropriation item. That rule has, however, been 
held not to prevent school committees from voting increases in salaries the 
payment of which requires expenditures in excess of the amounts appropri- 
ated for services where, by omitting or decreasing expenditures for other 
appropriation items, the total amount appropriated for all school purposes 
is not exceeded. Because of the significantly different phraseology of 
G. L. c. 29, §§ 26 and 27, applicable to State officers, it cannot be ruled that 
a State ^.-fficer having express authority to fix a salary cannot exercise that 
authority by fixing a salary in excess of an amount made available by an 
item of the general appropriation act. The effect of the provisions of 
G. L. c. 29, §§ 26 and 27, is similar to that referred to bv the Justices in 



66 P.D. 12. 

the opinion in 323 Mass 764, and in the situation to which your inquiry 
relates, is, that while the Senate Committee on Ways and Means can fix 
a^ salary the payment of which will require an expenditure in excess of the 
amount appropriated for the position, if the appropriation available for 
the payment of the salary becomes exhausted before the end of the fiscal 
year by expenditures at the increased rate, no further payments can be 
made unless new appropriations applicable thereto are made by that time. 

General Laws c. 30, § 46 (9), to which you refer, is applicable only to 
positions which are subject to the provisions of §§ 45 to 50, inclusive, of 
said c. 30. The positions to which your letter refers, which are in the legis- 
lative branch, are not subject to those sections, and the provisions of 
St. 1959, c. 433, § 6, are not, in my opinion, to be construed as applying to 
positions in the legislative branch. 

The opinion expressed herein, that State officers expressly authorized by 
statute to fix the salary of a subordinate may estabhsh a salary in excess of 
the amount appropriated by the General Court for the salary of the po- 
sition, is in accord with an opinion dated December 29, 1947, of Attorney 
General Clarence A. Barnes, to the Board of Probation (see Attorney 
General's Report, 1948, pp. 42, 43). The additional holdmg in the opinion 
referred to that the provision of the general appropriation act for the fiscal 
year m which the increase was voted which is comparable to the provisions 
of St. 1959, c. 433, § 6, referred to above, prevented payment of the in- 
crease, is not applicable here since, as stated, positions in the legislative 
branch are not within the operation of the provisions of said § 6. 

In accordance with the foregoing, I answer each of your three specific 
questions in the affirmative, but add that in no event may the amount to 
be expended in payment of the salaries fixed by the committee exceed the 
amounts appropriated in specific appropriation items of St. 1959, c. 433, 
§ 6, providing funds for the payment of the salary of any of the positions 
involved, unless additional appropriations therefor are made. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The Alcoholic Beverages Control Commission had discretion to approve the 
transfer of a '^Package Goods Store" license to a location near a church 
or school, where such premises had previously been licensed, under St. 
1954, c. 569, § 2, exempting such premises from G. L. c. 138, § 16C, the 
license being transferred from similarly exempt premises taken by eminent 
domain. 

Dec. 4, 1959. 

Mr. James P. Riley, Acting Secretary, Alcoholic Beverages Control Com- 
mission. 

Dear Sir: — The Alcoholic Beverages Control Commission has re- 
quested my opinion as to the legality of issuing a "Package Goods" store 
license for the sale of wines and malt beverages at a location within 500 
feet of a church and school, which location was previously, during the 
year 1935, licensed as a "Package Goods" store for the sale of malt 
beverages. 



P.D. 12. 67 

This question involves the interpretation of § 2 of c. 569 of the Acts of 
1954. Section 1 of said c. 569 inserted a new § 16C in G. L. c. 138. Said 
section 16C provides that "Premises, except those of an innholder, lo- 
cated within five hundred feet, measured along public ways, of a church 
or school shall not be licensed for the sale of alcoholic beverages; . . ." 

Section 2 of c. 569 of the Acts of 1954 provided as follows: 

"The provisions of section sixteen C of chapter one hundred and thirty- 
eight of the General Laws, inserted by section one of this act, shall not 
apply to premises which, prior to the effective date of this act, or prior to 
the establishment of a church or school within five hundred feet thereof, 
were licensed for the sale of alcoholic beverages." 

A proper interpretation of these sections can only be made with refer- 
ence to the entire Liquor Control Act of which these sections are a part. 
In § 23 of c. 138 the policy of the act is set forth in clear terms: 

"... The provisions for the issue of licenses and permits hereunder 
imply no intention to create rights generally for persons to engage or con- 
tinue in the transaction of the business authorized by the licenses or per- 
mits respectively, but are enacted with a view only to meet the reasonable 
demand of the public for pure alcoholic beverages and, to that end, to 
provide, in the opinion of the licensing authorities, an adequate number of 
places at which the public may obtain, in the manner and for the kind of 
use indicated, the different sorts of beverages for the sale of which pro- 
vision is made." 

This section confers upon the licensing authorities a broad discretion in 
the licensing of premises for the sale of alcoholic beverages. This dis- 
cretion was granted in recognition of the fact that the public interest 
would best be served by determining each license application on its own 
merits. 

In the facts of this matter it appears that the present licensee is seeking 
a transfer from his present location (which is within 500 feet of a church 
or school) to a new location a short distance away and slightly closer to 
the church or school because of the fact that his present location is being 
taken by public authority. 

Section 23B of the act provides in such an instance : 

"Any holder of a license issued under this chapter to do business on 
certain premises which are subsequently taken by public authority and 
who is required to remove his business from such premises shall not thereby 
be deprived of his license. Such licensee may apply to the local licensmg 
authorities for a transfer of the license to another location, and in the 
event that a suitable location is not available which is approved by the 
licensing authorities, said license shall be reserved for the licensee until 
such time as a suitable location is approved, but in no event shall such 
license be reserved for a period longer than four j^ears from the date of the 
taking. ..." 

It is my opinion that this is a case in which the commission must de- 
cide how the public interest would best be served. 

A narrow interpretation of the wording employed in § 2 of c. 569 is not 
warranted. If the Legislature intended to restrict the exclusion to those 
premises licensed as of the effective date of the act, it would have said so. 



68 P.D. 12. 

It is obvious to me that it left the decision, as to whether or not the previ- 
ous license was so remote in time as to warrant the commission to issue 
such a license based on this exclusion, to the sound discretion of the com- 
mission. 

It is my opinion that the wording of § 2 requires the interpretation that 
premises which were licensed for the sale of alcoholic beverages prior to 
the effective date of the statute (January 1, 1956 — see St. 1954, c. 569, 
§ 3) are eligible to be licensed. The clear meaning of this language is 
that the premises in question, having been licensed during the year 1935, 
were licensed prior to the effective date of the act, and therefore the issu- 
ance of a "Package Goods" store license to these premises at this time 
would not be in violation of G. L. c. 138, § 16C. 

Under the foregoing circumstances, it is my opinion that the legislation 
in question, as a matter of law, does authorize your commission to approve 
the transfer in question if such transfer appears to be justified in the light 
of the public interest involved. It is the responsi])ility of your commission 
to make the factual determination as to this public interest. The Depart- 
ment of the Attorney General has not been given the function of determin- 
ing this question of fact or of determining the relative merits of whether 
the transfer in question should be granted or not. As a matter of law, it 
appears that the transfer may be made. Whether or not it should be made 
is for your determination. 

Very truly yours, 

Edward J. McCormack, Jr.. Attorney General. 



The provisions of G. L. c. 112, § 81M, that certificates of registration "shall 
authorize the practice of ... " the regulated calling, have reference to 
the legal effect of the certificates, not to their recitals. 

Dec. 10, 1959. 

Mrs. Helen C. Sullivan, Director of Registration, Department of Civil 
Service and Registration. 

Dear Madam: — In your recent letter you refer to G. L. c. 112, § 81M, 
as amended by St. 1958, c. 584, § 7, which provides 

". . . In the case of a registered professional engineer, the certificate 
shall authorize the practice of engineering. ... In the case of a regis- 
tered land surveyor, the certificate shall authorize the practice, of land 
surveying. ..." 

and request my opiuio'.i whether the phrase "authorize the practice of 
engineering" or "authorize the practice of land surveying" should be 
incorporated into the wording of the certificate to be issued to registrants. 
The provision of G. L. c. 112, § 81M, quoted above, is to be construed 
as a legislative declaration of the legal effect of the certificate issued by the 
Board of Registration of Professional Engineers and Land Surveyors and 
the authority to practice thereby acquired bj^ an applicant to w^hom a 
certificate is issued. The provision referred to does not require that the 



P.D. 12. 69 

certificate issued state on its face that the registrant is thereby authorized 
to practice professional engineering, in the case of a person so registered, 
or land surveying, in the case of a person issued a certificate as a regis- 
tered land surveyor. 

Very truly yours, 

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

By J.\MES J. Kelleher, 

Assistant Attorney General. 



The Commission on Administration and Finance has authority to regulate 
the use of State-owned motor vehicles, hut the legal complications which 
would result negative its right to require reimbursement for the 'permitted 
use of a Stale-owned vehicle between the office and home. 

Dec. 22, 1959. 

Hon. Charles Francis Mahoxey, Commissioner of Administration. 
Dear Sir : — You have requested my opinion on the following questions : 

"1. Does the Commission have authority under St. 1959, c. 433, § 5, 
and other provisions of law to issue and enforce the proposed regulations 
as contained in the attached copy? 

"2. If your reply is negative with respect to any paragraph or para- 
graphs of the proposed regulation, does the Commission have the authority 
to proceed with the rest of the bulletin?" 

In order to further clarify and identify the particular request made by 
your office, the bulletin referred to and enclosed with your letter bears 
the caption "Administrative Bulletin No. For approval by Com- 
mission on Administration & Finance, Oct. 28, 1959," the provisions of 
which are herein incorporated by reference. The proposed regulations set 
forth in the Administrative Bulletin have to do with the use of State- 
owned motor vehicles. 

There does not appear to be any doubt that the Commission on Admin- 
istration and Finance, by means of the various statutes referred to in 
your request, has the authority to regulate the use and operation of State- 
owmed motor vehicles. Apparently, the specific area in which doubt arises 
is in the authoritj^ of the commission to include within the regulations 
your proposed paragraph 5 which provides: 

"Every person authorized under paragraph 4 (which refers to individuals 
who have received specific approval from their department head for the 
use of a vehicle between their domiciles and permanent assignment) to 
drive a state-owned car from his place of permanent assignment to his 
domicile shall reimburse the Commonwealth at the rate of five cents a 
mile for such use of a car." 

Although § 5 of c. 433, which provides "No state-owned motor ve- 
hicle shall be used for providing transportation for state officers or em- 
ployees between their domiciles and places of employment nor shall any 
expense be incurred for the garaging of such vehicles except under regu- 



70 P.D. 12. 

lations api)roved by the commission on administration and finance," 
clearly authorizes the commission to control such use by regulation, your 
paragraph 5 in the proposed regulations, in our opinion, falls without 
the authorization set forth in said § 5. This proposed regulation de- 
mands that the employee reimburse the Commonwealth at the rate of 
live cents a mile for such use of a car and therefore creates a lease situ- 
ation wherein the Commonwealth is the lessor and the employee is the 
lessee. No such leasing arrangement may be entered into without specific 
legislative authority. In addition, this regulation creates the further 
problem of insurance under the compulsory automobile insurance law of 
the Commonwealth. Again, no specific authority has been given whereby 
your commission may make arrangements for such insurance. 

As you undoubtedly know, privately owned and operated motor vehicles 
are required to be insured against personal injury claims under the provi- 
sions of G. L. c. 90. In respect to State-owned motor vehicles which would 
not be covered by compulsory insurance, the General Court has seen fit to 
work out detailed statutory provisions in G. L. c. 12 §§ 3B and 3C. Under 
these sections the Attorney General may defend and settle claims arising 
out of the operation of State-owned motor vehicles by employees acting 
within the scope of their official duties. The regulation which has been 
proposed by you would create a situation where State employees would be 
operating State-owned motor vehicles without the scope of their employ- 
ment and, thus, members of the public who might be injured by the opera- 
tion of these motor vehicles would not be entitled to the protection of the 
aforesaid G. L. c. 12, §§ 3B and 3C. 

It is, therefore, submitted that regarding your first question our answer 
must necessai'ily be in the negative. 

With regard to your second question, it would appear, as indicated 
above, that the commission does have authority to proceed with the rest 
of the bulletin. 

Very truly yours, 

Edwaed J. McCoRMACK, Jr., Attorney General. 



Inder the statute (G. L. c. 32, %91A) requiring a person retired for disability 
to report annually before January thirty-first, and refund any excess of 
pension and earnings over the compensation for his position, computa- 
tions for a comparison of pension and earnings ivith compensation, for 
less than a full year, are to be on a proportionate basis. 

Jan. 19, 1960. 

Hon. Chaiii.es Francis Mahoney, Commissioner of Administration. 

Dear Sir : — You have requested my opinion relative to the construc- 
tion of G. L. c. 32, § 91A. 

After stating the substance of § 91A, you say that an employee of the 
Commonwealth was retired under G. L. c. 32, § 57, as of the close of 
business on February 28, 1959; you further state that his pension is 
$3949.14 per year or $3290.90 for the ten months of 1959 during which 
he was on pension; you further state that in addition to his pension he 
earned $3375 from gainful occupation during the same period, making 



P.D. 12. 71 

a total income from both pension and earnings of $6665.90 between March 1 
and December 31, 1959. Moreover, you state that the salary he was re- 
ceiving at the time of retirement was at the rate of $6474 per year, of 
which amount, had he remained in the State service, he would have re- 
ceived $5395 for the ten months between March 1 and December 31, 1959. 
In the light of the foregoing, you pose the following question : 

"Do the words 'the regular compensation which would have been pay- 
able to such person in such preceding year had he continued in service' 
refer to the $6,474, the salary for the full year, or do they refer to the 
$5,395, the salary which he would have received during the ten months 
in which he M'as on pension?" 

As you are aware, there are two sections 91 A of c. 32 of the General 
Laws. One, inserted by c. 766 of the Acts of 1957, and c. 684 of the Acts 
of 1958, approved by the people at the election on November 4, 1958, in- 
serting another § 91 A. 

So far as your present question goes, I see no need of differentiating be- 
tween the two. I shall, however, apply the § 91A approved by the people 
at the election. 

This section provides, 

"Every person . . . pensioned or retired under any general or special 
law for disability . . . shall in each year before the last day of January 
. . . file with the board or officer by whom he was pensioned or retired 
a statement . . . certifying the full amount of his earnings from gainful 
occupation during the preceding j^ear. ..." 

This section goes on to provide that if such earnings e.xceed, or when 
added to the pension in such preceding year exceed, the regular compensa- 
tion which would have been payable to such person in such preceding year 
had he continued in service in the grade held by him when he was pen- 
sioned, he shall refund his pension for such preceding year or portion which 
was equal to such excess, as the case may be. 

It should be observed that public interest in the subject matter dealt 
with by this legislation was so high that we find that there are now two 
sections 91 A upon the statute books. In interpreting § 91 A, it should 
be borne in mind that the only pensions involved are pensions "for dis- 
ability." Bearing this in mind, the purpose of this legislation seems to 
be to limit the amount of a public pension for disability paid from public 
monies to a sum which, together with the earnings of the pensioned em- 
ployee, will provide for him a total income after retirement at least equal 
to his income while employed. 

In my opinion, if the employee is reth'ed during the year the amounts of 
his compensation, his earnings and his pension should be prorated accord- 
ingly. Applying this formula to the question which you pose — in my 
opinion a proper construction of § 91 A would require the use of the figure 
$5395 instead of $6474. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



72 P.D. 12. 



// the Federal Government's share of the cost of equipment for the Civil Defense 
Agency is paid only after the purchase, the Agency shall contract therefor 
only if it has funds to pay the full cost, unless the seller agrees to limit the 
Commonwealth's liability. 

Jan. 19 1960. 

Col. John J. Devlin, Director, Civil Defense Agency. 

Dear Sir: — You have reciuested an opinion concerning the authority 
of your agency to purchase certain civil defense equipment and supplies. 
You state that such equipment and supplies are ordinarily procured under 
a contract awarded by 3^our agency under an arrangement whereby one- 
baif the cost of such equipment and supplies is paid by the Commonwealth 
and one-half is paid by the Federal Government. The 50 per cent con- 
tribution made W the Federal Government has in the past been paid over 
to the Commonwealth prior to the award of the contract, so that 100 per 
cent of the funds necessary to pay for the supplies and equipment to be 
purchased are available in the State Treasury prior to the award of the 
contract. 

You state that the P^ederal Government now wishes to change its pro- 
cedure and will not make an advance to the Commonwealth of its 50 per 
cent share until the bills for the equipment in question have actually been 
received by the Commonwealth. You call attention to the provisions of 
G. L. c. 29, § 2(), which provide in part as follows: 

"... No obligation incurred by any officer or servant of the common- 
wealth for any purpose in excess of the appropriation or allotment for such 
purpose for the ofhce, department or institution which he represents, shall 
impose any liabihty upon the commonwealth." 

You ask w hether you, on behalf of the Commonwealth, may enter into a 
contract for the purchase of the material in question notwithstanding the 
fact that the l-^'deral funds are not on hand but are only promised. 

We answer this question in the negative. If your agency does not have 
sufficient funds available to pay for the materials to be purchased, you 
should not impose a contractual obligation on the Commonwealth to pay 
for these materials. 

In the event this question is answered in the negative, you then ask 
whether your agency, on behalf of the Commonwealth, could insert a 
clause in its purchase contract providing that the Commonwealth's lia- 
bility is limited to 50 per cent of the cost and that the Federal Government 
is to furnish the balance of the funds necessary. 

We answer this question in the affirmative. The procedure suggested by 
you would impose an obligation on the Commonwealth only to the extent 
that it has funds available for the purchase. You may encounter some 
difficulty in awarding a contract on this basis, but an explanation of the 
matter to the contractors involved may make them willing to contract with 
the Commonwealth on this conditional basis. 
\'er3^ truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



P.D. 12. 73 



The Commission on Administration and Finance may approve a lease made 
by the Superintendent of Buildings, under St. 1957, c. 656, of premises 
in the Springfield area, providing that the Commonwealth^ s obligation 
shall be subject to appropriation, although no appropriation for rent has 
been made. 

Jan. 19, 1900. 

Hon. Charles Francis Mahoney, Commissioner of Administration. 

Dear Sir : — You state that the Commission on Administration and 
Finance has before it for approval a proposed lease for an ofhce building 
to be constructed in the citj'' of Springfield. The lease, authorized by the 
provisions of St. 1957, c. 656, is for a ten-year period commencing on 
July 1, 1960. You ask whether the commission has authority to approve 
the lease in view of the fact that there is no appropriation covering rental 
of this space for the fiscal year 1960 or 1961. You note that the lease 
contains a provision to the effect that all obligations of the Commonwealth 
hereunder shall be subject to available appropriations. 

Under the circumstances related above, it is my opinion that your com- 
mission does have legal authority to approve the lease in question at the 
present time if it so determines. As a general proposition, your commis- 
sion is prohibited from imposing obligations on the Commonwealth in the 
absence of an appropriation because of the provisions of G. L. c. 29. § 26, 
which state in part as follows : 

"... No obligation incurred by an}^ officer or servant of the common- 
wealth for any purpose in excess of the appropriation or allotment for such 
purpose for the office, department or institution which he represents, shall 
impose any liability upon the commonwealth." 

By the provisions of G. L. c. 8, § lOA, this limitation is somewhat relaxed 
where the Commonwealth's obligation is one to pay rent. The pertinent 
language is as follows: 

"The commonwealth, acting through the executive or administrative 
head of a state department, commission or board and with the approval of 
the superintendent and of the governor and council and of the commission 
on administration and finance, may lease for the use of such department, 
commission or board, for a term not exceeding five years, premises outside 
of the state house or other building owned by the commonwealth, if pro- 
vision for rent of such premises for so much of the term of the lease as falls 
within the then current fiscal year has been made b}^ appropriation. . . ." 

In respect to the particular lease which is now before you for approval, 
the provisions of G. L. c. 8, § lOA, have been somewhat modified by 
St. 1957, c. 656, which provides that: 

"Notwithstanding the provisions of section ten A of chapter eight of the 
General Laws, the state superintendent of buildings, with the approval of 
the governor and council and of the commission on administration and 
finance, may lease premises for the use of departments, commissions or 
boards of the commonwealth in the area of Springfield, for a term not 
exceeding ten years with an option to renew for ten years." 

Under this special act it appears that the State Superintendent of Build- 
ings himself executes the lease for the Springfield office building rather 



74 P.D. 12. 

than merely approving such lease, as would be his function under c. 8, § lOA. 
Likewise, the term of the Springfield lease may be as long as ten years rather- 
than the five years set forth under c. 8, § lOA. In other respects the General 
Laws of the Commonwealth, not in conflict with this special act, must be 
observed. As such, the remaining provisions of c. 8, § lOA, relating to 
appropriations are applicable. As cjuoted abo\'e, these provisions allow an 
obligation for rent to be incurred; provided, that there is an appropriation 
"for so much of the term of the lease as falls within the then current fiscal 
year." 

The term of the proposed lease does not commence until July 1, 1960, 
which date is not in the current fiscal year but is the first day of the en- 
suing fiscal year. G. L. c. 4, § 7 (9). 

Since none of the term is in the current fiscal year, there need be no rent 
appropriation for the current fiscal year. The lease in question, therefore, 
may be approved at the present time without conflicting with the pro- 
visions of c. 8, § lOA. 

Although a lease for several years may be negotiated on behalf of the 
Commonwealth as lessee, even though the rent for future years has not 
then been appropriated, the right of a lessor to be paid such future accruing 
rents is dependent on future appropriations being made by the Legisla- 
ture. Even if suit is instituted against the Commonwealth for such future 
rents, recovery is expressly limited by G. L. c. 258, § 3, which provides that 
judgments against the Commonwealth shall be paid by the Treasurer 
"from any appropriations made for the purpose by the General Court." 

If the lessor is in fact ignorant of the statutory provisions recited above, 
this limitation on the authority of officers contracting on behalf of the 
Commonwealth has been brought to his attention quite clearly by the 
language in the proposed lease which states that "all obligations of the 
commonwealth hereunder shall be subject to available appropriations." 

In conclusion, it is my opinion that your commission may approve the 
proposed lease at the present if it so determines. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The State Department of Public Works is not authorized under G. L. c. 91, 
§§ 11 or 31, to reconstruct privately owned dams; waterway projects 
thereunder must he in public ownership. 

Jan. 20, 1900. 

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

Dear Sir : — You have requested an opinion as to whether or not your 
department has the authority under G. L. c. 91 to reconstruct the pri- 
vately owned dam of the Whitinsville Water Co. located in Sutton. 

General Laws c. 91, § 11, as amended, provides that: 

"The department shall undertake such construction and work for the 
improvement, development, maintenance and protection of tidal and non- 
tidal rivers and streams, great ponds, harbors, tide waters, foreshores and 
shores along a public beach as it deems reasonable and proper, and for this 
purpose shall have the same powers conferred upon it by section thirty-one. 



P.D. 12. 75 

The department, in pursuance of the work authorized, may construct, 
reconstruct, alter and repair bridges, culverts, conduits, pipes, walls and 
dams, and may do such other incidental work as may be deemed necessary 
for the improvement and safet}^ of waterwaj^s. In selecting the places to 
do such work, the department shall consider the general public advantage 
of the proposed work, the local interest therein as manifested by mu- 
nicipal or other contributions therefor, the importance of the industrial 
or commercial and other interests to be especially served thereby, and any 
other material considerations affecting the feasibility, necessity or advan- 
tage of the proposed work or the expenditures therefor. ..." 

Chapter 91, § 31, provides: 

"The department may make surveys and improvements for the preser- 
vation of harbors and may repair damages occasioned by storms or other 
destructive agencies along the coast line or river banks of the common- 
wealth, and may take by eminent domain under chapter .seventy-nine or 
acquire by purchase or otherwise, in the name and behalf of the common- 
wealth, any land or materials necessary for making such improvements or 
repairs. ..." 

Your letter indicates, among other things, that the water supply pro- 
tected by the dam is used by the towns of Whitinsville and Northbridge al- 
though located in the town of Sutton. It further states that the town of 
Sutton has furnished a bond of indemnity to the department for any claims 
for damage resulting from the work and that the voters of the town of 
Northbridge have authorized the selectmen of that town to accept a pay- 
ment from the water company for one-half the cost of reconstructing the 
dam, this amount to be transferred by the town to the Commonwealth. 

It is assumed that these factors are advanced to show compliance with 
the provisions of § 11 of c. 91 and the regulations of the department, 
relative to local participation in the cost of the work, indemnification for 
damages and the general public advantage or importance to industrial or 
commercial interests. These factors alone are not the controlling elements 
as to the authority for doing work contemplated under c. 91; they are 
merely guideposts in selecting the places where work may be done. 

The question propounded by your inquiry is whether or not your de- 
partment has the authority to reconstruct a privately owned dam which 
operates for profit and as an incident thereto furnishes water to one or 
more municipalities. The answer is in the negative. 

I find no authority in §§ 11 or 31 of c. 91 for your department to recon- 
struct this dam on privately owned property. The provisions of §§ 11 
and 31 clearly indicate that one of the essential requirements for con- 
struction or work under the provisions of these sections is public owner- 
ship; and the language of both sections vests the department with the 
right of eminent domain to accomplish such ownership. 

This opinion is consistent with an opinion given bj^ Attorney General 
George Fingold to the Commissioner of Public Works, October 27, 1954. 
Attorney General's Report, 1955, p. .53. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Charles E. Frazier, Jr., 

Assistant Attorney General. 



76 P.D. 12. 



Estimate of expenditures and recommendations of allotments for a State agency 
must be based on salaries as increased by the Legislature even though it 
appears that the amount appropriated may not be sufficient for the full 
payment of the salaries as increased for the full fiscal period. 

Jan. 21, 1900. 
Mr. Kermit C. Morrissey, Budget Commissioner. 

Dear Sir : - — You have asked my opinion on certain questions relating 
to allotments of appropriations under G. L. c. 29, § 9B. The questions 
arise since the total amount available for the payment of the salaries of 
the permanent positions authorized by the Legislature for a particular 
State agency is insufhcient for their payment in full for the current fiscal 
year because of increases granted by the Legislature under St. 1959, c. 433, 
§6. 

You state that the Commission on Administration and Finance has re- 
ceived a request from the State agency that it recommend an allotment in 
its subsidiary account 01, Salaries, Permanent Positions, to cover the sal- 
ary increases so authorized. Although you refer to a request to the com- 
mission from the State agency that the commission recommend an allot- 
ment to pay the increases, I assume that you refer to the detailed estimate 
of anticipated expenditures for an allotment period required to be sub- 
mitted to you under G. L. c. 29, § 9B, in advance of the request to the 
commission by the Governor for the recommendation required to be made 
to him by the commission. Again, although you state that the request is 
for an allotment to cover salary increases authorized by the Legislature 
under St. 1959, c. 433, § 6, I assume you mean that the agency has sub- 
mitted an estimate of anticipated expenditures for the full payment, or 
for making up the full payment, of the salaries for the permanent positions 
at the rates approved by the Legislature for the allotment period or periods 
covered. 

You state that: 

"A review of the request indicates that although the requested allot- 
ment to cover these salary increases does not exceed the available funds in 
the subsidiary account, it will result in insufficient funds remaining in said 
subsidiary account to meet the salaries of permanent employees in the 
final allotment period." 

The situation appears to be that the Legislature has made available for 
the payment of salaries of permanent positions in the agency at the rates 
authorized by the same act in which the funds were made available, less 
money than will be required for the payment of the salaries as authorized 
for the fiscal year, if it is assumed that there will be no changes in personnel 
by retirement, resignation, etc., during the year. 

A somewhat similar situation was dealt with in Opinion of the Jus- 
tices, 323 Mass. 764. There the Justices held that it was constitutionally 
competent for the General Court to pass a bill increasing salaries, even 
though it called for the expenditure of State money in excess of available 
resources, without providing specific means of payment. The Justices 
pointed out that statutes have frequently been enacted creating liabilities 
after final action on the general appropriation bill, the obligations so in- 
curred being taken care of by supplemental appropriations passed later in 



P.D. 12. 77 

the year, and quoted the comment from Opinion of the Justices, 308 
Mass. 601, at page 614, that, "There is no constitutional prohibition 
against appropriating money to meet expenditures incurred prior to the 
making of the appropriation.'' 

At page 768 of 323 Mass., the Justices stated: 

"What will happen when any appropriations now in existence applicable 
to the payment of the increased salaries are exhausted, if no new appro- 
priations applicable thereto are by that time made, is a matter not within 
the scope of the questions submitted. See G. L. (Ter. Ed.) c. 29, § 18, as 
amended by St. 1945, c. 248, § 3; Constitution, Part II, c. 2, § 1, art. 11." 

Your specific questions are as follows: 

"(1) In view of your opinion dated November 25. 1959, to the Hon- 
orable Frederick J. Sheehan, is the department head requii'ed to take action 
to obtain an allotment in order to pay the salary increases, even when it 
will result in insufficient funds being available to meet the salaries of per- 
manent employees in the final allotment period of the fiscal year? 

"(2) Has the Commission on Administration and Finance the authority 
to refuse to recommend such an allotment to provide for the paj^ment of 
salary increases when in their payment it will result in insufficient funds 
being available for the final allotment period? 

" (3) If the answer to question numbered two is in the negative, and such 
a recommendation is placed before the Governor, is it incumbent upon 
him to approve the recommendation in the absence of any legal im- 
pediment?" 

(1) In answer to your first {question, I inform you that it is incumbent on 
the department head to submit to you an estimate of anticipated expendi- 
tures for the full payment, or for making up the full payment, at the rates 
authorized by the Legislature, of salaries of incumbents of permanent posi- 
tions for the particular allotment period or periods in question. Neither 
the appointing authorit}^ nor any other State official, can deny the incum- 
bent of a position the salary authorized for the position by the Legislature. 
A deficiency in the amount appropriated for permanent positions, however 
else it can be made up, cannot be made up by refusing to pay incumbents 
the rates fixed and authorized by the Legislature. 

(2) In view of my answer to your first question, it follows that the 
recommendation by the commission of an allotment which would be in- 
sufficient to pay the salaries of incumbents of all permanent positions at 
their full authorized rates for a particular period or periods, if adopted by 
the Governor, would not have the effect of permitting payment of the in- 
cumbents of positions for which the Legislature has authorized higher 
rates than were applicable in the preceding fiscal period, at the rates which 
were formerly applicable. 

(3) While it is doubtful Avhether you have the right to request an opinion 
on a question such as your third question, at least without some showing 
that the opinion is necessary for the determination of some matter before 
you, inasmuch as it is clear that the final decision of what amount shall be 
allotted is for the Governor, and in making his decision he is not bound in 
any way by the recommendation of the commission and can reject its 
recommendation and increase or decrease an amount recommended, I 



78 P.D. 12. 

advise you that it would not be incuml)ent on him to approve a recom- 
mendation such as you refer to. 

It is apparent from the language quoted above from Opinion of the 
Justices, 323 Mass. 764, 768, that the Justices saw no objection to con- 
tinuing expenditures at rates authorized by the Legislature, although there 
was a probability that expenditures at those rates would exhaust the. 
available funds prior to the end of the fiscal period. Although it is clear 
that under G. L. c. 29, § IS, no payments can be made after the appro- 
priations are exhausted, there is no statutory obligation that expenditures 
as expressly authorized by the Legislature during any month or other 
portion of the fiscal year shall not exceed one-twelfth or some other fraction 
of the total amount appropriated. 

The situation is that the Legislature has authorized certain positions at 
certain salaries, and if it appears likely towards the end of the fiscal year 
that, despite such personnel changes as may have occurred in particular 
departments or offices, there will not be sufficient funds available to pay 
all incumbents at the rates to which they are entitled until the end of the 
fiscal year, it is to be expected that the Legislature, which is now in session, 
will make additional funds available either by appropriation or otherwise. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The Director of Personnel and Standardization and Commission an Adminis- 
tration and Finance correctly determined that the provision of G. L. c. 30, 
§ 46 (5), permitting the 'Recruitment" of employees at a rate of salary 
above the minimum in an emergency, referred to the filling of a position 
by appointment of one already in the service as well as of one entering it 
for the first time. 

Jan. 21, 1960. 

Hon. Charles F. Mahoney, Commissioner of Administration. 

Dear Sir: — At the request of the Division of Personnel and Standard- 
ization you have asked me for opinions on three questions relating to the 
application of the provisions of G. L. c. 30, § 46, pars. (5) and (5A). 

After receiving your request we asked you for further information, 
which you furnished us, and the questions were also discussed with repre- 
sentatives of the Division of Personnel and Standardization. 

In the discussion referred to it was indicated that it would not be neces- 
sary for the director to have an opinion on the first question asked. 

Your second and third questions are as follows: 

(2) "'B' employed as a director of prison camp in the Department of 
Correction at a salary of $139.50 per week, was 'promoted' to a 'Principal 
Officer', Job Group No. 22, in general salary schedule, G. L. c. 30, § 46 (1), 
at a rate of $195.7") weekly instead of $164.75, the minimum of Job Group 
No. 22. 

"Is this 'recruitment' as meant in G. L. e. 30, § 46, par. (5)? 

(3) '" C ' an employee employed as an ' Executive Secretary, Commis- 
sion on Alcoholism' at an annual salary of $6,780 per annum, on July 1, 



P.D. 12. 79 

1956, which is step five in Salary Grade 57 of the general salary schedule 
in effect at that time, is appointed on February 1, 1959, to the position of 
'Superintendent, M.C.I., Bridgewater' allocated to Job Group No. 25 in 
general salary schedule, G. L. c. 30, § 46 (1), $194 per week or $10,088 
annually. The Director of Personnel has been requested to change this 
salary to $248 weekly or $12,896 annually the maximum of Job Group 
No. 25 by virtue of G. L. c. 30, § 46, par. (5). 

"Can the director of personnel approve such requested salary under the 
law?" 

General Laws c. 30, § 46 (5) and (5A), read as follows: 

" (5) The said director may, with the approval of the commission on 
administration and finance, permit the recruitment of employees at a 
rate above the minimum, but not exceeding the maximum, of the job group 
salary range for the class concerned; provided, however, that the said 
director shall have first determined, upon request of the appointing au- 
thority, that an emergency exists due to inability to fill positions. Any 
such permit shall remain in effect until rescinded by the said director, but 
shall not be in effect longer than one year unless renewed in like manner 
and with like approval. Whenever the said director shall permit such re- 
cruitment, all employees in the same class, being paid at a rate or rates 
below such rate of recruitment shall be advanced to the said recruitment 
rate. 

'* (5 A) The said director shall permit the recruitment of professional 
personnel at a rate above the minimum and within the grade to which 
the requested position is allocated upon certification of the appointing au- 
thority that the person to be employed has served satisfactorily in a com- 
parable position for a period of time equivalent to the period required by 
the general salary schedule had such service been entirely in the service of 
the commonwealth. For the purposes of this paragraph, professional per- 
sonnel shall include, but shall not be limited to, registered nurses and per- 
sons employed in medical or technical positions in hospitals and clinics, 
including the administration thereof, persons employed for the instruction 
(jf students, and engineers and chemists. Nothmg in this section shall be 
construed to limit the recruitment of personnel under the provisions of 
section thirteen of chapter seventy-five." 

The letter in which you furnished us the information we requested, 
and the discussion referred to, disclose that your second question refers, 
not to the proposed filling of the position of Principal Officer in the De- 
partment of Correction at a rate above the minimum, but to the actual 
filling of the post at a rate above the minimum permitted in 1956, under 
G. L. c. 30, § 46 (5), by the then Director of Personnel and Standardization, 
William Bell, Jr., with the approval of the then Commission on Adminis- 
tration and Finance. In the letter responding to our request for addi- 
tional information you also informed us that no request has been made to 
the director by the appointing authority concerned in the case referred to 
in your third question that the director declare that an emergency exists, 
and consequently it would follow that no such determination has been 
made b}^ the director. 

Ordinarily, this office renders opinions only when it is shown that the 
requesting official requires our opinion in relation to some matter pending 



HO P.D. 12. 

tor determination before him or the official for whom he requests tlie opin- 
ion. There is nothing in your letter to indicate that there is anything 
presently before the Director of Personnel and Standardization with rela- 
tion to the matter referred to in your second question. No request having 
been made to the director by the appointing authority for the determina- 
tion of an emergency, it would seem that there is nothing before the di- 
rector with regard to your third question. Since, however, it appears likely 
that such a request from the appointing authority might be forthcoming 
and the representatives of the division stated that the problem raised is 
of present concern in other cases, your request will be considered as being 
properly before us. 

Your request raises the question as to whether the use of the word "re- 
cruitment" in G. L. c. 30, § 46 (5), restricts the benefits of that paragraph 
to persons entering the service of the Commonwealth for the first time, 
and excludes from the benefit of the paragraph persons who are already 
employed in the service of the Commonwealth. 

In my opinion, former Director of Personnel and Standardization, Wil- 
liam Bell, Jr., was correct in the view he adopted, and in which the Com- 
mission on Administration and Finance concurred, that the use of the word 
"recruitment" in paragraph (5) does not reciuire that the paragraph be 
construed as applying only to persons entering the service of the Common- 
wealth for the first time. 

"Recruitment" as used in G. L. c. 30, § 46 (5), has reference to the filling 
of the particular position in question, whether by the appointment of a per- 
son entering the service of the Commionwealth for the first time or of a per- 
son already in the service of the Commonwealth. The word is used in the 
sense stated in the New York Civil Service Law. New York Laws, 1958, 
c. 790, which enacted a revised and recodified Civil Service Law, in Ar- 
ticle IV, entitled "Recruitment of Personnel," contains provisions relating 
both to original appointments and promotions. Paragraph 4 of § 130 of 
the New York Civil Service Law referred to, providing for increased min- 
imum salaries when it is determined to be impracticable to recruit for a 
position at its then minimum, uses the word "recruit" with the same 
broad meaning of filling a position either by the appointment of a person 
not already in the service or the transfer or promotion of a person already 
in the service. It would appear probable that § 40 (3) of the N. Y. Civil 
Service Law of 1909, added by L. 1945, c. 302, § 3, and amended by 
L. 1954, c. 307, §§ 2 and 16, the predecessor of paragraph 4 of said § 130 
was the model for G. L. c. 30, § 46 (5). 

There is nothing in G. L. c. 30, § 46 (5), to indicate that the Legislature 
did not intend that its benefits should extend to persons already in the 
service of the Commonwealth. G. L. c. 30, § 46 (5A), however, does con- 
tain such an indication. The provision of paragraph (5 A) that the di- 
rector shall permit payment at a rate above the minimum only upon 
certification by the appointing authority that the person to be employed 
had served satisfactorily in a comparable position for a period of time at 
least equivalent to the period reciuired by the general salary schedule, 
"had such service been entirely in the service of the Commonwealth," 
demonstrates that said paragraph (5A) is not applicable to persons already 
in the service of the Commonwealth. 

I advise you, therefore, in answer to your specific questions, that the 
provisions of G. L. c. 30, § 46 (5), are applicable, whether the position as 



P.D. 12. 81 

to which an emergency as referred to in the paragraph has been determined 
is to be filled by appointment of a person already in the service of the Com- 
monwealth or of a person who is not then in the ser^-ice of the Common- 
wealth. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



A State agency is required to give a preference to citizens and can contract with 
an alien only if no citizen is willing to contract on terms at least equal to 
those offered by the alien. 

Jan. 27, 1960. 

Mr. George Tzizik, Planning Engineer, Department of Commerce. 

Dear Sir: — You have asked my opinion whether the Commonwealth 
of Massachusetts, through its Department of Commerce, may enter into a 
contract with an alien for the purpose of performing planning work under 
the Federally aided Urban Planning Assistance Program. You enclose a 
copy of a letter from the Regional Director of Urban Renewal in which he 
states that, although the Federal Government itself cannot enter such an 
agreement, he knows of no restriction which would prohibit the Common- 
wealth from contracting with an alien; provided, such contract is valid 
under local state law. 

The laws of this State do not expressly prohibit the Commonwealth 
from contracting with aliens, but there are several statutory enactments 
which require that a preference be given to citizens in the awarding of 
public contracts for goods and services. 

If the goods and services to be acquired are available from citizens on 
terms at least equal to those offered by aliens, then the contract for such 
goods and services should be awarded to a citizen. It is only when an 
alien offers better terms or better goods than are available from citizens 
that you should undertake to contract with such alien. 

Your attention is called to the following statutory provisions which ex- 
press this policy of the Commonwealth : 

G.L.c. 149, U79A: 

"In the awarding of contracts for public work by the commonwealth or 
by a county, city or town or by persons contracting therewith to do such 
work, preference shall be given to persons who are citizens of the United 
States and to partnerships all of whose members are such citizens. Any 
person who knowingly and wilfully violates this section shall be punished 
by a fine of not more than two hundred dollars. Nothing in this section 
shall require the acceptance of a higher bid in preference to a lower bid." 

G. L. c. 149, § 164: 

"In registering applications for employment and for employees wanted, 
preference shall be given to residents of the commonwealth." 



82 P.D. 12. 

G. L. c. 7, § 22 (17): 

"A preference in the purchase of suppHes and materials, other con- 
siderations being equal, in favor, first, of supplies and materials manufac- 
tured and sold within the commonwealth, . . . and, second, of supplies 
and materials manufactured and sold elsewhere within the United States." 

In conclusion, your agency has authority to award a contract to an 
alien for providing planning services only if it has first determined that 
there is no citizen available willing to contract on terms at least equal to 
those ofj^'ered by the alien. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



The provision of the 1959 General Appropriation Bill (St. 1959, c. 433, § 20) 
requiring approval of rates for consultant services is not applicable to 
payments for clerical services by the Senate Committee on Rules. 

Feb. 25, 1900. 

Mr. Frederick J. Sheehax, State Comptroller. 

Dear Sir : — You state that you have before you for approval an in- 
voice from the Senate Committee on Rules calling for payment of clerical 
services to an individual at the rate of $100 per month as established by the 
said committee. You ask whether the provisions of § 20 of St. 1959, 
c. 433, require that this rate be approved by the Conamission on Adminis- 
tration and Finance upon the recommendation of the Director of the 
Division of Personnel and Standardization. 

The provisions of said § 20 are as follows: 

" Except as otherwise provided in section thirteen of chapter seventy-five 
of the General Laws, no agencj^ of the commonwealth receiving an ap- 
propriation under section two of this act shall make any expenditure for 
consultant services, so called, or services coded in accordance with the 
expenditure code manual under the subsidiary title '03 Services — Non- 
employees' unless the rate of compensation for such services shall have 
been approved by the commission on administration and finance upon the 
recommendation of the director of the division of personnel and stand- 
ardization. The said director shall, immediately upon the approval of 
any such rate or rates, file copies of the schedule or schedules of approved 
rates with the comptroller and with the House and Senate committees on 
Ways and Means." 

It is my opinion that the pi-ovisions of § 20 do not appl}* to the expendi- 
ture in question. 



P.D. 12. 83 

You state that the invoice currently before you relates to "clerical 
services." The appropriation for these services is contamed in § 2 of the 
aforesaid St. 1959, c. 433, under item 0101-07 'Tor clerical and other 
assistance including expenses of the senate committee on rules, including 
not more than seven permanent positions . . . ." 

The limitations of § 20 set forth above apply to expenditures for "con- 
sultant services" and to expenditures for services under the code manual 
subsidiary "03 Services — Non-employees." 

In respect to the limitation relating to consultants, it would not or- 
dinarily be said that one performing clerical services was acting as a 
consultant. 

In respect to the limitation relating to services paid from the subsid- 
iary "03 Account," it is noted that the Rules Committee Budget Item 
0101-07 is not broken down into subsidiary accounts. There is, therefore, 
no .subsidiary "03 Account" applicable to the expenditure in question. 
The foregoing factors show that the Legislature apparently did not in- 
tend to impose limitations on legislative expenditures under the terms of 
§ 20 quoted above. 

Consequently, it is my opinion that the limitations of St. 1959, c. 433, 
§ 20, do not apply to the hiring of clerical personnel b\'' the Senate Com- 
mittee on Rules. 

Very truly yours, 

Edward J. McCoumack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Salary received for service in the General Court is ^^ earnings from gainful 
occupation," within G. L. c. 32, § 91A, requiring a refund hy a person 
retired for disability when his earnings plus his pension exceed the com- 
pensation for the position he held. 

March 7, 1960. 

Hon. Charles Francis ^Ixnoi^Yn, Commissioner of Administration. 

Dear Sir : — You have asked my opinion relative to the application of 
G. L. c. 32, § 91A, to a member of the General Court and you pose the 
following question : 

"Shall the salary of a member of the General Court be counted as 'earn- 
ings from gainful occupation' under the provisions of said § 91 A?" 

You state that the person, formerly an employee of the Registry of Motor 
Vehicles, was retired from the State service because of disability and is 
now currently serving as a member of the General Court, duly elected by 
the people of his district. The person in question claims that his only 
income in 1959, aside from his retirement allowance, was his salary as 
a member of the General Court, and contends that that salary is not 
". . . earnings from gainful occupation . . ." so as to bring him within 
the purview of § 91 A. In your letter you refer to G. L. c. 32, § 91, which 
I have in mind. It should be borne in mind that § 91 A is a much more 



84 P.D. 12. 

recent enactment than § 91. Section 91 in its present form provides in 
substance that no person while receiving a pension or retirement allow- 
ance from the Commonwealth or from any county, city or town, shall, after 
the date of his retirement be paid for any service rendered to the Common- 
wealth or any county, city, town or district, with several exceptions, in- 
cluded among which is an exception in favor of a person rendering service 
in a public office to which he has been elected by direct vote of the people. 
Section 91 A was approved by the people of the Commonwealth at the 
State election on November 4, 1958, and in general provides that every 
person pensioned or retired under any general or special law for disability, 
including accidental disability, shall in each year before the last day of 
January file a sworn statement certifying the full amount of his earnings 
from gainful occupation during the preceding year. This section further 
provides that if the earnings exceed, when added to his pension, the regular 
compensation which he would have otherwise earned had he continued 
in service, he shall refund such excess. 

In my opinion, the person you refer to comes squarel}^ within the pro- 
visions of § 91A approved at the State election as I have before stated. 
Without a doubt, he is a " . . . person pensioned or retired under any gen- 
eral . . . law for disability . . . ." There are no exceptions stated. If the 
General Court had intended to except from the operation of § 91 A its own 
members it could readily have done so. 

As stated in the case of Arruda v. Director General of Railroads, 251 Mass. 
255 at 263: "... We cannot supply a casws omissMS. We can only inter- 
pret the law as it was promulgated without regard to our own ideas of 
expediency." Bearing § 91 in mind, it should be observed that § 91A does 
not purport to prohibit a pensioned person from being elected as a Repre- 
sentative. It simply provides that a pension for disability shall be reduced 
or suspended as, when or insofar as it results in an income, including his 
earnings, for the disabled person of more than the compensation of the 
position he held at the time of his retirement from the public service. 

Thei-efore, I answer your question in the affirmative. 
Yery truly yours, 

Edw.^rd .1. MoCoRMACK, Jr.. Attorney General. 



The Governor may submit, and the Council confirm, an appointment to an 
office made to fill a vacancy to occur because of the expiration of the term 
of the incumbent. 

May 12, 1960. 

Mrs. Elizabeth M. STocKiuiiDGE, Executive Secretary Pro Tcm. 

Dear Madam: — The Executive Council has posed the following ques- 
tion relating to the reappointment of William F. Callahan as a member of 
the Massachusetts Turnpike Authority to a term expiring on July 1, 1960: 

"Can His Excellency submit and the Council confirm in advance a re- 
appointment to an office which does not expire for several weeks?" 

I answer the question in the affirmative. 



P.D. 12. 86 

The position in question was established by St. 1952, c. 354. Section 3 
of that act provides that members of the Massachusetts Turnpike Au- 
thority shall be appointed by the Governor, by and with the advice and 
consent of the Council. 

The term to which Mr. Callahan was appointed expires, according to 
§ 3, on July 1, 1960, but his tenure continues until a successor is duly 
appointed and qualified. New terms are for a period of eight years. 

Although the present term has not expired, the facts indicate that it 
will expire within a very few weeks, tinder these circumstances, the 
Governor and Council do have authority to make a prospective appoint- 
ment to fill an anticipated vacancy. I have been unable to locate any 
statute or decision in this Commonwealth which would otherwise limit 
power of the Governor and Council. There is an opinion written by one 
of my predecessors in office, however, involving somewhat dissimilar facts 
but reaching a similar conclusion. It concludes that prospective appoint- 
ments may be made to fill anticipated vacancies in public office. I refer 
you to V Op. Atty. Gen. 116. 

If the Governor and Council did not have authority to make appoint- 
ments for anticipated vacancies during a reasonable period in advance of 
such vacancy, then it would not be possible to select an appointee in suf- 
ficient time so that he could occupy his office during the full statutory 
limit established by the Legislature. A reasonable interpretation of the 
powers of the Governor and Council should not result in any such limita- 
tion. The result which I have reached is also supported by 67 Corpus 
.luris Secundum, § 53, page 218. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



A requirement thai the contractor for a State highway construct a temporary 
connection with existing public ways would not come within the provision 
as to "alterations," but if certain facts are found by the department could 
be ordered as "extra work." 

May 18. 1960. 

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

Dear Sir: — You state that a question has arisen concerning the 
validity of an "alteration" issued by your department to a contractor 
providing for a temporary connection between a section of new highway 
in Phillipston, Massachusetts, and the existing highway Route 2. The 
basic contract required the construction of a section of roadway of ap- 
proximately eleven thousand feet in length terminating about one hun- 
dred and thirty-five feet west of the point where the new road would 
eventually cross Route 2. The contract also provided for a temporary 
connection between this new section of roadway and said Route 2. The 
temporary connection was to be made by using Royalston Road, an exist- 
ing roadway which crosses the new road and which then proceeds to 
Route 2 at an angle. This proposed method of connection was somewhat 
circuitous. The department decided to change it by extending the new 
road for an additional one hiuidred and thirty-five feet, thus making a 



i 



86 P.D. 12. 

direct connection with Route 2. The change was accomplished by the 
issuance of an "alteration." 

A question has arisen as to whether such an "alteration" may be issued 
without compliance with the bid statute. 

In the first instance, it is noted that the work in question could not have 
been requii-ed to be performed under the original contract. It is there- 
fore not an "alteration" of existing work, but is "extra work" and must 
be examined in the light of the law relating to extra work orders. 

It is a fundamental proposition that changes calling for extra work 
may be awarded without further compliance with the bid statute only if 
such changes are incidental to full execution of the work described in the 
original contract and are of minor importance. In nature, magnitude 
and expense, the changes must bear a reasonable subsidiary relation to 
the original contract. The change cannot result in a contract which is 
new and different in the main aspects. Morse v. Boston, 253 Mass. 247, 253. 

In addition to the tests set forth in Morse v. Boston, your department, 
as the aw^arding authority, must also determine that the contemplated 
change is in the public interest and that the cost of such work is fair and 
reasonable. These matters are all questions of fact to be determined by 
your department. 

Assuming that your department has resolved these questions in favor 
of issuing an extra work order, then you have authority to issue an extra 
work order providing for above-described limited extension of the road- 
way. Such extra work order must, of course, comply with the provisions 
of G. L. c. 29, § 20A. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



A transfer of the entire capital stock of a corporation awarded a State highway 
contract would not constitute an assignment of the contract requiring the 
assent of the department, without which the Executive Council should not 
approve the contract. 

June 9, 1960. 

His Excellency the Governor and The Honorable Council. 

Gentlemen : — The Executive Secretary of the Council has informed 
me that there is currently pending before the Council, for approval, certain 
contracts which have been awarded to Turner & Breivogel, Inc., by the 
Department of Public Works. 

You have requested my opinion as to whether the Council may approve 
these contracts under either of the following circumstances : 

a. Where Campanella & Cardi, Inc., bought the assets of Turner & 
Breivogel, Inc., sometime subsequent to the bidding and awarding to 
Turner & Breivogel, Inc. 

or 

b. Where Campanella & Cardi, Inc. bought the stock of Turner & 
Breivogel, Inc., sometime subsequent to the bidding and awarding to 
Turner & Breivogel, Inc. 



P.D. 12. 87 

Although you have not supphed me with a copy of the contracts in 
question, since these contracts have been awarded by the Department 
of PubUc Works it is assumed that the standard specifications of the de- 
partment are applicable to the contracts in question. Article 65 of said 
standard specifications provides that a contractor shall not assign his 
contract without previous written consent of the department. 

Under these circumstances, it would appear that a sale of all the assets 
of Turner & Breivogel, Inc., to Campanella & Cardi, Inc., would include 
a sale of the contract in question. As such, it would constitute an assign- 
ment in violation of the aforesaid Article 65. In this event, the Elxecutive 
Council should not now approve the contract in question. 

If, on the other hand. Campanella & Cardi, Inc., had merely purchased 
the stock of Turner & Breivogel, Inc., such a transaction would not con- 
stitute an assignment of the contract by Turner & Breivogel, Inc. A mere 
change in ownership of stock in Turner & Breivogel. Inc., would not prevent 
the Council from approving the contract in question. 

For your possible information, please be informed that an attorney 
representing the two companies in question has informed this office orallj^ 
that Campanella & Cardi, Inc., purchased the stock of Turner & Breivogel, 
Inc., but did not purchase the assets of that company. If this is, in fact, 
correct, then the Council would be in a position to approve the contracts 
in question if they are otherwise proper. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



Statute for credit to prisoners in ^^correctional institutions of the Common- 
wealth^' of time of confinement awaiting trial is not applicable to county 
correctional institutions. 

June 21, 1960. 

Hon. Gkorge F. McGrath, Commissioner of Correctioyi. 

Dear Sir: — You have requested an opinion as to whether St. 1960, 
c. 350, applies to the county correctional institutions or whether the pro- 
visions of that act are limited to correctional institutions of the Common- 
wealth as defined in G. L. c. 125, § 1. 

Perusal of the statute itself reveals that said c. 350 bears the caption, 
"An Act providing for the reduction of sentences of prisoners in correc- 
tional institutions of the Commonwealth by the number of days such pris- 
oners were confined while awaiting trial." (Emphasis supplied.) The 
body of the act provides : 

"Chapter 127 of the General Laws is hereby amended by inserting after 
section 129A, the following section: Section 129B. The sentence of any 
prisoner in any correctional institution in the commonwealth, who was held 
in custody awaiting trial shall be reduced by the number of days spent by 
him in confinement prior to such sentence and while awaiting trial, unless 
the court in imposing such sentence had already deducted therefrom the 
time during which such prisoner had been confined while awaiting trial." 
(Emphasis supplied.) 



88 P.D. 12. 

Inasmuch as St. 1960, c. 350, amends G. L. c. 127, by adding a new 
section, a proper interpretation of said act requires that all the circum- 
stances surrounding its enactment must be considered. 

It is apparent that the intent of c. 350 was to enlarge the scope of 
G. L. c. 279, § 33A, which provided that "the court on imposing a sentence 
of commitment to a correctional institution of the commonwealth shall 
order that the prisoner be deemed to have served a portion of said sentence, 
such portion to be the number of days spent by the prisoner in confinement 
prior to such sentence awaiting and during trial." (Emphasis supplied.) 
In its present form this section was enacted into law in 1958. Acts of 
1958, c. 173, amended said § 33A, which had first been enacted in 1955. 
Section 33 A, as enacted in 1955, permitted the court, in its discretion, to 
consider the number of days spent by the prisoner in confinement prior 
to his sentence awaiting and during trial; whereas the amended § 33 A, 
quoted above, made it mandatory upon the court to consider such time in 
imposing the sentence. 

It is noteworthy that § 33A, as enacted in 1955 and as amended by the 
Acts of 1958, is limited to correctional institutions of the Commonwealth. 
The statute under consideration, therefore, would appear to have as its 
direct beneficiaries the individuals presently serving sentences in cor- 
rectional institutions as a result of sentences imposed prior to the effective 
date of St. 1955, c. 770, § 101. This intent is further demonstrated by 
the fact that attached to the statute under consideration (St. 1960, c. 350) 
there is a so-called emergency preamble signed by His Excellency Foster 
Furcolo, Governor of the Commonwealth, and it is there stated that the 
facts constituting the emergency are, "Postponement of the operation of 
this act for ninety days would defeat its purpose because the provisions 
of this act are immediately applicable to many prisoners now confined in 
the institutions of the Commonwealth.^^ (Emphasis supplied.) 

In the light of these facts and the apparent intent of the Legislature, it is 
our opinion that without specific reference to county correctional institu- 
tions in said St. 1960, c. 350, the statute is to apply only to correctional 
institutions of the Commonwealth as defined in G. L. c. 125, § 1. Your 
question, therefore, is answered in the negative. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Joseph T. Doyle, 

Assistant Attorney General. 



P.D. 12. 



The Department of Public Works could lease the top surface of the central 
artery tunnel under Dewey Square, Boston, to the city, for the erection of a 
garage, but the city might not have authority to accept; alternative methods 
of arrangement discussed; taxability of garage referred to. 

June 23, 1960. 

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

Dear Sir: — You have asked my opinion concerning the authority of 
your department to negotiate a lease with the city of Boston for the pur- 
pose of enabUng the city to erect a parking garage on the roof of the 
Expressway Tunnel in the Dewey Square area of Boston. You state 
that a portion of the tunnel structure located between Congress Street 
and Dewey Square has been constructed to support a four or five story 
structure, dependent on design. In order to assist the city in alleviating 
the parking situation, it is proposed to lease the top surface of the tunnel 
to the city for one dollar per year on a long term lease under an agree- 
ment that the city would, in turn, have a garage erected on the site by 
private capital. You suggest that the garage would be taxable by the 
city and that revenues received by the city would help compensate for tax 
losses suffered by it because of the taking of private lands for expressway 
purposes. 

If your department determines that the land in question is no longer 
necessary for State highway purposes, then it has broad power to dispose 
of such land by sale, lease or otherwise, as provided by G. L. c. 81, § 7E, 
j)ro visions of which are as follows: 

"The department may sell at public or private sale or, with the approval 
of the governor and council, transfer to another department, or to a city, 
town, or public authority or agency, lease or rent any portion of the lands 
or rights in land the title to which has been taken or received or acquired 
and paid for by it for the purposes set forth in section seven C, and may 
sell in the same manner, or, with the approval of the governor and council, 
so transfer, lease or rent any land the title to which has been taken or 
received or acquired by it which the department determines is no longer 
necessary for state highway purposes, and may, with the approval of the 
governor and council, execute a deed thereof, with or without covenants of 
title and warranty, all in the name and behalf of the commonwealth, to 
the purchaser, his heirs and assigns, and deposit said deed with the state 
treasurer, together with a certificate of the terms of sale and price paid or 
agreed to be paid at said sale, and, upon receipt of said price and upon 
the terms agreed to in said deed, he shall deliver the deed to said purchaser. 
The state treasurer may, by the attorney general, sue for and collect the 
price and enforce the terms of any such sale." 

You will note that in most instances, including the situation where a 
lease is contemplated, the approval of the Governor and Council is re- 
quired in order to complete the transaction. 

The right of the city to acquire property from the department is, of 
course, subject to the various statutory provisions applicable to the city. 

I call your attention to the provisions of St. 1946, c. 474, which author- 
ize the city of Boston to provide public off-street parking facilities. Sub- 



90 P.D. 12. 

division (a) of § 1 authorizes the city to acquire for the foregoing purpose 
such interest in land as may be necessary "except a leasehold estate." 

It would appear, therefore, that although the department may have the 
authority to lease the area in question to the city, there may be a serious 
question as to whether the city is in a position to accept such lease. 

In view of the foregoing, it is suggested either that your department 
grant to the city an easement of support together with a right to build a 
structure on the air-space above, or, in lieu thereof, that the department, 
with the assent of the Governor and Council, transfer the title to the land 
in question to the city, reserving in the Commonwealth an easement for 
the road and the tunnel structure itself accompanied by full rights in the 
Commonwealth to control the road and tunnel structure so that it may be 
maintained and operated for State highway purposes. 

It will be necessary, of course, to spell out in some detail, the scope of the 
Commonwealth's easement in the event that your department selects this 
method of approach. 

You have made some comment concerning the taxability of the garage 
when constructed for the city. The taxability of the structure will depend 
on the nature of the basic agreement between the city and the Common- 
wealth. Until this is definitely determined, we cannot tell whether the 
garage would or would not be taxable. In any event, it would appear 
that the lessee of the garage would be paying rent to the city, which might 
help compensate the city for the loss of tax revenues. 
Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



The amendment to G. L. c. 94, § 217 {relating to offenses involving narcotics 
other than heroin), which removed a restriction on parole for first offenders, 
did not operate to relieve persons previously convicted from the restriction. 

Juke 23. 1960. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Sir: — You have requested my opinion as follows: 

"... whether or not those persons who have been convicted and sen- 
tenced for a first offense under the provisions of G. L. c. 94, § 217, prior 
to the effe(;tive date (June 12, 1960) of St. 1960, c. 204, are entitled to a 
release on parole (1) prior to the effective date of St. 1960, c. 204, (June 12, 
1960) or (2) on and after the effective date of St. 1960, c. 204." 

General Laws c. 94 § 217, as amended b}^ St. 1957, c. 660, applies to 
narcotics other than heroin. General Laws c. 94, § 212, applies to heroin. 
Said § 217 (prior to the 1960 amendment) provides that a person convicted 
for a first offense is prohibited from release on parole until a minimum term 
is served; whereas, said § 212 provides that parole may be granted for the 
first offense but not for subsequent offenses. This distinction in treatment 
of crimes involving heroin and crimes involving other narcotics is a result 
of St. 1957, c. (560. Prior to said 1957 amendment, the privilege of parole 



P.D. 12. 91 

in the event of conviction for the first offense extended to both crimes in- 
volving narcotics other than heroin and crimes involving heroin. 

Under St. 1960, c. 204, amending G. L. c. 94, § 217, the cash fines are 
ehminated from the section and "deUvery" of a narcotic other than heroin 
is made a new crime. Further, the following sentence is added: 

"Except in the case of the first offense, the imposition or execution of 
the sentence shall not be suspended, and no probation or parole shall be 
granted until the minimum sentence shall have been served." 

The answer to question No. 1 is that no person convicted under the 1957 
amendment can be released under the provisions of St. 1960, c. 204, prior 
to the effective date of said 1960 amendment, which is ninety days after 
it became law on March 15, 1960, because it was not an emergency meas- 
ure. Mass. Const. Amend. XLVIII. Prior to the effective date, there is 
no law in effect; therefore, no official action can be taken under it. V Op. 
Atty. Gen. 612, 614. Ahmed's Case, 278 Mass. 180, 183. 

As to question No. 2, the general rule of statutory interpretation is that 
all statutes are prospective in their operation. Parahoschi v. Shaw, 258 
Mass. 531, 533; Hanscom v. Maiden and Melrose Gas Light Co., 220 Mass. 
1, 3-5. 

Furthermore, G. L. c. 4, § 6, pro\ides as follows: 

"Second, The repeal of a statute shall not affect any punishment, penalty 
or forfeiture incurred before the repeal takes effect, or any suit, prosecution 
or proceeding pending at the time of the repeal for an offence committed, 
or for the recovery of a penalty or forfeiture incurred, under the statute 
repealed." 

In view of the above statute and cases, St. 1960, c. 204, is in effect a 
repeal by way of amendment of the provisions of the above cited § 217 
that parole cannot be granted for first and subsequent offenses. Under 
said 1960 act, parole can now be granted for first offenses. To grant a 
parole in the case of offenders under said § 217 prior to the 1960 amend- 
ment would mitigate punishment incurred before the 1960 act took effect. 
Unless the 1960 act itseff states that it shall apply retroactively, the pro- 
visions of G. L. c. 4, § 6, must govern. Since the 1960 act has no such 
provision, the said G. L. c. 4, § 6, applies. 

Therefore, the reply to your second question is in the negative because 
said G. L. c. 4, § 6, provides that a repeal shall not affect any punishment 
incurred before the repeal of said statute. 

Very truly yours, 

Edward J. McCormagk, Jr., Attorney General, 

By Joseph T. Doyle, 

Assistant Attorney General. 



INDEX TO OPINIONS 



PAGE 

Administration and Finance, Commission on : 

Application of provision of General Appropriation Act of 1959 as to ap- 
proval of rates for consultant services 37 

Regulations as to use of State-owned motor vehicles 69 

Approval of lease by Superintendent of Buildings of premises in Spring- 
field area, under St. 1957, c. 656 73 

Allotments, etc., where appropriation may not be sufficient to pay salaries 

for full fiscal year at increased rates voted by the Legislature ... 76 
"Recruitment" at salary rate above minimum, applicable to filling of 

position by appointment of either present or new employee ... 78 
Salary as member of General Court as "earnings from gainful occupa- 
tion" under G. L. c. 32, § 91A (disability pension refund law) ... 83 
Airport. See Lawrence Airport Commission. 

Alcoholic Beverages Control Commission; transfer of licenses between prem- 
ises exempt from G. L. c. 138, § 16C, under St. 1954, c. 569, § 2, because 

of being licensed prior to enactment of § 16C 66 

Aliens; contracts by State agencies with; when permitted .... 81 

Allotments. See Appropriations. 

"Alteration"; under State highway contract. See Contracts. 

Andover, town of. See Lawrence Airport Commission. 

Anti-discrimination. See Discrimination. 

Appointment; anticipatory by Governor. See Governor and Council. 

-Appropriations : 

Provisions of General Appropriation Bill and Act of 1959 as to transfers 

between subsidiary accounts in cases of emergency .... 32, 33 
Application of provision of General Appropriation Act of 1959 as to ap- 
proval of rates for consultant services 37 

Power of Senate Committee on Rules to provide for pa^-ment of clerical 

salaries in excess of specific appropriati* ns 63 

Provision negating liability in excess of anticipated Federal grants does not 

give authority to disregard limitation 72 

None for rent for current fiscal period ; approval of lease by Superintendent 

of Buildings of premises in Springfield area under St. 1957, c. 656 . . 73 
Allotments, etc., where appropriation may not be sufficient to pay salaries 
for full fis(!al year at increased rates voted by the Legislature ... 76 
Atomic Energy. See Boiler Rules, Board of. 

Bidding ; corporation is eligible to bid for plumbing work .... 40 
Boiler Rules, Board of; rules of, as to atomic energy installations; submis- 
sion to Co-ordinator of Atomic Energy 29 

Boston, City of; lease to, by Department of Public Works, of top surface of 

central artery tunnel in Dewey Square for erection of a garage . 89 



P.D. 12. 93 

PAGE 

Budget Commissioner : 
Transfers between subsidiary accounts; "emergency"; "unforeseen emer- 
gency" 32,33 

Allotments, etc., where appropriations may not be sufficient to pay salaries 
for full year at increased rates voted by the Legislature .... 76 

Citizens; preference to in contracts 81 

Civil Defense Agency; should not contract in excess of appropriations in re- 
liance on expected Federal grants 72 

Civil Service; failure to resume duties after termination of a leave of absence 

constitutes a resignation 34 

Commerce, Department of; planning services contract by, witii alien, under 

Federal-Aid Urban Planning Assistance Program 81 

Comptroller. See State Comptroller. 

"Consultant Services." See State Comptroller. 

Contracts : 

By State agency with alien . 81 

State agencies should not contract in excess of appropriations in reliance 
on Federal grants, unless other party agrees to limit liability of Common- 
wealth 72 

Requirement that contractor for State highway construct temporary con- 
nection with existing public ways, as "alteration" or "extra work" . 85 
Transfer of entire capital stock of a corporation awarded a State highway 
contract is not an assignment of the contract 8(5 

Correction, Department of: 

Statute for credit to prisoners in "correctional institutions of the Common- 
wealth" of time served awaiting trial is not applicable to prisoners in 

county institutions 87 

Repeal of restriction on parole of certain narc^otics offenders did not oper- 
ate to relieve persons previously convicted from the restriction . . 90 

County employees. See Probation officers. 

County Corrections institutions. See Correction, Department of. 

Dams. See Public Works, State Department of; waterways. 

Discrimination; real estate agency is a "place of public accommodation" 

within anti-discrimination statutes 61 

Education, Department of; no limitation as to number of children to consti- 
tute a special class for mentally retarded children 50 

"Emergency"; justifying transfer between appropriation subsidiary accounts 32, 33 

Executive Council. See Governor and Council. 

"Extra Work Order" under State highway contract. See Contracts. 

Federal grant; State agency should not contract in excess of amount appro- 
priated in expectation of 72 

Finance Advisory Board; "Open Meeting Law" applicable to ... 46 

Firearms; sales by Massachusetts licensees to out-of-State buyers . . 45 

General Court; salary as member, as "earnings from gainful occupation" 

under G. L. c. 32, § 91 A (disability pension refund law) .... 83 

Governor; to approve notes for borrowings in anticipation of receipts . . 41 



94 ' P.D. 12. 

PAGE 

Governor and Council : 

Governor may submit, and Counc-il confirm, an api^ointmcnt to fill a va- 
cancy to occur by expiration of term of incumbent 84 

Transfer of entire capital stock of a corporation awarded a State highway 
contract is not an assignment of the contract so as to prevent ajjproval of 
the contract 86 

Grant, Federal. See Federal grant. 

Hairdressers, Board of Registration of; right'; of members to work at hair- 
dressing 29 

Housing; right of local housing authority to take railroad land ... 57 

Lawrence Airport Commission; authority to grant easement for water well to 

Andover 36 

Lease; of premises in Springfield area by Superintendent of Buildings under 

St. 1957, c. 656 73 

Leave of absence. See Civil Service. 

License; for work in tidewater. See Massachusetts Port Authority. 

Licenses : 
Fees for original licenses as real estate broker or salesman .... 55 
See Firearms. Sales to out-of-State buyers. 

See Alcohclic Beverages Control Commission; transfer of "Package Goods 
Store" license. 

Lowell Technological Institute, Trustees of; may not exemi?t employecis' 

children from tuition charges 52 

Massachusetts Aeronautics Commission. See Lawrence Airport Commission. 

Massachusetts Port Authority; not required to obtain license from Depart- 
ment of Public Works for work in tidewaters within port of Boston, but 
is elsewhere 39 

Mental Health, Department of; State hospital superintendent's duty to 
cause application to be made for commitment of a person temporarily 
committed determined to be in need of further care 44 

Metropolitan District Commission; duties under St. 1958, c. 566, as to 

Patten's Cove area 49 

Motor Vehicles ; regulation as to use of State-owned vehicles .... 69 

Narcotics; repeal of restriction on parole of certain narcotic offenders. See 
Correction. 

Open Meeting Law. See Finance Advisory' Board. 

"Pac.kage Goods Store" license. See Alcoholic Beverages Control Commis- 
sion. 

"Patten's Cove." See Metropolitan Distri(;t Commission. 

Pensions. See Retirement. 

Personnel and Standardization, Division of: 

Application of provision of General Appropriation Act of 1959 as to ap- 
proval of rates for consultant services 37 

May classify and allocate new temporary positions when the Legislature 

is not in session 52 

"Recruitment" at salary rate above minimum, applicable to filling of posi- 
tion by apj)ointment of either jiresent or new employee .... 78 



P.D. 12. 95 

PAGE 

Plumbing; corporation eligible to bid for plumbing work, but only licensed 

plumbers can do the plumbing work 40 

Prisoners : 
Credit for time spent awaiting trial. See Correction. 

llepeal of restriction on parole of certain narcotics offenders did not operate 
to relieve persons previously convicted from the restriction ... 90 
Probation officers; payments for earned but unused vacation allowances due 

deceased probation officers not authorized by G. L. c. 35, § 19A . . 47 
Professional Engineers and Land Surveyors ; certificate? of registration ; form 68 
Public Safety, Commissioner of. See Fiiearms. 
Public Works, State Department of: 

May not reconstruct privately owned dam under G. L. c. 91, §§ 11 or 31 74 
Lease by, to city of Boston, of top surface of central artery tunnel in Dew(!y 

Square for erection of a garage 89 

See Contracts; "extra work"; "alteration"; under State Highway con- 
tract 
See Massachusetts Port Authority; licenses for work in tidewater 
See Contracts; sale of entire capital stock of corporation after award of 
State highway contract 
Rjiilroad. See Housing. 

Red Estate Agency; is a "place of public accommodation" within anti- 
discrimination statutes 61 

Real Estate, brokers and salesmen; fees for original licenses .... 55 
Refunds; certain by persons retired for disability. See Retirement. 
Registration, Director of; form of certificates of registration of professional 

engineers or land surveyors 68 

Rent. See Lease. 
Resignation. See Civil Service. 
Retirement: 

Of veteran; no appeal and no credit for certain military service ... 31 
State employment of retired city employee prohibited, and waiver of pen- 
sion does not relieve from prohibition 41 

Annual reports and computations for comparisons of pension plus earn- 
ings with compensation and possible refund, for less than a full year, are 

to be on a proportionate basis 70 

Salary as member of the General Court as "earnings from gainful occupa- 
tion" under G. L. c. 32, § 91A (disability pension rd'und law) . . 83 
Schools; no limitation as to number of children to constitute a special class 

for mentally retarded children 50 

Senate Committee on Rules: 

Provision as to approval of rates for consultant services not applicable to 

payments for clerical services to 82 

Power to provide for payment of clerical salaries in excess of specific; appro- 
priations for positions 63 

Sentence; a statute changing a provision as to sentence is not applicable to 
persons previously con\-icted in the absence of provision providing 
therefor 90 



9(5 P.D. 12. 

PAGE 

"Special class." See Schools. 
State Comptroller: 

Application of provision of G(nieral A])pr()priation Act of 1959 as to ap- 
proval of rates for consultant services 37 

To countersign notes for borrowings in anticipation of receipts ... 41 
Power of Senate Committee on Rules to provide for payment of clerical 

salaries in excess of specific appropriations for positions .... (>3 
Provision as to approval of rates for consultant services not applicable to 
payments for clerical services to Senate Committee on Rules ... 82 
State Finance: 

Provisions of General Appropriation Bill and Act of 1959 as to transfers 

between subsidiary accounts in cases of emergency 32, 33 

Application of provision of General Appropriation Act of 1959 as to ap- 
proval of rates for consultant services 37 

Notes for borrowings in anticipation of receipts; approval, etc. ... 41 
"Open Meeting Law"; applicable to Finance Advisory Board ... 46 
Budget Commission; allotments, etc., where appropriation may not be 
sufficient to pay salaries for full fiscal year at increased rates voted b}- 

the Legislature 76 

State Highways; contracts for construction qf; questions as to. See Con- 
tracts. 
State Hospitals; duties of superintendents as to commitments. See Mental 

Health. 
State Housing Board. See Housing. 
State officers and employees : 

State employment of retired city employees is prohibited and waiver of 

pension does not make prohibition inapplicable 41 

New temporary positions may be classified and allocated during period 

when Legislature is not in session 52 

"Recruitment" of at salary rate above minimum; applicable to filling of 

position by appointment of either present or new emploj'ee ... 78 
Allotments, etc. where appropriation may not be sufficient to pay salaries 

for full fiscal year at increased rates voted by the Legislature ... 76 
Governor may submit, and Council confirm, an appointment to fill a 

vacancy to occur by expiration of term of incumbent 84 

Leave of absence; resignation. See Civil Service. 

State owned motor vehicles; regulation as to use of 69 

State Treasurer; notes for borrowings in anticipation of receipts; aiii,ro\-al, 

etc 41 

Statute; repeal of restriction on parole of certain narcotic offenders did not 

operate to relieve persons previously convicted from the restriction 90 

Superintendent of Buildings, State; approval of lease made by, of promises 

in Springfield area under St. 1957, c. 656 73 

Tidewater, licenses for work in. See Massachusetts Port Authority. 
Transfers; between appropriation subsidiary accounts. See Appropriations. 
Tuition. See Lowell Technological Institute. 



P.D. 12. 97 

PAGE 

"Unforeseen emergency"; justifying transfer between appropriation sub- 
sidiary accounts 32, 33 

Urban Planning Assistance Program; Federal aid; contract by Depart- 
ment of Commerce with alien for planning work 81 

Veteran. See Retirement. 

Vacation allowances. See Probation officers. 

Waterways, Division of: 

Projects for improvement of; public owneiship essential; reconstruction 

of privately owned dams not authorized 74 

Licenses for work in tidewaters. See Massachusetts Port Authority. 

Ways and Means, Joint Committee on; classification, etc., of new temporary 

State position when Legislature is not in session 52 

Weapons. See Firearms.