Report of the attorney general for the year ending ..

Public Document No. 12

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REPORT

ATTORNEY GENERAL

Year ending June 30, 1961

Public Document No. 12

Cf)e Commontoealtt) of ^a00ac|)U0ett0
REPORT

^OJ THE

ATTORNEY GENERAL

rOH THB

Year ending June 30, 1961

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Publication or this Document Approved by Alfred C. Holland, State Purchasing Agent.
1100-6-62-933320 Estimated cost per copy: $1.22

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Cf)e Commontoealtj^ of 0^a0sacf)ugett0

Boston, December 6, 1961.

To the Honorable Senate and House oj Representatives.

I have the honor to transmit herewith the report of the Department of
the Attorney General for the year ending June 30, 1961.

Respectfully submitted,

EDWARD J. McCORMACK, Jr.,

Attorney General.

Cl)e orommontijealtf) of ^a00afi)U0etts!

DEPARTMENT OF THE ATTORNEY GENERAL

Attorney General
EDWARD J. McCORMACK, Jr.

First Assistant Attorney General
Fred Winslow Fisher

Assistant Attorneys General

George W. Arvanitis
James W. Bailey
Gerald A. Berlin
Philip W. Bouchard 'o- '
Lucy Broderick Brady
Gerald Cabitt i"- 2'
John J. Coffey '^
Samuel R. DeSimone i»
Francis R. Dobrowski
Richard T. Dolan 20
Joseph T. Doyle
Saul Gurvitz *

John AI. Hart '^
David S. Hoar
Bernard I. Kaplan ^
James J. Kelleher
William F. Long, Jr.
Charles H. McCue >»
Nathan S. Pa yen «
Robert M. Ready '
John E. Ryan "• '^'
Theodore R. Stanley "
William H. Sullivan*
Robert H. Tobin

Herbert E. Tucker, Jr.

Assistant Attorneys General; Director, Division of Public Charities
Richard H. Gens '« Marion R. Miller ^

Assistant Attorneys General assigned to Department of Public Works

DOMENICO J. AlFANO

George 15regianes
Donald J. Clancy '» 'i
Charles E. Frazier "^
Ralph Gordon ^^

Daniel P. Kiley
Philip Lemelman
Joseph F. Lyons
John W. McGarry
Eugene G. Panaresb
Joseph P. Zajac "

Assistant Attorneys General assigned to Metropolitan District Commission
Daniel W. Carney John J. Grigalus

Joseph H. Elcock, Jr. ^ William D. Quigley

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, Oct. 7, 19G0.

2 Terminated, Nov. 11, 1960.

3 Appointed, Dec. 1, 1960.

< Terminated, Dec. 21, 1960.

' Appointed, Dec. 28, 1960.

« Terminated, Jan. 3, 1961.

' Appointed, Jan. 4, 1961.

8 Terminated, Jan. 17, 1961.

'Appointed, Feb. 8, 1961.
'0 Appointed, April 1, 1961.
11 Appointed, April 3, 1961.

12 Terminated, April 30, 1961.

13 Appointed, May 1, 1961.
n Terminated, May 12, 1961.

15 Appointed, May 15, 1961.

16 Terminated, May 17, 1961.
"Terminated, May 31, 1961.

18 Appointed, June 1, 1961.

19 Appointed, June 7, 1961.
21 Appointed, June 12, 1961.

» 1 Terminated, Jime 15, 1961.

P.J). 12

STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1960 to June 30, 1961

A-ppropriations.

Attorney General's Salary $15,000 00

Administration, Personal Services and Expenses .... 377,647 00

Veterans' Legal Assistance ........ 19,100 00

Investigation and Study of Public Charities ..... 10,000 00

Claims, Damages by State Owned Cars ...... 95,000 00

Small Claims 10,000 00

Total $526,747 00

Expenditures.

Attorney General's Salary $15,000 00

Administration, Personal Services and Expenses .... 377,575 29

Veterans' Legal Assistance ........ 18,996 68

Investigation and Study of Public Charities ..... 10,000 00

Claims, Damages by State Owned Cars 94,999 84

Small Claims 10,000 00

Total $526,571 81

Financial statement verified (under requirements of c. 7, § 19, of the General Laws),
December 4, 1961.

By JOSEPH T. O'SHEA,

For the Comptroller.

Approved for publishing.

JOSEPH ALECKS,

Comptroller.

P.D. 12.

Cf)e Commontoealt!) of ^a00act)U0ett0

Department of the Attorney General,
Boston, December 6, 1961.

To the Honorable Senate and House oj 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, 1961, totaling 21,306, are^tabulated as follows:

Extradition and interstate rendition . . . . 112

Land Court petitions .......... 138

Land damage cases arising from the taldng of land:

Department of Public Works ........ 1,585

Metropolitan District Commission . . . . . . . 190

Civil Defense ........... 1

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

Department of Natural Resources ....... 19

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

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

Massachusetts Maritime Academj' ....... 4

Massachusetts Turnpike Authority ....... 2

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

Miscellaneous cases, including suits for the collection of money due the Com-
monwealth 8,948

Estates involving application of funds given to public charities . . . 1,644

Settlement cases for support of persons in State institutions .... 23

Pardons:

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

as amended ........... 52

Small claims against the Commonwealth ....... 280

Workmen's compensation cases, first reports ...... 6,124

Cases in behalf of Division of Employment Security ..... 538

Cases in behalf of Veterans' Division ........ 1,640

I>TTRODUCTION.

The fiscal year covered by this report was one of the most active in the
history of the office of Attorney General. In addition to the heavy burden
of the ordinary legal matters and litigation handled by the ofhce vdiich
continued at a large and increasing volume, very important and difficult
situations of extraordinary occurrence arose and required the attention of
the Criminal Division of the office. The Division of Civil Rights and
Liberties continued its activities for the protection of the rights of all
citizens and the Division of Consumer Counsel was active in many im-
portant matters. Detailed reports of the activities of the three divisions
named and of the other units and branches of the office are set out below.

8 P.D. 12.

Consumer Council and Division of Consumer Counsel.

I again recommended the passage of legislation creating the Consumer's
Council as a statutory body to be located in, but not subject to the control
of, the Attorney General's office, with the Attorney General to supply
legal and clerical assistance. It has become increasingly apparent to me
that there is need for such representation before the administrative agen-
cies and before the courts.

In rate cases, afTecting public utilities, insurance, small loans and the
like, there is virtually no representation of the users before the adminis-
trative agencies. When one examines the record of the evidence submitted
to the several agencies in support of, or in connection with these hearings,
one is struck by the almost total lack of any statement of opposition.
The interested parties are quite often the utilities or the insurance com-
panies or the lending agencies, as the case may be. For this reason, I
recommended that the legislation creating the Consumer's Council give
the Council standing in court as a "party in interest" with the right to
challenge any ruling by an administrative agency. Under existing legis-
lation, the only parties having such standing are usually the parties who
have themselves appealed for the increase in rates and the user has been
ruled not to be a "party in interest."

During the year, the Consumer's Council has been concerned with
prosecution of certain cases involving fraudulent and misleading advertis-
ing and has instituted suits to enjoin such activity. In one instance, after
suit was entered by me, a stipulation was filed, whereby the offending
party agreed to cease the misleading advertising and salesmanship, in
which it had been engaged.

On (3ctober 6, 1960, in co-operation with the Bar Association of the city
of Boston and the Massachusetts Bar Association, I sponsored a seminar
on antitrust matters. This seminar was attended by lawyers from all
over the Commonwealth and supplied them with information concerning
the latest rulings and changes in the laws relating to antitrust. This
seminar followed my filing of suits to seek recovery in treble damages in
the asphalt cases.

In connection with my investigation of the Metropohtan District Com-
mission, it came to my attention that several utility companies had been
charging the ]\Ietropolitan District Commission for the use of electricity
for street lighting in a manner which was not consistent with the rate
schedules as filed by those utilities with the Department of Public Utilities.
I, therefore, with the co-operation of the Metropolitan District Commis-
sion, began an investigation into these rates to determine whether or not
the Commonwealth was being overcharged and what, if any, remedies
there were available to us. In connection with this investigation, I also
started an investigation of all electric rate charges to which the Common-
wealth was subject to determine whether or not the treatment accorded
the Commonwealth was similar in all instances. This investigation is still
going on.

P.D. 12.

Mass Transportation.

The field of mass transportation again continued to occupy a good deal
of the time and attention of this office, during this period.

Old Colony.

On July 18, 1960, Judge Anderson in the United States District Court
in Connecticut, entered a decision on the Commonwealth's rights to the
option after lengthy litigation. The court set a deadline by which time the
Commonwealth was to enact legislation to complete the exercise of the
option. This deadline was extended several times at the request of the
Governor and the General Court, until May 10, 1961, when legislation
creating the South Shore Transportation District was enacted.

Boston & Maine Railroad.

On October 4, 1960, the Boston & Maine Railroad proposed to cut cer-
tain commuter service in Massachusetts. In accordance with the agree-
ment which the Boston & Maine Railroad entered into with the Common-
wealth, for the refunding of certain of its bonds, I immediately objected
both to the Boston & Maine Railroad and to the Department of Public
Utilities claiming that the discontinuance application was a breach of
faith. On November 13, 1960, I appeared before the Department of
Public Utifities in opposition to this discontinuance application. Largely
as a result of my actions, on February 16, 1961, the Boston & Maine
Railroad withdrew its application for discontinuance.

In line with the problems which I discussed concerning the position of
the Attorney General, in opposition to certain actions of the Public Utili-
ties Commission, among others, I had appeared before the Department of
Public Utilities in opposition to the proposed sale of South Station which
had been filed by the South Station Terminal. The Department of Pubhc
Utilities had approved this application and I, therefore, appealed the de-
cision to the Supreme Judicial Court. I appointed the counsel for the De-
partment of Public Utilities as a Special Assistant Attorney General to
represent the department, while another Assistant Attorney General ap-
peared in my behalf in opposition to the decision. The court, while ruling
in favor of the department, said "we recognize that troublesome questions
may arise where the Attorney General is representing both a department
or commission whose decision is called in question, and the pubhc or some
portion of it. . . . But since the Attorney General has certain common
law responsibilities with respect to the enforcement of public rights . . .
as well as the statutory duty to appear for State departments (G. L. c. 12,
§ 3), we are not to be understood as holding that he can never represent
more than one interest." Attorney General v. Department of Public Utili-
ties, 342 I^Iass. 662, 665, 666.

This case is a continuing demonstration of the obligation and duty of
the Attorney General to enforce the public right even though he may have
to do so against a governmental agency for which he has the responsibility
to appear in court.

10 P.D. 12.

Antitrust.

Antitrust activity increased greatly in this period. This was due in large
measure to what is now known as the "Asphalt Clause." In my report
for the year ending June 30, 1960, I stated that I opposed the acceptance
by the Antitrust Division of "nolo contendre" pleas and consent decrees
in the criminal and civil road material cases brought by the Federal
Government in the United States District Court in Boston. Since the
Commonwealth of Massachusetts and its cities and towns were the vic-
tims of the price-fixing and bid-rigging conspiracies, I felt that they should
have the advantages of prima facie cases when suing for triple damages.

On October 13, 1960, I was informed that a consent decree containing
the prima facie provision which is now known as the "Asphalt Clause,"
would be presented and probably accepted on the following Monday,
October 17. The prima facie benefit of this decree only extended to those
governmental units which had cases pending prior to its acceptance by
the court. Since I had already filed suit on behalf of the State, it would
have the advantage of the decree. However, I knew that the major por-
tion of the damages sustained as a result of these conspiracies was sustained
by the cities and towns of the Commonwealth. Massachusetts has 351
cities and towns. It was not certain whether or not I, as Attorney General,
could bring suit in my name on behalf of the cities and towns either by
way of direct representation or a class suit. It was also obvious that to
help the cities and towns, something had to be done promptly. I, there-
fore, sent a letter on October 13 to all 351 cities and towns informing them
of the anticipated decree and advising them that if they wished to proceed
on this matter they file their own complaint on the following Monday
morning or forward me proper written authorization to file one on their
behalf. Eventually, approximately 70 suits were filed by or in behalf of
cities and towns.

The multiplicity of parties and of actions raised many difficult practical
problems in the mere handling of the paper work. I called a meeting of all
the cities and towns which had suits pending at which a procedure was
evolved for handling of the discovery through one Assistant Attorney
General, with the co-operation of all other counsel. Millions of dollars of
purchases were involved in the State and cities and towns cases. Pre-trial
discovery and analysis proceeded throughout the year.

Being aware that similar triple damage actions arising out of the Federal
Government "electrical" cases in Philadelphia were on the horizon, I
requested, and there was enacted, special legislation as an amendment to
Section 10 of Chapter 12 of the General Laws. This gave the Attorney
General direct authority to bring antitrust damage suits in behalf of the
political subdivisions of the Commonwealth. When the cases were de-
cided in Philadelphia, I sent a questionnaire to all of the more than 370
such subdivisions to determine what triple damage suits should be com-
menced. The answers rcnealed many millions of dollars of purchases on
the basis of which suits for triple damages were subsequently entered.

P.D. 12. 11

Railroad Passenger Service Cases.

In instances where the Attorney General, as the representative of all the
people, differs, or is asked to differ, on grounds of public policy, with the
decision of a particular board or commission, the Attorney General, since
he also has the duty of defending the decisions of State departments,
boards and commissions, is put in a difficult position.

As stated, such situations frequently arise with reference to decisions
of the Public Utilities Commission. During the year two other cases arose
which illustrate the two sides of the problem. In one case the Public
Utilities Commission rendered a decision approving the plan of a railroad
to rearrange passenger service on certain lines in such a way as not to
greatly reduce the service in the area or inconvenience the public to any
great extent while relieving the railroad from a large loss in passenger
operations. An appeal was taken by the communities involved. The
Attorney General felt that the appeal was ill-advised, that the objections
to the commission's order approving the service rearrangement were un-
justified and he took that position before the Supreme Judicial Court of
the Commonwealth which sustained the commission's order in every re-
spect. Town of Wilmington v. Department of Public Utilities, 341 Ivlass. 599.

In another case, however, the commission approved the discontinuance
by a railroad of all passenger service on a certain line, some of the trains
on which operated at a profit and on which a curtailed service could con-
tinue to operate profitably, or at a small expense. The Attorney General
disagreed with the conmiission's decision. To resolve the difficulty one
Assistant Attorney General was assigned to represent the commission and
argue the case in support of its order, and another Assistant Attorney
General, the Director of the Division of Consumer Counsel, was assigned
to work with the municipalities which had appealed the commission's
order. The Attorney General and the Assistant in charge of the Division
of Consumer Counsel were successful in working out a program of con-
tinuing on a reduced schedule, rather than discontinuing all passenger
service, which program was agreed to by the railroad and the communities
involved and approved by the commission, and the appeals were withdrawn.

Division of Civil Rights.

The third edition of the "If You Are Arrested" pamphlet was printed
and distributed to a waiting list of over 200,000 people, including the senior
classes of all the public and private schools in the Commonwealth. During
the year six other states adopted the Massachusetts pamphlet for their
own jurisdictions, and the American Bar Association designated a com-
mittee to prepare a pamphlet for national distribution dealing with the
Federal criminal laws.

The division, as part of its duties as counsel for the Massachusetts
Commission Against Discrimination, was active in helping to draft and
secure legislation to extend and tighten the enforcement of the Massa-
chusetts Fair Housing Practices law. During the year in question, it

12 P.D. 12.

represented the commission in the prosecution of the Colangelo case, now
headed lor the first high court test in the nation of this type of regulatory-
statute.

Towards the end of tiie year tlie United States Supreme Court in Mapp

V. Ohio, — U. S. (1961), 81 S. Ct. HI, ruled that illegally

obtained evidence is inadmissible in State prosecutions. The office sub-
sequently received numerous requests from law enforcement officials for
an explanation of this decision which overturned nearly 125 years of
Massachusetts law, and asked for a clarification as to its effect on them
in the performance of their duties. The division assisted in the prepara-
tion of a memorandum summarizing the history of this area of tiie law,
the reasoning of the court, and some suggestions as to how to employ the
division in future law enforcement activities. The memorandum was
widely distributed among the judiciary and the law enforcement officials
in the Commonwealth.

It will be recalled that during the previous year the Attorney General
had intervened when Massachusetts enforcement officials had on a number
of occasions sought to interfere with the rights of persons engaged in
peaceful picketing to demonstrate sympathy with the lunch counter sit-ins
in the South. At that time the Attorney General had ruled that peaceful,
noncoercive picketing is a protected expression of opinion under the First
Amendment. Subsequently, attempts were made to suppress, first, the
activities of George Lincoln Rockwell, the self-styled luiehrer of the Ameri-
can Nazi Party, and then an extended series of organized peaceful demon-
strations by pacifists and other groups protesting the bomb shelter program,
the resumption of nuclear testing and related matters. The teaching of
the previous year appears to have been effective and in due course all of
the demonstrations were allowed to proceed as an exercise of the right of
free speech.

Legislation to establish a State agency to provide counsel for indigent
defendants in certain criminal matters having been prepared during the
preceding year, the division has since been working constantly to insure
its effectiveness and to co-ordinate the work of as many private and public
agencies throughout the Commonwealth as possible to this end. A series
of conferences with judges, probation officers, criminal lawyers and private
agencies were conducted and arrangements effected whereby the Lawyers'
Reference Service of the Boston Bar Association, working with the courts,
would supplement the necessarily limited jurisdiction of the State de-
fendant's agency.

The division played an unusual role in a Southern school desegregation
case. A three-judge Federal court considering the constitutionality of a
Louisiana statute enabling the parishes (counties) in that State to close
its schools rather than desegregate invited the Attorneys General of 50
States to file briefs on this question :

"Are our States required by the fourteenth amendment to the United States Con-
stitution to provide public school education?"

So far as is known, this is the first time that a Federal court has asked the
participation of all the States in a case. At the request of the Department

P.D. 12. 13

of Justice, the division prepared for Massachusetts a brief which asserted
that "under no conceivable circumstances should Louisiana or any other
State withdraw from the business of public education . . . without offer-
ing a valid reason and valid substitute, nor under circumstances which are
bound to result in a perpetuation of power by a limited group." Joining
in the Massachusetts brief were New York, Pennsylvania, Rhode Island,
Connecticut, Maine, Michigan, Ohio, Illinois, Minnesota, Wisconsin,
Nevada, California, Alaska, Oregon and (in part) Kentucky.

Criminal Division.

During the past year the Criminal Division has been engaged most
actively in a series of extraordinary investigations and prosecutions. In
addition, the work of investigating complaints, and complying with re-
quests for assistance from local enforcement ofhcers and law enforcement
officers of the Federal Government and other States continued to require
the time, attention, thought and action of those assigned to the Division.

Many criminal proceedings were prosecuted directly by the Assistants
in charge of the Divisions of Consumer Counsel and Charities, and the
Assistants handling the legal work of the Division of Employment Se-
curity, and other legal work, and are discussed in connection with the
other work of the said Divisions and such other legal work.

The attorneys of the Criminal Division under my supervision have
been engaged in representing the Commonwealth's interests in many and
varied criminal cases.

In prosecuting and investigating all matters, it has been my policy to
effectively prosecute the guilty while zealously guarding the constitution-
ally guaranteed rights of the accused.

There has been much justified criticism of prosecution tactics of State
and Federal prosecuting officers which fell short of the fair procedure re-
quired for the protection of the rights of all citizens who may be accused
of crime. It is no answer to say that most of those whose rights were
violated were guilty anyway and that less than strict compliance with
their constitutional rights made conviction easier.

Competent, painstaking and persistent efforts by the police in investi-
gation, and by prosecution officers on complaints, in grand jury proceed-
ings and trials, will assure that no really guilty person who should be
convicted escapes. The alternative of looking the other way at violations
of the constitutional rights of persons accused of crime and evasions by
law enforcement officials of obligations to follow procedures written into
our basic charters for the protection of anyone who may ever be unjustly
charged with crime is not to be tolerated.

No responsible law enforcement officer would ever deliberately sacrifice
the constitutional rights of one accused of crime in order to obtain a con-
viction for any reason. They are too fully cognizant of the injury to the
prospects and future of a person convicted of a crime to ever dehberately
a conviction by evading the constitutional rights of an accused.

The danger is the tendency, since most persons whom the ordinary law

14 P.D. 12.

enforcement officer deals with are actual transgressors, to relax the strict
observance of the constitutional requirements. That, however, is the very-
thing which may lead to a conviction of an innocent person.

The very gravely harmful consequences of a conviction to one unjustly
accused, require, for the protection of every citizen, that the constitutional
rights of every person accused of crime be fully protected.

As stated, that has been the principle and pohcy I have adhered to in
the handling of all criminal matters coming before me and which I have
enjoined on the law enforcement officers of the Commonwealth. I am sure
that the citizens of the Commonwealth endorse and support that policy.

With the co-operation of the State and local pohce. State tax authori-
ties, and the Federal Bureau of Investigation, many investigations and
prosecutions were conducted. Some investigations had interstate ramifi-
cations. The more important cases handled by my office are discussed
hereinafter.

Metropolitan District Commission Cases. As a result of disclosures in a
report of the State Auditor in July, 1960, and Senate committee hearings
in August of 1960 on the affairs of the Metropolitan District Commission,
members of my staff conducted an investigation into the Commission's
operations and business dealings. In November of 1960, I presented evi-
dence resulting from the investigation to the Grand Jury of Suffolk County.
As a result of this presentation indictments were returned against the
Chairman of the Metropolitan District Commission and an Associate
Commissioner as well as several contractors and others, for larceny, con-
spiracy, conffict of interest and perjury. The charges were of three kinds.
First: Those concerned with conflicts of interest in the sale of highway
guard rails to the Commonwealth by a supplier in which an Associate
Commissioner had a personal financial interest and the sale of perform-
ance bonds by the Chairman to persons doing business with the Common-
wealth. Second: Those concerned with graft in the dismantling of the
tent over the Metropolitan Art Theater on Soldiers Field Road in Boston
which was under the jurisdiction of the Metropolitan District Commission.
Third : Those concerned with the failure to perform certain sidewalk con-
tracts between the B & M Construction, Del-Mar Construction Co. and
the Metropolitan District Commission. These cases were prosecuted by
Assistant Attorney General Joseph T. Doyle and findings of guilty were
entered in each case, appeals being taken in some of the cases.

Taunton Municipal Light Case. During the fiscal year, indictments were
returned by the Bistol County grand jury upon a presentation by the Crim-
inal Division of this office with respect to four officials of the Taunton
Municipal Light Co., charging them with larceny and taking of presents.
During the current fiscal year many preliminary matters in the nature of
motions to quash were taken by the defendants and arguments were heard
before the Supreme Judicial Court. The validity of the indictments was
upheld by the court and the cases will be assigned for trial.

Briiik's Case Aftermath. Upon the request of the Governor of Pennsyl-
vania, a hearing was held at this office with respect to the rendition to that

P.D. 12. 15

State of Joseph "Specks" O'Keefe. Mr. O'Keefe was a key figure in the
prosecution of the notorious Brink's case. The facts ehcited at the hearing
and other pertinent information were reported to the Governor in due
course.

Polaroid Case. Officials from the Polaroid Corp. sought the assistance
of my office as a result of excessive losses in merchandise at their Needham
plant amounting to approximately a quarter of a million dollars. For six
months prior to contacting my oflftce, the Polaroid Corp. had engaged
private investigators relative to these losses without success. I immedi-
ately assigned members of my staff to investigate the matter. The in-
vestigation uncovered a ring of thieves and "fences." Within ten days
of my first meeting with the Polaroid officials, fifteen men were arrested
and indicted for larceny and receiving stolen goods. The results of the
investigation were turned over to the District Attorney for Norfolk County
and convictions were obtained by him. Some of the defendants have also
been indicted by the Federal grand jury on the basis of information turned
over to the United States Postal authorities by my office.

Tax Indictments. As a result of shortages discovered in an audit of the
books of the Alcoholic Beverages Excise Division of the Department of
Corporations and Taxation, my office investigated the books and records
of that division. After a thorough investigation by my staff and presenta-
tion of the case to the grand jury, indictments were returned against two
individuals, including a State employee, for conspiracy and filing of fraudu-
lent tax returns. This case marked the first time in this Commonwealth
that persons were indicted under the tax laws and subsequently convicted.
Full restitution of taxes due in an amount in excess of one hundred thou-
sand dollars was made to the Commonwealth and fines totalling five
thousand dollars were imposed. The case was important from the stand-
point of maintaining the integrity of the tax system.

State Racing Commission. During the course of this year representation
of the State Racing Commission was assigned to the Criminal Division.
In Hancock Raceway, Incorporated v. State Racing Commission, the division
defended the commission which had denied a license to the petitioner to
conduct a horse race meeting at Hancock in Berkshire County. Another
case involving the commission was Bay State Harness Horse Racing and
Breeding Association v. State Racing Commission, 342 Mass. 694, involving
the decision of the commission to award licenses for pari-mutuel harness
racing of 33 days to Suffolk Downs and 57 days to the Foxboro Race Track.

Some of the more interesting cases argued by my staff before the Supreme
Judicial Court were :

Golden, petitioner, 341 Mass. 672.

Golden upon being acquitted of murder by reason of insanity was con-
fined to the Worcester State Hospital for life. The court held that he was
not a "person adjudicated by ... a court to be a mentally ill person"
within § 94A as appearing in St. 1959, c. 293, and, therefore, the procedure
provided in § 94A was not the correct procedure to effect his discharge
from the hospital, even if he had recovered his sanity.

16 P.D. 12.

Persampieri v. Commonwealth, 1961 Adv. Sh. 1059.

This was a writ of error wherein the petitioner sought to set aside his
conviction alleging that he had been improperly convicted of the crime of
manslaughter for telling his wife to shoot herself and handing her the gun
with which she did so. The petitioner argued that his wife had committed
suicide and since self-murder is not a crime, he could not be charged with
the crime of murder or any degree thereof. The court upheld the validity
of his conviction upon the theory that his actions constituted a wanton
disregard of human life and the defendant had been properly convicted
of manslaughter.

Richard E. Stearns, petitioner, 1961 Adv. Sh. 1095.

The petitioner brought a petition for a writ of habeas corpus seeking to
have credited against his sentence the time he spent in confinement as an
insane person. He had been committed as insane at the time of his arraign-
ment on a charge of assault with intent to murder and assault with a
dangerous weapon. He contended that he was entitled to credit for the
four years spent in the mental hospital under the provision of a 1960 statute
granting credit for time spent in confinement "while awaiting trial." The
Supreme Judicial Court decided that the petitioner was entitled to be
credited with such time and further ruled that a writ of habeas corpus
might be issued despite the provision of G. L. c. 248, § 1, that persons in
execution of legal process shall not be entitled to this remedy.

The cases of District Attorney for the Northern District v. Superior Court,
1961 Adv. Sh. 303, presented by a Special Assistant Attorney General,
Goldman v. Commonwealth, 342 Mass. 779, and Nassar v. Commonwealth,
341 Mass. 584, were also argued before the Supreme Judicial Court.

Another investigation initiated during the year concerned alleged shake-
downs by employees of the Department of Pubhc Utilities.

Report of the Criminal Laics Passed During the Legislative Session. In
accordance with G. L. c. 12, § 6A, a digest of all new laws was prepared,
printed and distributed to sheriffs and local law enforcement officials.

The division also complied with many requests for legal opinions from
State agencies involved in law enforcement activities. Requests were re-
ceived from the Department of Correction, the Department of Public
Safety and other related law enforcement activities too numerous to men-
tion. The opinions were prepared by staff members assigned to the
Criminal Division after extensive legal research.

Law of Arrest for Police Officers. The Criminal Division was also assigned
the task of preparing a handbook on the Law of Arrest for Law Enforce-
ment Officers. There is a great need for such a handbook for the guidance
of police officers and for the protection of the rights of accused persons.

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 :

P.D. 12. 17

Petitions to be Adjudged Sane ........ 7

Writs of Error 28

Writs of Mandamus (Tax and Ballot Commissions) ..... 16

Writs of Mandamus .......... 5

Writs of Habeas Corpus ......... 19

Petitions for Discharge (Supreme Court, Probate Courts) ... 6

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

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

Petitions for Review (Ballot Law Commission, Racing Commission) . . 4

Bills in Equity (Re: Telephone discontinuance because of gaming) . . 6

Complaints against Registry of Motor Vehicles ..... 3

State Board of Conciliation (U. S. District Court) ..... 1

Pardon Petitions Recommended upon ....... 52

Rendition Cases:

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

States) Ill

Division of Public Charities.

Massachusetts General Laws, c. 12, § 8, directs the Attorney General of
the Commonwealth of Massachusetts to "enforce the due application of
funds given or appropriated to public charities within the commonwealth,
and prevent breaches of trust in the administration thereof." In 1954,
the statute was amended by the addition of five sections designed to aid
the Attorney General in carrjdng out this common law power. A Division
of Public Charities was established in the office of the Attorney Gen-
eral, with which all public charities were required to file annual financial
reports. The director of the division was given broad power to conduct
hearings and investigations, subpoena witnesses, and promulgate regu-
lations.

It should be noted that the term "public charity," as it appears in the
General Laws and has been used by the courts of the Commonwealth, has a
broad meaning. It includes all trusts, corporations and voluntary associ-
ations, established for judicially recognized charitable purposes, to aid an
indefinite number of individuals.

In the fall of 1960, Attorney General McCormack requested two members
of the staff of Brandeis University to conduct a survey of the activities of
his Division of Public Charities with an eye toward assessing and improv-
ing the operation of the division. Their report contained four major
recommendations :

"First: a detailed inventory of all funds currently reporting to the
division to gather further information on the method of creation, adminis-
tration and purpose of these funds ; and a compilation of this information
in a Master File.

"Second: a revision of the form currently used for annual reports, to
give more detailed information about financial activities and the means
by which the charitable purposes are being implemented.

18 P.D. 12.

"Third: preparation and distribution of a booklet containing informa-
tion on all charities currently reporting to the division.

"Fourth: expansion of current efforts to discover funds which were not
reporting; exploration of the feasibility of amending the existing law to
extend the autliority of the Attorney General over certain funds not cur-
rently included under Chapter 12."

A supplementary appropriation was obtained from the General Court
and these recommendations are now being carried out by an expanded
staff in the Division of Public Charities.

Attorney GeneraVs Advisory Committee on Public Charities. The first
major step in this new program was the appointment by the Attorney
General of an Advisory Committee on Public Charities, composed of thirty
leaders from the fields of philanthropy, law, accounting and social work,
including representatives from the law schools in the area. This group,
working with the staff of the division, primarily through small committees,
has given advice and recommendations on such phases of activity as the
revision of forms, legislative changes, problems arising from solicitation by
charitable organizations and the drafting of rules and regulations for the
division. They have also been consulted on certain policy matters in which
the Attorney General is interested. For example, they recently proposed
recommendations concerning a bill in equity filed by the trustees of a loan
fund set up under the will of Benjamin Franklin asking permission of the
Supreme Judicial Court to apply the funds cy pres for loans to medical
students and residents.

Directory of Public Charities in Massachusetts. The Division, in June
1961, published a Directory of Public Charities in Massachusetts which con-
tains an alphabetical listing of all charities filing reports with the Division,
and a breakdown of these charities by purpose. A grant for this project
was donated by the Permanent Charity Fund of Boston. The Directory
has been distributed to all public libraries in the State, city and town
clerks, and the probate courts, and is available to individuals on request.

Prior to publication, a complete analysis of all charities reporting to the
Division was necessary. A new office file was compiled listing the charities
by purpose and containing names, addresses, principal directors, assets and
charitable donations. It is used by large numbers of individuals each
month who are seeking sources of donations or potential beneficiaries, as
well as by members of other State departments.

For the first time, computations were made of the assets of charitable
funds, including total figures and a breakdown of these totals according
to charitable purpose.

Office procedures were also revised. Addressograph plates have been
made for all funds, so that blank forms can be automatically mailed out
each year. The staff has investigated the use of automatic processing data
to handle the financial reports, but feels that such a step is not necessary
at present. If the number of charitable funds reporting to the Attorney
General should increase appreciably in the future, however, the use of
I. B. M. cards will again be explored.

P.D. 12. 19

Search for Non-Reporting Funds. Once the master list was compiled for
the Directory, a second phase of the work was comm.enced : the comparison
of this list with that of the exempt organization file of the local Bureau of
Internal Revenue. Over 1,000 additional charitable funds were located in
this way and are now being requested to report.

A measure of the success of this search for new charitable funds can be
seen in the figures supplied by the State Auditor on the collection of the
three dollar fee which must accompany each financial report. For the
period January 28, 1960, to November 18, 1960, $6,279 was collected,
while for the period from November 18, 1960, to November 8, 1961, during
which this intensive search was started, the figure rose to $11,448. The
division staff still feels there are more funds, particular!}^ inter-vivos trusts,
to be located and this phase of activity will be a continuous one.

Investigations of Pubh'c Charities. Collection of financial reports from
charitable organizations is fully effective only if continuous scrutiny is
maintained and irregularities are corrected. Under the new system, each
report is checked by one individual who writes for additional information
where necessary. Some 200 such letters were sent during this period.
Questionable reports are referred to a legal member of the staff for in-
vestigation. This individual has the co-operation of State and Federal
tax officials, and, with the powers given in General Laws, c. 12, § 8H, can
conduct a thorough investigation. To date, thirty funds have been marked
for investigation for such irregularities as unwarranted accumulation of
income, unauthorized loans and self-dealing by trustees. Some of these
will come to court action, although the division members have been able
to correct a large number without the need for such a final resort.

Revision of the form used by the public charities for filing financial re-
ports was a major task of the staff and a sub-committee of the Advisory
Committee. The new form is an adaptation of form 990A used by the
Bureau of Internal Revenue, it has been well received by the charities
since it simplifies bookkeeping and management of records. The need for
uniform accounting procedures is well recognized in the field of public
charities, particularly the health and welfare agencies. It is hoped that,
at least in Massachusetts, the new reporting procedure will have a bene-
ficial effect on this problem. While the Massachusetts statute does permit
substitution of a printed financial report, if such is published, in cases where
these printed reports contain inadequate information, the charity is re-
quested to supply additional data.

Regulations. In the course of this w^ork it became evident that regu-
lations were necessary to clarify certain portions of c. 12, § 8. These
regulations have been drafted by the division with the co-operation of a
sub-committee of the advisory group and the advice of Professors Austin
Scott and Albert Sachs of Harvard Law School and Professor William
Curren of the Law-Medicine Institute of Boston University. The chief
problems which they are designed to meet are those of definition ; the range
of public charities which fall within the coverage of the statute; and the
funds for religious purposes which are exempt.

Guide for Trustees and Directors. The division is now planning publica-

20 P.D. 12.

tion of a guide for trustees and directors. It is felt that many individuals
are ignorant of the law of charities or even of the sources of information
available on the subject. The guide wiU contain a simphfied statement of
the statutes and common law relating to charitable activities and a bibli-
ography of the leading cases and treatises. It is not intended to serve as
an all-inclusive statement of the law, but merely as a starting point for
individuals who may be new to their duties as heads of charitable funds.

Cemelery Funds. Non-profit cemeteries are not by law considered public
charities in Massachusetts. However, unsegregated perpetual care fimds
established by cemeteries, which are engaged in the sale of cemetery lots
with perpetual care have been ruled by the Attorney General to be trust
funds for a public purpose. Trustees of these funds must accordingly file
annual financial reports with the division. Notice of this ruling was sent
to every cemetery in the Commonwealth in January of 1961. Since funds
for religious purposes are exempt from the filing provisions, as well as
funds maintained by municipalities, it has been necessary to rule on these
exemptions and process the reports which are filed. To date, such reports
are processed separately from other charitable funds, due to their specific
nature, but the procedures which have been established are similar to those
described above.

Probate MaUers — Cy Pres. Processing annual reports by charitable
funds is only one phase of the activities of the Division of Public Charities,
albeit a large one. Two other areas are of considerable importance: pro-
bate matters, and supervision of sohcitation by charities.

By statute, the Attorney General is made a party to all legal proceedings
where a charitable interest is involved. During the course of a year the
legal staff of the division examined and ruled on approximately 1 ,500 matters
pending in the probate courts of the Commonwealth, involving allowance
of wills, petitions for instructions, petitions for hcenses to sell, allowance of
executor's and trustees's accounts, petitions for appointment of trustees
and petitions for the apphcation of the cy pres doctrine.

The reactivation of dormant trust funds has long been considered an
important phase of the division's work. Search for these funds and prepa-
ration of petitions for appointment of new trustees or application of the
cy pres doctrine has continued. For example, the division recently spon-
sored legal action which resulted in the creation of an $800,000 trust fund,
the income from which will be used to aid and assist aged men and women
through programs of research and recreational programs.

The Attorney General participated in litigation which led to an interpre-
tation of the S4, 000,000 trust established by the will of Marion Potter
so that the trustees may make grants to charitable organizations within
the Commonwealth and in those States granting the same tax privileges
to charitable institutions as are given in Massachusetts.

The Attorney General at the request of the Supreme Judicial Court
prepared a memorandum on appointment of trustees of charitable trusts
in response to questions raised by the action of a probate judge appointing
his son as trustee of the Lotta Crabtree estate. The son resigned two weeks
later.

P.D. 12. 21

Regulation of Solicitation. Regulations concerning the solicitation of
funds for charitable purposes are contained in various sections of the Gen-
eral Laws. Chapter 68, § 17, provides for the filing of reports on these
activities with the office of the Attorney General in cases where solicita-
tion involving $1,000 or more is being carried on in more than one city or
town in the State. Complaints of improper solicitation practices are
handled jointly by the Division of Public Charities and the Criminal
Division of the Attorney General's Department in co-operation with local
police officials. The forms which must be filed by organizations coming
within the provisions of the statute have recently been revised. A sub-
committee of the Attorney General's Advisory Committee has made a
survey of similar legislation in other States and is currently preparing a
report of its findings along with recommendations for changes in existing
legislation.

Summary. In summary, the activities of the Division of Public Charities
for the last year have been directed to three major goals: service to bene-
ficiaries, trustees, and directors; increasing public confidence in charitable
activity; and the promotion of beneficial regulations.

The specific components of this program have been the establishment of
the Attorney General's Advisory Committee, publication of the Directory
of Public Charities in Alassachusetts, the extensive search for non-report-
ing funds, revised office procedure for audit and investigation of charities,
preparation of a guide for trustees and directors, promulgation of regula-
tions, supervision of the solicitation of charitable funds and the reactiva-
tion of dormant trust funds.

This work has been carried on by a staff composed of a Director who is
an Assistant Attorney General, a legal assistant, an administrative assist-
ant and two secretaries, under the supervision of the Attorney General.

By-Laws.

Over one thousand by-laws were submitted to this office by various
towns and acted upon in the past year. Once again it is interesting to note
that zoning amendments were predominant. Less than thirty of these by-
laws were disapproved by the Attorney General. The provisions of G. L.
c. 40A, § 6, should be carefully complied with by towns in order that all
proper procedural steps be taken in the adoption or amendment of by-laws.
It was failure to do so that caused the relatively few disapprovals noted
above. According to the provisions of § 6, when the planning board hear-
ing is held within twenty days of the town meeting it is essential that the
final report with recommendations of the planning board be submitted to
the town meeting. We have taken the position that in that instance, the
report, as submitted, should be in writing and read to the town meeting
in order to satisfy this statutory directive.

By-laws were speedily acted upon by this office, and returned to the
town clerk's office, as has been our custom in the past.

22 P.D. 12.

Division of Employment Security.

During the fiscal year there were in the division a total of 537 cases re-
quiring the attention of the Assistant Attorneys General assigned to the
division. Employers who failed to pay their employment security taxes
accounted for 445 of these cases. There were 90 cases involving fraud on
the part of claimants who collected unemployment benefits illegally; and
two cases were entered in the Supreme Judicial Court on appeal from de-
cisions 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 241 criminal complaints against 23 employers. Findings
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.

A complete study has been undertaken covering a wide scope in the field
of fraud and abuses in the collection of unemployment compensation bene-
fits. Conferences have been held with the investigatory staff of the divi-
sion and much time has been devoted to preparation of preliminary data
and reports. It is expected that this study will soon be completed so that
we may proceed to bring to trial those persons who are responsible for the
fraudulent practices.

In the Superior Court in Equity, twenty bills of complaint were brought
in receivership proceedings against delinquent employers.

Of the two cases in the Supreme Judicial Court, one has been decided
in favor of the Commonwealth ; namely, Bogdanowicz v. Director of Divi-
sion of Employment Security, 341 Mass. 331. Still pending on the court
docket is the case of Raytheon Co. v. Director of Division of Employment
Security, which will be argued at the Fall 1961 sitting of the Supreme Court.

A total of 91 cases of all types were disposed of during the year, and as
of June 30, 1961, the inventory of cases numbered 446. The sum of
$76,838.72 was collected during the year; of this amount, S69,276.21 was
paid by delinquent employers, and $7,562.51 was recovered on unemploy-
ment benefits collected fraudulently.

Contributory Retirement Appeal Board.

The Contributory Retirement Appeal Board provided for by G. L.
e. 32, § 16, is composed of three members: an Assistant Attorney General
designated by the Attorney General, the Director of the Division of Ac-
counts or an assistant designated by him, and the Commissioner of Insur-
ance or his designee. The board meets weekly on Friday (holidays and
the summer period excluded), at which times a minimum of four cases

P.D. 12. 23

are assigned for hearing. While most of the cases considered involve dis-
ability and other retirements under that chapter, all other matters re-
lating to retirement benefits, such as creditable service, classification and
amounts of benefits, are determined.

The board's decision is binding upon the local board and all other parties
in interest. Any decision rendered may be appealed by way of a petition
for review to the court having jurisdiction in accordance with the Ad-
ministrative Procedure Act.

During the current period the Contributory Retirement Appeal Board
heard, and rendered decisions on, approximately thirty cases. Before a
decision is reached, in almost every instance, because of the lack of suf-
ficient precedent, a considerable amount of research is necessary, followed
by discussion of both the law and the facts. All of this, naturally, con-
sumes a great deal of time and effort. Because of the advances in medical
science and the resultant longer life of potential claimants, the case load of
the Contributory Retirement Appeal Board has become increasingly heavy.
For these reasons it is necessary that many claimants wait a longer period
than they should to have their claims adjudicated. This is an inequitable
situation which can be corrected by legislation providing better operative
conditions for the board.

The board, having no appropriation of its own for clerical services, has
to depend entirely upon the voluntary services of employees of other offices
for the preparation of records for the courts. This alone unduly delays
hearings. The board does not have the services of an investigator. In
many instances such services could be of great help in obtaining informa-
tion and facts when it is indicated they are needed. From week to week
hearings are held in different sections of the State House, which is a very
unsatisfactory arrangement. Quarters for the board's own use should be
furnished. Sufficient funds should be provided to meet its costs of ad-
ministration and operation. Too often the Assistant Attorney General
who sits as a member of the board finds himself in the courts arguing a case
on which he sat as a member. This is an awkward situation which should
be corrected by substituting some other official for an Assistant Attorney
General as a member of the Contributory Retirement Appeal Board. The
Attorney General's office should, as is done with every other administrative
board, act only as counsel to the board.

Among the more important decisions of the Supreme Judicial Court re-
viewing decisions of the board during this period were the following cases :

Mary Cataldo v. Contributory Retirement Appeal Board, 1961 Adv. Sh.
1392, Anna Kelley v. Contributory Retirement Appeal Board, 341 Mass.
611, and Helen McCarthy v. Contributory Retirement Appeal Board, 342
Mass., 45.

In each of those cases the Supreme Court sustained the decision of the
board.

The Cataldo case decided that the burden of proof in accidental death
claims must be sustained by the claimant. The Kelley case decided that
the statement of the medical panel in accidental disability cases must con-
tain a statement of possible causal connection to the claimant's employ-

24 P.D. 12.

ment. The McCarthy case decided that the Superior Court is not war-
ranted on review of a decision of the board as to accidental death claims
to make independent findings of fact.

The fact that in every case which was appealed to the Supreme Judicial
Court during this period the court agreed in substance with the decision
of the Contributory Retirement Appeal Board is a tribute to the fair and
objective attitude of the members in considering cases. The board could
be far more effective if favorable action is taken with reference to the ob-
servations set forth above.

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.

This includes the protection of public rights in the great ponds and in
the tidewaters of the Commonwealth. An Assistant Attorney General
hears all petitions pertaining to the establishment of access to great ponds.

During the year, 136 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 damages
awarded, and that all outstanding encumbrances, municipal liens and in-
heritance taxes have been paid.

During the year, approximately 1,000 abstracts, etc., were processed.

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

Tort Cases.

By virtue of the provisions of G. L. c. 12, §§ 3B and 3C, the Attorney
General has the responsibility of adjusting or engaging in trial in the de-
fense of suits against officers or employees of the Commonwealth for prop-
erty damage or personal injuries, including death, resulting from the opera-
tion of State-owned motor vehicles.

During the current fiscal year, 442 cases have been disposed of either
by settlement or trial by the Tort Division of the Attorney General's office.
This figure represents claims for defects in State highways, together with
moral claims (c. 12, § 3A).

Workmen's Compensation Division.
During the year the Workmen's Compensation Division received 5,628
first reports of injury. This resulted in 721 agreements for compensation
being submitted for approval. Six hundred and ninety-five agreements
were approved for payment and 26 have not been approved, but are being
held for further investigation, further medical reports, etc.

P.D. 12. 25

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

For Compensation $902,538.22

Medical Payments to Doctors 130,878.49

Hospital Payments 145,838.10

$1,179,254.81

Under G. L. e. 152, § Go, this office collected $9,650. The balance on
hand at the beginning of the fiscal year in this fund was $20,869.40, mak-
ing the total amount of funds available $30,519.40. Payments out of this
fund on insurer's petitions brought under G. L. c. 152, § 37, totaled
$20,227.88, leaving a balance on hand at the end of the fiscal year of
$10,291.52.

Under G. L. c. 152, § 65N, this office collected $103,875 during the year.
The balance on hand at the beginning of the fiscal year was $373,584, mak-
ing the total amount of funds available $477,459. Payments out of this
fund on insurer's petitions brought under G. L. c. 152, § 37A, totaled
$86,351.84, leaving a balance on hand at the end of fiscal 1961 of
$391,107.16.

It should be noted that the income received under § 65 is continuously
less than the expenditures under this same section, whereas the income
received under § 65N is greater than the expenditures under the § 65N
fund. The reason for this is that the insurers are compelled to pay into
the § 65 fund, also known as the "second injury fund," only w^hen an em-
ployee dies and leaves no dependents. This situation of course does not
arise as frequently as the situation under which the insurer must pay into
the § 65N fund, which is also known as the "veteran's fund." Legislation
has been filed to correct this problem and to build up the § 65 fund.

The Workmen's Compensation Division of the Attorney General's office
represented the Commonwealth on 212 different matters before the In-
dustrial Accident Board at hearings and conferences held in Boston,
Fitchburg, Foxborough, Taunton, Plymouth, Brockton, Springfield,
Worcester, Salem, Lynn, Lowell, Lawrence and Northampton.

Veterans.

As in the past, legal advice was furnished to veterans, their dependents
and others who are concerned with veterans and their problems and mat-
ters that affect them. Many veterans and their dependents come to the
division for help on their own initiative. Others are referred by service
organizations and agencies and departments of government at its various
levels. Numerous written inquiries are received regarding veterans' prob-
lems, particularly from disabled or hospitalized veterans and from service-
men on active duty in the armed forces of the United States.

Although personal interviews are always preferable, for the reason that
our division staff is able to obtain all the vital facts, inquiries by letter are
answered as expeditiously as possible, although in many cases, further

26 P.D. 12.

correspondence is necessary to obtain needed information. In addition,
many telephone calls are received each day from veterans requiring on-the-
spot legal advice.

The problems which most often concern veterans and their dependents
involve questions of veterans' benefits, real estate, taxation, domestic re-
lations, civil service and retirement, education, employment and many
others too numerous to mention.

Collections.

Collections for the year totaled $127,776.41. Listed below is a break-
down for each department:

Mental Health 64 $93,801.62

Public Works 112 13,890.62

Metropolitan District Commission 11 3,399.70

Public Health 32 11,730.60

Natural Resources ........ 1 33 . 00

Agriculture 1 335.00

Education 17 1,662.42

Labor and Industry ........ 1 125.00

PubHc Safety 2 227.79

Public Welfare 1 79.19

Treasury Department 2 2,176.78

Civil Defense 1 90.50

Commerce .......... 2 4.19

Parole Board 1 220.00

248 $127,776.41

Springfield Office.

The Springfield office of the Department of Attorney General, presently
located at the new State Building in Springfield, Massachusetts, is staffed
by a secretary, two assistants, one legal assistant who handles legal re-
search and preparation of pleadings, and one State pohce officer.

A member of the Springfield staff covered all hearings conducted in
Springfield by the Department of Banking and Insurance, Division of
Insurance. The Springfield 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 brought against the Commonwealth
or its various agencies in the western counties were defended by a member
of the Springfield staff, and in a number of cases, actions were brought in

P.D. 12. 27

behalf of the Commonwealth by a member of the Springfield staff, in-
cluding actions to recover funds for the Department of Mental Health,
the Department of Agriculture, and other agencies requesting this service.

The Springfield office worked in conjunction with the district attorneys
in the four western counties on various criminal matters, and also ren-
dered service to various city solicitors and town counsels, with respect to
legal rulings requested by said persons. All criminal investigations arising
in the four western counties were handled by the State police officer as-
signed to the Springfield staff.

Citizens requesting various services were interviewed at this office fre-
quently, and if matters could not be completely terminated by the At-
torney General's staff, they were channeled to other agencies of the Com-
monwealth.

Conclusion.

The high degree of accomplishment of my administration of the office of
the Attorney General during the period of this report could not have been
attained without the full co-operation of Governors Furcolo and Volpe,
the presiding officers and members of the Legislature, other State officers,
and the careful and conscientious performance of their duties by the As-
sistant Attorneys General and the other members of the staff, for all of
which I am most grateful.

ectfully submitted,

EDWARD J. McCORMACK, Jr.,

Attorney General.

OPINIONS.

An extra work order for work necessary to the completion of a project and
incidental and subsidiary to the work called for in the contract was valid
without bidding under G. L. c. 29, § 8 A.

July 19, 1960.

Mr. Frederick J. Sheehan, State Comptroller.

Dear Sir: — Under date of July 11, 1960, you requested an opinion on
certain questions relating to an extra work order as to which the Metro-
politan District Commission had filed with you the notice of intention re-
quired by G. L. c. 2i), § 20A. On July 12, 1960, we informed you that the
facts submitted with your inquiry were not sutficient to enable us to de-
termine your questions as to the validity of the order. Under date of
July 15, 1960, you wrote us enclosing a letter to you from the commission
stating in some detail the background of the situation calling for the doing
of the additional work covered by the extra work order.

It appears from the last-mentioned letter to you that reports of engineer-
ing consultants for the development of Breakheart Reservation as a recrea-
tional area had been made with plans and cost estimates for buildings and
other work included therein. The proposed development looked to the
construction of new, and the widening of old, roads, the laying of water
pipe through wooded areas and the erection of various structures. A nec-
essary preliminary to the construction work was the clearing and grubbing
of the areas for the new roads, and for the widening of the old roads, and
the areas through which the pipe line was to run and where the buildings
were to be erected. In the original proposals of the engineers, which were
not adopted because the total cost exceeded the amount available, clearing
and grubbing of 50 acres at an estimated cost of $20,000 and se'ective
clearing at an estimated cost of $10,000, were suggested. Revised pro-
posals were prepared and fina'ly adopted in which clearing and grubbing
was reduced to 29 acres, the sdective clearing remaining the same.

Prior to advertising invitations for proposals for the work, the commis-
sion was offered the use of prison help by the Department of Correction
and accepted the offer. With the intention of having such help do the
clearing and grubbing, a provision was inserted in the advertised invita-
tion and in the contract that "Clearing and Grubbing and Selective Clear-
ing will be performed by prison labor help under the supervision of the
Department of Correction."

The contract as so advertised was awarded to the lowest bidder, the
Charles Contracting Company, in the amount of $260,993.25.

Due to a reduction in the quota of prisoners assigned to the work and
the adverse weather conditions, the prison help cleared and grubbed only
6.4 acres of land and did none of the selective clearing.

It is clear from the foregoing narration that the work covered by the
extra work order, which it is estimated will cost $20,725, not only is a part
of the complete project but, though minor in comparison to the total cost,
is an essential part of the project and is a necessary preliminary to the do-
ing of the more costly work.

30 P.D. 12.

The fact that the work covered by the extra work order in question was
excluded "from the contract as advertised is not, and particularly so in view
of the demonstrated reason therefor, of significance in the determination of
the validity of the order. As was stated in the formal opinion to the Com-
missioner of Administration of August 12, 1955 (Attorney General's Re-
port, 1956, p. 27), with regard to an extra work order covering the change
in design at the end, and the extension beyond the original terminal point,
of the Boston expressway, if the work to be done under an extra work order
"amounts to something which the contractor could not have been required
to do under the terms of the contract as originally written, but was neces-
sary to the satisfactory completion of the project, then it is 'extra work.' "

The inclusion in construction contracts which are required by statute to
be advertised for competitive bidding of provisions that the contractor can
be required to perform additional work not within the plans and specifica-
tions which is necessary for the completion of the project, on terms pro-
vided for in the contract, has been held to be valid. Morse v. Boston, 253
Mass. 247.

It has been frequently stated in opinions of this office relating to ques-
tions as to validity of extra work orders that the question of whether such
an order should be issued in a particular instance is largely a question of
fact for the determination of the officers charged with the duty and respon-
sibility of supervising the doing of the work.

The situation with regard to the extra work order for clearing and grub-
bing in connection with the contract for construction at the Breakheart
Reservation is like that referred to in the opinion of the Attorney General
to you of August 8, 1957 (Attorney General's Report, 1958, p. 14), in that
on all the facts it would appear that the commission was justified in reach-
ing a decision that the extra work covered by the order was necessary to
the completion of the project and was incidental to, and subsidiary to, the
work called for in the contract as awarded and, therefore, the commission
acted properly in ordering the contractor to do the work as extra work
under the contract.

Very truly yours,

Edward J. McGormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

The University of Massachusetts Building Association legislation was not
necessarily voided by the decision in Ayer v. Commissioner of Adminis-
tration; if extending and ratifying legislation is enacted by two-thirds
roll call vote, any doubts will be resolved.

July 22, 1960.

His Excellency Foster Furcolo, Governor of the Commonwealth.

Sir: — You have called attention to House 2592 of 1960 passed by a
majority vote of both branches of the General Court. The bill would
increase the amount of real and personal property which may be held by
the University of Massachusetts Building Association and would have the
indirect effect of allowing that organization to issue an additional amount
of bonds.

P.D. 12. 31

You point out that the association, estabhshed under the provisions of
St. 1939, c. 388, as amended from time to time, has erected dormitories and
other buildings on the campus of the University of Massachusetts, and
that the Commonwealth, through the University, has rented these build-
ings from the association. The Commonwealth pays rental to the asso-
ciation and in turn receives revenues from University students who use
and occupy the premises.

In view of the decision of the Massachusetts Supreme Judicial Court
in the case of Ayer v. Commissioner of Administration, 340 Mass. 586,
decided in March of the current year, a question has arisen concerning the
propriety of your approval of current House 2592. The Ayer case related
to the construction of a State ofhce building by an association to which
the Commonwealth would pay rent. The factual situation in the Ayer
case was somewhat similar to the factual situation under which the Uni-
versity of Massachusetts Building Association has erected the buildings
described above.

In the Ajjer case, the court held that the contemplated lease-purchase
arrangement for erecting a proposed State office building actually contem-
plated borrowing funds by the Commonwealth and thus required a two-
thirds vote of each branch of the General Court, said vote beiiig taken by
the yeas and nays. The statute was declared to be void on its face be-
cause it lacked such a two-thirds vote. The decision in the Ayer case
does not necessarily lead to the conclusion that the various statutes relat-
ing to the University of Massachusetts Building Association are also void.
There are many differences in detail between the association set up to
erect dormitories and the proposed association to erect the State office
building. At least one of these differences was noted by the court at page
461 of the Ayer decision where it pointed out that students' fees were a
source of income in the University Building Association situation, whereas
no outside revenues were contemplated under the State oflice building
legislation.

You have asked advice as to whether or not, based on the foregoing
facts, there is any obstacle to you as Governor in approving House 2592.
You have also asked whether there is any obstacle to the payment of
rent to the association as such rent payments fall due.

As stated above, the Aijer case did not specifically determine that the
University Building Association statute was invalid. Although all of the
questions which were before the court in the State office building case
were not actually decided by the court, the precise difficulty relied upon
by the court in that case can be avoided in connection with House 2592
if that bill is passed by a two-thirds vote of the yeas and nays in each
branch of the Legislature.

In answer to your first question then, it is recommended that such two-
thirds vote be obtained before you sign the bill in your capacity as Gov-
ernor.

In respect to your second question, relating to the rental payments due
from the Commonwealth to the association under current existing leases,
it is suggested that any possible cloud on the right of the Commonwealth
to pay such rent could be removed by adding an additional section to
House 2592 confirming the prior legislation relating to Massachusetts
University Building Association and ratifying the acts performed under
such prior legislation in executing the leases in question.

House 2592, with this additional section and being passed by two-thirds

32 P.D. 12.

majority, should meet the objections rehed upon by the court in the Ayer
case. There are, of course, many other methods which you might elect to
follow in order to resolve any doubts created by the Ayer case. The fore-
going suggestions are made on the assumption that you desire to employ
House 2592 as a means of accomplishing this end.
Very truly yours,

Edward J. McCormack, Jr , Attorney General,

By Joseph H. Elcook, Jr.,

Assistant Attorney General.

Apportionment of costs of Metropolitan Server System among cities and towns
under G. L. c. 92, § 5 A , cannot he changed for five years; effect of re-
ductions in capacity of its connections made by a member town.

July 25, 1960.

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

Dear Sir: — You have called attention to the provisions of St. 1959,
c. 612, which amends G. L. c. 92, relating to the basis for the apportion-
ment of the cost of construction and payment of the debt of the Metro-
politan Sewer System among the various cities and towns served by such
system.

You have asked the following questions:

Question 1 : Does the Metropolitan District Commission have the au-
thority or duty to establish in 1960, prior to September 1, 1960, the pro-
portion in which the cities and towns in the Metropolitan Sewer District
shall contribute to the capital charges for the system for each of the five
years beginning January 1, 1961?

If the answer is in the affirmative, shall the proportion so established
take into consideration any reduction in the capacity of sewer connections
of the town of Milton with the Metropolitan Sewer System which may be
effected before September 1, 1900?

In answer to question 1, your attention is called to §§ 3 and 5 of the
aforesaid c. 612. By § 3 of c. 612, which adds a new § 5A to c. 92, the
commission is required to establish the said proportions not later than
September 1 m the year 1960. It likewise must establish the proportions
in each fifth year thereafter. In establishing the proportion for the year
I960, however, § 5 of c. 612 requires that the commission shall adopt an
apportionment specifically set out in § 5 which provides that Milton shall
pay 4.74 per cent of the charges. The commission, therefore, cannot take
into consideration any reduction in the capacity of the sewer connections
of the town of Milton effective prior to September 1, 1960. The statute es-
tablishes a mandatory proportion for such year.

Question 2: Does G. L. c. 92, § 5A, as enacted by St. 1959, c. 612 re-
quire that a request of the town of Milton for an adjustment of the ap-
portionment assessed upon said town be made before September 1, 1960?

If so, when must the town make such request and when may it submit

P.D. 12. 33

evidence of reduction in the capacity of the connections of the town of
Milton sewers connected with the Metropohtan District Sewer System?

In view of our answer to question 1, where it appears that an adjustment
of the proportion cannot be made by the commission in 1960, your second
question does not require an answer.

Question 3: An expert study by consulting engineers retained by the
town of jVIilton has already been completed, which if carried out, could
substantially reduce the capacity of the town of Milton sewer connections
with the Metropolitan District Sewer System. If this study is approved,
would the Metropolitan District Commission take into account the re-
duction in the capacity of the town of -Milton sewer connections effected
by the carrying out of such study in establishing the proportions of assess-
ments for the five years beginning January 1, 1961?

This question similarly is predicated upon the assumption that the
Metropolitan District Commission may make changes in the apportion-
ment for the five-year period commencing on September 1, 1960. Since
it is our opinion that the Legislature has by law established the proportion
for this five-year period, the I\Ietropoiitan District Commission cannot
take into account the reduction in the capacity in the town of ]Milton
sewer connections during that period.

The language of § 3 of St. 1959, c. 612, provides for an apportionment
to be made by the commission once every five years after establishing the
apportionment in 1960 as described above. Any such changes in the ap-
portionment may be made only if occasioned by construction or changes
in connections as may be authorized. The statute does not contemplate
changes in the apportionment during the five-year period. If a town
desires to make such changes, it is believed that they could be accom-
plished only after authorization of the General Court.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

Discussion of a proposed bill (H. 2960 of 1960, enacted as G. L. c. 4-0, § 4C —
St. 1960, c. 561) authorizing a city or town to engage in collective bar-
gaining with labor organizations representing its employees.

July 28, 1960.

His Excellency Foster Furcolo, Governor of the Commonwealth.

Sir : — You have submitted to me for examination and report enacted
bill numbered House 2960, entitled "An Act allowing Cities and Towns to
enter into Collective Bargaining Agreements."

House 2960, as indicated by the title, authorizes those municipalities
which accept its terms to enter into collective bargaining agreements with
labor organizations representing its employees, except police officers. This
bill takes effect when accepted in a city having a Plan D or Plan E charter
by the affirmative vote of a majority of all the m.embers of the city council;

34 P.D. 12.

in a city not having such a charter by vote of the city council, subject to
the provisions of the charter of such city; and in a town by a majority
vote at an annual town meeting.

While there exists much legislation relative to labor relations between
employees and private employers, legislation in this State dealing with the
subject matter referred to in this bill is comparatively recent. By the pro-
visions of c. 294 of the Acts of 1955 municipalities were authorized, by city
ordinances and town by-laws, to establish a personnel relations review
board and empower such board to adjust the grievances of all the em-
ployees of such city or town other than those appointed by the school
committee, with some limitations and restrictions. In 1958 the General
Court enacted c. 460, inserting a new § 178D in c. 149 of the General Laws,
entitled "An Act protecting the right of Public Employees to join Voca-
tional or Labor Organizations," in which it is provided that employees of
the Commonwealth or any political subdivision shall have the right to
form and join vocational or labor organizations and to present proposals
relative to salaries and other conditions of employment through representa-
tives of their own choosing, and protecting the employees from discharge
or discrimination because of their exercise of such right. The new § 178D
exempts police officers from its operation. House 2960 follows in the wake
of the legislation above referred to.

At the outset it should be borne in mind that the cities and towns of the
Commonwealth are divisions of government established in the public in-
terest. The Legislature is supreme in the control of these governmental
instrumentalities, subject to the provisions of the Constitution. This legis-
lative power of control embraces regulation by law of employment in the
service of cities, towns and other divisions of the Commonwealth. More-
over, such regulation need not be the same in all the cities and towns and
other divisions of the Commonwealth, and the General Court has the right
to make local laws to meet the peculiar exigencies of any part of the
community. In addition, where matters are of local concern, it may be
provided that statutes dealing therewith shall become effective in any
particular city or town when accepted by such city or town. In its repre-
sentative capacity within appropriate functions of legislation, the General
Court stands in the position of employer. It may establish general rules
for the employment of labor. Undoubtedly, the General Court under the
Constitution has broader power to deal as employer with employees than
to regulate the conduct of the general public. It should further be borne
in mind that there is a serious difference between the relations of the gov-
ernment and its political subdivisions and their employees, and employees
in private industry. Most, if not all, public employees are appointed or
employed by public officials whose tenure and responsibilities are fixed by
statutes, local legislation and rules and regulations. Man}^ or most public
officials are sworn to uphold the laws of the Commonwealth and the Con-
stitution. How far they may abdicate their public statutory duties may
be a serious question. To do so might, of course, lead to a government by
men in place of a government by laws. Moreover, many of the subjects of
collective bargaining in private industry and business are covered, so far
as public employees are concerned, by statutes, local legislation and State
and local rules and regulations. The civil service law, found in G. L.
c. 31, deals in detail with the appointment, promotion, transfer and dis-
charge of public employees. Innumerable statutes, city ordinances, town

P.D. 12. 35

by-laws and State and local rules and regulations exist dealing in great
detail with the subjects of vacations, sick leave, holidays and overtime.
General Laws c. 32 covers a wide field of retirement and retirement benefits,
both for superannuation, ordinary disability and accidental disability, and
accidental death benefits. Moreover, c. 32 contains special protection
against discharge of public employees belonging to the pubhc retirement
systems (see § 16). However, the General Court, in the exercise of its
wisdom, has found that a need may exist in some instances in specific
cities or towns for the protection of the public employees of that city or
town.

Accordingly, I have no doubt the subject matter of this bill was given
careful thought and study by the General Court. The facts to which I
have alluded, I assume, were in the minds of the members when the bill
was under consideration. The Legislature could have found that working
conditions of municipal employees in some instances were unfair, unjust
and out of step with the times; that any improvement is at present diffi-
cult, if not impossible, to obtain without an agreement, and that an op-
portunity should be provided any city or town which felt that justice and
fair play required a collective bargaining agreement to execute one if it
chose to do so. In view of the foregoing, it is my opinion that the General
Court acted within its jurisdiction in passing House 2960. This bill, if it
becomes law, must be fitted into the legal framework of the Common-
wealth and construed with aU other applicable measures so as to form a
harmonious whole. I can envision some problems which may arise which
will require careful thought and consideration on the part of all concerned.
It is not, I believe, at this time necessary to deal with a hypothetical situa-
tion which may or may not come to pass, namely, the possibility of a
strike. That subject may be better dealt with if. as and when it occurs.
However, it may not be amiss to state here that I find nothing in this bill
dealing with that subject. Citij of Manchester v. Manchester Teachers
Guild, 100 N. H. 507, 511 (1957).

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

Very truly yours,

Edward J, McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

36 P.D. 12.

The provision of St. 1969, c. 620, § 2, prohibiting reallocations of positions in
State institutions of higher education in classes the duties of which as
indicated in the specifications are administrative is not applicable to
positions in classes with academic duties although the incumbents are
performing administrative functions.

Aug. 1, 1960.

Hon. Frank L. Boyden, Chairman, Board of Trustees, Universitij of
Massachusetts.

Dear Sir: — This letter is in reply to that of the secretary of the Board
of Trustees in which he stated that the board had voted to request the
opinion of the Attorney General on the interpretation of St. 1959, c. (520,
with particular reference to the salaries the board set for certain individuals
who were considered by the board to be holding administrative positions.
The secretary stated that the personnel action referred to "took effect
February 28, 19(50," but did not state when the vote was taken.

Chapter 620 of the Acts of 1959 contains live sections.

Section 1 revised the general salary schedule by inserting a new salary
schedule with higher rates for the then existing job groups in G. L. c. 30,
§4(>.

Section 2 of the chapter reads as follows :

"The rate of compensation for each position in a public institution of
higher education operated by the commonwealth is hereby increased ac-
cording to a schedule filed in accordance v/ith the provisions of paragraph
(5) of section forty-five of chapter thirty of the General Laws; provided,
that no change in the job group allocation shall be authorized for a po-
sition in a class the duties of which, as indicated by the descriptive speci-
fications on file with the division of personnel and standardization, are
clearly administrative; and, provided further, that the amount of the
increase in compensation authorized for any position upgraded under the
provisions of this section shall, on the efi'ective date of this act, be limited
to an amount which is the difference, as shown in the general salary schedule
in section forty-six of chapter thirty of the General Laws as appearing in
chapter seven hundred and twenty-nine of the acts of nineteen hundred
and fifty-six, between the rate in the job group from which the position was
assigned and the corresponding rate in said salary schedule for the job
group to which the position is assigned as authorized by this section, not-
withstanding the provisions of section one of this act or any other pro-
vision of law to the contrary; and, provided further, that the minimum
increase authorized by this section shall be the increase authorized by
section one of this act."

Section 3 contains an appropriation for meeting the cost of the salary
adjustments authorized by the act, § 4 increases the compensation of blind
workers, and § 5 provides that the act shall take effect on February 28,
19(30. The act was approved on September 17, 1959.

It is to be noted that under the provisions of § 2, quoted above, only
positions "in a class the duties of which, as indicated by the descriptive
specifications on file with the division of personnel and standardization,
are clearly administrative . . ." were excluded from the upgrading by way

P.D. 12. 37

of changes in job group allocations provided in the schedules referred to
in the section.

The secretary stated in his letter that —

"Under St. 1959, c. 620, the Joint Committee on Ways and Means
designated what they considered to be teaching positions under § 2 of the
act. They excluded positions with obviously administrative titles and
duties. In order to comply with the intention of the committee, the Board
of Trustees, acting under the provisions of G. L. c. 75, § 13, limited in-
creases to the minimum authorized under § 1 of the act where in its opinion
the duties were strictly administrative although the title was that of a
teaching position. Historically, a number of positions with administra-
tive duties have been classified in titles that are normally used for teaching
faculty."

The secretary goes on to give two examples. The first concerned a
person holding a position classified as "Head Department A," which title
was allocated to a higher job group under c. 620. It is stated that the
actual duties of the person referred to are different from those of other
positions with the same title, that the trustees considered the duties to_ be
clearly administrative, and voted to deny the incumbent the change in job
group allocation provided by c. 620. The second concerned a person hold-
ing a position classified as "Professor 'A,'" which title was allocated to a
higher job group under c. 620. Said c. 620 also allocated the position of
Dean of Men, University of Massachusetts, the duties of which were being
performed by the person classified as "Professor 'A,' " to a job group lower
than that to which the title of "Professor 'A'" was allocated by c. 620, but
higher than that to which the position of "Professor 'A'" had been al-
located prior to the enactment of said c. 620. The secretary stated that
the trustees "promoted" the person referred to from "Professor 'A'" to
the position of Dean of Men at the salary for the job group to which the
latter position was allocated by c. 620, which, as stated, was lower than
the job group to which the title of "Professor 'A'" was allocated by c. 620.

The secretary then asked for opinions as to whether the trustees had
made the proper salary determination for the person referred to in the
first example and, if not, what salary increase he is entitled to; and whether
the trustees acted within their power in "promoting" the person referred
to in the second example and, if not, what salary increase the incumbent
is entitled to.

Upon receipt of the letter referred to, we wrote the secretary asking for
the descriptive specifications for each class, the positions in which were
held by the trustees to be affected by the provisions of § 2 of c. 620, quoted
above, and the titles of the positions held to be excluded. At the same time
we also requested the Director of Personnel and Standardization to supply
us with similar information.

We also requested the secretary, and the director, to inform us what, if
any, the seniority or tenure rights of incumbents of the positions involved
might be in respect to discharge, denial or promotion or demotion.

The director wrote us stating that in the course of a study of positions
at the University, which he made at the request of the House and Senate
Ways and Means Committees, he specifically stated to the University
authorities that if changes from improper academic titles to proper titles
were not initiated by the University prior to February 28, 1960, the ef-

38 P.D. 12.

fective date of c. 620, all employees holding academic titles on that day-
would, under the law, become entitled to the upgradings designated by
c. 620. The director further stated :

"It was recently brought to my attention that the University of Massa-
chusetts had decided to pay employees with academic titles who were ad-
mittedly not performing the duties thereof the same rate of pay they were
receiving as of February 27, 1960 plus $6.75 per week, the increase which
was given to all other State employees that were not covered under § 2 of
c. 620. On receipt of this information, I made these facts known to the
Budget Commissioner and the Comptroller for their consideration and
any action deemed necessary.

"It should be noted that exclusionary positions were determined by the
Legislature. Inasmuch as the University officials have failed to accede to
our suggestions for correcting improper titles prior to February 28, r.)60,
all employees filling academic and professional positions are entitled to the
upgradings designated by the Legislature. This is in spite of the fact that
some are performing administrative and other non-teaching duties at titles
improperly assigned because of poor administrative personnel practices by
the University. As a result, the intent of the Legislature is not being car-
ried out."

The director also stated that he had considered only the classification
problems and was not concerned with the effect, if any, seniority and tenure
rights would have as to the way in which any required changes were to be
put into effect.

About the time we received the director's letter, a copy of which was
sent to you, the treasurer of the University and the secretary of the Board
of Trustees visited this office to discuss the request. They had not then
seen the copy of the director's letter sent to you. At the discussion re-
ferred to, it appeared that the trustees had considered that seniority or
tenure rights did not affect the personnel action taken by the trustees.

The provisions of St. 1959, c. 620, § 2, excluding positions "in a class
the duties of which, as indicated by the descriptive specifications on file
with the division of personnel and standardization, are clearly adminis-
trative . . ." from the changes in job group allocation authorized in the
schedules referred to in the section, would not exclude a position which
was in a class of duties of which, as shown by the descriptive specifications
referred to, were not clearly administrative, even though the actual duties
being performed by the incumbent w^ere claimed to be clearly adminis-
trative. It would appear that there is no question but that the duties of
the positions referred to in the examples stated by the secretary, as shown
by the specifications designated, are not clearly administrative. It would
follow, therefore, that, as stated by the Director of Personnel and Stand-
ardization, persons holding the positions referred to on February 28, 1960,
would be entitled to the upgradings authorized by the Legislature.

In answer to the specific questions asked by the secretary, I inform you
that in my opinion the trustees could not deny the persons referred to in
the examples given by the secretary the salaries for the job groups au-
thorized by c. ()20 for the positions held by them on February 28, 1960.

It should be understood that the conclusion stated is not to be consid-
ered as in any way expressing a limitation on the authority the trustees
have to change the assignments or titles of persons subject to their juris-

P.D. 12. 39

diction. However, if such action involves what is in effect a demotion or
discharge, specific action directed to those ends should be taken and the
procedure followed should comply with any statutory provisions regu-
lating the demotion or discharge of the particular employees involved.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

Land for a student center and chapel at the University of Massachusetts could
not be conveyed to the Roman Catholic Bishop of Springjleld, a corpora-
tion sole, undei a statute authorizing the trustees to convey land to so-
cieties, etc., '^established thereat."

Aug. 1, 1960.

Mr. John Gillespie, Secretary, Board of Trustees, University of Massa-
chusetts.

Dear Sir: — In a letter which you state was written at the request of
the Buildings and Grounds Comnuttee of the Board of Trustees, you ask
if the trustees have authority under G. L. c. 75, §§25 and 27, to sell a
small parcel of land which is part of the university campus to the Roman
Catholic Bishop of Spriiigiield, a corporation sole. The parcel in question
would be used with land already owned by the Bishop on which a student
center and chapel for Catholic students is to be constructed, and is desired
so that the project will have adequate space.

General Laws c. 75, § 25, provides, in part, that the trustees of the uni-
versity may sell and convey, to any "society, association or fraternity es-
tablished thereat, land owned by the commonwealth in Amherst or Hadley.
Not more than one acre shall be so sold and conveyed to any one such per-
son or organization. Such conveyances shall contain necessary restrictions
and conditions."

By § 27 of the chapter conveyances under § 25 must be approved by the
Governor and Council.

Section 2 of c. 368 of the Acts of 1898 (see also St. 1950, c. 197, § 5), in-
corporating the Roman Catholic Bishop of Springfield, a corporation sole,
provides that said corporation may take and hold real and personal es-
tate "for the religious and charitable purposes of the Roman Catholic
church ..."

As noted, G. L. c. 75, § 25, authorizes a conveyance of land by the trus-
tees of the university "to any society, association or fraternity established
thereat . . ." The words "society, association or fraternity," used in § 25,
do not aptly describe a corporation sole such as the Roman Catholic Bishop
of Springfield, and further, the words "established thereat," as used in the
section, would appear to have been intended to restrict the field of eligible
grantees to societies or associations formed for purposes directly related to
student and other activities of the university. Although, it is true, as you
state, that the land in question would be devoted for a religious use con-
nected with activities at the university, the proposed grantee corporation

40 P.D. 12.

could not reasonably be said to be ''established" at the university. It is
rather, established for the Springfield diocese of the Roman Catholic
church.

The authority of the trustees to make the proposed conveyance is de-
pendent entirely upon the provisions of G. L. c. 75, § 25. As has been sug-
gested, there is a serious question whether a conveyance to the proposed
grantee is authorized by that section. Under the circumstances it is rec-
ommended, if the trustees approve the requested conveyance, that legis-
lation be sought either by way of specific authorization for the conveyance
of the particular parcel referred to, or by a general amendment to G. L.
c. 75, relating to conveyances for the construction of buildings for religious
purposes. Of. G. L. c. 123, § 6A, as to leases of land for chapels at State
hospitals.

In the legislative sessions of 1954, 1955 and 1956, bills were submitted
which if enacted would have given the trustees of the university authority
to sell and convey land for the erection of chapels for the use of students
at the university. The bills referred to were not enacted, evidently be-
cause of the provision contained in each of them that such sales and con-
veyances could be made for a nominal consideration.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Lucy Broderick Brady,

Assistant Attorney General.

Bid proposal differing from invitation may, depending on applicable statute,
be void or defect may be waived, but if invitation states that defective bids
shall be invalid, such bids must be rejected.

Aug. 3, 1960.

Hon. Charles F. Mahoney, Commissioner of Administration.

Dear Sir : — You have called my attention to two bids which have
been submitted for the furnishing of files and equipment for the storage
of archives in the new facility recently constructed in the State House.
You list various discrepancies in the bids and you inquire, "Whether or
not either or both of the bid proposals represents a bona fide valid accept-
able proposal based upon the contract documents and plans and specifica-
tions for which proposals w^ere invited . . . ." The discrepancies consist
of certain additional material added to the proposal by each of the bids;
to the fact that one of the bids listed sub-bids wliereas sub-bids were specif-
ically excluded by the investigation; and to the fact that the other bid
contained an alternate proposal whereas no alternate w^as asked for in the
invitation for bids.

An answer to your question depends, to some extent, on the particular
bidding statute which would be applicable to the proposed contract. If
the proposed contract requires that the equipment in question be affixed
to the building, thus becoming a part of it, then the provisions of G. L.
c. 149, § 44A, et seq., would be applicable. Under such circumstances the

P.D. 12. 41

various discrepancies described by you would cause both bids to be de-
fective and they should be rejected.

If the proposed contract is merely for the purchase of equipment and
does not require that such equipment be affixed to the building, then the
Commission on Administration and Finance is empowered by G. L. c. 7,
§ SOD, to procure such equipment under the provisions of G. L. c. 7, §§ 22
to 26. Said §§ 22 to 26 give the commission broad power to establish rules,
regulations and orders governing such purchase and governing the ad-
vertisement and the receipt of bids for such equipment. The commission,
under some circumstances, would have limited authority to waive infor-
malities on bids to be awarded under this latter chapter.

In the present case, however, the invitation for bids states expressly at
page 13 that bids ". . . on a form not completely filled in, or which is in-
complete, conditional or obscure, or which contains any addition not called
for, shall be invalid; and the awarding authority shall reject every such
general bid." In viev/ of this language, it is our opinion that both bids are
invalid and should be rejected.

It is noted also that the awarding authority has the right to reject all
bids, irrespective of any discrepancies by virtue of item 2-10.5 in the
specifications at pages 2-9.

Very truly yours,

Edwaed J. McCoRMACK, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

An increase in the estimated quantity of work under an item in a unit-price
contract is to be compensated for at the unit price.

Aug. 5, 1960.

Mr. RoDOLPHE G. Bessette, Director, Division of Waterways.

Dear Sir: — • You state that a contract was issued by the Department
of Public Works calling for stream improvements in the Ten Mile River in
the city of Attleboro. A question has arisen as to whether the contractor
is entitled to be paid for the removal of 176 trees w^here the contractor's
proposal was based on an estimate that only 41 trees were to be removed.

Reference to the contract discloses that under item 3 of the proposal,
the contractor bid the unit price of thirty-five dollars a tree for the re-
moval of 41 trees as specified in the invitation for bids. The special pro-
visions of the contract, at pages 5 and 6, required the contractor to remove
all trees over nine inches in diameter from a specified area for which pay-
ment was to be made under item 3.

At page 2 of the special provisions the following language appears :

"It is estimated that the quantity of materials mentioned in the proposal
will be required, but this amount shall not control the performance of this
contract, and the Contractor shall be bound hereunder whether or not
such estimate is even approximately correct."

42 P.D. 12.

It is also noted that the special provision at page 1 states that the work
is to be performed in accordance with the special provisions and the
Standard Specifications for Vfaterways Work. Article 3 of these speci-
fications provides in part as follows :

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

"Bidders are required to submit their estimate upon the following ex-
press conditions, which shall apply to and become part of every bid re-
ceived, viz.:

"An increase or decrease in the quantity for any item shall not be re-
garded as cause for an increase or decrease in the prices, nor in the time
allowed for the completion of the work, except as provided in the contract."

From the foregoing it appears that the contract did not call for the re-
moval of only 41 trees but called for the removal of all trees of a particular
size from a particular area. The proposal figure of 41 trees was used as a
means of comparing bids and was specifically stated to be only an estimate
which might increase or decrease.

Under the circumstances of the present case it appears that there were
actually 176 trees in the specified area which the contractor was obliged
to remove frorri the area in question under the terms of the contract.

For this work he is entitled to be compensated at the unit price of thirty-
five dollars per tree under item 3.

A matter involving a similar situation was the subject of an opinion of
the then Attorney General to the State Comptroller, dated August 8, 1957,
a copy of which opinion was referred to by you and annexed to your re-
quest. The principles therein set forth govern the present question.

The foregoing principle could, of course, be made inapplicable if the
facts of a particular case showed that a contract was based on mutual
mistakes as to material facts or showed that bidders had been misled by
an intentional misrepresentation of the quantities involved. Such factors
do not appear to exist in the present situation.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

P.D. 12. 43

The charges for the support of a person committed for mental treatment to a
State hospital, except the Bridgewater State Hospital, after arrest on a
criminal charge, like such charges for the support of a person so com-
mitted without having been arrested or charged, are recoverable from the
persons liable therefor, in view of the amendment to G. L. c. 123, § 96,
by St. 1954, c. 598. There is no liability on other public agencies for the
care and support of persons so committed after being accused or con-
victed of crime.

Aug. 9, 1960.

Harry C. Solomon, M.D., Commissioner of Mental Health.

Dear Sir: — You have requested an opinion as to the habihty for the
support of a patient at a State hospital, committed under circumstances
stated by you.

You state that the patient in question, wliile under arrest for armed
robbery, was committed on July 9, 1956, in accordance with G. L. c. 123,
§ 100, for observation, and on September 7, 1956, was regularly committed
under the same section.

The first paragraph of G. L. c. 123, § 96, as now in effect, reads as follows:

"The price for the support of inmates of state hospitals, except for in-
sane inmates of the Bridgewater state hospital shall be determined for
each person by the department on the basis of the actual weekly cost of
care as determined by the commission on administration and finance an-
nually on or before October first in each year for each person, and may be
recovered of such persons or of the husband, wife, father, mother or child,
if of sufiicient ability. A married woman shall be subject to the said li-
ability as though sole. Such action shall be brought by the attorney
general in the name of the state treasurer."

Under the provisions just quoted the only exception to liability for sup-
port is for insane inmates of the Bridgewater State Hospital.

Prior to 1954, the first paragraph of G. L. c. 123, § 96, provided that
the price for the support of "inmates of state hospitals . . . and of in-
sane inmates ... of the Bridgewater state hospital, 7iot under orders of
a court . . ." (emphasis supplied) should be fixed and could be recovered
as provided. In the case of Acting Commissioner of Mental Health v. Wil-
liamson, 330 Mass. 52, the court held that the words "not under orders of
a court . . ." formerly contained in the first paragraph of G. L. c. 123,
§ 96, referred to all the institutions mentioned in the paragraph, and the
court construed them as meaning under court orders similar to those
issued under G. L. c. 277, § 16, and c. 278, § 13, for the commitment of
persons charged with felony and not indicted, or acquitted, by reason of
insanity, which sections provide that the expense of the support of per-
sons so committed shall be paid by the Commonwealth. The court also
stated that it might well be that the policy expressed in G. L. c. 277, § 16,
and c. 278, § 13, applies also to insane persons committed by orders under
G. L. c. 123, §§ 100, 101 and 103.

However, the words "not under order of a court" were stricken from the
first paragraph of G. L. c. 123, § 96, by St. 1954, c. 598, § 4, so that there is
now no limitation on the liability imposed by that section except, as stated,
that relating to insane inmates of the Bridgewater State Hospital.

44 P.D. 12.

The provision contained in G. L. c. 277, § 16, and e. 278, § 13, that the
expense of the support of persons committed under those sections shall be
paid by the Commonwealth was originally enacted by St. 1883, c. 148,
§§1 and 2. At that time the city or town of settlement was liable for the
support of inmates of a State hospital, and could recover the amount
paid from the patient or his kindred liable for his support. See Public
Statutes (1882), c. 87, §§ 31 to 34, inclusive. In view of the latter fact,
it would seem that the purpose of the provision referred to was merely to
make it clear that the city or town of settlement should not be liable, and
that the provision was not intended to mean that the patient himself, or
his kindred liable for his support, should not be liable.

In Bradford v. Cambridge, 195 Mass. 42, in permitting recovery by the
Commonwealth against the city of settlement for the support of prisoners
who during their terms of criminal commitments had been adjudged in-
sane and removed to mental institutions, the court sa3^s, at page 44,

"It is plain, therefore, we think, that the asylum at Bridgewater is to be
regarded as a part of the system adopted by the Commonwealth for tak-
ing care of its insane rather than as a part of the system adopted by it for
the purpose of taking care of its criminals. It is true that in certain cases
the time of confinement in the asylum is to be computed as a part of the
term of imprisonment, but that does not alter the fact that those comm.itted
to the asylum are there for treatment as insane persons and not for con-
finement as criminals; and it follows that the general provision in regard
to the payment of the charges for the support of insane persons having
known settlements in this Commonwealth applies to those supported in
the asylum for insane criminals at Bridgewater. R. L. c. 87, § 79. See
Shrewsbury v. Worcester, 180 Mass. 38."

In the same case the court held that even under a provision that the ex-
pense of supporting a State prison convict who is committed to a State
insane hospital should be paid by the Commonwealth, the provision mani-
festly referred only to support during the term of his sentence and did not
prevent recovery from the city of settlement for support furnished after
the expiration of the sentence.

Inasmuch as the patient you refer to was not committed under either
G. L. c. 277, § 16, or c. 278, § 13, it is not necessary to consider the effect,
if any, of the provisions of those sections on the liability under G. L. c. 123,
§ 96, as now worded.

In view of the fact that the words "under orders of a court," construed
in the case of Acting Commissioner of Mental Health v. Williamson, 330
Mass. 52, were stricken from the first paragraph of G. L. c. 123, § 96, by
St. 1954, c. 598, § 4, I advise you in answer to your first question that the
charges for the support of insane persons committed under G. L. c. 123,
§ 100, or §§ 101 to 105, inclusive, for such periods as they are inmates of
any State hospital, except the Bridgewater State Hospital, are recoverable
under G. L. c. 123, § 96, as presently in effect.

It is the evident intention of the Legislature that, with the exception of
those mentally ill persons whose condition require their confinement in
the Bridgewater State Hospital (that hospital is a part of the Alassachu-
setts Correctional Institution, Bridgewater, and is under the jurisdiction
of the Department of Correction, G. L. c. 125, § 18, G. L. c. 123, § 22A),
persons whose commitments for custodial care and treatment to other

P.D. 12. 45

State hospitals follow upon conduct made the basis of criminal proceedings
are not for that reason to be treated differently as regards the liability for
the cost of their support and care than mentally ill persons who are com-
mitted without having engaged in conduct which resulted in criminal pro-
ceedings, or after having committed acts which might have resulted in such
proceedings if their mental illness had not been obvious to those charged
with the enforcement of the criminal laws.

In answer to your second question. I advise you that there are no
statutory provisions making a court, county, the Department of Correc-
tion or any other agency, in whose charge or custody a person is before
being sent to a State hospital, or to the Bridgewater State Hospital, under
the sections referred to above, liable for the cost of support of the prisoner
while he is in the hospital. The provisions of G. L. c. 127, § 126, as appear-
ing in St. 1955, c. 770, § 64, must, in view of the provisions of G. L. c. 125,
§ 1, as appearing in § 1 1 of said St. 1955, c. 770, be construed as being
applicable only to transfers under G. L. c. 127, § 125, and not to transfers
under G. L. c. 123, § 104. Cf. Bradford v. Cambridge, 195 Mass. 42.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

In the absence of an express statute, the State Department of Public Works
has no authority to rent its helicopter for private use.

Aug. 12, 1960.

Hon. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir : — You have asked whether your department has authority
to rent its helicopters for private use.

Your question is answered in the negative. An examination of the
various enactments of the General Court fails to disclose any statute
relating to such rental power. In the absence of an express statute, your
department would not have power to lease its helicopters as suggested.
Very truly yours,

Edward J. ]\IcCormack, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

46 P.D. 12.

Special legislation would be necessary to authorize the State Department of
Public Works to insure a helicopter being purchased by it.

Aug. 18, 1960.

Hon. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir : — Your predecessor in office has asked whether the Depart-
ment of Public Works may insure the helicopter it is in the process of
purchasing, in order to protect the substantial investment of the Com-
monwealth.

Your question is answered in the negative. This conclusion is dictated
by G. L. c. 29, § 30, which provides that: —

"No officer or board shall insure any property of the commonwealth
without special authority of law."

If your department feels that the interests of the Commonwealth should
be protected by having an insurance policy written to cover the helicopter,
it is suggested that you seek legislation to accomplish this purpose.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

The psychiatric examination required by G. L. c. 123, ^100 {the "Briggs
Law"), is not required to be made by two qualified physicians.

Aug. 19, 1960.

Harry C. Solomon, M.D., Commissioner of Mental Health.

Dear Sir : • — You have requested an opinion as to whether the exami-
nation required under G. L. c. 123, § lOOA (the Briggs Law), of persons
under indictment for a capital offense, and of certain other persons under
indictment or bound over for trial in the Superior Court, can be conducted
by only one physician.

You state that it has been the policy of the department to designate
two qualified physicians to make the examination, but that you are having
difficulty in obtaining qualiiied psychiatrists to make such examinations
because the fees authorized are not adequate.

General Laws, c. 123, § lOOA, states only that the department "shall
cause such person to be examined with a view to determine his mental
condition and the existence of any mental disease or defect which would
affect his criminal responsibihty."

The provision quoted leaves the manner of conducting the examination,
including the number of physicians by which it shall be made, to the
determination of the department. The department might well determine
that in some cases, for example, cases other than capital cases, or cases of
marked recidivism, the examination could be properly conducted by a
single quahfied physician.

P.D. 12. 47

Although examination and certification by two quahfied physicians is
required for the commitment of a person to an institution for the mentally
ill (G. L. c. 123, § 51), and additional medical testimony may be required
(G. L. c. 123, § 52), the examination provided for in G. L. c. 123, § lOOA,
is not one for the purpose of commitment. The examination provided
for in the section cited is comparable to that provided for in G. L. c. 123,
§ 100, where specific provision is made that the court may "employ one
or more experts in mental disease" to conduct the examination.

I advise you that in my opinion G. L. c. 123, § lOOA, does not require
that the department cause an examination required thereunder to be by
more than one qualified physician, and that it is for the department to
determine whether the examination in a particular case shall be made by
one or more qualified physicians.

Very truly j'Ours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

The use of an armory for a wedding reception may not be permitted.

Aug. 19, 1960.

Col. Ralph T. Noonan, QMC, Mass. ARNG, State Quartermaster.

Dear Sir: — You have requested an opinion as to whether armories
may be used for wedding receptions.

General Laws, c. 33, § 122, contains the only provisions authorizing the
use of armories and air installations for non-military uses.

Paragraph (a) of said § 122, authorizes certain such uses by the military
units stationed in the armory or installation; paragraph (c) certain tem-
porary uses for "public purposes"; paragraph (e) (1) for "athletic con-
tests and social or civic activities conducted by responsible organizations
or associations," and (2) for certain exhibitions.

The "pubHc purposes" specified in paragraph (c) are either govern-
mental, political, or sponsored by community groups. Although paragraph
(e) (1) does refer to "social" activities, it includes only such as are con-
ducted by "responsible organizations or associations."

A wedding reception could not reasonably be said to be a social activity
conducted by an "organization" or by an "association," within the mean-
ing of those words as used in the section.

I advise you, therefore, that in my opinion the use of an armory or air
installation for a wedding reception cannot be permitted under G. L. c. 33,
§122.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

48 P.D. 12.

Changes in the Government Center Bill were not necessary to accomplish cer-
tain objectives suggested by the Director of Employment Security as to the
building to be built and leased to his division.

Aug. 23, 1960.

Hon. William D. Fleming, Chairman, Senate Committee on Ways and

Means.

Dear Sir: — You have called to my attention the provisions of House
Bill 3255 which is currently pending before your committee. The bill pro-
vides for the establishment of a State Government Center Commission and,
among its other provisions, authorizes the construction of a building to be
leased to the Division of Employment Security.

The Director of the Division of Employment Security, in a letter to the
Commission on Administration and Finance, dated August 15, 1960, has
made suggestions for amendments to the bill. Four of the suggestions
made by the director relate to provisions in the proposed lease and you
ask whether it is possible to incorporate these suggestions into provisions
in the lease without the necessity of amending the existing language of
House Bill 3255.

The director suggests first that the bill provide for a lease having a term
of twenty years. The bill in its present form has language in § 6, hues 43
and 44, providing that the lease "... shall be for a term of not more than
twenty years ..." This language already in the bill would authorize the
execution of a lease for a period of twenty years. No amendment is re-
quired for this purpose.

The director next calls attention to those provisions of § 6 relating to the
amount of rental to be charged. The section provides the rental shall be
". . , at a price in w4iich due consideration is given to . . ." interest charges,
principal charges and expenses allocable to the cost of construction. The
director suggests that language be added to the act allowijig consideration
to be given also to other costs including maintenance and operation charges.
The language in the present bill does not preclude consideration of these
additional factors in arriving at an agreed rental price. As long as due
consideration is given to the interest and principal payments on monies
borrowed by the Commonwealth and to the cost of construction of the
building, consideration may also be given to such other ordinary factors
as would enter into the determination of a rental figure. The bill need not
be amended to accomplish this result.

Thirdly, the director calls attention to lines 66 through 68 of § 6 whereby
the commission is not required ". . . to furnish or install any furniture,
furnishings or partitions . . ." The director desires that the words "fur-
nishings" or "partitions" be stricken in order to require that these items
actually be furnished by the commission. The bill in its present form im-
poses no obligation on the commission to install furnishings or partitions
but it does not preclude the installation of such items. If it desires, the
commission can undertake to install furnishings or partitions by inserting
a clause to this effect in the lease. The bill need not be amended to accom-
plish this purpose.

Lastly, the director suggests that § 8 be amended by adding a new pro-
vision to the effect that payments made by the Commonwealth in lieu of
taxes to the city of Boston shall be allocated in part to the Federal Govern-

P.D. 12. 49

merit. One of the elements to be used in determining the amount of rental
to be paid should be this cost to the Commonwealth of making a payment
to the city in lieu of taxes. To the extent that the Federal Government re-
imburses the Commonwealth for rentals paid by the Division of Employ-
ment Security, the Federal Government will thus indirectly reimburse the
Commonwealth for this payment in lieu of taxes. An express provision in
the bill is, therefore, not necessary to accomplish this result.
Very truly yours,

Edward J. McCormack, Jr., Attorney General.

The Board of Regional Community Colleges has no authority to adopt a rule
that a lesser number of members than a majority shall constitute a
quorum.

Aug. 24, 1960.

Mrs. Gwendolyn C. Woods, Secretary, Massachusetts Board of Regional
Community Colleges.

Dear Madam : — In your recent letter 3^ou pose the following question :

"as to the propriety and legality of the following by-law adopted by the
Board at its regular meeting of May 13, 1959:

Rules and Regulations.

Article 1.

Section 4.

Six members of the Board or the authorized representatives of the ex
officio members shall constitute a quorum. A lesser number shall adjourn
the meeting to a definite date."

The board, as you know, was created by the provisions of St. 1958, c.
605. By its provisions it should consist of fifteen members. I am unaware
of any provision authorizing the board to enact by-laws or rules or regu-
lations in general, more particularly relating to quorums.

While it has been stated by the Supreme Court that in the absence of
statutory restriction the general rule is that a majority of a council or
board is a quorum and a majority of the quorum can act {Clark v. City
Council of Waltham, 328 Mass. 40, 41), it is specificall}^ provided in G. L.
c. 4, § 6 (fifth), that "words purporting to give a joint authority to, or to
direct any act by, three or more public officers or other persons shall be
construed as giving such authoritj^ to, or directing such act by, a majority
of such officers or -persons.'"

In the light of the foregoing, it is my opinion that your question must
be answered in the negative. Attorney General's Report, 1946, p. 13.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

50 P.D. 12.

The buildings in which prisoners are housed at the Massachusetts Correc-
tional Institutions are not subject to the provisions of G. L. c. 143, § 3 A,
to the extent that the Department of Correction to comply therewith would
be unable to comply with G. L. c. 125, % 11, as to the maintaining of the
security and confinement of prisoners.

Sept. 12, 1960.

Hon. George F. McGrath, Commissioner, Department of Correction.

Dear Sir: — You have asked whether or not the buildings wherein
prisoners are housed in the Massachusetts Correctional Institutions are
subject to the provisions of G. L. c. 143, § 2A. The answer is in the nega-
tive if it interferes with the Department of Correction maintaining the
security and confinement of prisoners.

Historically, the control of the prisons has always been the responsibility
of the prison ofhcials in charge of the prison. As early as 1811 in c. 32,
§ 3, it was stated that the warden of said prison "shall have the care,
custody, rule and charge of the same, and of all persons confined therein,
and of all lands, buildings, machines, . . . ." Chapter 125, § 14, of our
present General Laws practically uses the same words when it states that
the superintendent, subject to rules and regulations established by the
commissioner, "shall also have the charge and custody of the institution
and of the land, buildings, furniture, ..."

It would appear that if the Department of Correction had to comply
with the reciuirements of G. L. c. 143, § 2A, they would be unable to
comply with c. 125, § 11, which clearly states that the Department of
Correction shall maintain the correctional institutions of the Common-
wealth for the security and confinement of prisoners of the Common-
wealth. I do not find any legislative intent in passing c. 143, § 2A, of
taking this responsibility and duty away from the Department of Cor-
rection.

This opinion should not be interpreted to mean that the Department of
Correction is free to ignore c. 143, § 2A, but that they should make every
effort to comply with it so long as compliance with it would not interfere
with their maintaining the security and confinement of prisoners.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph T. Doyle,

Assistant Attorney General.

P.D. 12. 51

Fines imposed for violations of the Motor Boat Law are to be disposed of as
provided in G. L. c. 280, § 2.

Sept. 13, 1960.

Mr. Herman B. Dine, Director of Accounts, Department of Corporations
and Taxation.

Dear Sir : ■ — You have asked my opinion concerning what disposition
is to be made of fines received for violations of the provisions of St. 1960,
c. 275, which is an act regulating the use of motor boats and requiring the
registration thereof on certain waterwa3^s of the Commonwealth.

Section 2 of said c. 275 inserted a new chapter 90B in the General Laws.
Section 16 of chapter 90B provides:

"Moneys received by the commonwealth from fees and other sources
pertaining to the administration of this chapter shall be credited on the
books of the commonwealth to a fund to be known as the Recreational
Boating Fund. Said Recreational Boating Fund, subject to appropria-
tion, shall be used as follows:

"(1) For the payment of the administration and enforcement expenses
of the division.

" (2) For conducting programs of boating safety education.

" (3) For the construction of access to water areas, including land, park-
ing areas, roads, launching ramps and docks.

"(4) For the reimbursement to cities and towns, so far as possible, for
such projects as are indicated in (2) and (3) above, provided, the plans for
such construction or programs have been approved in advance by the
director."

Upon examination of c. 90B, I find that § 3 thereof sets forth the fee to
be charged for the original certificate number and the subsequent fees for
the years thereafter for renewals. Section 4 also provides in case a cer-
tificate is lost, destroyed or mutilated, that upon payment of a fee the cer-
tificate will be replaced. You will note that under these sections the
amount for the payment of the fees is to be forwarded to the director but
there is no reference under this section, or in any part of the act, as to
where fines received from violations of the provisions of this act shall be
paid.

I also note from examination of the chapter that § 15(6) allows cities
and towns to make regulations, by ordinance or by-law, not contrary to
the provisions of this chapter. It further provides that cities and towns
may, by joint action, provide for regulations for waters lying in two or
more cities or towns. It is to be noted that the only requirement for the
above is that it be approved by the director. It is conceivable that a fine
could be imposed for the violation of these regulations promulgated by
cities and towns and it would not be necessary in all instances that moneys
received from such fines would go to the Commonwealth.

It is also important to note the disposition of fines and penalties paid
for violating the rules and regulations of other agencies of the Common-
wealth. Section 3 of c. 131 reads as follows: "All fines, penalties and for-
feitures recovered in prosecutions under the laws relative to birds and
mammals, and relative to fish, all as defined in section one, shall be equally
divided between the county where such prosecution is made and the city

52 P.D. 12.

or town where the offence is committed; provided, that if the prosecuting
officer is a conservation officer or member of the state pohce receiving com-
pensation from the commonwealth, such fines, penalties and forfeitures
shall be paid to the commonwealth."

General Laws, c. 101, § 14, provides that fines from violations of the
hawkers and peddlers' law shall be equally divided between the Common-
wealth and the town in which the offence was committed.

General Laws, c. 141, § 10, states that "fees and fines collected under
this chapter shall be paid to the commonwealth."

From the above, it is clear that the Legislature indicated its intent where
it specifically stated how fines were to be disposed.

There being no reference in this chapter as to the disposition of the fines
received from violations of the provisions of the Motor Boat Act, it is my
opinion, where no specific mention is made as to how the fines shall be dis-
posed of, that the fines received from the violations of this chapter shall be
disposed of as provided in G. L. c. 280, § 2, with which, I am sure, you
are famihar.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By John J. Grigalus,

Assistant Attorney General.

A provision limiting the number of members of a board who may belong to
the same political party does not prohibit the appointment of a person
who is not a member of a political party.

Sept. 19, 1960.

His Excellency Foster Furcolo, Governor of the Commonwealth.

Sir: — In your letter of recent date you state that St. 1960, c. 635, § 1,
estabhshed a Government Center Commission "consisting of three persons
to be appointed b}'' the governor, not more than two of whom shall be mem-
bers of the same political party, to serve for terms of five years each."

After calling my attention to St. 1960, c. 295, you request my opinion
"as to whether or not under the wording of these statutes the Governor
may appoint as a member of this commission a person who has not been
registered as either a Democrat or Republican for a period of two years."

The provision you refer to is not a new one in this Commonwealth.
Other commissions have been created by the General Court by substan-
tially similar language. The Alcoholic Beverages Control Commission
(G. L. c. 6, § 43), the State Racing Commission (G. L. c. 6, § 48) and the
Massachusetts Aeronautics Commission (G. L. c. 6, § 57), are illustrations.

The purpose of a provision such as you refer to, is not, in my opinion, to
serve as a barrier to prevent thoughtful and upright citizens from holding
public office because for one reason or another they are not aligned with
either of the two major political parties in the Commonwealth. Rather,
it is more to encourage independence of thought and action in the public
interest and perhaps minimize political considerations in the handling of
the public business.

P.D. 12. 53

The language found in § 1 of c. 635 and in §§ 43, 48 and 57 of c. 6 before
referred to, is quite different from the language found in St. 1885, c. 323, in
which the Governor was authorized to appoint "fro7n the two principal
parties three citizens . . ." It is quite similar to that found in the New
York case of Rogers v. Bu^alo, 123 N. Y. 173, where the statute in question
authorized the Governor to appoint a Civil Service Commission consisting
of three persons "not more than two of whom shall be adherents of the
same party." Referring to that provision the court said:

"It must be remembered that there is nothing in this statute which
compels the appointment of even one member of any political party. It
simply prevents the appointment of more than two from such party . . .
In such case it cannot be truly said that eligibility to hold office depends
upon party affiliation."

My answer to your question is in the affirmative. I find nothing in St.
1960, c. 295, requiring a different conclusion from that which I have al-
ready stated.

Very truly yours,

Edward J. McCormack, Jr., Attorney General.

When a State police officer is to he considered as "on duty at night," within
provisions of G. L. c. 262, § 53B, as to payment of witness fees for court
attendance.

Sept. 20, 1960.

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

Dear Sir: — You have requested an opinion on the following four ques-
tions relative to G. L. c. 262, § 53B:

"1. An officer returning from time off, due back at his station at 8 a.m.,
is scheduled for an eight hour tour of duty commencing at 6 p.m. the same
day. If he makes an appearance in court before his tour of duty, is he
considered 'on duty at night' within the meaning of this chapter and
section?

"2. An officer completes his tour of duty at 2 a.m. and makes an appear-
ance in court at 9 a.m. on the same day. Is he considered 'on duty at
night ' within the meaning of this chapter and section?

"3. An officer completes his tour of duty at 10 p.m. and is required to
remain in the station on call until his next scheduled tour of duty on the
following day. Is he considered 'on duty at night' within the meaning of
this chapter and section?

"4. Except on his scheduled time off, an officer is required to remain in
the barracks at night, on call, between his regular assigned tours of duty.
Does such time that he is required to remain in the barracks constitute
'on duty at night' within the meaning of this chapter and section?"

The applicable statutes are as follows:

General Laws, c. 262, § 50:

"No officer in attendance on any court, sheriff, deputy sheriff, jailer,
constable, city marshal or other police officer who receives a salary or an

54 P.D. 12.

allowance by the day or hour from the commonwealth or from a county,
city or town shall, except as otherwise hereinafter provided, be paid any fee
or extra compensation for official services performed by him in any crimi-
nal case; or for aid rendered to another officer; or for testifying as a wit-
ness in a criminal case during the time for which he receives such salary
or allowance; or for services or as a witness at an autopsy or inquest; or
in proceedings for commitment of insane persons, but his expenses, neces-
sarily and actually incurred, and actually disbursed by him in a criminal
case tried in the superior court, shall, except as provided in section fifty-two,
be paid by the county where the trial is held, or in a criminal case tried in
a district court by the town where the crime was committed. Whoever re-
ceives extra compensation or a witness fee in violation of this section shall
be punished by a fine of not more than one hundred dollars." (Emphasis
added.)

General Laws, c. 262, § 53B:

"Any officer of the division of state police in the department of public
safety, appointed under section six or nine A of chapter twenty-two, on
duty at night, or on vacation or furlough, or on a day off, who attends as
a witness in a civil or criminal case pend.ng in a district court or in the su-
perior court shall be allowed a witness fee in the amount of three dollars
for each day's attendance, including his first day's attendance as arresting
officer. Any such officer who attends court held at a place other than his
residence or regularly assigned station or office in a criminal case pending
in any court of the commonwealth shall be paid at the rate of five cents a
mile for travel out and home for each day's attendance, except that travel
allowance shall not be allowed when such travel is made in state-owned
vehicles. Each officer shall certify in writing under the penalties of per-
jury the amount of his travel and attendance. Such payments shall be in
addition to his other expenses necessarily and actually incurred as pro-
vided for in section fifty and shall be paid in the same manner." (Em-
phasis added.)

In the event of a conflict of the above-cited statutes, G. L. c. 262, § 53B,
is to govern because it was enacted after said § 59 as an exception. Acts
of 1952, c. 235. Indeed, prior to 1952 there was no provision for witness
fees being paid to State PoUce.

General Laws, c. 262, § 59 has a long history — 1899, 440, § 6; R.L. 204,
§ 44; 1922, 337, § 1; 1936, 251; 1947, 181; 1948, 340, 1949, 455, § 1;
1952, 364; 1958, 48, § 4. Said § 50 has been interpreted by the courts and
elsewhere to deny payments of witness fees. Sackett v. Sanborn, 205 Mass.
110, I Op. A.G. 594, 595; VI Op. A.G. 315; VII Op. A.G. 399. Invaria-
bly the legislative amendments to § 50 and the addition of §§ 53-530, as
amended, of said c. 262, have provided more and more exceptions permit-
ting payment of witness fees.

It appears necessary to define "on duty at night" as used in § 53B be-
fore the questions presented can be answered.

Since there are no ^Massachusetts decisions on the point, the Federal
cases may be of value. "On duty" was defined in United States v. Denver
& R. G. R. Co., 197 F. 629, 631, as "to be actually engaged in work or to
be charged with present responsibility for such should the occasion for it
arise." Thus, where a trooper is not engaged in work nor presently re-
sponsible for an assignment, he is not on duty.

P.D. 12. 55

It is clear that the Legislature was aware of the military nature of State
Police service and that the uniformed police must, with certain exceptions,
live in barracks and get off but one day in four. See G. L. c. 22, § 9D.
Thus the phrase "on duty at night" must be interpreted in the light of
military customs, regulations and usages existing in the State Police service
at the time of the enactment of said § 53B. Specifically, § 53B was in-
tended to avoid imposing a hardship in attendance at court by State Police
officers "on duty at night, or on vacation or furlough, or on a day off"
because of the long hours of "on doty." Benig aware of State Police
practices, if the Legislature had intended to include troopers "on call," it
would have added that phrase or similar clarifying phrase.

In view of the above, the answers to your questions are as follows :

L No, because said officer was not "on duty" the previous night and
it would impose no hardship because said officer would lose no sleep be-
cause of duty when he attends court.

2. Yes, because "on duty at night" would include being on duty a part
of the night.

3. Yes, because the officer is on duty at night from sunset to 10:00 p.m.,
which is part of the night.

4. No, with the qualification that if the officer is actually roused from
bed and assigned to duty he would be entitled to a fee.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph T. Doyle,

Assistant Attorney General.

Advances by the State Treasurer to State officers, including the deposits of
such advances, are subject to the rules of the State Comptroller, and the
provisions of G. L. c. 29, § 54, are not applicable to deposits of such
advances by the Department of Public Works.

Sept. 22, 1960.

Hon. Maurice A. Donahue, Chairman, Special Committee for Investi-
gating the Highway Division of the Department of Public Works.

Dear Sir: — ^ In your letter of recent date, setting forth certain facts
relative to deposits of funds of the Department of Public Works in a Boston
bank allegedly exceeding forty per cent of the combined capital and surplus
of said bank, you pose the following question :

"Does G. L. c. 172, § 31, permit deposits in excess of 40% of the com-
bined capital and surplus of the depository as imposed by G. L. c. 29, § 34,
provided that such excess is secured by United States securities in the
amount of the excess?"

In view of the nature of your inquiry, I construe this question to be
hmited to the matter of deposits made by the Department of Public Works
and my answer is so limited.

x^fter a review of the applicable statutory provisions, it appears that § 34
of c. 29 applies to the State Treasurer and to deposits made in the name

56 P.D. 12.

of the Commonwealth. It is clear that the Treasurer may advance monies
from deposits under his control to officers of the Commonwealth by virtue
of and subject to the provisions of G. L. c. 29, §§ 28, 24 and 25. When
such State officers deposit the money so advanced the deposit is not sub-
ject to G. L. c. 29, § 34, but is instead subject to §§ 23, 24 and 25. Section
23 provides specifically that monies advanced shall be subject to such
rules and regulations as the Comptroller may determine. The Comptroller
has issued an Accounting Manual under the provisions of G. L. c. 7, § 16,
dealing with advances and other features of State finances. I believe the
foregoing answers your question.

In conclusion, I recommend that serious consideration be given to the
subject of advances by the State Treasurer of the funds of the Common-
wealth. Rules and regulations promulgated by the Comptroller under § 23
can profitably be employed in the public interest to control them, if that
seems desirable to the General Court.

Very truly yours,

Edward J. McCormack, Jr., Attorney General.

Only the records relative to land takings by the State Department of Public
Works which are required to be made by law, are "public records";
materials collected by the department with regard to pending claims for
damages for land taken are not open to public inspection; when a right
of inspection exists it must be exercised reasonably.

Sept. 22, 1960.

Hon. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir: — In your recent letter you state that you have been asked
by representatives of a Boston newspaper to "throw open the files of the
Department of Public Works on matters dealing with land takings . . ."
and refer to a letter, a copy of which you enclosed, sent to you by the
managing editor of the newspaper.

You state that the letter you enclosed makes certain statements regard-
ing "public records" and refers to them as "records of the data of land
taken by the Commonwealth of Massachusetts through the Department
of Public Works in the exercise of the right of eminent domain." You
then further state as follows:

"In view of the fact that many of these records pertain to matters pres-
ently in litigation or negotiation or matters which are likely to result in
litigation, it appears to be in the best interest of the Commonwealth to
withhold from public inspection such data. Allowing public inspection of
matters of this nature w^ould, it seems to me, be prejudicial to both the
Commonwealth and the private parties involved in negotiation or litiga-
tion."

A reading of the letter you refer to discloses that after stating that the
department is required by law to maintain certain public records among
which are "records of the data of land taken by the Commonwealth of
Massachusetts through the Department of Public Works in the exercise
of the right of eminent domain" (emphasis added), it is stated that rep-

P.D. 12. 57

resentatives of the newspaper have been trying to see "certain pubhc
records" and have been denied access to them, and a demand is made that
the bearer of the letter be given access to the pubhc records requested.

Evidently you have considered that by the use of the words "data of
land taken," which are of very broad import, a demand was being made of
the right to inspect the "files" of the department with regard to such tak-
ings. It would appear to me, however, that your correspondent's demand
was merely that access to such of your records relating to land takings as
are public records is desired.

As stated in an opinion of this office dated December 31, 1957, to the
Chairman of the Board of Registration of Professional Engineers (see
Attorney General's Report, 1958, page 41):

"The information and records which constitute 'public records,' and
which must be open to public inspection, relate only to books or papers
or entries which are 'required to be made by law,' or papers which a pub-
lic body 'is required to receive for filing.' G. L. c. 4, § 7, cl. 26. Persons
having custody of such 'public records' shall permit them to be inspected
and examined by members of the public. G. L. c. 66, § 10."

As was further stated in the opinion referred to:

"In the absence of positive declarations of statutes, information ob-
tained by you merely to aid you in the administration of your duties, which
information is not required to be filed with you by statute, is not 'public
records' and is not open to public inspection. Gerry v. Worcester Consoli-
dated Street Railway, 248 Mass. 559, 567. Ill Op. Atty. Gen. 136; id.,
351."

In the case of Hardman v. Collector of Taxes of North Adams, 317 ]\Iass.
439, in which the petitioner made a written request to inspect and examine
the commitment sheets or tax ledgers, and the daily cash book, of the re-
spondent, it was held that the documents referred to were not public records
and were not open to public inspection.

A formal vote of the Department of Public Works is required to effec-
tuate all land takings and the records of such votes are public records and
are open to public inspection. Of course, the actual instruments of taking
recorded in the registries of deeds are also public records. Similarly, votes
of the department approving the payment of claims for damages and fixing
the amounts to be paid would be public records.

However, the materials collected by the department to aid in the ad-
ministration of its duties and which are not specifically required by statute
to be filed, are not public records, and are not open to public inspection.

As you point out in your letter, to allow public inspection of all material
in your files with regard to claims in litigation or in the process of negotia-
tion could greatly prejudice the Commonwealth in arriving at reasonable
settlements of land damage claims.

In answer to your specific inquiry —

"It is not proper for me to require a request for specific data rather than
accede to a general request to open the files which inevitably would in-
clude data properly withheld?" —

I advise you that, as stated above, you are not required to open the files
of the department with relation to land damage cases and you are only
required to allow the inspection of such records of the department with

58 P.D. 12.

regard to land damage takings as are public records. Since, as has been
indicated, there are various public records of the department with relation
to land damage takings, a request to you for permission to examine the
public records of the department with relation to such matters should
reasonably specify the particular public records inspection of which is
desired.

In answer to your other specific inquiry — •

"In addition would it not be in the best interests of the Commonwealth
not to accede to a general request of this nature which would interfere
seriously with the orderly conduct of the business of the department" —

I advise you that the right of inspection of public records must be exercised
reasonably. As was stated in the case of Direct-Mail Service v. Registrar
of Motor Vehicles, 296 Mass. 353, at page 357:

"No one person can take possession of the registry or monopolize the
record books so as to interfere unduly with the work of the office or with
the exercise of equal rights by others, and the applicant must submit to
such reasonable supervision on the part of the custodian as will guard the
safety of the records and secure equal opportunity for all."

As stated above, it may be that because of the use of the words "records
of the data of land taken by the Commonwealth," you have misappre-
hended just what records of the department are sought to be inspected.
Although there is a basis for the broad construction you have placed on
the wording of the request, I would feel that there is no desire on the part
of the newspaper to require disclosure of the information in your files
which would prejudice the settlement of pending land damage claims and
that all that is desired is an opportunity to examine the records of the
votes of the department authorizing the taking of land and of such votes
as may have been taken relating to the payment of claims for land dam-
ages. I would suggest that the matter be discussed further with your
correspondent and that it be ascertained just what public records of the
department are desired for inspection.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

The owner of a motor vehicle is not entitled to a rebate of registration fee after
suspension or revocation of registration.

Sept. 28, 1960.

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

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

"When the registration of a motor vehicle or trailer has been suspended
or revoked, and thereafter the owner, prior to August 1, transfers such
vehicle and applies, on or before September 1, for a rebate, is the registry
justified in paying such a rebate?"

P.D. 12. 59

As to whether a rebate is due in the question presented depends upon the
intention of the Legislature. . The Legislature has not provided for a rebate
in the event of a suspension or revocation of a registration. See G. L.
c. 90, § 2. However, the said § 2 provides for rebates in certain cases of
transfer of owner or other loss of possession of a motor vehicle. If the
Legislature intended to grant rebates in cases of motor vehicle registration
suspension or revocation, it would have so provided in the statute. There
is no such provision.

It is clear that registration fees are not in the nature of a revenue act or
annual tax but are actually collected as filing fees for a service rendered
each ,year. This is so because the statute also imposes a registration fee
on political subdivisions of the Commonwealth which are ordinarily ex-
empt from taxes. G. L. c. 90, § 33. Furthermore, rebates are paid out of
the fees received and not out of the Treasury of the Commonwealth as
tax refunds are. See G. L. c. 90, § 2.

Again, said § 33 also imposes a substitution fee of one dollar and fifty
cents for transfer of a registration number from one vehicle to another
instead of the six-dollar fee for a new registration. Apparently, the intent
of the Legislature is not to charge the six-dollar fee because new metal
registration plates need not be manufactured. Thus, the fee bears a re-
lationship to the cost of services rendered at the initial registration.

As to commercial vehicles and trailers, the fees vary under said § 33
and in many cases may exceed the cost of the services rendered. However,
it should be borne in mind that said commercial vehicles, trailers and
taxicabs are subject to extensive regulation by departments of the Com-
monwealth other than the Registry of Motor Vehicles. For example, the
Department of Public Utilities extensively regulates rates charged by com-
mercial carriers. The cost of regulating these vehicles is greatly in excess
of that of regulating pleasure motor vehicles.

A further distinction is that the statute used the word "rebate" and not
"abatement" when referring to refunds. G. L. c. 90, § 2. The word
" abatement " is generally used to refer to tax refunds. G. L. c. 59, §§ 59-74.
The word "rebate" as commonly understood is an allowance by way of
discount or drawback, a deduction from a gross amount, as, for example,
a rebate of freight charges or interest on premium. State v. Laucks, 32 Wyo.
26, 228 P. 632, 634. There is no reported case in IVIassachusetts or else-
where wherein the word "rebate" is used to mean a refund of a tax. There
is no reported case on rebates of filing fees other than under statutory
authorization.

There are no constitutional issues because, as pointed out above, the
fee is not a revenue producing tax; rather it is, if anything, a regulatory
tax or fee for services rendered.

In view of the above, and that there is no statutory authorization for
such rebates, the question presented must be answered in the negative.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph T. Doyle,

Assistant Attorney General.

60 P.D. 12.

The Commissioner of Administration may not, under G. L. c. 176 A, § 5,
approve rates for charges at State mental institutions for Blue Cross
subscribers which are in excess of the charges to the general public.

Oct. 3, 1960.

Hon. Charles F. Mahoney, Commissioner of Administration.

Dear Sir: — You have requested an opinion as to the appHcation of
G. L. c. 176A, § 5, to the prices determined for the support of patients in
institutions under the control of the Department of Mental Health, under
the provisions of G. L. c. 123, § 96.

Your letter states that the Commission on Administration and Finance,
in accordance with the provisions of c. 123, § 96, has made a determination
that an additional charge be made by the Department of Mental Health
for the care and support of patients who are Blue Cross subscribers, in
excess of the amount charged to patients who do not enjoy Blue Cross
coverage, or to persons listed in said § 96 as responsible for the cost and
support of patients. The basis for such additional charge is that the bill-
ing of charges for Blue Cross subscribers requires special handling and
additional services, wdth resultant increases in tlie work load of the de-
partment's medical, administrative and clerical personnel.

You ask whether or not an opinion of this office to the then Commissioner
of Administration, dated April 6, 1955 (unpublished), which decided that
the Commission on Administration and Finance could properly establish
and charge the Veterans Administration higher rates for the support of
veterans than those charged the general public, because of additional serv-
ices required to be furnished in veterans' cases, is applicable to the extra
charge being made to patients who have Blue Cross coverage.

General Laws, c. 123, § 96, as most recently amended by St. 1958, c. 613,
§ 8 A, provides as follows:

''The price for the support of inmates of state hospitals, except for in-
sane inmates of the Bridgcwater state hospital shall be determined for
each person by the department on the basis of the actual weekly cost of
care as determined by the commission on administration and finance an-
nually on or before October first in each year for each person, and may be
recovered of such persons or of the husband, wife, father, mother or child,
if of sufficient ability. . . ."

The Commission on Administration and Finance has determined under
said § 96, that the "actual weekly cost of care" in the case of Blue Cross
patients is higher than that charged patients or persons liable for the sup-
port of patients under the section.

General Laws, c. 176A, § 5, as most recently amended by St. 1956,
c. 4C6, permits non-profit hospital service corporations (Blue Cross) to
enter into contracts with hospitals, including agencies of the Common-
wealtli, for the rendering of hospital services to subscribers of Blue Cross,
and provides that, "All rates of payments to hospitals made by such cor-
porations, under such contracts, shall be approved in advance by the
commissioner of administration, in this section called the commissioner.
Any such approval may be withdrawn by the commissioner at any time.
No rates of payment shall be approved, or their continuance be permitted,

P.D. 12. 61

by the commissioner unless such rates reflect reasonable hospital costs or
are based on charges made to the general pubhc, whichever is lower."

The provision quoted clearly limits the authority of the Commissioner
of Administration to the approval or continuance of rates of payments to
hospitals by Blue Cross whicli are the lower of rates reflecting reasonable hos-
pital costs or those based on the charges made to the general public. In
view of this express statutory provision, the Commissioner cannot approve
rates of payment for hospital charges made to patients who are Blue Cross
subscribers, even if they reflect reasonable hospital costs, where the charges
made to the general public are lower.

Accordingly, I advise you that the opinion of this office dated April 6,
1955. referred to above, is not applicable to permit a higher charge to pa-
tients of State mental hospitals who are Blue Cross subscribers than the
charges made to the general public.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Leo Sontag,

Assistant Attorney General.

Where contract items for "clearing and grubbing" and '^removal of trees," did
not cover trees just nine inches in diameter, the contractor was properly
paid for such trees at unit price for tree removal where payment clause
refers to Standard Specifications, which provided that unit price for tree
removal should be payable for trees "at least nine inches in diameter."
General Laws, c. 29, § 20 A, provides that the notice requirements thereof
are not applicable to changes in quantities of items in unit price contracts.

Oct. G, 1960.
Mr. Frederick J. Sheehan, State Comptroller.

Dear Sir: — In your recent letter you requested that you be advised
as to certain alterations made by the Department of Public Works in a
contract for stream clearance.

Your first question is whether the department was correct in scheduling
payment to the contractor for forty-one trees included in one of the alter-
ations at the unit price for removal of trees rather than at the unit price for
clearing and grubbing.

It appears that the trees in question are nine inches in diameter. The
contract item as to removal of trees refers to trees "over" nine inches in
diameter, while the item for clearing and grubbing refers to trees of "less"
than nine inches in diameter.

It is pointed out in a letter to the Comptroller's Bureau from the Divi-
sion of Waterways, which you enclosed with your request, that there is a
reference in the contract, under the heading of "Measurement and Basis
for Payment," to a section of the department's "Standard Specifications"
which, in referring to measurements with respect to compensation for re-
moval of trees, fixes "at least nine inches" as the diameter standard, and
the letter further states that it has been the practice of the department for
man}'- years to pay for the removal of trees having a diameter of nine inches
or more.

62 P.D. 12.

Neither of the provisions of the contract as to clearing and grubbing,
and as to tree removal, specificall}'^ covers trees which are just nine inches
in diameter. It is clear that it was intended that such trees should be
removed as well as those of smaller and larger diameter, and the fact that
the provision incorporated by reference for the method of measurement
as a basis of payment sets the standard for the application of the unit item
for tree removal at a diameter of "at least nine inches" shows clearly, in
my opinion, that under the contract, trees of nine inches in diameter are
to be compensated for at the unit price for tree removal rather than that
for clearing and grubbing, and I advise you, therefore, that the depart-
ment was correct in so scheduling pajanents to the contractor.

You also point out that the Department of Public Works has submitted
three alterations to the contract in question for a total of $8,725, while
the total bid of the contractor at unit prices was .$9,210, and you ask that
you be advised whether the Department of Public Works can issue al-
terations which increase the original bid price without compljdng with the
provisions of G. L. c. 29, § 20A, and if not, and that section is not complied
with, whether the department can subsequently honor a claim for pay-
ment for extra work.

It is specifically provided in G. L. c. 29, § 20A, that the requirements of
the section as to the filing of notices of intention to approve orders, or
claims, for extra work under construction contracts of the Commonwealth
shall not apply to ". . . change in quantities of work or materials covered
at unit prices by an item or items in any such original contract, nor to
work, other than extra work, for which payment is specifically provided
in the contract or specifications."

As was pointed out in an opinion to one of your predecessors under date
of August 8, 1957 (Attorney General's Report, 1958, p. 14), where the
actual quantities of unit price items within the area covered by the con-
tract exceed the estimated quantities, there is no change in the original
contract and the contractor is entitled to be paid at the unit prices set
forth in the contract. The contractor bids on the estimated quantities on
the express understanding that the actual quantities may be more or less
than the estimates and that if less he is to be paid only for the actual
quantity at the unit price, and if more he must perform all the work re-
quired and is to be paid therefor only at the unit price bid.

As further stated in the opinion cited, only additional work which the
contractor could not be required to perform at the unit prices under the
terms of the original contract is "extra work" within the meaning of G. L.
c. 29, § 20A, requiring a notice of intent to be filed thereunder. See also
the opinion of the Attorney General to the Commissioner of Administra-
tion, dated August 12, 1955; Attorney General's Report, 1956, p. 27, at
p. 30.

As stated in the opinion last referred to, a notice of intention under
G. L. c. 29, § 20A, is not required when a change is merely an "alteration"
because the work involved is in some form or another within the original
contract provisions and such a notice is required only where the change
involves the doing of "extra work," that is, work which is incidental to
the work under the original contract and necessary for the satisfactory
completion of the project, and though not originally called for, can, under
the contract, be required to be performed by the contractor on the terms
of the contract as to compensation for "extra work."

In view of the answer, just stated, to the first part of the question here

P.D. 12. 63

under discussion, it is not necessary to answer the second part thereof.
However, it is to be noted that in the case of M. DeMatteo Construction
Co. V. Commonwealth. 338 Mass. 568, our Supreme Judicial Court, in an
opinion written by the Chief Justice, after saying that they could not
reconcile a request for a ruling granted by the trial judge in the case, to
which ruling no exception had been taken, that an order for extra work
was required to be given before the work begins, with the finding made by
the trial judge for the petitioner for the amount of the extra work order in
question in the case, which order had been issued by the Department of
Public Works after the extra work involved had been completed, stated,
at page 582, ''We accept his [the trial judge's] general conclusion and dis-
regard the inconsistent ruling on the request, as we are of opinion that
there is nothing in article 23 [of the Standard Specifications for highway
contracts] which requires that an order in writing should precede the com-
mencement of extra work." (Emphasis added.) Subsequently, on the same
page of the opinion cited, the court says, "The real purpose of article 23
was to prevent work which is part of the contract being compensated for
as an extra." On page 583 of the opinion the court cites G. L. c. 29,
§ 20A, and stated with further reference to the issuance of extra work orders
after the doing of the work involved, "If the Commonwealth wishes to
impose a forfeiture upon contractors for work performed in the circum-
stances of this case, more precise language should be used. There is
nothing requiring a different result in G. L. c. 29, § 20 A." (Emphasis added.)
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kellehi<:r,

Assistant Attorney General.

A wagering pool on the outcome of three or more races, without the use of auto-
matic betting machines, would not be valid under the provisions of G. L.
c. 123 A, permitting the pari-mutuel system of wagering.

Oct. 11, 1960.

Hon. Morris H. Leff, Chairman, State Racing Commission.

Dear Sir: — You have requested an opinion as to whether the conduct
of a wagering pool on the outcome of three or more races under the circum-
stances herein set forth would be lawful by virtue of the provisions of G. L.
c. 128A. It appears from the enclosure in your letter that the conduct of
the wagering pool on the outcome of three or more races would be held
under the following conditions:

"Special certificates are to be made available to patrons of the Associa-
tion. Each certificate will bear a number of columns of boxes, the number
of columns to be equal to the number of races on the outcomes of which the
winning wagerer or wagerers are to be chosen. The number of boxes in each
column is to correspond to the number of horses entered in that particular
race. An alternate column of boxes is to be provided for each race so as to
permit a patron to select an alternate choice in case his first choice should

64 P.D. 12.

be scratched from the race after he has made his selection. The certificate
also provides a space in which the amount wagered by the individual patron
is to be stated.

"Patrons desiring to participate in this wagering pool are to fill out cer-
tificates by marking a box in each column corresponding to the number of
the horse in the particular race which the patron selects as the winning
horse and by stating the amount which the patron proposes to wager.

"Prior to the start of the first of the designated races, patrons participat-
ing in the pool are to deposit the certificates bearing their selections and
stating the amounts wagered by them, together with the amounts of their
wagers, with designated clerks. The certificates are made up in duplicate,
and a clerk, upon receipt of a certificate and the amount wagered, is to re-
move the original copy, insert it in a time clock so that it receives a time
stamp, and return the carbon copy to the patron. As the races are run,
which have been designated as governing the determination of the win-
ners of the pool, the certificates deposited by patrons of the pool are to
be automatically sorted by a sorting machine which, upon completion of
the last of the designated races, will automatically produce the certificates
on which the largest number of winners has been selected. The total pool,
minus the deductions authorized by law, is then to be divided equally
among the holders of the winning certificates."

Section 1 of G. L. c. 137 gives to a person who has lost money or goods
by playing at cards, dice or other game a right to recover such money or
the value of such goods in an action of contract. If the loser does not
within three months after such loss prosecute such action wdth effect, any
other person may sue for and recover in tort treble the value thereof.

Section 2 provides a similar penalty against the owner, tenant or occu-
pant of a house or building where money or goods are lost in any form of
gaming referred to in the preceding section, wdth the knowledge or consent
of said owner, occupant or tenant. The action given to a third person after
three months is penal. It must be commenced within one year. The stat-
ute can be traced far back in our provincial history. A bet on a foot race
between men or on the physical ability of animals is gaming within the
statute. Betting on a horse race was held wdthin the statute in Kemp v.
Hammond Hotels, 226 Mass. 401), 414.

By St. 1984, c. 374, which by § 3 inserted in our statutes what is now
known as G. L. c. 128 A, a great change was m.ade in the public policy of
the Commonwealth with respect to gaming on horse and dog racing. The
State Racing Commission was created, and empowered to license horse and
dog racing. By virtue of the provisions of c. 128A, particularly the pro-
visions of § 5, the pari-mutuel or certificate system of wagering

"on the speed or ability of horses or dogs performing in the races held or
conducted by such licensee at such meeting, and such pari-mutuel or cer-
tificate method of wagering upon such races so conducted shall not under
any circumstances be held or construed to be unlawful, other statutes of
the commonwealth to the contrary notwithstanding."

Section 5 further provides that the place of wagering

"shall be equipped with automatic betting machines capable of accurate
and speedy determination of award or dividend to winning patrons, and
all such awards or dividends shall be calculated by a totalisator machine
or like machine ..."

P.D. 12. 65

Section 5 also provides for

'Svagers on the speed or ability of any one or more horses or dogs in a race
or races . . ."

The case of Donovan v. Eastern Racing Assoc, 32-4 Mass. 393 at page
397, referring to the above phrase, states,

"By these words we think it was intended to permit the daily double as
a part of the pari-mutuel system of betting."

I know of no opinion extending the variations of pari-mutuel wagering
beyond the limits of the Donovan case. The Legislature has not extended
them. Our Supreme Court has not by its decision extended them.

That being so, in view of the fact that c. 128A made a great change in
the public policy of this Commonwealth and with respect to gaming on
horse and dog racing, I feel constrained to rule that the system which has
been outlined to me would not be valid under the provisions of G. L. c.
128 A as presently written. I find nothing in the statute envisioning a
setup such as you inquire about. I seriously doubt if a proposition such
as this one was envisioned by the General Court at the time that legisla-
tion was enacted.

Very truly yours,

Edward J. McCormack, Jr., Attorney General.

" Twin Double" system of wagering with the use of automatic betting machines
is valid under the provisions of G. L. c. 123 A, permitting pari-mutuel
betting.

Oct. 14, 1960.

Hon. Morris H. Lbff, Chairman, State Racing Commission.

Dear Sir : — You have requested my opinion as to the legality of the
Twin Double system of wagering.

While I am not acquainted with all the details, mechanical and other-
wise, involved in this system, I am advised that the participants in it are
to select winning horses in four races. Prior to the running of the first of
these races participants are to deposit their wagers and name their selec-
tions for the first two of the four races, receiving tickets issued by a daily
double machine, which tickets are to evidence the amount wagered and the
selections made. Between the second and third races, participants whose
selections in the first two races win these races are to exchange their
tickets for tickets, also issued by a daily double machine, designating
their selections for the second two of the four races. At the end of the
fourth race the total amount wagered less the deductions permitted by
law is to be distributed among these persons who have selected the win-
ners of the four races. Provision is to be made for distributions at the
end of the third, second or first race if no participant has selected the
winner of the fourth, third or second race and for distribution in the
event other contingencies occur.

From the foregoing it appears that the Twin Double system is a sys-
tem which involves the outcome of four races, conducted in two parts of

66 P.D. 12.

two consecutive races each, as the determinant of the winning partici-
pants. The entire amount to be divided as winnings can be determined
prior to the commencement of the hrst race. While the number of possi-
ble winners cannot be determined until after the continuing participants
make their second selections, which is not to take place until after the
second of the four races (barring a contingency requiring distribution of
the pool on the basis of the first or second race), and therefore the amount
each possible winner might receive cannot be computed until after the
second of the four races, the amount each winner will receive remains the
total amount wagered, less lawful deductions, divided by the number of
winning participants. The fact that the selection of winning events is
made in two stages does not appear to have legal significance in deter-
mining whether the proposed Twin Double system is a part of the pari-
mutuel system, inasmuch as each participant is to deposit his wager on
the agreement that the winners are to be determined on the basis of the
outcome of the four races designated for the purpose. The mechanics of
selection in two stages does permit the employment of existing daily
double machines in the operation of the proposed Twin Double system.

Recently I rendered an opinion to the State Racing Commission relative
to the validity under G. L. c. 128 A of a proposed system of pari-mutuel
wagering involving three or more races and special computation methods.
It was my opinion that the requirement of special computation methods
compelled the conclusion that one of the long recognized and understood
systems in pari-mutuel betting would not be employed. It became my
duty, as I saw it, to declare it to be invalid. It was my judgment that
the General Court did not, in passing this legislation, envision such a sys-
tem and did not intend to authorize its operation.

I am now requested to render my opinion as to whether the Twin
Double system is a pari-mutuel or certificate method of wagering so as
to come within the purview of G. L. c. 128A. Section 5 of c. 128A de-
scribes the funds deposited with the licensee by its patrons as ". . . wagers
on the speed or ability of any one or more horses or dogs in a race or
races . . . ."

The Supreme Court in the case of Donovan v. Eastern Racing Association,
324 Mass. 393, at page 397, in holding the daily double system, so called,
to be valid, used the following language, referring to the above provision,

". . .we think it was intended to permit the daily double as a part of
the pari-mutuel system of betting."

As I understand the situation, the mechanics of selection in two stages
does permit the employment of existing daily double machines in the op-
eration of the proposed Twin Double system. The problem which pre-
sented itself in the proposed system of pari-mutuel wagering involving
three or more races and special computation methods and popularly known
as the "Pick Six" system does not, therefore, present itself here.

In the light of the foregoing, it is my opinion that the Twin Double sys-
tem, before referred to, would be within the pari-mutuel or certificate sys-
tem of wagering made lawful by G. L. c. 128A. Your commission will, of
course, see that reasonable rules and regulations are enacted in this matter
to protect the interests of the public.

Very truly yours,

Edward J. McCormack, Jr., Attorney General.

P.D. 12. 67

The Director of Building Construction is not required to withhold acceptance
of a project despite the objections of an operating agency when after such
objections adjustments satisfactory to the Director have been made.

Oct. 17, 1960.

Mr. Hall Nichols, Director of Building Construction.

Dear Sir : — You have requested an opinion as to the following provi-
sion of G. L. c. 7, §30G, cl. 2:

"He [the director of building construction! shall be responsible for accept-
ing or rejecting each project upon its completion and for directing final
payment for work done thereon; provided, however, that if upon inspec-
tion of any project for acceptance he shall find that the plans, specifications,
contracts or change-orders for the project shall not have been fully com-
plied with or that the operating agency shall for any reason object to his
acceptance of the project, he shall, until such compliance has been effected,
such objection has been removed or adjustments satisfactory to him have
been made, refuse to accept the project and to direct such payment."

Your question reads as follows:

"In the event that an operating agency objects to the director's accept-
ance of a project after the director has caused the contractor to remedy to
the satisfaction of the director the features objected to by the operating
agency, may the director accept the project and direct final payment for
work done thereon, although the objection of the operating agency has
not been removed?"

Clause 2 of G. L. c. 7, § 30G, quoted above, first places the responsi-
bility for acceptance of, and direction of final payment for work done on,
a project in the director. There then follows a proviso which requires
that the director shall refuse acceptance and payment in two instances
until certain stated conditions are met. The first instance is not applicable
here. The second, to which your question relates, requires that if 'Hhe
operating agency shall for any reason object to his [the director's] accept-
ance of the project, he shall, until . . . such objection has been removed
or adjustments satisfactory to him have been made, refuse to accept the project
and to direct payment." (Emphasis added.)

The provision quoted definitely prohibits your acceptance of a project
or direction of final payment for the work done, if objections are made by
the operating agency concerned, until either of the following stated alterna-
tives are satisfied: (1) the objection has been removed, or (2) adjustments
satisfactory to you have been made.

The situation you refer to in your letter is, in effect, that the operating
agency objected to your acceptance of a project, that adjustments satis-
factory to you have been made by the contractor, but that despite the
making of the adjustments, the operating agency still objects to your
acceptance of the project.

Although you should give careful consideration to the reasons for the
continued objection of the operating agency and should not accept the
project, or direct final payment for the work done, until you are satisfied
that every reasonable ground for continued objection has been removed,
it is clear that in the portion of G. L. c. 7, § 30G, cl. 2, which reads "or

68 P.D. 12.

adjustments satisfactory to him have been made" the pronoun "him"
refers to the Director of Building Construction. I, therefore, advise you
that if, after objection lias been made by an operating agency, adjustments
are made by a contractor which you determine after giving careful consid-
eration to the continued objection of the operating agency are satisfactory
to you, as director, to complete the performance of the contract and remedy
any defects made the subject of such objection by the operating agency,
you are no longer required to refuse to accept the project, or refuse to
direct final payment for the work done.

Very truly yours,

Edward J. McCormack, Jr., Ationiey General,

By James J. Kelleher,

Assistant Attorney General.

Under the amendment to G. L. c. 80, § 9B, hy St. 1960, c. 611, employees in
certain institutions of the Commonwealth promoted to permanent posi-
tions within the section, from such positions in which they have tenure
rights, have such rights in the positions to, but not in those from, which
they were promoted.

Oct. 25, 1960.

Harry C. Solomon, M.D., Commissioner of Mental Health.

Dear Sir: — You have requested an opinion on two questions relating
to the effect of the amendments made by St. 1960, c. 611, to G. L. c. 30,
§9B.

Acts of 1960, c. 611, amending G. L. c. 30, ? 9B, makes the following
changes in the first sentence of the section: the former wording "duties of
the office or position" is changed to "duties of any ofiice or position," and
the former wording "from the latest office or employment held by him" is
changed to "from the latest permanent office or employment held by him."

As so amended, G. L. c. 30, § 9B, reads as follows:

"No person permanently employed in any institution under the depart-
ment of mental health, public health, public welfare or correction, or in the
soldiers' homes in Massachusetts, or in institutions under the jurisdiction
of the division of youth service, except an employee, other than a nurse,
rendering professional service, who is not classified under chapter thirty-
one, and no maintenance employee permanently employed in any institu-
tion under the department of education, shall, after having actually per-
formed the duties of any office or position contiimously for a period of six
months in such an institution or department, be discharged, removed, sus-
pended, laid off. transferred from the latest permanent office or employ-
ment held by him without his consent, lowered in rank or compensation,
nor shall his office or position be abolished, except for just cause and in the
manner provided by sections forty-three and forty-five of chapter thirty-
one. The provisions of section forty-six A of said chapter thirty-one shall
apply to any person so employed."

Your first question is:

"1. (a) If an employee not classified under c. 31 in an institution under
this department, who has actually performed the duties of a permanent

P.D. 12. 69

position continuously for a period of six months or more, is, with his con-
sent, appointed, promoted, or transferred to another permanent position
not classified under c. 31, must he serve another period actually perform-
ing the duties of the position to which he is appointed, promoted or trans-
ferred, continuously for an additional six months, in order to gain tenure
in this position,

(5) or does the fact that he served a six-month period in the position
which he vacated to accept the appointment, promotion, or transfer, pre-
clude the necessity of serving such an additional period?"

In considering your first question I assume, since there is no indication
to the contrary in your request, that your question refers to the situation
in which the two permanent positions referred to are not only not in the
classified civil service but neither is within the exception relating to posi-
tions requiring the rendering of professional service.

In answer to your first question, so construed, I advise you that a per-
son permanently employed in a permanent position in an institution of the
Department of Mental Health which is not classified under civil service
and is not a position, other than a nursing position, requiring the rendering
of professional service, after having actually performed the duties of the
position continuously for a period of six months, who accepts a permanent
appointment, promotion or transfer to another permanent position in such
an institution, not so classified and not within the exception as to positions
requiring the rendering of professional service, is not required to serve for
a six-month period in the second position in order to make the provisions
of G. L. c. 30, § 9B, applicable to prevent his discharge from that position,
or to prevent other action as referred to in the section being taken against
him with reference to that position, except in compliance with the require-
ments of said § 9B. Such an employee, is entitled to the benefit of the pro-
visions of G. L. c. 30, § 9B, as regards the permanent position, subject to
the section, to which he has been appointed, promoted or transferred, on
the basis of his previous six months' service in the permanent position, so
subject, which- he held prior to such appointment, promotion or transfer.

Your second question is:

"2. If the answer to question 1(a) is in tlie affirmative, may I have your
opinion on the following?

Does such an employee referred to relinquish all his rights of tenure in
the position w^hich he vacated, by accepting appointment, promotion or
transfer to the second position?"

General Laws, c. 30, § 9B, specifically extends the protection provided
therein for persons permanentl}^ employed in institutions under the De-
partment of IVIental Health to the "latest permanent office or employment
held . . ." It necessarily follows, therefore, and I so advise you in answ^er
to your second question, that a person who voluntarily gives up one per-
manent position to accept another permanent position is no longer en-
titled to the protection afforded by G. L. c. 30, § 9B, for the position he
has voluntarily vacated.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

70 P.D. 12.

Statutes as to payment, and reimbursement by Commonwealth, of tuition of
residents admitted to vocational schools of other towns, by towns not
maintaining such schools, are applicable to high school graduates.

Oct. 28, 1960.

Hon. Owen B. Kiernan, Commissioner of Education.

Dear Sir: — This acknowledges your letter of recent date setting forth
certain facts and posing the following question:

"Is a town where a person resides, who is admitted to a Vocational
School in another town, under the provisions of G. L. c. 74, § 7, liable for
the payment of a tuition fee even though the person in question is a grad-
uate of a regular high school?"

Relative to your question, former Attorney General Paul A. Dever, in
an opinion found in Attorney General's Report, 1935, p. 31, states:

"The long-continued practice of this department and the precedents set
by ni}^ predecessors in ofhce indicate, what is undoubtedly the correct rule
of law, that it is not within the province of the Attorney General to deter-
mine hypothetical questions which may arise, as distinguished from ques-
tions relative to actual states of fact set before the Attorney General, upon
which states of fact public officials are presently required to act; nor is
it the duty of the Attorney General to attempt to make general interpreta-
tions of statutes or of the duties of officials thereunder, except as such
interpretations may be necessary to guide them in the performance of
some immediate duty."

In view of the foregoing and the fact that you have already made an
affirmative determination under G. L. c. 74, § 7, the problem is now pri-
marily between the two towns involved under G. L. c. 74, § 8.

However, in view of your interest in this question, I shall review it
briefly and informally. As you have stated, by virtue of the provisions of
G. L. c. 74, § 7, residents of towns in the Commonwealth not maintaining
approved vocational schools may, upon approval of the Commissioner of
Education under the direction of the State Board for Vocational Educa-
tion, be admitted to a school in another town.

Section 8 of that chapter provides that the town where a person resides
who is admitted to a school of another town under § 7 shall pay a tuition
fee to be fixed by the commissioner under the direction of the State Board
for Vocational Education and in default of payment shall be liable therefor
to such other town.

Section 8A provides that a town where a person resides who is admitted
to a day school in another town under § 7 shall through its school commit-
tee, when necessary, provide for the transportation of such person and
shall, subject to appropriation, be entitled to State reimbursement to the
extent of fifty per cent of the amount so expended. Section 10 provides
that the Commonwealth shall reimburse towns paying fees under § 8 for
tuition in vocational schools one-half the amount so expended.

P.D. 12. 71

I assume that the situation you refer to is the one referred to in §§7,
8, 8A and 10. If I am correct m this assumption, it is my opinion that the
answer to your question is in the affirmative.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

A claim by the contractor for payment for the extra work under a State highway
construction contract referred to in the opinion of May 18, 1960, to the
Department of Public Works, may be approved if the department can
make the determinations specified in that opinion.

Nov. 18, 1960.

Mr. Frederick J. Sheehan, State Comptroller.

Dear Sir: — You have written this office concerning a claim for pay-
ment, approved by the IJepartment of Public Works, in connection with
a contract awarded to I'eter Salvucci, Inc., being numbered 77^4. You
ask the following question:

"As the original contract was in the amount of $688,029.50, may the
Department of Public Works now approve a claim for payment of extra
work under G. L. c. 29, § 20A, in the amount of $65,8-41.95 without com-
plying with the provisions of G. L. c. 29, § 8A?"

It is noted that the Department of Public Works previously issued an
"alteration" for the work involved which was held up by the State Gom-
trolier. The question was eventually referred to the Attorney General and
an opinion dated May 18, 1960, was forwarded to the Department of Pub-
lic Works to the effect that the work involved would constitute "extra
work" rather than an "alteration" and that such extra work order could
be issued by the department; provided, it complied with the various tests
as set forth in that opinion.

For some reason which is not clear to this office, apparently the extra
work order was not processed, but in lieu thereof a claim for extra work
was filed on July 25, 1960, and was approved by the Department of Pub-
lic ^\ orks on August 2, 1960. From the information currently available,
it appears that the work which was the basis of the opinion of the Attorney
General dated 3,Iay 18, 1969, is the same work which is also the basis of
the claim for payment for extra work.

Your question, in effect, asks whether the claim for payment may be
approved without compliance with the bid statute as embodied in G. L.
c. 29, § 8A. Our opinion of May 18 was to the effect that an extra work
order could be issued without the necessity of rebidding the contract un-
der c. 29, § 8A; provided, the department was able to make the various
factual determinations listed in said opinion. Similarly, a claim for extra
work may be approved by the department without the necessity for rebid-
ding the contract if the department is able to make the same determinations
that they would have made in connection with an extra work order.

72 P.D. 12.

Article 23 of the Standard Specifications for Highways and Bridges of
the Department of Public Works relates to both extra work ordered in
writing and to claims for extra work not previously ordered in writing.
Since a claim for extra work is here involved, rather than extra work or-
dered in writing, the department should, of course, determine that the pro-
visions of Article 23 relating to claims have been satisfied or have been
waived. In this connection, I refer you to the formal opinion of former
Attorney General Fingold to the Department of Education dated July 28,
1954 (unpublished), which confirmed an earlier informal opinion signed by
former Assistant Attorney General John V. Phelan, to the effect that G. L.
c. 29, § 20A, did not preclude processing a ^^ claim for payment for extra
work" as to which a proper notice of intention under that section had been
filed, and as to which any applicable contract provisions relative to the
time and manner of submission of such claims had been waived. Copies
of these two opinions are attached.

For your possible information in relation to extra work orders, your
attention is called to the case of M. DeMatteo Construction Co. v. Common-
wealth, 338 Mass. 568 (1959), where an extra work order was issued after
the work had been commenced. The Supreme Court stated that Article
23 of Standard Specifications did not require that the order in writing
should precede the commencement of the work.
Very truly yours,

Edward J. AIcCormack, Jr., Attorney General,

By Joseph H. Elcock, Jr.,

Assistant Attorney General.

"Higher education" as used in the statute providing scholarship aid for chil-
dren of certain deceased members of the armed forces may, subject to the
determination of the Commissioner of Education, include advance courses
not in the ordinary high school curriculum and not requiring graduation
from high school.

Nov. 21, 1960.

Hon. Ow^EN B. KiERNAN, Commissioner of Education.

Dear Sir: — This will acknowledge your letter of recent date enclosing
correspondence and other material relative to C^yde Dav's Wood, in which
you request my "advice" as to the eligibility of this young man for the
award of the so-called War Orphans Scholarship.

Apparently, from the information you have supplied, I\Ir. AVood is
about seventeen years old, having completed one year in high school, with-
drawing in June, 1960, and has been accepted as a special student in the
Swain School of Design. It further appears that he is enrolled in the Com-
mercial Art program and will generally take most of the freshman subjects.
As a general rule this school considers, first, students who have completed
high school education. However, if it feels that there is a possibility that
it may be of assistance in preparing a student for a useful career, it does
make an exception. Every student is on trial for the first year and it is
during that time that the school works with the student closely and sur-

P.D. 12. 73

veys his chances regarding potential in the commercial field. The students
are ordinarily with the school for four years. The courses cover various
aspects of art, drawing, painting and other kindred subjects. I understand
that the problem before you is one of reimbursement under the provisions
of G. L. c. 69, § 7B.

Except for the enclosures setting forth in some detail the facts relating
to the matter you refer to, your inquiry is not far different from the ques-
tions propounded to Attorney General Bushnell by your predecessor, Com-
missioner Walter F. Downey, in answer to which Attorney General Bush-
nell, under date of February 10, 1941, rendered his opinion. The questions
propounded by Commissioner Downey, which referred to St. 1930, c. 263,
as amended, entitled "An Act providing higher educational opportunities
for the children of Massachusetts men who died in the mihtary or naval
service of the United States during the Wolrd War, or as a result of such
service," were as follows:

"1. Does the term 'higher education' as used in section 1 signify an
education higher than that normally provided, from public monies, to all
children who are residents of IVIassachusetts, namely, a four-year high
school education?

"2. If the answer to the above is in the affirmative, would the Commis-
sioner be acting in accordance with the statute in approving only those
educational institutions whose requirements for admission include gradu-
ation from a four-year high school course or its equivalent? "

The Attorney General answered the first question in the afiirmative and
the second in the negative, using the following language:

"It is plain that by the phrase ^the higher education of any child . . . not
under sixteen years and not over twenty-two years of age ' the Legislature
intended to indicate a course or courses of study of a more advanced or
more highly specialized character than those offered by the ordinary high
school curriculum. The statute is not one which should be construed nar-
rowly and it cannot well be said that only courses given in educational in-
stitutions which require graduation from a high school or its equivalent, as
a prerequisite to admission, are within the meaning of the enactment.
Some courses of study may be more advanced or more highly specialized
than those of the high school and yet may be pursued with profit to the
pupij even without the particular preliminary training afforded by a high
school."

Section 7B has for its object a very humanitarian purpose, namely, pub-
lic aid for the higher education of the children of deceased war veterans.
This purpose should not be frustrated by a narrow construction of the pro-
visions of § 7B. The phrase "higher education", as it is used in § 7B, is
intended to indicate a course or courses of study of a more advanced or
more highly specialized character than those offered by the ordinary high
school curriculum. Furthermore, it cannot well be said that only courses
given in educational institutions which require graduation from high school
or its equivalent as a prerequisite to admission, are within the meaning of
the enactment. Some courses of study may be more advanced or more
highly specialized than those of the high school and yet may be pursued
with profit to the pupil even without the particular preliminary training
afforded by a high school.

74 P.D. 12.

In connection with matters such as you refer to, the last paragraph of
§ 7B is pecuharly significant. I have no doubt that the General Court
envisioned situations such as is now before you when this legislation was
originally enacted. It is my conviction that the General Court did not
intend to deprive children of deceased veterans of special training to de-
velop talents not ordinarily covered in the public schools solely because of
the fact they had not graduated from high school after takmg the general
courses of study offered in the pubhc schools. Such a position, it seems to
me, would be inconsistent with the benign purposes of this legislation.

However, as stated in the last paragraph of § 7B,

"The said commissioner shall determine the eligibility of children for
the benefits provided for in this section."

I am not permitted to determine the eligibility of the young man you
refer to. That responsibility is yours. In my opinion the Legislature, by
the insertion of this paragraph, intended to provide you with a reasonable
discretion in determining the eligibility of children for the benefits provided
by § 7B, taking into consideration all of the circumstances.
Very truly yours,

Edward J. McCormack, Jr., Attorney General.

Discussion of authority of Massachusetts Aeronautics Commission to swear

witnesses.

Nov. 21, 1960.

Hon. Edward J. Lynch, Chairman, Massachusetts Aeronautics Commission.

Dear Sir: — In your recent letter you request an opinion as to whether
or not your commission has authority under the law to swear in witnesses
at hearings.

I beg to advise you that by the provisions of G. L. c. 90, § 42, it is pro-
vided that the Superior Court may compel the attendance of, and the
giving of testimony by, witnesses before your commission or any member
thereof in the same manner and to the same extent as before said court,
insofar as said testimony relates to the matters referred to in that section
which reads as follows :

"The superior court shall have jurisdiction in equity to enforce any
1 wful rule, regulation or order made by the commission or any of its
members or by a city or town under any provision of sections thirty-five
to fifty-two, inclusive, and may compel the attendance of and the giving
of testimony by witnesses before the commission or any member thereof,
in the same manner and to the same extent as before said court."

Insofar as your question relates to the summoning and swearing of wit-
nesses in adjudicatory proceedings as defined by G. L. c. 30A, § 1 (1),
your commission has the power to subpoena witnesses by reason of, and
in accordance with, the provisions of § 12 of that chapter. "Adjudicatory
proceedings" are defined as follows:

P.D. 12. 75

"'Adjudicatory proceeding' means a proceeding before an agency in
which the legal rights, duties or privileges of specifically named persons
are required by constitutional right or by any provision of the General
Laws to be determined after opportunity for an agency hearing. Without
enlarging the scope of this dehnition, adjudicatory proceeding does not
include (a) proceedings solely to determine whether the agency shall in-
stitute or recommend institution of proceedings in a court; or (h) pro-
ceedings for the arbitration of labor disputes voluntarily submitted by the
parties to such disputes; or (c) proceedings for the disposition of griev-
ances of employees of the commonwealth; or (d) proceedings to classify
or reclassify, or to allocate or reallocate, appointive offices and positions
in the government of the commonwealth."

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

Provision that Massachusetts Aeronautics Commission shall approve en-
gineering contracts of local bodies does not give it the right to preselect
engineers.

Nov. 21, 1960.

Hon. Edward J. Lynch, Chairman, Massachusetts Aeronautics Commission.

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

"We would like to know if under the law the commission has the right
to preselect and recommend engineers prior to the submission of an en-
gineering contract for approval by the commission."

General Laws, c. 90, § 51K, requires the "approval" by your commis-
sion of the contracts therein referred to.

In the case of Rooney, Petitioner, 298 Mass. 430, 433, the court, in con-
struing the word "approval," used the following language:

"The word 'approval' when it appears in our statutes generally means
an affirmative sanction by one person or by a body of persons of precedent
acts of another person or body of persons."

While mutual collaboration in the interest of the public is always to be
desired, it is my judgment that your commission should not, in any way,
endeavor to coerce or force your judgment upon the local body in control.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

76 P.D. 12.

Funds made available for the assistance of the Governor-elect may be expended
prior to certification of results of election if no recount petition is filed, and
after certification expenses incurred at any time after election may be
approved.

Nov. 23, 1960.

Hon. Charles Francis Mahoney, Comwjissioner of Administration.

Dear Sir: — ^You have called attention to c. 754 of Acts of 1960 au-
thorizing the Commission on xVdministration and Finance to expend an
amount up to $25,000 immediately after the biennial State election in the
current year for furnishing such assistance as the governor-elect may re-
quest in writing. You ask whether such sums may be expended by the
commission before the election of the now governor is certified by the out-
going governor, as required by G. L. c. 54, § 116.

In the event such sums may not be expended prior to certification, you
ask whether the commission may, after certification, approve retroactively
those expenses incurred by the governor-elect after the election but before
such certification.

Article XIV of Amendments to the Massachusetts Constitution provides :

"In all elections of civil officers by the people of this commonwealth,
whose election is provided for by the constitution, the person having the
highest number of votes shall be deemed and declared to be elected."

Article XV of the Amendments provides:

"The meeting for the choice of governor, lieutenant-governor, senators,
and representatives, shall be held on the Tuesday next after the first Mon-
day in November, biennially: but in case of a failure to elect representa-
tives on that day, a second meeting shall be holdcn. for that purpose, on
the fourth Monday of the same month of November."

From these two provisions it would appear that the governor is "elected "
on election day by then receiving the highest number of votes and would
be the governor-elect as of that time. To determine just what candidate
has the highest number of votes requires, of course, the official count and
tabulation of such votes. It would appear that the votes may be actually
ascertained when the election officials have canvassed and counted the
votes as required by G. L. c. 54, § 105, and when the aldermen and city
clerk and the selectmen and town clerk of the respective cities and towns
have examined the copies of the records of such election officials as required
by G. L. c. 54, § 111. This result could be changed if a recount were sought
within fifteen days after the election as provided by G. L. c. 54, § 135.

In the event that you receive satisfactory evidence concerning the actual
tabulation of the votes as indicated above and if the time for recount has
elapsed, then it is my opinion that you may expend funds for the governor-
elect in accordance with c. 754 of the Acts of 1960, even though the results
of the election have not actually been certified under § 116 of c. 54.

As a practical matter, it may be difficult to ascertain the actual result of
the deletions until these results are certified by the governor and made
available in the office of the secretary of state. Even in this event, your
commission would have authority to approve retroactively, those expenses
of the governor-elect which were made after the election but before the

P.D. 12. 77

actual certification of the governor, since the certification merely states
what votes were actually cast on the prior election day and the governor
would have been elected as of that earlier date.
Very truly yours,

Edward J. McCormack, Jr., Attorney General.

The provision of G. L. c. 32, § 9 4 {the ''Heart Law"), including State police
thereunder did not extend the law to inspectors of the Division of In-
spections of the Department of Public Safety.

Nov. 29, 1960.

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

Dear Sir: — In your recent letter, relative to the application of the
so-called "Heart Law" (G. L. c. 32, § 94), you pose the following question:

"Do the Inspectors of the Division of Inspections of the Department of
Public Safety, appointed under G. L. c. 22, § 6, who have the same police
powers under G. L. c. 147, § 2, as members of the State Police of the
Department of Public Safety, come within the provisions of G. L. c. 32,

§94"^

You state that the inspectors of the Division of Inspections of the De-
partment of Public Safety are appointed under the authority of G. L. c. 22,
§ G, and are "designated as Building Inspectors or District Engineering
Inspectors according as their duties relate to buildings or engineering."

You further state that G. L. c. 147, § 2. provides that these inspectors
"shall have and exercise throughout the commonwealth the powers of
constables, police officers and watchmen, except as to service of civil
process," and that they may be detailed for temporary service in the
Division of State Police.

General Laws c. 32, § 94, provides in general that despite the provisions
of any other law to the contrary affecting the non-contributory or con-
tributory system, any condition of impairment of health caused by hy-
pertension or heart disease resulting in total or partial disability or death
to members of various emploj^ee groups in the Commonwealth, shall, if
they successfully passed a physical examination on entry into such service,
which examination failed to reveal any evidence of such condition, be
presumed to have been suffered in line of duty, unless the contrary be
shown by competent evidence.

Section 94 was originally limited to a very few groups of public em-
ployees. Numerous amendments since the original enactment have been
passed extending the presumption afforded by § 94 to different groups of
public employees. For example, c. 511 of the Acts of 1956 included any
employee of the Registry of Motor Vehicles in the Department of Public
Works who entered the service of the Registry as an investigator or an
examiner and performed police duty. Chapter 594 of the Acts of 1951
added several new groups including "the state police in the department of
public safety." I am not aware of any other groups of employees in the
Department of Public Safety having been added to those included in § 94

78 P.D. 12.

other than, as stated above, members of the State PoUce. I am, therefore,
constrained to advise you that in my opinion, the answer to your question
is in the negative.

To remove any doubt about the matter, I recommend a legislative
amendment definitely and clearly bringing the group you refer to within
the purview of § 94.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

The fee for an original license as a real estate broker or salesman extending for
more than one year is the annual rate for such a license, plus one-twelfth
thereof for each month, or part thereof, in excess of one year.

Dec. 6, 1960.

Mr. Joseph J. Mulhern, Chairman, Board of Registration of Real Estate

Brokers and Salesmen.

Dear Sir: — You have requested an opinion on a question relative to
the license fees of your board. I believe the opinion which was rendered
by this office in November of last year and addressed to Mrs. Helen C.
Sullivan supplies the answer to your question. However, in order to re-
move any possible doubt about the matter, I will reply.

Mrs. Sulhvan's communication, as you state, posed the following ques-
tion:

"Assume, for example, that a broker's birth date is April 28. The origi-
nal license to be issued to that individual 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 opinion
on the following question:

In this case, does the original fee of S15 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?"

The question you pose is as follows:

"In the previously mentioned case, does the original fee of S15 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?
And, furthermore, should this proportional fee for the period from Jan-
uary 1, 1961, to April 28, 1961, covering a period of approximately four
months, be calculated on the original fee basis of $15 for 12 months or on
the renewal fee basis of $10 for 12 months?"

You will note that in G. L. c. 112, § 87XX, in dealing with the subject
of licenses, the General Court has provided as follows :

"... Except as otherwise provided in section eighty-seven UU in the
case of a license issued to a corporation, society, association or partnership.

P.D. 12. 79

a license shall be valid for a period of one year from the date of issue unless
sooner suspended or revoked and shall be renewed by the board annually
thereafter, ..."

It is later provided in § 87XX that:

"... 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 . . . ."
(Emphasis added.)

Turning its attention to the amounts of the license fees, the General
Court in § 87ZZ provides that the following fees shall be paid by indi-
viduals in advance to the board : —

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

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

id) As amended by chapter 455 of the Acts of 1959, it is provided 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 revoked or suspended and, for this purpose, any part of a
month shall be considered as a full month.

Turning to your question, in the first instance, as stated in § 87XX, the
license originally issued shall be valid until the anniversary of the licensee's
date of birth next occurring more than twelve months after the date of issu-
ance. Accordingly then, the express provision of § 87XX is that the license
originally issued runs for one year and until the anniversary of the licensee's
date of birth next occurring more than twelve months after the date of issu-
ance. The renewal licenses run for one year as stated in § 87XX.

Section 87ZZ expressly provides that license fees are payable "in ad-
vance." The original fee for a broker's license is, as stated in § 87ZZ, at
the rate of fifteen dollars for twelve months; the duration of the original
license to be figured at $1.25 per month. As stated in § 87ZZ, in computing
the applicable fee for the issuance of the original license, it shall be ad-
justed by the board on the basis of each month during which it would be
valid and for this purpose, any part of a month shall be considered as a
full month.

To state the matter again, the fee for an original broker's license is fif-
teen dollars for twelve months plus SI. 25 a month for the number of
months or fractional part of a month covered by the license beyond the
year.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

80 P.D. 12.

In the absence of a statute authorizing training physicians in State hospitals
under Federal grants as psijchiatrists, a physician receiving such train-
ing and paid from a Federal grant is not an employee of the Commonwealth
eligible for group insurance coverage.

Dec. G, 1960.
Harry C. Solomon, M.D., Commissioner of Mental Health.

Dear Sir: — You have requested an opinion as to whether or not cer-
tain physicians paid from a Federal grant for training as psychiatrists at
a State mental hospital may be considered employees of the Common-
wealth for the purpose of being eligible for group insurance under G. L.
c. 32A.

You indicate in your letter that the necessary funds to pay these phy-
sicians is forwarded by the National Institute of Mental Health, United
States Public Health Service, a Federal agency within the Department of
Health, Education and Welfare of the United States, and is deposited with
the State Treasurer and Receiver General, and earmarked by him to pay
the physicians participating in the training program. The trainees are paid
by standard invoice form CB-12, and processed through the Comptroller's
Bureau. The Treasurer issues a check in the full amount of the standard
invoice; no deductions (for Federal or State taxes, retirement, etc.) of
any kind are made.

General Laws c. 32A (as hiserted by St. 1955, c. 628) § 2(6), defines "em-
ployee" in part as follows:

"... any person in the service of the commonwealth, whether such per-
son be employed, appointed or elected by popular vote; provided, the
duties of such person require that his time be devoted to the service of the
commonwealth during the regular work week of permanent employees,
. . . but shall in no event be construed to include . . . seasonal employees
or emergency employees. . ."

Your letter has not directed my attention to any statute of the Common-
wealth which authorizes the Commissioner of Mental Health to enter into
an agreement or contract with the above referred to Federal agency, rela-
tive to instituting a training program as set forth in your letter in such a
way as to constitute a physician benefiting under the program an em-
ployee of the Commonwealth.

The above quoted statute defines employee as ". . . any person in the
service of the commonwealth, whether such person be employed, appointed
or elected. . ." No person can become an employee of the Commonwealth
or be appointed as such without the authorization or consent of the Com-
monwealth. Such authorization or consent must necessarily manifest it-
self in appropriate legislation. An employer-employee relationship,
wherein the Commonwealth is the emploj^er, cannot be created by the
head of a department in the absence of a statute authorizing or permitting
such action.

Accordingl}^, I must answer your question in the negative.
"\"ery truly yours,

Edward J. McCormack, Jr., Attorney General,

By Leo Sontag,

A ssistant A itorney General.

P.D. 12. 81

An appointee to the Board of Registration in Medicine who has been a regis-
tered physician less than ten years does not meet the requirements of G. L.
c. 13, § 10, that appointees to the Board '^ shall have been for ten years
actively engaged in the practice of their profession."

Jan. 3, 1961.

David W. Wallwork, M.D., Secretary, Board of Registration in Medicine.

Dear Sir : — You have requested an opinion in behalf of the Board of
Registration in Medicine relative to the status of a person registered by the
board as a physician.

Chapter 188 of the Acts of 1960 provides that:

"There shall be a board of registration in medicine, in the two following
sections called the board, consisting of seven persons, residents of the com-
monwealth, registered as qualified physicians under section two of chapter
one hundred and twelve, or corresponding provisions of earlier laws, who
shall have been for ten years actively engaged in the practice of their profession.
. . ." (Emphasis added.)

You advise me that the person referred to was registered by the board
as a qualified physician on October 23, 1951, after his thirteenth examina-
tion. Further, that he was appointed as a member of the Board of Regis-
tration in Medicine on November 3, 1960, and was confirmed and was
given the oath of office on November 10, 1900.

If the facts are as you have stated them, and I have no reason to doubt
but that they are, that the person you refer to at the time he was appointed,
qualified and confirmed, had been practicing medicine in the Common-
wealth only nine years, then, of course, he does not meet the requirements
laid down in the statute.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

G. L. c. 4-0, § 4lB, added in 1958, providing that the water supply in certain
municipalities not be fluoridated unless a favorable vote is taken at the
^'next . . . [municipal] . . . election," contemplates votes in years other
than 1959.

Jan. 6, 1961.

Alfred L. Frechette, M.D., Commissioner of Public Health.

Dear Sir : — In your recent letter you inquire as to the insertion on
the ballot of the question of fluoridation.

Chapter 254 of the Acts of 1958, provides as follows:

"An Act requiring that the will of the voters be ascertained before any
public water supply system is fluoridated.

"Chapter 40 of the General Laws is hereby amended by inserting after
section 41 A, inserted by chapter 793 of the acts of 1949, the following
section: —

82 P.D. 12.

Section //.IB. Xo public water supply for domestic use in any city, town
or district supplying such water which is not being fluoridated prior to
September first, nineteen hundred and fifty-eight shall thereafter be fluo-
ridated by any such city, town or district or combination of two or more
towns supplying such water jointly unless the will of the voters of such
city, town or district, or of the towns being supplied such water by such
combination of towns is first ascertained as herein provided. The board
of water commissioners or other ofiicers performing like duties may require
that the following question be placed upon the official ballot to be used at
the next regular municipal election or for the election of town officers at
the next annual town meeting or meetings: — -'Shall the public water
suppl}^ for domestic use in (this city) (this town) (the towns of
and ), be fluoridated?', or in such district may require that the

following question be placed before the next annual meeting of the in-
habitants of the district : — ' Shall the public water supply for domestic
use in this district be fluoridated?'

"If a majorit}^ of the votes in answer to said question is in the affirma-
tive, it shall be deemed and taken to be the will of the voters of the said
city, town or towns, or district that the public water supply for domestic
use shaU be fluoridated, and if a majority of said votes is in the negative,
it shall be deemed and taken to be the will of said voters that such supply
shall not be fluoridated. Approved April 11, 1958."

It is argued that this legislation does not authorize the question above
referred to being placed upon the oflicial ballot at the annual election in
any municipality at any time other than the annual tow^n meeting for the
election of officers in the year 1959. It is further argued that by the use
of the words "at the next regular municipal election or for the election of
town officers at the next annual town meeting" only the annual town
meeting succeeding the enactment of this legislation is meant, which would
of necessity be the annual town meeting for the year 1959. I cannot agree
with that conclusion.

It is a matter of general knowledge that the subject of fluoridation has
been discussed at length in many places for some time. The discussions
and arguments have found learned and upright people on both sides of the
question. The General Court undoubtedly had this in mind when c. 254
was enacted. It seems evident to me that the General Court by the enact-
ment of c. 254 intended to give the various cities and towns in the Common-
wealth the right to vote on the subject of fluoridation. To say that only
those municipalities which acted at the annual town meeting in 1959 should
have the right to pass on this subject would seem to frustrate the obvious
intent of this legislation.

It is entirely conceivable that many communities where the subject was
still under discussion were unaware of the existence of the statute in time
to put it on the ballot at the annual election in 1959. If they were aware
of the existence of c. 254, it is quite conceivable that for one reason or
another they did not progress through the discussion stage of this subject
in time to take advantage of the act.

In my opinion, the words "next regular municipal election or . . . elec-
tion of town officers at the next annual town meeting or meetings ..."
mean the next election following the determination by the board of water
commissioners that the question be placed on the ballot.

P.D. 12. 83

The General Court is quite familiar with the method of limiting the ac-
ceptance of statutes to a short period of time if it chose. Chapter 56 of
the Acts of 1959 is an illustration of what I refer to. Chapter 56 reads as
follows :

"An Act providing that the voters of the town of Wilmington shall
determine whether or not the water supply of said town shall continue
to be fluoridated.

''The following question shall be placed upon the official ballot to be
used for the election of officers at the annual town meeting in the current
year in the town of Wilmington : • — ' Shall the fluoridation of the water
supply of the town of Wilmington be continued?' If a majority of the
votes in answer to said question is in the affirmative, the fluoridation of
the water supply of said town shall be continued, otherwise it shall be dis-
continued. Approved February 20, 1959."

Moreover, it should be borne in mind that St. 1958. c. 254, is not an iso-
lated statute, by any means. It merely inserts a new § 41B in G. L. c. 40,
thereby making it a part of the permanent General Laws of the Common-
wealth. In other words, it is my opinion that this amendment to the
General Laws of the Commonwealth, constituting a permanent part of our
statutory system, was not intended to be an impermanent statute which
became ineffective the year following its enactment. Sense-of-the-meeting
votes taken prior to the enactment of St. 1958, c. 254, do not, in my
opinion, limit the right of the municipalities to take a formal vote under
the statute since its enactment.

Naturally, you will understand that it is not the function of this office
to pass upon the merits or demerits of fluoridation or legislation relative
to it. This opinion simply relates to the right to have the question re-
ferred to placed upon the ballot for the voters to determine whether or not
they want fluoridation.

Verj'- truly yours,

Edward J. McCormack, Jr., Attorney General.

The Department of Public Works is to he presumed to have acted properly in
determining the lowest eligible bidder on a State highway construction
contract; and in the absence of fraud, a comment by the State Auditor
that abnormally low unit prices were bid on items, estimated quantities of
which were too low, does not require that the Comptroller hold up pay-
ments on the contract.

Jan. 9, 1961.

Hon. Joseph Alecks, State Comptroller.

Dear Sir : — Your predecessor in office requested an opinion on two
questions concerning a voucher calling for payment to M. DeMatteo
Construction Co., Inc. in the amount of $118,964.45 for highway bridge
work done under Contract No. 8025. Payment of the voucher is being
withheld in view of certain comments relating to the contract contained
in the current auditor's report. The auditor has picked out certain items
of work for which unit prices were bid, and has stated that such unit
prices are abnormally high, resulting in an "unbalanced bid."

84 P.D. 12.

The following two questions were asked:

"1. Where the Department of Public Works, under the facts as above
indicated, has awarded a contract which in the opinion of the department
is to the lowest, responsible eligible bidder, is there any legal requirement
that this office question the determination of facts as made by the Depart-
ment of Public Works?

"2. Where a contractor has bid on a unit price contract a high price
for a lump sum item, and low individual unit prices for estimated quanti-
ties which vary greatly from the department's estimates and abnormally
low as compared with the unit prices bid by other contractors as stated in
the State Auditor's Report and it subsequently turns out that the quan-
tities estimated are low to finish the job, is there any legal requirement
placed on this office before said additional quantities are certified for
payment?"

In answer to the first question, it would appear that under the provi-
sions of G. L. c. 16, § 4, the Department of Public Works, acting through
the Commissioner and Associate Commissioners, had the responsibility of
awarding the contract in question. In making such award, the department
must, of course, act in the best interests of the Commonwealth and must
comply with the provisions of G. L. c. 29, § 8A, governing the bid proce-
dure relating to such contracts. The letter requesting the opinion does not
indicate noncompliance with the formal technicalities of c. 29, § 8A, nor
does it call attention to any facts indicative of fraud, bad faith, discrimina-
tion or the like, W'hich might taint the contract in question. In the absence
of any such facts, it should be presumed that the public officials in ques-
tion have acted properly.

In these circumstances, it is assumed that the contract in question was
awarded for the best interests of the Commonwealth. On the facts pre-
sented to this office, it does not appear that the Comptroller should refuse
payment of the voucher in question.

What we have said concerning the first question would seem likewise to
answer the second question.

Very truly yours,

Edward J. INIcCormack, Jr., Attorney General

By Eugene G. Panarese,

Assistant Attorney General.

A veteran granted public relief is not, tn the absence of the notice by ihe town
granting relief to ihe town of his settlement required by G. L. c. 116, § 2,
prevented from gaining a settlement in the former town.

Jan. 17, 1961.

Mr. Charles N. Collates, Commissioner of Veterans' Services.

Dear Sir: — You have asked for an interpretation on certain facts of
G. L. c. 116, § 2, stated with reference to a veteran applicant for aid, as
amended by St. 1955, c. 740, § 3, in connection with the above case and
for the approval by the Attorney General of your decision.

P.D. 12. 85

You have enclosed copies of correspondence which indicate that the
veteran had a settlement in Boston and moved to Quincy February 16,
1955, and, within five years of said date, that is, during 1959, received
public welfare from the city of Quincy.

General Laws, c. 116, § 2, as amended by St. 1955, c. 740, § 3, provides:

"No person shall acquire a settlement, or be in the process of acquiring
a settlement, while receiving public relief, unless within two years after
receiving such relief, he tenders reimbursement of the cost thereof to the
commonwealth or to the town furnishing it ... "

Said section 2 further provides that:

"... receipt of public relief by a veteran . . . shall not prevent such
veteran . . . from acquiring, or being in the process of acquiring, a settle-
ment, unless the veterans' agent of the town of settlement ... of such
veteran . . . shall notify, in writing, the public welfare authorities of the
town furnishing such public relief that such veteran or dependent is not
eligible for benefits under said chapter one hundred and fifteen, in answer
to a notice, which . . . shall ... be given forthwith to the veterans'
agent of the town of settlement ... by the town granting such public
relief."

The latter proviso means that, notwithstanding the general provisions
contained in § 2, a veteran shall acquire, or be in the process of acquiring,
a settlement even while receiving public relief unless, using the names of
the cities involved in the present case, Quincy. upon granting public relief
to the veteran, forthwith gives a notice in writing to the Commissioner of
Veterans' Services of the city of Boston, and the latter notifies, in writing,
the public welfare authorities of Quincy that such veteran is not eligible
for veterans' benefits.

The provisions as to notices in writing are mandatory, and if either the
town granting public relief or the town of settlement fails to give such
notice as is required of it, it must suffer the consequences of its neglect.

In this case, Quincy should have given a notice in writing, and having
failed to so do, the veteran acquired a settlement in Quincy on February
16, 1960.

The fact that the Veterans' Agent of the city of Boston had, at a time
prior to the receipt by the veteran of public welfare aid from the city of
Quincy, notified the veteran in writing that he was not eligible for aid
from the Agent's department, would not relieve the offi.cials of the city
of Quincy from the obligation to notify the Veterans' Agent of Boston of
the granting of such assistance to the veteran.

Accordingly, under the provisions of G. L. c. 115, § 2, this office must
disapprove your decision that the veteran was prevented from acquiring
a Quincy settlement on February 16, 1960, and rule that he did acquire a
settlement in Quincy on such date.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Leo Sontag,

Assistant Attorney General.

8G P.D. 12.

The appropriation to "reconstruct" the covered bridge on Groton Street, Pep-
perell, could not he expended by the Department of Public Works to pay
for land to relocate the bridge or for the cost of making changes in utility
lines required by the reconstruction.

Jax. 23, 1961.

lion. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir: — You have requested an opinion concerning the construc-
tion of St. 19o8, c. 639, relative to the covered bridge on Groton Street in
the town of Pepperell.

The provisions of c. 639 authorize and direct your department "to re-
construct the covered bridge on Groton Street in the town of Pepperell."
I understand that the replacement of the present bridge in a new location,
as stated in your letter, will require alterations to a high tension transmis-
sion line of the Wachusett Electric Light Company and to certain facilities
of the New England Telephone and Telegraph Company, both of these
being on their own right-of-ways.

I also understand that a taking or takings of land Avith resulting damages
may be required in order to accomplish what your departm.ent is planning.
You ask, ". . . whether or not this department can spend funds allocated
to this project under the above-mentioned act for either land damages or
utility changes." Authority to exercise the power of eminent domain must
be express or by necessary implication. Jenks v. Taunton, 227 Mass. 293,
296. Comiskey v. Lynn, 226 Mass. 210, 213. I find nothing in the provi-
sions of c. 639 conferring authority to exercise the power of eminent domain
either expressly or by necessary implication.

Moreover, I am not satisfied that the expense of the alteration of the
facilities of the utility companies you refer to on their own right-of-ways,
may be paid by your department. Such an expenditure would not, in my
opinion, be "to reconstruct the covered bridge on Groton Street . . ."

In the light of the foregoing, I am constrained to advise you that, in
my opinion, your department is not authorized to expend funds allocated
for the purposes of c. 639 for either land damages resulting from takings
or such utility changes.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

A person designated as the personal representative of the Insurance Commis-
sioner on the Board of Appeal on Motor Vehicle Liability Policies and
Bonds does not acquire tenure rights under G. L. c. SO, § 9A.

Feb. 1, 1961.

Hon. Otis M. Whitney, Commissioner of Insurance.

Dear Sir: — In your recent letter you request an opinion as to whether
or not your action in terminating the designation of the member of the
Board of Appeal on Motor Vehicle Liability Policies and Bonds represent-

P.D. 12. 87

ing the Commissioner of Insurance and your designation of another person
as your representative was in accordance with law.

You state that on JVIay 8, 1957, the then Commissioner of Insurance,
Joseph A. Humphreys, designated Joseph A. Cieri as his representative to
act in his place as a member of the board, under the provisions of G. L.
c. 20, § 8A. I assume that such designation was made by a writing as re-
quired by said section. You state that Mr. Humphreys' term as Commis-
sioner of Insurance expired on April 21, 1959. You further state that you
never designated JMr. Cieri to act as your representative on the board, al-
though he continued to act in such capacity until January 25, 1961.
Jilt appears from the correspondence attached to your letter that on Jan-
uary 11, 1961, pursuant to the provisions of G. L. c. 26, § 8A, you designated
one Thomas F. Donohue as your representative on the Board of Appeal,
such designation to remain in effect until revoked. &^aid designation be-
came effective January 26, 1961. It also appears from the correspondence
that by letter of January 11, 1961. you notified Joseph Cieri of your desig-
nation of Thomas F. Donohue on said date.

You specifically request my opinion as to whether or not 3^ou had the
right, against Mr. Cieri's wishes, to terminate his services as representative
of the Commissioner of Insurance on the board in view of the provisions
of G. L. c. 30, § 9A. You state that Mr. Cieri is a veteran. General Laws,
c. 30, § 9A, reads as follows:

"A veteran, as defined in section twenty-one of chapter thirty-one, who
holds an office or position in the service of the commonwealth not classified
under said chapter thirty-one, other than an elective office, an appointive
office for a fixed term or an office or position under section seven of this
chapter, and has held such office or position for not less than three years,
shall not be involuntarily separated from such office or position except
subject to and in accordance with the provisions of sections forty-three and
forty-five of said chapter thirty-one to the same extent as if said office or
position were classified under said chapter. If the separation in the case
of such unclassified offices or positions results from lack of work or lack of
money, such a veteran shall not be separated from his office or position
while similar offices or positions in the same group or grade, as defined in
section forty-five of this chapter, exists unless all such offices or positions
are held by such veterans, in which case such separation shall occur in
the inverse order of their respective original appointments."

General Laws, c. 26, § 8A, reads in part as follows:

"There shall be a board of appeal on motor vehicle liability policies and
bonds serving in the division of insurance and consisting of the commis-
sioner of insurance or his representative, the registrar of motor vehicles or
a representative, and an assistant attorney general to be designated from
time to time by the attorney general. The commissioner of insurance may
by a writing in such form as he may prescribe, filed in his office, designate
from time to time a representative to act in his place and the registrar of
motor vehicles may in like manner designate from time to time a representa-
tive to act in his place. Any such designation may be revoked at any time
and may run for such period as the designating oflicer may prescribe. . . ."

It is the general rule of the common law apart from statute that a public
officer can not give an appointee a tenure of office beyond his own. Com-
monwealth V. Higgins, 4 Gray, 34-35. Opinion of the Justices, 239 Mass.
603, 605; Opinion of the Justices, 275 Mass. 575, 579; Howard v. State

88 P.D. 12.

Board of Retirement, 325 Mass. 211, 213. The designation of Mr. Cieri,
made by Commissioner Humphreys on May 8, 1957, as a member of the
board representing the Commissioner of Insurance, terminated on April
21, 1959, the date on which the term of office of Mr. Humphreys as Com-
missioner of Insurance expired.

Mr. Cieri was not designated on or subsequent to April 21, 1959, in writ-
ing, as required by c. 26, § 8A, to be your representative on the board, al-
though he continued to act as such representative beyond that date.
Assuming but without deciding that Mr. Cieri possessed some status, it
was revoked on January 11, 1961 (to become effective January 26, 1961),
when you designated Thomas F. Donohue to be your representative on
the board. It appears from the correspondence that the designation of Mr.
Donohue was made in writing and complied with the provisions of c. 26.
§ 8A. A designation made under § 8A may, by the express language of
that section, be revoked at any time.

Chapter 30, § 9A, provides in part that a veteran who holds an office or
position in the service of the Commonwealth not classified under the civil
service statute (c. 31) and who has held such office or position for not less
than three years, shall not be involuntarily separated from such office or
position except in accordance with provisions of sections relating to classi-
fied offices and positions (c. 31, §§ 43 and 45). Appointive offices for a
fixed term are exempted from the provisions of § 9A. A designation made
under c. 26, § 8A, expires upon the death or the cessation of tenure of the
public officer who made such designation and is an appointive position for
a fixed term excluded from the provisions of c. 30, § 9A.

In substance, you ask whether c. 30, § 9A, is applicable to the type of
position about which you make inquiry. My answer is that the type of
position referred to comes within the express exemption referred to above.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Leo Sontag,

Assistant Attorney General.

A parson who hold a civil service rating referred to in St. 1958, c. 584, ^ H,
on or before December 31, 1958, is entitled to registration as a profes-
sional engineer vnthout examination, even if he was not practicing engi-
neering on June 1, 1958.

Feb. 2, 1961.

Mrs. Helen C. SiJhJAVAN, Director of Registration.

Dkau Madam: — In your recent letter you state that the Board of
Registration of Professional Engineers and Land Surveyors has received
applications for registration as a professional engineer and as a land sur-
voyov from Richard D. Carney. You state that the applications were
filed !\Liy 27, 1959, under St. 1958, c. 584, § 11.

You further state that in the affidavit for qualification under § 11, Mr.
Carney answered "No" to both of the following questions: —

"Were you practicing land surveying on June 1, 1958?" and
"Were you practicing engineering on June 1, 1958?"

P.D. 12. 89

Moreover, it appears from your letter that Mr. Carney has been employed
as Town Manager of Shrewsbury since August 6, 1957, and that he last
worked as a Grade III Jr. Civil Engineer in July, 1954. In the light of
the foregoing, you pose the following question :

"Is this applicant to be considered eligible for registration under St.
1958, c. 584, § 11?"

In my opinion he is.

Chapter 584 strikes out various sections of the General Laws and inserts
several new sections dealing with the Board of Registration of Professional
Engineers and Land Surveyors and their activities. The new sections 8 ID,
81E, 81 J, 81K, 81L, 81M, 81P, 81 R, and81T,of c. 112 of the General Laws
indicate a clear intent on the part of the General Court to require the regis-
tration under the conditions therein stated of both land surveyors and
professional engineers.

Section 11 of c. 584 is a so-called grandfather section providing the con-
ditions under which certain applicants may receive a certificate of regis-
tration from the board without oral or written examination.

The hrst paragraph of § 11 authorizes the issuance of a certificate of
registration to a person with the qualifications therein referred to who was
practicing engineering or land surveying on June 1, 1958. The second
and third paragraphs deal with a different class of persons, namely, per-
sons who had already achieved a civil service status as a permanent
"junior civil engineer'' or higher grade as defined in Class 27 of the civil
service rules. As to such a person who is employed on or before December
31, 1958, under such civil service status, the board shall issue a certifi-
cate of registration without oral or written examination.

It is to be noted that there is a significant change of phraseology from
the first paragraph to the second and third paragraphs, in that the first
paragraph requires the applicant to be practicing engineering or land sur-
veying "on June 1, 1958," while the second and third paragraphs require
that persons with the civil service status therein referred to must be em-
ployed "on or before December 31, 1958." Mr. Carney apparently was
not employed "on June 1 , 1958," as he stated. However, he was employed,
as I understand it, under such civil service status "before December 31,
1958."

There is a significant change in the language of this legislation between
that applicable to general practicing engineers and surveyors and those
with the foregoing civil service status. As to such, the General Court
may well have assumed that engineers with said civil service status, hav-
ing already been examined and qualified under the laws of the Common-
wealth relating to civil service examinations, were competent and qualified
without the necessity of an examination and despite the fact that they
were not actively practicing under our statutes on December 31, 1958, or
June 1, 1958, or either of such dates.

As before stated, my answer to your question under the circumstances
is in the affirmative.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

90 P.D. 12.

The temporary emergency re-employment of a person retired from the public
service is permitted under St. J 950, c. 639, § 9, but he can be paid only
the difference between his retirement allowance or pension and the com-
pensation for his services.

Feb. 2, 1961.

Hon. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir: — You state that the secretary to your department reached
the mandatory retirement age in the spring of 1960 and was retired.
Thereafter, the commissioners voted to retain her services on a contract
basis. The Director of Personnel and Standardization has dechned to
approve a rate of compensation for these services until it is determined
whether the retired individual is entitled to any additional monies from
the Commonwealth in view of the limitations of G. L. c. 32, § 91.

As a general proposition, the foregoing statute prohibits persons receiving
a pension or retirement allowance from the Commonwealth from being
paid for any service thereafter rendered to the Commonwealth. There are
certain exceptions listed in the statute which do not here appear to be
applicable.

In some limited situations involving an emergency, the provisions of § 9
(b) of c. 639 of Acts of 1950, as amended from time to time, allow the tem-
porary re-employment of retired or pensioned employees, provided, among
other things, that the compensation for services rendered by such persons
shall be reduced by any retirement allowance or pension received by such
persons. (See opinion to Commissioner of Education, Attorney General's
Report, 1954, p. 44.)

The terms of the contract in question state that the employment is
made under authority of c. 639. The compensation for services rendered
may be paid; provided, that such compensation is reduced by the amount
of retirement allowance or pension which would otherwise be due.
Very truly yours,

Edward J. AIcCormack, Jr., Attorney General,

By John J. Grigalus,

Assistant Attorney General.

General Laws, c. 160, § 134A, as to the height of a bridge over tracks in a
railroad yard, would not apply to a bridge partly in Rhode Islandland
only over tracks in a yard there.

Feb. 3, 1961.

Hon. Jack P. Ricciardi, Commissioner of Public Works.

Dear Sir: — You have requested an opinion as to whether the pro-
visions of G. L. c. 160, § 134A, regulating the clearance above the rails of a
bridge crossing tracks in a railroad yard, are applicable to a bridge located
partly in Massachusetts and partly in Rhode Island, only the portion of
which located in Rhode Island is actually above tracks in a railroad yard.

As was said in Sandberg v. McDonald, 248 U. S. 185, 195,

P.D. 12. 91

"Legislation is presumptively territorial and confined to limits over
which the law-making power has jurisdiction."

I advise you, therefore, that in the circumstances you describe, the
Massachusetts statute referred to is not applicable.

However, your department and the Ehode Island officials concerned
should, in determining the height at which the new bridge will cross the
railroads tracks, take into account, with the other applicable consider-
ations, the purposes for which the minimum height fixed in G L. c. 160,
§ 134A, was adopted.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

A decision by the Director of Building Construction as to the acceptability of
materials under a contract for the construction of a State building, super-
sedes any decision of the architect and is not subject to review on appeal
by the Commission on Administration and Finance. Patented articles
may be called for in the specifications for contracts for the construction of
State buildings.

Feb. 7, 1961.

Hon. Charles Gibbons, Commissioner of Administration.

Dear Sir : — In a letter of your predecessor, and from other informa-
tion furnished to us through the Commission by the Division of Building
Construction, it appears that pursuant to G. L. c. 29, § 8A, and subject to
G. L. c. 149, §§ 44A-44L, a contract for Alass. State Project U 58-4 was
awarded to Daniel O'Connell's Sons, Inc., hereinafter referred to as O'Con-
nell, in which Fred C. McLean Heating Supplies, Inc., was the selected sub-
contractor (G. L. c. 149, § 44C) for Heating and Ventilating (Contract
Specifications § 24), and Acoustical Materials Corporation was named by
McLean (G. L. c. 149, § 44G [E]) to provide labor and materials for a
radiant acoustical ceiling as described in Contract Specifications § 24-23.

A protest was registered against ]\IcLean on the ground that Acoustical
Materials Corporation's proposed ceiling materials did not meet the speci-
. fications. The materials to be used were accordingly submitted on behalf
of O'Connell to the architect for a determination as to their compliance with
the specifications. On June 30, 1960, the architect notified O'Connell that
the materials submitted were not approved. The latter appealed this de-
termination to the Director of Building Construction. On August 4, 1960,
the architect, by letter to the director, expressed his "opinion" that the
materials submitted met the specifications under the "or equal" clause of
the Contract Specifications (Section 1-08.2). On October 15. 1960, the di-
rector notified O'Connell that its appeal was "denied" and that its use of
the proposed materials was "disapproved." O'Connell took an appeal to
the Commission on Administration and Finance from the adverse decision
of the director.

Our opinion is asked on three questions relating to the appeal :

92 P.D. 12.

"(1) Does the Commission on Administration and Finance have juris-
diction to review the decisions of the Director of Building Construction
and is this jurisdiction Hmited by statute?

(2) Does the contract in question give the architect the right to finally
determine what is acceptable under the 'or equal' clause of the contract,
subject to no further determination?

(3) Are the specifications proprietary? (Specifications referred to being
Section 24-23.) "

With reference to the first question, G. L. c. 7, § 30A, provides in part: —

"Except as otherwise provided in this section or by any appropriation
act of the general court, the director of building construction shall, in the
manner and to the extent provided by this chapter, have control and super-
vision of all building construction projects, as hereinafter defined, which
may be undertaken by the commonwealth. ..."

Initially, then, the director is given broad power of control and supervision
except as the Legislature may specifically provide otherwise.

Specific powers and duties of the director are found in §§ 30A to 30J, in-
clusive, of said c. 7. Only two situations can be found where the director's
"control and supervision of all building construction projects" are subject
to appeal to the commission:

1 . Appeals by the requesting party or operating agency from disapproval
of requested changes in plans, specifications, or contracts (§ 30E); and

2. Appeals by the designer or operating agency from disapproval of plans,
specifications, contracts, appointment of clerk-of-the-works, or payment
for any project (§ 30F).

In the instant case, the commission is asked to entertain an appeal by
the general contractor from the director's determination that the materials
proposed to be submitted by the subcontractor do not comply with the
plans and specifications. This situation is not embraced by either § 30E
or § 30F. The Commission on Administration and Finance has jurisdic-
tion to review the decisions of the Director of Building Construction only
where expressly authorized by statute. See Alonzo B. See v. Bldg. Com'r
of Springfield, 240 Mass. 340, 343; Cosmopolitan Trust Co. v. S. L. Agoos
Tanning Co., 245 Mass. 69, 74.

Accordingly, the answer to the first question is that in the particular sit-
uation presented there is no jurisdiction for an appeal by the general con-
tractor to the Commission on Administration and Finance from the decision
of the Director of Building Construction.

With reference to the second question, the statutory powers and duties
of the architect are found in G. L. c. 7, § 30C, where he is referred to as the
designer. It is there stated that the director shall make a contract with the
designer, which contract shall include among other terms that the designer
". . . (3) shall be charged with general supervision of construction of the
project; . . ." Since § 30C refers to the contract terms between the di-
rector and the designer, it cannot be assumed that the Legislature, after
granting the director overall power of control and supervision under § 30A,
intended to compel him to relinquish this power to the designer by con-
tract provision under § 30C, and no such conclusion is required by the
provision of the standard contract documents and specifications which,
pursuant to § 30C, the designer "... (2) shall, so far as feasible, use . . .

P.D. 12. 93

[and] which said director shall have prepared and made available in the
division of building construction . . ."

Although certain powers of the architect are found, for example, in Art.
I if), (9), of the standard contract, and sections 1-08.2 and 24-08.2 of the
Specifications, only Articles III and IV of the standard contract contain
any provision that decisions and determinations of the architect are final
and in each, this finality of power is subject to the express proviso, "...
except as may be otherwise determined by the Division." Since the plans
and specifications are expressly made a part of the standard contract, their
provisions must be construed together with the standard contract which
makes the final determination the responsibility of the director.

Under the contract the contracting parties must look to the architect
for certain preliminary determinations. However, as between the archi-
tect and the director, finality of decision rests with the latter. Accordingly,
the answer to the second question is that the contract does not give the
architect the right finally to determine what is acceptable under the "or
equal" clause of the contract.

The third question involves section 24-23 of the Specifications: Ceiling
Type Radiant Heat. The specifications call for a certain type radiant
heated ceiling or its equal (section 24-01.2 (a) (1), (2)). The question is
presented whether these specifications are proprietary. It is assumed that
by this question your inquiry is whether these specifications, insofar as
they may call for the prime contractor to supply a patented article, thereby
prohibit free, open and competitive bidding. The specifications in question
cannot be said to be proprietary in the sense stated, for by the inclusion of
the words "or equal," provision is made for substituting materials which
are "... equal in quality, durability, appearance, strength, and design
of the material or article named or described and will perform adequately
the functions imposed by the general design." In other words, a bidder
can satisfy the requirements of the specifications by supplying materials
which are the equal of those specified. In the case of Pacella v. Metro-
politan District Commission, 339 Mass. 338, 344-347, the court ruled in a
situation where the specifications called for a specified patented article and
contained no provision for an article that would be functionally equivalent,
that there was no violation of law in the absence of fraud or favoritism
or the like.

The court in the Pacella case, at page 344, adopted the view that as long
as "specifications do not appear to preclude competition among bidders
for the prime contract," and as long as "any person who wishes to do so
can purchase [the materials] ..." from the suppher of the patented product,
the rule of free, open and competitive bidding applicable to prime con-
tractors is not extended to suppliers of component materials or equipment.

The information supplied us contains no indication that fraud or favor-
itism or the like was practiced in drawing the specifications or that com-
petition among the bidders for the prime contract was precluded, or that
the specified materials cannot be purchased by anyone who wishes to do so.

I advise you, therefore, in answer to the third question that the speci-
fications are not open to the objection referred to.
Very truly yours,

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

By Eugene G. Panarese.

Assistant Attorney General.

P.D. 12.

The widow of a judge who was a veteran, and who died before the enactment
of G. L. c. 32, § 65C, making retirement benefits available to a judge's
widow, could claim the benefits under G. L. c. 32, § 58B, for widows of
veterans.

Feb. 7, 1961.

Mr. Joseph Alecks, State Comptroller.

Dear Sir: — ^ In your recent letter you inquire relative to the entitle-
ment of the widow of Justice Francis J. Good to the benefits of G. L. c. 32,
§ 58B.

I understand from your letter that Justice Good, when he died, was a
veteran with thirty years' service for the Commonwealth and that he died
on November 25, 1958; that his widow has submitted an application dated
December 7, 1960, for the benefits provided by G. L. c. 32, § 58B, and that
this application has been approved by the retiring authority under the
provisions of G. L. c. 32, §§58 and 59.

General Laws, c. 32, § 58, provides in substance that a veteran who has
been in the service of the Commonwealth for a total period of thirty years
in the aggregate shall, at his request, with the approval of the retiring
authority, be retired from active service at sixty-five per cent of the
highest annual rate of compensation.

Section 58B provides that a veteran entitled to be retired under § 58,
may, on or before the date of written application for retirement, elect to
receive a lesser yearly pension during his lifetime, with the provision that
upon his death, the spouse at the time of his retirement shall be entitled
during her lifetime to an annual pension equal to two-thirds of the yearly
amount of such lesser pension.

The first paragraph of § 58B provides that the election of this option
shall be filed in proper form on or before the date of the written application
for retirement.

The third paragraph of § 58B provides in substance that if a veteran
entitled to be retired under the provisions of § 58 dies before making
written application for such retirement, his widow shall receive an annual
allowance consisting of two-thirds of the actuarial equivalent to which the
veteran would have been entitled had his retirement allowance been com-
puted under the provisions of § 58B as of the date of the death of the
veteran.

The fourth paragraph of § 58B provides that any allowance provided
for under that section shall be in the alternative to any allowance pro-
vided for under § 12 of c. 32, and contains a further provision that if the
deceased veteran was a member of a system established under §§ 1 to 28,
inclusive (which is not here the case), the provisions of paragraph (c) of
subdivision (2) of § 11 and Option {d) of subdivision (2) of § 12 shall apply
unless the appropriate retiring authority, as defined in § 59, is notified in
writing of the election of the pension under this section within ninety days
of the date of death of the veteran. There are further provisos not now
important. Such, then, is the statutory framework controlling veterans'
pension benefits under the provisions of G. L. c. 32, §§ 58 and 58B.

By virtue of the provisions of G. L. c. 32, § 65A, the chief justice or any
associate justice of the Superior Court under circumstances therein set

P.D. 12. 95

forth shall be entitled to receive a pension for life at an annual rate equal
to three-quarters of the annual amount of his salary. General Laws, c. 32
was amended by St. 1960, c. 724, effective as therein stated in § 2, as of
July 1, 1960, by the addition of a new § 65C. The new § 65C provides,
among other things, that a judge entitled to a pension for life under the
provisions of § 65A, may, in lieu thereof, elect to receive a pension for life
at a lesser annual rate with the provision that upon his death leaving a
surviving widow as described therein, she shall be paid a pension in an
amount equal to two-thirds of such lesser annual pension for life. Detailed
provisions are contained for the election and the computation of the
pensions.

The second paragraph of § 65C, inserted b.y c. 724, reads as follows:

"If a judge who would be entitled, upon resigning, to a pension for life
under section sixty-five A, dies before resigning, his widow shall receive a
pension for life of two thirds of such pension for life at a lesser annual rate
to which such judge would have been entitled had he, as of the date of
death, resigned and had such pension for life at a lesser annual rate been
computed under the first paragraph."

Chapter 724 was approved by His Excellency the Governor on October 27,
1960, and was to take effect, as stated by § 2 of c. 724, on July 1, 1960,
with an emergency declaration by the Governor.

As you are doubtless aware "members of the judiciary" are expressly
exclucled from participating in the benefits of the contributory retirement
systems under the provisions of § 1 of c. 32.

Whether the General Court intended, in setting up the system of pensions
for members of the judiciary referred to in §§ 65 A, 6oB and 65C of c. 32,
to make special provisions exclusively for that group is not wholly clear.
It is clear, however, that the benefits are substantially larger than those
accorded to veterans under § 58. I am not aware that members of the
judiciary entitled to pensions under §§ 65A, 65B and 65C, have been re-
tired as veterans under § 58. It seems that the General Court did not
intend a veteran to have two pensions or retirement allowances for the
same services rendered. Section 3 (7) (g) makes that clear. It reads:

"Any person retired under the provisions of this chapter, or under corre-
sponding provisions of earlier laws or of any other general or special law,
shall receive only such benefits as are allowed or granted by the particular
provisions of the law under which he is retired."

I find no provision of law authorizing a member of the judiciarj^ who is
entitled to pension benefits under §§ 65A, 65B and 65C, to elect to receive
a veteran's pension under § 58.

However, it appears that Justice Good passed away over a year and a
half before c. 724 was passed extending the benefits of the judiciary pen-
sions to widows of deceased justices. Aloreover, while there are clear and
explicit provisions bestowing upon public employees, who are also veterans,
an election to receive their retirement benefits under the provisions of
§§ 1 to 28, inclusive, of c. 32, known as the Contributory Retirement
System, or take their veteran benefits under § 58 (see G. L. c. 32 § 25),
there is a conspicuous and significant absence of any such provision re-
lating to non-contributory pensions of members of the judiciary.

While the question may not be free from doubt, since the General Court

96 P.D. 12.

has now made it clear beyond perad venture that members of the judiciary-
entitled to pensions may elect to receive survivorship pensions, it is my
opinion that a veteran's rights do not vanish upon his appointment to the
judiciary.

Under all the circumstances, I am of the opinion that the widow in the
case you refer to may claim and receive survivorship benefits under the
veterans' pension laws (G. L. c. 32, §§ 58 and oSB).
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

Prior service in a State position which had been voluntarily given up cannot,
upon re-employment in the same position, he counted toivards the three
years' service required to attain tenure rights under G. L. c. 30, § 9A.

Feb. 8, 1961.

Hon. Kevin H. White, Secretary of the Commonwealth.

Dear Sir : — In your recent letter you inquire relative to the status under
G. L. c. 30 § 9A, of a veteran in the position of chief of the Archives Divi-
sion in the Department of the State Secretary.

In your letter you state that a veteran employee in the Department of
the State Secretary was appointed chief of the Archives Division and
served as such from 1950 to 1956, inchisive; that from 1956 to April 1,
1959, this employee served as confidential secretary in the department;
that from April 1, 1959 to the present, the veteran was again employed as
chief of the Archives Division. In the light of these facts, you inquire as
to the rights of the veteran under § 9A to the position of chief of the
Archives Division.

At the outset I have to assume that the position of confidential secretary
in your department and the position of chief of the Archives Division are
different in fact as well as in name.

General Laws, c. 9, § 2, authorizes the State Secretary to appoint, among
other officers, ". . . a chief of the archives division . . ." and he is further
authorized to appoint clerks, messengers and other assistants necessary
for the prompt dispatch of public business. This section further provides
that the position of chief of the Archives Division shall not be subject to
c. 31. At the outset, G. L. c. 30, § 9A, provides that a veteran who holds
a position in the service of the Commonwealth but not classified under
c. 31, with certain exceptions not now important, ". . . and has held
such office or position for not less than three years, shall not be involun-
tarily separated from such office or position . . .", except in accordance
with the provisions of §§ 43 and 45 of c. 31 to the same extent as if said
office or position were classified under said chapter. Other provisions are
contained in § 9 A not applicable to the situation you refer to.

Section 9A has been construed to require three immediate consecutive
years' service in the position claimed in order to provide the veteran in
the position with protection against dismissal.

P.D. 12. 97

Chairman of the State Housing Board v. Civil Service Commission, 332
Mass. 241, 244, 245.

In the foregoing case the Supreme Court, in decHning to extend the pro-
tection of § 9A to the veteran who claimed the position of executive
secretary to the State Housing Board although depending upon his three
years' service period as "expediter," said:

"The two positions were recognized in the records of the division under
different code numbers. We are of opinion that in fact as well as in name
they were different positions. The position of executive secretary was
not 'such . . . position' as that which he occupied as expediter."

For a case where "tacking" was barred in circumstances not entirely,
dissimilar to those in this case see Kelley v. School Committee of Watertown,
330 Mass. 150, 152-153. That three consecutive years' service in the posi-
tion claimed is mandatory, see also Attorney General's Report, 1955, pages
61, 62 and 63, where, in discussing a situation similar to the present one,
it was stated :

"Such protection to veterans who have been continuously employed in
the same position for more than three years is not unreasonable"

and again,

"It is a very different thing to discharge an employee who is a veteran
and who has been serving your Agency continuously for three years or
more."

Reasons are readily observed why three current consecutive years are
required to effectuate the purpose of the statute. To hold that a total of
three years' service may consist of several short periods of employment in
different positions might well frustrate the purpose of the General Court
in requiring a steadiness of occupation in the veteran. For a further
statement of the reasons for the construction of the statute as I have con-
strued it, see Kellcy_ v. School Committee of Watertown, 330 Mass. 150,
152-153. Whether, in any event, an appointee of the Secretary of State
has tenure beyond that of his superior may seriously be doubted. Howard
v. State Board of Retirement, 325 Mass. 211.

In view of the foregoing, it is my opinion that the veteran you refer to
is not entitled to the benefits of § 9A as they relate to the position of chief
of the Archives Division.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

98 P.D. 12.

A person becomes another year of age on the Jirsi moment of th" day before

his birthday.

Feb. 14, 1961.

Mr. John F. Wostrel, Senior Supervisor, Licensed Schools, Department of

Education.

Dear Sir: ■ — In your letter of recent date relative to G. L. c. 74, § 24A,
you refer to the following provision :

"Any person who is not over fifty years of age and is otherwise qualified
shall be eligible for an appointment as a teacher in state aided approved
vocational schools."

You state that on August 12, 1959, an oral opinion was given by this office
as follows :

"A person is 50 years of age on the first moment of the day before the
50th birthday,"

and you pose the following question:
"Is this a valid definition legally?"

In my opinion it is.

Very truly yoiu'S,

Edward J. McCormack, Jr., Attorney General,

By Fred W. P'isher,

Assistant Atiorney General.

The authority of the Govet-nment Center Commission under St. 1960, c. 6S5,
§ 3, to fix the salary of its Secretary excludes any authority of 'he Director
of Personnel and Standardization as to such salary vnder G. L. r. SO,
§§ 4'^^ lo 50, inclusive.

Feb. 15, 1961.

Hon. Charles Gibbons, Commissioner of Administration.

Dear Sir: — You have requested an opinion on the question, among
others, as to whether the Director of Personnel and Standardization has
the duty, in view of the provisions of G. L. c. 30, §§ 45 and 46, to set the
salary for the position of executive secretary of the Government Center
Commission.

Section 3 of St. 1960, c. 635, provides, in part, that the Government
Center Commission, estabhshed by the act, "shall appoint an executive
secretary who shall receive an annual salary of not less than twelve thou-
sand five hundred dollars nor more than fourteen thousand five hundred
dollars as the commission may determine."

It is provided in paragraph (4) of G. L. c. 30, § 45, which section directs
that the Director of Personnel and Standardization shall establish and

P.D. 12. 99

administer an office and position classification plan and a pay plan for the
Commonwealth, that:

"(4) In pursuance of his said responsibilities as to the said pay plan,
the director of personnel and standardization shall allocate, as provided in
paragraph five of this section, each such officer or position to the ap-
propriate job group in the salary schedule set forth in section forty-six,
excepting such offices and positions the pay for which is or shall be otherwise
fixed by law and those the pay for which is required by law to be fixed
subject to the approval of the governor and council, and he may from time
to time, in like manner, reallocate any such office or position. In so
allocating or reallocating any such office or position, the said director shall
use standard, objective methods and procedures for evaluating the same
so that the principle of fair and equal pay for similar work shall be followed ;
and all offices and positions in the same class shall be allocated to the same
job group." (Emphasis added.)

As is indicated in the paragraph quoted, G. L. c. 30, § 46, contains a
salary schedule for the pay plan for the Commonwealth. The schedule
referred to lists thirty-three job groups, each having a minimum and
maximum weekly salary, changes from the minimum to the maximum,
except as otherwise provided, being by annual increases to progressively
higher weekly steps-in-range, the increments between each step in a par-
ticular range being equal, and the maximum being attained after seven
years' service. The section also contains detailed provisions prescribing
the application of the salary schedule in certain circumstances, e.g. service
to be credited upon reinstatement, promotion, etc.

The provision of St. I960, c. 635, § 3, that the executive secretary of the
Government Center Commission shall receive an annval salary of not less
than $12,500 nor more than $14,500, as the commission may determine,
is a method of determining the compensation to which the incumbent of
the position should be entitled which is at wide variance from the method
of fixing salaries provided in G. L. c. 30, §§ 45 and 46. Under said c. 635,
an annual salary, without reference to any weekly basis, is provided for,
within the limits stated, and, as you point out, the limits referred to do
not fit any one of the salary ranges for the thirty-three job groups listed
in the salary schedule set out in G. L. c. 30, § 46.

Your request refers to concern expressed by the Division of Personnel
and Standardization which implies that previous to this there have been
no instances of a specific statutory provision for the determination of the
salary of a particular position similar to the provision contained in St.
1960, c. 635, § 3, having operation over the general provisions of G. L.
c. 30, §§ 45 and 46. In fact, however, there have been such instances.
Thus in 1953, by St. 1953, c. 631, the act reorganizing the Department of
Natural Resources, it was provided that the Commissioner of Natural
Resources be appointed by the Board of Natural Resources and that the
commissioner "shall receive such salary, not exceeding ten thousand dol-
lars, as the board of natural resources may determine." (G. L. c. 21,
§§3, 3 A.) Since the enactment of those provisions the salary of the Com-
missioner of Natural Resources has been determined by the board, and
not in accordance with G. L. c. 30, §§ 45 and 46. Similarly in 1947, pro-
vision was made in c. 652 of the acts of that year, for a Board of Educa-
tion and it was provided that the board should appoint a Commissioner of
Education who should receive "such salary not exceeding eleven thousand

]00 F.D. 12.

dollars as the board may determine." (G. L. c. 15, § IB.) By subsequent
amendment the eleven thousand dollar limit was raised to fourteen thou-
sand dollars (St. 1955, c. 730), and last year it was provided by St. 1960,
c. 585, that the Commissioner of Education should receive "a salary of
not less than twenty thousand nor more than twenty-five thousand dollars,
the amount to be determined by the board." Since 1947, the salary of the
Commissioner of Education has been determined by the Board of Educa-
tion under the provisions referred to, and not in accordance with the pro-
visions of G. L. c. 30, §§ 45 and 46. There are other similar instances, but
the practice as to the commissionerships referred to is sufficient to demon-
strate that provisions similar to that contained in St. 1960, c. 635, § 3, have
been deemed to operate as exceptions to G. L. c. 30, §§45 and 46.

As was pointed out in the case of Boston Elevated Railway vs. Common-
wealth, 310 Mass. 528, 551, an earlier general statute is not binding on sub-
sequent legislatures so as to restrict their power to enact statutes incon-
sistent therewith, and "The earlier statute has no higher standing than
the later and may be superseded thereby wholly or in part when such is
the clear legislative intention."

Which of the two statutory provisions here in question is to prevail is
not to be determined solel.y by the language of the earlier as to what
should be exceptions to it, but is rather to be determined by an examina-
tion of both statutes, and if the provisions of the later are inconsistent with
the operation of the earlier, the provisions of the later statute must pre-
vail. This is particularly true where, as in this case, the earlier provisions
are of general application and the later is of specific application. Posadas
v. National Cittj Bank, 296 U. S. 497.

Applying the rules stated, it is clear that the specific provisions of St.
1960, c. 635, § 3, are so inconsistent with the general provisions of G. L.
c. 30, §§ 45 and 46, as to manifest a plain legislative intention that the sec-
tions cited should have no application to the fixing of the salary of the
executive secretary of the Government Center Commission.

Your request recites four specific questions:

"Does the Director of Personnel and Standardization in view of G. L.
c. 30, §§45 and 46, have the duty to set the salary of the position of execu-
tive secretary. Government Center Commission created by St. 1960, c. 635?

"Is the Director of Personnel and Standardization hmited to the sal-
aries set out in G. L. c. 30, § 46 (1), when exercising his powers under G. L.
c. 30, § 45 (4)?

"Do the opinions dated September 12, 1922, and October 24, 1927,
still apply in determining whether a certain salary is 'fixed' in a statute?

"Do the Government Center Commission and the Division of Personnel
and Standardization have to agree before a salar}'- can be set in the case of
the executive secretary, Government Center Commission established under
powers of St. 1960, c. 635?"

In accordance with the foregoing review of the applicable legal consid-
eration I answer your first and fourth questions in the negative.

The answers to your first and fourth questions make it unnecessary for
an expression of opinion as to your second and third questions so far as
the position of executive secretary of the Government Center Commission
is concerned, and since that is the only position referred to in your request

P.D. 12. 101

those questions are not now properly before us. It has been the fixed rule
of this office for many years to render opinions only on questions relating
to matters coming before the requesting official or a subordinate for de-
cision, and then only upon a full statement of the surrounding facts and
circumstances.

However, witli reference to your third question and the implication re-
ferred to above that the exception in G. L. c. 30, § 45, as to positions the
pay for which is otherwise fixed by law has had a narrow interpretation,
it should be pointed out that the Division of Personnel and Standardiza-
tion has evidently overlooked the operation, until 1953, of the former pro-
visions of G. L. c. 75, § 13. As pointed out in an opinion of my predecessor
published in Attorney General's Report, 1958, p. 49, until 1953 the Trus-
tees of the University of Massachusetts had broad authority in fixing the
salaries of the teaching staff under G. L. c. 75, § 13, which then read as
follows :

"The trustees shall elect the president, necessary professors, tutors,
instructors and other offilcers of the college and fix their salaries and define
the duties and tenure of office." (Emphasis added.)
Very trulv vours,

Edw^yrd J. McCoRJMACK. Jr., Attorney General.

.4 contractor for public repair work, removing public property in the course of
his work, is under a duty to use reasonable care to protect the property
from theft.

Feb. 15, 1961.

Hon. Robert F. !AIurphy, Commissioner, Metropolitan District Com-
mission.

Dear Sir: — In a letter of your predecessor in office he stated that the
Commission has a contract with Salah & Pecce Construction Co., Inc.
(Contract No. 1171) for "Storm Damage Repairs to Dam and Causeway
at Pleasure Bay, William J. Day Boulevard, South Boston," that during
the course of the work the contractor removed some rods from the sluice
gates in order to perform work on the contract and that subsequent to
their removal the rods were stolen. You have requested an opinion as to
whether the commission or the contractor is responsible for the replace-
ment of these rods.

It is to be noted that there is no provision in the contract specifically
providing for theft of materials, nor is there any provision in the contract
specifically requiring the contractor to take out any theft insurance.

However, in view of the fact that the contractor removed these rods in
the course of the work, it would appear that the contractor had custody of
them and, therefore, it was incumbent upon him to use care in preventing
any injury to this property, and if he omitted to take proper care he is liable
for the ensuing loss.

Under the circumstances outlined in your letter, the removal of these
rods was for the mutual benefit of the contractor and the commission.

102 P.D. 12.

Accordingly, the contractor was a bailee for hire. Morse v. Homer's, Inc.,
295 Mass. 606. As such, the contractor (bailee for hire) is liable for any
damage to the bailed property resulting from a failure to exercise that
degree of care which would reasonably be expected from an ordinarily
prudent man in similar circumstances. Butter v. Bowdoin Square Garage,
Inc., 329 Mass. 28.

It, therefore, becomes a question of fact whether the loss of these rods
was due to the contractor's negligence. See Soulier v. Kaplow, 330 Mass.
448. What precautions the contractor made to safeguard the property so
that he might return it to the bailor in as good condition as when received
— what circumstances surrounded the disappearance of the rods — these
are all matters to be given consideration by your commission in determining
whether the contractor used reasonable care.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Eugene G. Panarese,

Attorney General.

A vote of the Metro-politan District Commission approving a request of an
abutter for purchase of an easement for a driveway at a location to he
fixed did not create a contract binding on the commission requiring the
execution of the necessary instruments.

Feb. 16, 1961.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.

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

"Is the vote taken on July 20, 1960, binding on this commission so as
to require the execution of such instrument or instruments as may be
necessary to comply?"

The vote referred to approved a request for the purchase of an easement
by the Chestnut Hill Towers, Inc., for a driveway entrance off Hammond
Pond Parkway at a location to be fixed, subject to conditions to be pre-
scribed, and subject to certain other approvals.

You refer in your letter to an ambiguity in the records of the meeting
which, in view of the conclusion hereinafter stated, I find it unnecessary
to consider as having a possible invalidating effect on the vote.

In the case of Edge Moor Bridge Works v. County of Bristol, 170 Mass.
528, 532, in referring to a claim of a contract supposed to have been
effected by a favorable vote of the county commissioners, the court said,

". . . where the supposed contract is found only in a vote passed by a
board of public officers, which looks to the preparation and execution of
a formal contract in the future, care must be taken not to hold that to
be a contract which was intended only to signify an intention to enter
into a contract."

P.D. 12. 103

In the case of Al's Lunch, Inc. v. Revere, 324 Mass. 472, a vote taken on
December 30, 1947, by the City Council of Revere, approved by the mayor,
authorized the city soUcitor to sell certain land owned by the city to the
plaintiff for a price which had been offered to the mayor. The plaintiff's
president called on the city solicitor to pay the price and receive a deed
but the city solicitor told him he doubted that, as city solicitor, he could
convey a good title to the land. On March 1, 1948, a new mayor and city
council having taken office on January 5, 1948, the city council voted to
rescind their vote of December 30, 1947, and that action was approved by
the mayor. A bill by the plaintiff for specific performance of an alleged
contract for the sale of the land was dismissed.

At page 475, after quoting the above language from the Edge Moor
Bridge case, the court said :

". . . the vote of the council on December 30, 1947, did not in itself con-
stitute an acceptance of the plaintiff's offer ... it was intended merely as
authority to the city solicitor to execute a deed, and it contemplated the
deed as the only contract which the defendant was to execute with the
plaintiff."

The vote of the commission of July 20, 1960, was merely a preliminary
step in the negotiations and did not itself constitute the acceptance of an
offer. It merely expressed a wilhngness on the part of the commission to
proceed further to effect an ultimate conveyance of an easement, with
many details referred to only generally in the vote to be the matter of sub-
sequent negotiation.

Under G. L. c. 92, § 85, the concurrence of the local park commissioners
must be obtained, a deed executed and deposited, with a certificate of the
terms of the sale, with the State Treasurer, and the deed is to be delivered
to the purchaser only upon payment of the purchase price.

The conveyance itself was the only contract contemplated in the vote
and only an actual delivery of the deed would vest an interest in the land
in the prospective grantee. Until such time as a deed is executed and de-
livered, the corporation referred to has no enforceable statutory, contractual
or property rights for an easement for a driveway entrance off the parkway
in question.

I advise you, therefore, in answer to your specific question that the vote
of July 20, 1960, is not binding on the commission so as to require the exe-
cution of such instruments as may be necessary to comply. Whether the
negotiations which have been initiated should be carried to the conclusion
contemplated in the vote or should be ended is a matter for the members
to decide in the exercise of their own judgment. In the event that they
deem it advisable to terminate the negotiations, it would be well for the
commission to rescind the vote of July 20, 1960.
Very truly yours,

Edward J. McCormack, Jr., Attorney General.

104 P.D. 12.

Discussion of various questions as to the administration of the plan for State
aid to free public libraries under the 1960 legislation.

Feb. 16, 1961.
Hon. Owen B. Kiernax, Commissioner of Education.

Dear Sir: — In your recent letter you pose several questions relative
to the administration of the program of State aid for free public libraries.

As you are, of course, well aware, the current legislation surrounding
this subject matter has been supplemented by St. 1960, cc. 429 and 760.

After references to the new §§ 19, 19A and 19C of G. L. c. 78, you pose
several questions, the first of which reads as follows:

"1. For purposes of certifying public libraries for a State grant in
fiscal 1961, is it permissible to apply 1960 U. S. Census figures to 1960
calendar year appropriations for pubhc library services despite the fact
that the 1960 U. S. Census figures were not official until December of that

year

?"

In my opinion it will be proper to use the United States Census figures
if, in your opinion, they more accurately reflect the true situation.

After a paragraph relating to the new § 19C inserted by St. 1960, c. 760,
you pose the following question:

"1. Is it permissible under St. 1960, cc. 429 and 760, for the Board of
Library Commissioners to contract directly through Boards of Library
Trustees with public libraries which are city or town public service de-
partments as well as with public libraries which are associations or cor-
porate bodies?"

In connection with the matters you refer to, the new § 19 inserted by
c. 429 provides that:

"... The board may contract with any other state agency, city or town,
public or private library to provide improved library services in an area,
or to secure such library services as may be agreed upon . . ." (Emphasis
added.)

I notice that the statutory authority refers to ". . . city or town, pub-
lic or private library ..." I therefore answer your question in the
affirmative.

You then pose another question reading as follows:

"2. Does this legislation permit the board to contract with local library
boards of municipalities for public library services planned for and to be
offered in a regional area with payment made in advance and in anticipa-
tion of the rendering of the regional services; or does the language of the
law permit payments under 19C to be made only on a reimbursement
basis?"

I concede that the over-all language of the new § 19C might reflect a
policy of anticipatory payments. I am, however, compelled to agree with
what you state is the present interpretation of the Comptroller's office that
so far as possible it is desirable that payments by the Commonwealth so
far as can reasonably be arranged should be made on the basis of results
accomplished rather than unrealized ambitions.

P.D. 12. 105

You then propound the following question :

"3. (a). May the board in one area provide both regional services under
19C (1) and reference and research service under 190 (2) by contract with
one or more libraries; while in another area, where such an arrangement
were not practicable, may the board contract with one or more libraries
for reference and research service and provide other regional services in the
same area under 19C (1) through a regional center administered and op-
erated by the Division of Library Extension?"

Section 19C (1) and (2) provide that:

"(1) In so far as practicable the board shall enter into an arrangement
or arrangements loith such public library or libraries in each regional area as
it may determine under the terms of which such library or libraries shall
supply services or space, equipment, personnel, . . . the cost of which shall
not exceed an amount equal to fifty cents per annum for each resident in
such regional community having less than twenty-five thousand inhabi-
tants ..." (Emphasis added.)

"(2) Said board shall also designate such public Hbrary or libraries in
each area or an additional such public library or libraries in the area to
serve as a regional reference and research center or centers to meet the
reference and research library needs of the residents of all the cities and
towns in the area; ..."

The answer to question 3(a) is, in my opinion, in the affirmative.

Your question 3(6) reads as follows:

"May the board under this legislation contract with one public library,
namely Boston, for the provision of reference and research service to all
the communities in the Commonwealth?"

A reading of paragraph (2) of § 19C compels me to answer this question
in the negative.

Your question 3(c) (1) (2) reads as follows:

"If an operational plan for regional library service in one area approved
by the board provided for contracting with more than one public library
in the area to provide the services rendered, could the board choose one of
these two alternatives:

(1) to make a contractual relationship with only one library as regional
coordinator, and have that one library initiate sub-contracts with the other
library or libraries concerned?

(2) to enter into a contractual relationship with each library designated
to provide a specific regional service or services?"

Section 190, as presently written, in my opinion, contemplates arrange-
ments between the Board of Library Commissioners and the libraries them-
selves,. I find nothing in the legislation indicating an intent on the part of
the General Court to avoid its statutory responsibility by authorizing its
contractors to assign or sublet their responsibilities to other hbraries.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

106 P.D. 12.

The New Bedford Institute of Technology is authorized to grant "Associate

Degrees."

Feb. 17, 1961.

Dr. John E. Foster, President, New Bedford Institute of Technology.

Dear Sir: — In your recent letter relative to the granting of an "Asso-
ciate Degree" you state that your Institute now grants the Bachelor of
Science Degree and the Master of Science Degree in many fields and say
that in view of the modern educational trend, there is a considerable de-
mand for the so-called "Associate Degree," and you pose the following
question:

"However, we would like to know if new legislation would have to be
filed for the sole purpose of granting the 'associate degree.' "

In the case of Commonwealth v. A''. E. College of Chiropractic, 221 Mass.
190, at pages 192 and 193, the Supreme Court discussed at some length
the subject of degrees. That case involved a complaint charging the de-
fendant, a corporation called the New England College of Chiropractic,
with granting a degree as a Doctor of Chiropractic without the authority
of a special act of the General Court granting the power to give degrees in
violation of R. L. c. 208, § 75. In discussing the subject of degrees, the
court said the obvious purpose of the statute was,

"... to suppress the kind of deceit which arises from the pretence of
power to grant academic degrees, and to protect the public from the evils
likely to flow from that variety of misrepresentation and imposition. . . .
The section as a whole is an effort to punish the issuing and holding of sham
degrees from colleges and other educational institutions. It aims to ensure
to the people of the Commonwealth freedom from deception, when deal-
ing vvnth those v/ho put forward professions of educational achievement such
as ordinarily is accompanied by a collegiate degree from an institution au-
thorized to grant it . . . Considered historically and according to present
practice, there are three general grades of such degrees, namely, — Bach-
elor, Master and Doctor; although by some institutions intermediate dis-
tinctions are granted. ... It is not to be assumed that the statute was
intended to relate only to such degrees as were in use at the time it was
enacted. It is comprehensive in its terms and includes whatever properly
may be described as a degree at any time. It is possible that institutions
authorized to grant degrees may establish and grant the degree here in
question. . . ."

The power in your Institute to grant degrees appears in G. L. c. 74, § 42,
which says in part :

"... The board of trustees of said . . . institute may grant the
degree of bachelor of science or other appropriate degrees to any person,
either male or female, satisfactorily completing the prescribed courses of
instruction, if and so long as the faculty, equipment and courses of instruc-
tion . . . at said institute meet with the approval of the board of col-
legiate authority."

I notice that by the provisions of St. 1953, c. 523, as amended by St.
1957, c. 347, § 2, your board of trustees was authorized to grant the hon-

P.D. 12. 107

orary degree of Master of Science, and by the provisions of G. L. c. 74,
§ 42B, your board of trustees, with the approval of the Board of Collegiate
Authority, was authorized to grant such honorary doctorates as they may
determine.

I am not aware of any legislative or judicial definition of the term "Asso-
ciate Degrees." It is clear, however, that the phrase "Associate Degrees"
is definitely tied up with the provisions of § 42 which limit the phrase
"other appropriate degrees" to persons "satisfactorily completing the
prescribed courses of instruction, if and so long as the faculty, equipment
and courses of instruction ... at said institute meet with the approval
of the board of collegiate authority."

If the degree you refer to meets the above requirements, in my opinion,
such degree may be granted; otherwise, not. Undoubtedly the approval
of the Board of Collegiate Authority was inserted by the General Court as
a safeguard against the creation and issuance of degrees promiscuously,
independently perhaps, on occasion, for other than scholastic achievements
in the field referred to.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

A State employee on a terminable leave of absence for employment in war in-
dustry who while on such leave entered the armed forces is entitled to have
his period of military service credited towards his retirement.

Feb. 21, 1961.

Hon. John T. Driscoll, Chairman, State Board of Retirement.

Dear Sir : — In your letter of recent date relative to the status of Mr.
Redford M. Rand you state that in 1942, certain employees of the Depart-
ment of Public Works were granted a leave of absence by the department
at the request of the Federal War Manpower Commission for the purpose
of performing necessary engineering work in the war effort and that such
leaves were granted on the condition that the employees would be avail-
able for return to the department if it was desired ; that one such employee,
Redford M. Rand, who was granted a leave of absence and was still on
leave from the Department of Public Works although engaged in private
employment under the conditions stated above, entered the armed forces
within two months after the leave of absence was granted and remained in
the armed forces until November, 1945; that Mr. Rand has applied to
have his military time from August, 1942 to November, 1945, credited to
him in computing the years of service for retirement.

In view of the foregoing, you pose the following question:

"Did Mr. Rand leave the service of the Commonwealth for the purpose
of entering the armed forces and can the mihtary time be credited towards
retirement?"

108 P.D. 12.

I am informed that your question arises in connection with the Contribu-
tory Retirement law.

General Laws c. 32, § 4(1) (h), as lately amended by St. lOGO, c. G19,
contains the following provisions:

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

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

"Any* member Avho served in the armed forces between January first,
nineteen hundred and forty and July first, nineteen hundred and sixty-
two, shall have such actual service credited to him as creditable service
when reinstated or re-employed in his former position or in a similar posi-
tion within two years of his discharge or release for such service. The pro-
visions of sections nine and nine A of chapter seven hundred and eight of
the acts of nineteen hundred and forty-one, as amended, and as may be
further amended, shall be applicable to any such veteran referred to
therein."

Chapter 708 of the Acts of 1941, to which you refer, contains provisions
for the protection of the retirement allowance and pension rights of cer-
tain persons who, while employed in the public service, tendered their
resignation for the purpose of serving in the military or naval forces of the
United States. However, through the years as a result of many different
amendments, the right to war service credits has been broadened to in-
clude many other members of the various retirement systems operating
under the provisions of G. L. c. 32 §§ 1-28, inclusive.

The first paragraph of subdivision (h) above referred to, provides specifi-
cally that:

"The period or periods during which any member who is a veteran as
defined in section one was on leave of absence from the governmental unit
to which the system of which he is a member pertains . . . shall be allowed
as creditable service."

And further in the third paragraph of subdivision (/?),

"Any member who served in the armed forces between January first,
nineteen hundred and forty and July first, nineteen hundred and sixty-two,
shall have such actual service credited to him as creditable service when
reinstated or re-employed in his former position or in a similar position
within two years of his discharge or release from such service."

If, as I understand it, this person is admittedly a veteran and put in the
time required in the armed forces and was re-employed in his former posi-
tion within two years of his discharge, it would appear that he comes within
the purview of subdivision (h).

However, your specific question of whether Mr. Rand took his leave of

P.D. 12. 109

absence for the purpose of entering the armed forces is a question of fact
to be determined by the board. The fact that he engaged in engineering
work in the war effort may be taken into consideration. So, also, the fact
that he ultimately became a part of the armed forces within two months
after receiving his leave of absence is significant.

In my opinion, your board would be well within its rights in finding, if
it becomes material, that this man did, in fact, take his leave of absence
for the purpose of entering the armed forces. In my opuiion, the right to
war time creditable service of members of the contributory retirement
systems is presently to be adjudicated under the provisions of subdivision
(h) as before stated.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

The Director of the Division of Motorboats, as the executive and administra-
tive head of the division, has the responsibility of operating it, though it
is placed within the Registry of Motor Vehicles and his appointments
are subject to the approval of the Registrar.

Fkb. 23, 1961.

Hon. William D. Fleming, Senate Committee on, Ways and Means.

Dear Sir: — You have requested an opinion as to whether the Registrar
of Motor Vehicles is charged with the responsibility of operating the entire
Division of ^Motorboats established within the Registrv of ]\Iotor Vehicles
by St. 1960, c. 275, § 1.

Section 1 of St. 1960, c. 275, inserts a new section 12 in G. L. c. 10, under
the heading "Division of Motorboats."

Section 2 of said c. 275 inserts a new c. 90B, entitled "Motorboats and
Other Vessels," in the General Laws.

Section 12 of G. L. c. 16, as inserted by c. 275, § 1, reads as follows:

"There shall be within the registry' of motor vehicles a division of
motorboats. With the approval of the council the governor shall appoint
for a term of seven years, and may remove for cause with like approval,
an officer to be known as the director of the division of motorboats who shall
be the executive and administrative head of the division. The director
shall receive such salary not exceeding ten thousand two hundred dollars,
as the governor and council may determine, which shall be paid out of the
recreational boating fund.

"The director may, with the approval of the registrar of motor vehicles,
employ such hearing officers, inspectors and such administrative, tech-
nical, clerical and other employees as in his opinion the duties of the
division may require, and may expend for such purpose and other necessary
expenses such amounts as may be appropriated therefor out of the recre-
ational boating fund. Such employees shall not be subject to chapter
thirty-one, but the qualifications for the positions shall be established by

no P.D. 12.

the civil service commission, and the positions and compensation of such
employees shall be classified in accordance with sections forty-five to fifty,
inclusive, of chapter thirty.

"A certificate of award of number issued by the director of the division
of motorboats shall become valid on the effective date thereof notwith-
standing the fact that the director who issued the same ceased to hold said
office prior to said effective date."

It is to be noted that it is provided in the second sentence of the first
paragraph that the Director of the Division of Motorboats, "shall be the
executive and administrative head of the division."

The new G. L. c. 90B, in § 1, defines "director" as the Director of the
Division of Motorboats, and in § 11 it is provided that the director shall
administer and enforce the provisions of the chapter, and in § 12 that the
provisions of the chapter and all rules and regulations made thereunder
shall be enforced by the director, etc.

The fifst sentence of the second paragraph of the new § 12 of G. L. c. IG,
quoted above, provides that the director of the Division of Motorboats in
employing hearing officers, etc., shall have his appointments approved by
the Registrar of Motor Vehicles, but goes on to provide that the director
may expend for such purposes and other necessary expenses such amounts
as may be appropriated therefor out of the Recreational Boating Fund.

It is well established in Massachusetts that under statutes providing for
the "approval" of the action of one official by another, the approving
official acts only after precedent action has been taken by the other official.
Roonejj, Petitioner, 298 IMass. 430, 4.33, 434 and cases cited.

Upon a consideration of the provisions of G. L. cc. 16 and DOB, referred
to, while the provision that the director of the Division of Motorboats
shall be the executive and administrative head of the division is necessarily
narrowed somewhat by the provision requiring that the director submit his
appointments to the registrar for his approval, the director is, nevertheless,
by express provision, the executive and administrative head of the division.
As such liead the responsibility for operating the division would be in the
director and not in the registrar. The provisions of G. L. c. 90B, referred
to, placing the responsibility for the administration and enforcement of the
chapter (the administration and enforcement of which comprises the entire
jurisdiction of the division) in the director, are confirmatory of the con-
clusion stated.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

P.D. 12. Ill

The certificate of coverage under the Compulsory Motor Vehicle Liability
Insurance Law required as a condition of registration can appear on
the face of the application for registration.

March 14, 1961.

Hon. Clemext A. Riley, Registrar of Motor Vehicles.

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

"May the insurance certificate be made part of the motor vehicle regis-
tration application instead of being an individual stub attached to the
appHcation?"

In a letter accompanying your request, you state; —

"Our Legal Section advises that there is no legal bar to having the in-
surance certificate on the face side of the appHcation for registration. All
that are required to constitute the certificate are the wording of the cer-
tification under which would appear the rubber stamped name of the
company and the authorized signature of the person in behalf of the
company."

You further state : — •

"We plan to have the registration application signed by the registrant,
then followed by this certification:

"'The Company Signatory hereto hereby certifies that it has i.ssued to
the motor vehicle registrant, hereinbefore indicated, a Policy, Bond or
Binder covering such motor vehicle hereinbefore described in conformity
with the provisions of General Laws, c. 00, s. 1 A; c. 175, s. 1 13A or c. 40, s. 4.
and that the premium charge thereon is at the rate fixed and established
by the Commissioner of Insurance.'"

General Laws, c. 90, § lA, provides in part that no motor vehicle shall
be registered unless the application therefor is accompanied by a certificate
as defined in § 34 A.

General Laws, c. 90, § 34A, defines "certificate" as follows:

"'Certificate', the certificate of an insurance company authorized to
issue in the commonwealth a motor vehicle liability policy, stating that it
has issued to the applicant for registration of a motor vehicle such a pohcy
which covers such motor vehicle, conforms to the provisions of section one
hundred and thirteen A of chapter one hundred and seventy-five and runs
for a period at least coterminous with that of such registration or that it
has executed a binder, as defined in said section one hundred and thirteen A,
under and in conformity with said section covering such motor vehicle
pending the issue of a motor vehicle liability pohcy; or the certificate of a
surety company authorized to transact business in the commonwealth
under section one hundred and five of said chapter one hundred and
seventy-five as surety, stating that a motor vehicle liability bond, payable
to the commonwealth, which covers such motor vehicle, conforms to the
provisions of said section one hundred and thirteen A, and runs for a period
at least coterminous with such registration, has been executed by such
applicant as principal and by such surety company as surety; or the cer-

112 P.D. 12.

tificate of the state treasurer stating that cash or securities have been de-
posited with said treasurer as provided in section thirty-four D."

General Laws, c. 90, § 34B, provides in part as follows:

"The registrar shall accept a certificate as defined in section thirty-four A
from any person applying for registration of a motor vehicle.

"Such certificate of an insurance or surety company shall, except as
hereinafter provided, be in a form prescribed by the commissioner of in-
surance, shall contain the recitals required by said section thirty-four A
and, if at the time of the execution thereof the schedule of premium charges
and classifications of risks for the year for which registration is sought
have been fixed and established under section one hundred and thirteen B
of chapter one hundred and seventy-five shall state the rate at which and
the classification under which the motor vehicle hability policy or bond
referred to therein was issued or executed and the amount of the premium
thereon and whether or not said premium is at the rate fixed and estab-
lished as aforesaid, and each such certificate shall contain such other in-
formation as said commissioner may require. . . ."

The certificate required by G. L. c. 90, § lA, is presently printed on the
back of the application for registration. The form of certificate used,
w^hich I assume has been approved by the Commissioner of Insurance both
as to its contents and location on the form, specifically describes the ve-
hicle and specifically states the rate, premium and other information re-
ferred to in G. L. c. 90, §§ 34A and 34B. I see no reason why, if the Com-
missioner of Insurance approves and the form of certificate submitted by
you is changed in the manner hereafter referred to, the certificate could
not appear on the face of the application.

In order to comply with the provisions of G. L. c. 90 § 34B, the form of
certificate you propose should have the following added at the end thereof:
"and the classification and amount of premium are as hereinabove stated."
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

A group life, etc., contract entered into 5?/ the State Employees Group Insur-
ance Commission after competitive bidding, with the same insurer which
had been awarded the previous contract, was not a renewal of that con-
tract, and unused reserves under the first contract must be paid to the
Commonwealth and cannot be retained and credited by the insurer to
reserves under the later contract.

March 16, 1961.

State Employees' Group Insurance Commission, State House.

Gentlemen : — You have requested an opinion as to certain issues which
have arisen under contracts of insurance entered into under the provisions
of G. L. c. 32A between the Group Insurance Commission and the Boston
Mutual Life Insurance Company. You stated that these issues are
raised under section X(?^) of the contract dated December 30, 1955, ef-

P.D. 12. 113

fective for a three-year term commencing January 1, 1956, and under sec-
tion X(o) of the contract dated October 20, 1958, effective for a three-
year term commencing January 1, 1959. Both sections X(n) and X(o) deal
with divisible surplus under the heading of "Dividends."

You have forwarded with your request the above contracts and cor-
respondence between the Group Insurance Commission and the Boston
Mutual Life Insurance Company relative to the issues hereinbefore re-
ferred to.

You asked the following questions :

1 . Can the commission require the Boston Mutual Life Insurance Com-
pany to return the 1958 Unused Reserve to the Commonwealth in the
form of a check (cash) ?

2. Is the contract (Policy G-lOO and the proposal) signed October 20,
1958, and effective for a three-year period commencing January 1, 1959,
a new contract, or, an extension (renewal) of the initial contract which be-
came effective January 1, 1956?

3. Can the commission require the Boston Mutual Life Insurance Com-
pany to return future unused or unallocated reserves set up from premiums
paid to Boston Mutual by the commission in the form of cash rather than
in the form of a credit?

4. If it is determined that the contract effective January 1, 1959, is an
entirely new contract and not a renewal, would not this fact point up all
the more the requirement for the Boston Mutual to return the 1958 un-
used reserve to the Commonwealth in the form of cash as would of necessity
be the case if the Boston Mutual had not been successful and another in-
surance company had been awarded the new contract January 1, 1959?

Under the provisions of G. L. c. 32A, § 4, inserted by St. 1955, c. 628,
§ 1, the Group Insurance Commission entered into a contract of insurance
on December 30, 1955, with the Boston Mutual Life Insurance Company
for group term hfe insurance and accidental death and dismemberment
insurance for certain employees of the Commonwealth for a three-year
period commencing January 1, 1956. Section 4 authorized the Commission
to "negotiate a contract for such term not exceeding three j^ears as it may,
in its discretion, deem to be the most advantageous to the common-
wealth . . . ." (Now extended by St. 1960, c. 389, § 1).

A contract of insurance, entered into under the provisions of c. 32A, § 4,
is limited by the above provision of the statute. The contract executed on
December 30, 1955, and effective on January 1, 1956, expired on De-
cember 31, 1958, in accordance with the terms of the policy and the statu-
tory limitation of a "term not exceeding three years." In accordance with
the statute, the Group Insurance Commission was empowered to enter
into a new contract of insurance, effective January 1, 1959, for a term not
exceeding three years.

Section X(m) of the policy dated December 30, 1955, reads as follows:

" (w) Reneival Privilege. At the end of the initial term and of each sub-
sequent term, this policy may be renewed by the Policyholder upon such
terms as the Policyholder and the Company may then agree."

Even though Section X(m) is entitled "Renewal Privilege," neither
party is obligated to renew nor has the privilege of renewal without the
concurrence of the other. A subsequent concurrence of the will of both
parties involving an agreement as to terms, payment of a new considera-

114 P.D. 12.

tion by one party and a new promise by the other is required. Such a con-
currence is in essence a new and original contract. Epstein v. Northwestern
National Insurance Company, 267 Mass. at 571 ; Gardella v. Greenburg, 242
Mass. 405, 407.

Accordingly, for the reasons given, I must rule in answer to your second
question that the contract of insurance executed October 20, 1958, for a
three-year term conmiencing January 1, 1959, was a new contract and not
an extension of the original policy.

It appears from the attached correspondence that certain reserves were
set up by Boston IMutual for the calendar years 1956 through 1958. The
reserve for 1956 was determined to be too high, was subsequently reduced
by agreement of the parties and the excess in the amount of $39,753.17
was returned to the commission by check of Boston Mutual. Although
termed "the necessary adjustment in the dividend" in the Boston Alutual
letter of transmittal dated October 4, 1957, the amount returned was a
return of the unused and unallocated reserves. The letters of Boston
Mutual of January 27, 1958, and February 5, 1958, addressed to the com-
mission indicate that the sums of $19,502.11 representing 1956 unused
reserve and $159,144.89 representing 1957 dividends were returned to the
commission by checks of Boston Mutual. Letters of Boston ^Mutual to
the commission dated January 26, 1959, and February 20, 1959, indicate
that the amount of $10,586.85 representing 1957 unused reserve and an
additional sum representing 1958 dividend were paid to the commission
by checks.

By letter of January 20, 1960, Boston Mutual informed the commission
that there would be no dividend for the calendar year 1959. Boston
Mutual has retained the sum of $3,013.66 representing 1958 unused reserve.
This amount of $3,013.66 was determined in 1960 upon further review of
the 1958 policy year and was applied by Boston Mutual to 1959 policy
reserves. The enclosed statement of the Executive Secretary of the com-
mission states that if Boston Alutual is allowed to so apply the 1958
unused reserve, rather than to return it in the form of a check to the com-
mission, it will be lost to the Commonwealth.

The statement of the Executive Secretary of the commission states that
the polic}^ with Boston Mutual dated December 30, 1955, resulted from a
proposal submitted by Boston Mutual when the contract was put out on
bid by the commission. The Boston Mutual proposal of December, 1955,
contained the special questions submitted by the commission and the an-
swers thereto. Page five of Boston Mutual's proposal contained the follow-
ing question and answer:

"If the coverage is cancelled on an anniversary date, will your company
return to the commonwealth all unused and unallocated Life, Accidental
Death and Dismemberment reserves set up under the policy?"

"Yes."

In view of the above question and the affirmative answer thereto, it is
evident that the agreement and understanding of the parties was that the
total annual premium was to be reduced by the amount of unused and
unallocated reserves set up for each year under the policy. As stated above,
such was the actual practice for the years 1956 and 1957 under the policy.

The State Employees' Group Insurance program was authorized by the
provision of G. L. c. 32A, inserted in the General Laws by St. 1955, c. 628.

Chapter 32A, § 9, as amended by St. 1958, c. 424, § 1 reads as follows:

P.D. 12. 115

"Any dividend or other refunds or rate credits shall inure to the benefit
of the commonwealth, except as herein provided, and shall be deposited
by the commission with the treasurer and receiver-general of the common-
wealth, and shall be applied to the over-all cost of such insurance to the
commonwealth . . ."

General Laws, c. 175, § 140, requires every domestic hfe company to
provide in every pohcy of life or endowment insurance that the proportion
of the divisible surplus of the company contributed by said policy shall
be ascertained and distributed annually. The letters of Boston ^Mutual to
the commission dated January 27, 1958, January 26, 1959, and January 20,
1960, indicate that the policy was placed in a separate classification and
the dividend formula determined on the basis of experience under the
policy. This is in consonance with the requirements and provisions of
c. 175, § 140. Further, the provisions of c. 175, § 120, which deal with
distinctions and discrimfinations "in favor of individuals between insur-
ants of the same class and equal expectation of life . . . "do not prohibit
the establishment of the policy in such classification by itself. The policy,
which was entered into by the commission under the specific provisions of
c. 32A, authorizing the commission to negotiate and purchase policies,
would control in the event of any conflict with the general provisions of the
insurance law contained in c. 175.

The Commissioner of Insurance, in his letter of March 22, 1960, to the
Executive Secretary of the commission, was of the view that the procedure
of the Boston Mutual was in conformity w'th the requirements of §§ 140
and 120.

In view of what appears to have been the general agreement of the
parties with respect to the return of the unused and unallocated reserves
and the actual practice under the policy of returning the reserves for 1956
and 1957 to the commission in cash, 1 must rule in answer to your first
question that the commission can require the Boston Mutual Life In-
surance Company to return the 1958 unused reserve to the commission in
the form of a check (cash).

It is apparent that if the insurance policy had been negotiated with a
company other than Boston Mutual for the period commencing January 1,
1959, or if the risk had not been insured commencing in 1959, the 1958
unused reserve would have been payable to the commission in cash. I trust
that this sufficiently answers your fourth question.

In your third question you ask w^hether or not the commission can require
Boston Mutual to return future unused or unallocated reserves (set up
from premiums) in cash rather than in the form of a credit. I must assume
that you refer to the reserves set up and to be set up under the policy dated
October 20, 1958, effective for a three-year term commencing January 1,
1959. From the information submitted, this appears to be the only policy
presently in force between the commission and Boston Mutual.

Although the present policy constitutes a new contract and not an ex-
tension of the original policy, its terms and provisions are to a large extent
identical to the terms and provisions of the original policy. Since the agree-
ment and understanding of the parties under the original policy was that
the amount of unused and unallocated reserves set up for each policy year
was to be returned in cash to the commission, and where the parties ac-
tually carried out such practice for the years 1956 and 1957, the same
agreement applies to the policy presently in force between the parties,

116 P.D. 12.

especially where the present policy contains no express provision negativing
or modifying such agreement or practice. Accordingly, I must rule in
answer to your fourth question that the commission can require Boston
Mutual to return the unused and unallocated reserves set up from premiums
under the present policy in cash to the commission.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Leo Sontag, Assistant Attorney General.

Effect of provisions of Motor Vehicle Fuel Sales Law, as to posting prices,
etc., and as to giving of trading stamps, under the decisions in the cases
of Sperry & Hutchinson Co. v. Director, Division on the Necessaries
of Life, 307 Mass. 408, and Sun Oil Co. v. Director, Division on the
Necessaries of Life, 34-0 Mass. 235.

April 3, 1961.

Mr. DoN.\LD B. Falvey, Director, Division on the Necessaries of Life,
Department of Labor and Industries.

Dear Sir: — In your recent letter you raise certain questions as to the
ef!"ect of the decision in the case of Sperry & Hutchinson Company v.
Director, Division on the Necessaries of Life, 307 Mass. 408.

The decision cited concerns certain provisions of the Motor Vehicle
Fuel Sales Act, G. L. c. 94, §§ 295A to 295W, inclusive.

In the decision our Supreme Judicial Court held that the provisions of
G. L. c. 94. § 295E, could not constitutionally be applied to prohibit the
giving of trading stamps in connection with sales of motor vehicle fuels or
to prevent the changing of price signs for twenty-four hour periods.

You refer to the fact that the final decree after rescript entered in the
Sperry & Hutchinson Case restrains and enjoins you, as the Director of
the Division on the Necessaries of Life, from interfering with the posting
of signs similar to those attached to the bill of complaint in the case,
advertising the issuance of trading stamps.

You then state:

"This verdict practically nullified § 295E of the Acts of 1939.

This division would like to know what parts, if any, of this section can
be enforced or should this entire section be repealed by the Legislature.

The Division also wishes to know if signs stating the giving of premiums
or discounts would be held to be within the meaning of § 295C's second
paragraph; that is, signs 'relating to the price of motor fuel' or 'designed
or calculated to cause the public to believe' that they relate to it. 321
Mass. 713."

General Laws c. 94, § 295E, as amended, reads as follows:

"The price posted on any pump or other dispensing device from which
motor fuel is sold, as required by section two hundred and ninety-five C,
shall remain posted thereon and continue in effect thereat for a period of
not less than twenty-four consecutive hours. No retail dealers shall sell

P.D. 12. 117

motor fuel at any price other than the price so posted at the time of the
sale. No premiums, rebates, allowances, concessions, prizes or other bene-
fits shall be given directly or indirectly by any retail dealer so as to permit
any purchaser to obtain motor fuel from such retail dealer at a net price
lower than the posted price applicable at the time of the sale. In no trans-
action in which a retail dealer may fix or set a single price or charge for the
sale of a quantity of motor fuel, together with some other commodity or
service, shall such single price or charge be less than the aggregate of the
charge, in accordance with the posted price, for the motor fuel involved in
the transaction, plus the charge for such other commodity or service when
the same is sold or rendered separately, rather than in combination with
the sale of motor fuel."

In the Sperry & Hutchinson case the court pointed out that § 295E, in
the form in which it had been considered in the case of Slome v. Chief of
Police of Fitchburg, 304 Mass. 187. 191. had been held to have beeu intended
to prevent the use of misleading signs, and stated that they assumed, with-
out deciding, that the language of § 295E, as amended, was comprehensive
enough to prohibit the giving of trading stamps with the retail sale of
motor fuel and said that in order to invalidate the prohibition they had to
be satisfied that the means adopted would not accomplish the aim intended
of protecting the public against fraud, or that the prohibition was unrea-
sonable and arbitrary.

At page 421, the court said:

"Trading stamps have been in use long enough so that any purchaser
of merchandise who is interested in acquiring and converting them to his
advantage, cannot be sa'd to be likely to be deceived as to their value.
As appears from the agreed facts, these stamps represent certain well
defined and easily understood rights that the recipient acquires, and there
is no reasonable cause to believe that the dealer who offers them in consid-
eration of cash or approved credit sales will resort to fraudulent practices.
The price fixed by Ouellette for the sale of his gasoline, if paid for in cash
or if sold upon credit, entitled the purchaser to trading stamps. Such a
transaction, so clearly free from illegality, has no reasonable connection
with any possible fraud in the sale of motor fuel. On the contrary, under
the guise of protecting the public from fraud, the enforcement of the statute
would result in an arbitrary interference with business and an irrational
and unnecessary restriction."

At pages 423 and 425, in analyzing the effect of the provision prohibiting
changing a posted price for any twenty-four hour period, the court demon-
strates that the provision was more likely to encourage, rather than dis-
courage, practices injurious to the public referred to as justifying the pro-
vision, and points out that the time period requirement made did not afford
any protection to the buyer and penalized the seller, inasmuch as the fact
of importance to the buyer is the posted price not when it was posted.
At pages 424 and 425, the court stated:

"The fact that all prices must be posted does not relieve the purchaser,
if he has any real interest in the subject matter, from the exercise of some
degree of vigilance in order to determine what price he is to pay for the
particular brand of gasoline that he is buying. Upon his approach to a

118 P.D. 12.

filling station he has no means of knowing from appearances when the price
was posted. The twenty-four hour period may have just begun or be
just ending. The law gives him no greater security than he had before.
After all, he does not have to purchase at any station unless he wishes, and
whether the price is posted at six o'clock in the morning or at noon, it is
that price which the purchaser must consult, if he cares to, in order to de-
termine whether he is willing to pay it."

You enclosed with your letter a memorandum dated July 11, 1941, which
was sent to the then incumbent of the office you hold by the then Assistant
Attorney General Jacob Lewiton as a tentative guide for your predecessor
in the performance of his duties.

The memorandum referred to considers the effect of the decision in the
Sperry & Hutchinson case in certain circumstances.

The memorandum includes the following : —

"Of course, the giving of premiums bears no stigma of fraud and cannot
be forbidden for the purpose of avoiding fraud. The court so held in the
McBride [i.e. S-perry and Hutchinson] case, and it said, at page 421:

'"The price fixed by Ouelette for the sale of his gasoline, if paid for in
cash or if sold upon credit, entitled the purchaser to trading stamps. Such
a transaction, so clearly free from illegality, has no reasonable connection
with any possiVjle fraud in the sale of motor fuel.'

"Incidentally, this would seem to indicate that the price is understood
by the court to be a matter independent of future premiums. This view is
strengthened by a consideration of the ordinary use of the words. In
common parlance the price of an article is the amount asked by the person
offering it for sale.

''Scott V. People, 62 Barb. 62, 72.

"Discounts and premiums, like free service and rest rooms, are essen-
tially inducements to buy rather than ingredients of the price asked."

The statement made that the language of the court would seem to indi-
cate that "the price is understood by the court to be a matter independent
of future premiums," is an entirely reasonable construction of the decision,
and is consistent with the ruling of our Supreme Judicial Court in the most
recent case considering the provisions of the Motor Vehicle Fuel Sales Act,
Sun Oil Company v. Director, Division on the Necessaries of Life, 840 Mass.
235, at page 237, that, "The price of motor fuel is the number of currency
units for which a unit of fuel is sold." On that construction the provisions
of G. L. c. 94, § 295E, are operative at least to prevent a dealer charging a
price higher than the posted price (See Merit Oil Co. v. Director, Necessaries
of Life, 319 Mass. 301, 306) even if the provisions of the section cannot
constitutionally be applied to prevent the giving of trading stamps, and
the section can be enforced to that extent. Whether, as you also inquire,
the section should be repealed, is a question for the Legislature and is not
one for this ofhce.

You ask also whether signs stating the giving of premiums or discounts
would be held to be within the provisions of G. L. c. 94, § 295C.

The answer to that inquiry would depend upon a consideration of all the
facts and circumstances applicable to any particular situation in which the
(juestion arose and no opinion could be expressed without a statement of
such facts and circumstances. {Cf. Commonwealth v. Slome, 321 Mass. 713,

P.D. 12. 119

717.) Inasmuch, however, as your letter refers specifically to the Sperry d:
Hutchinson case, it should be pointed out that, as has been noted above,
the final decree after rescript entered in that case restrains you from inter-
fering with the posting of signs of the tj^pe referred to in the final decree
after rescript advertising the giving of trading stamps in connection with a
sale of motor vehicle fuel.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

A retired public employee forbidden by G. L. c. 32, ^ 91, to be paid for services
rendered to certain governmental entities is not deprived of his retirement
allowance, and, therefore, the State Comptroller has no duties with reference
to a retired State employee employed by the Metropolitan Transit Au-
thority. Reference is made to the fact that the Transit Authority is not
specifically mentioned in § 91.

April 18, 1961.

Mr. Joseph Alecks, State Comptroller.

Dear Sir: — You have requested an opinion relative to the legality, in
view of the provisions of G. L. c. 32, § 91, of the employment by the IVIet-
ropolitan Transit Authority of a former employee of the Commonwealth
who is in receipt of a pension from the Commonwealth.

General Laws c. 32, § 91, provides that "No person while receiving a
pension or retirement allowance 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 commonwealth or any county, city, town or dis-
trict . . ." with certain exceptions.

Except in one instance (and that is not the applicable situation here),
the provisions of G. L. c. 32, § 91, do not operate to suspend the payment
of the pension of a retired person who holds either permitted or non-per-
mitted re-employment. The retired person continues in receipt of his
pension, only the compensation for his other employment being affected.

Under the provisions of the Civil Defense Act, permitting the re-employ-
ment in the public service of retired public employees, and providing for
the deduction of the amount of the retirement allowance or pension from
the compensation for the services rendered in the re-employment (St. 1950,
c. 639, § 9[6]), the retired person also continues in receipt of his pension,
only the compensation for his other services being affected.

Since, therefore, the person you refer to is entitled to the payment of his
retirement allowance, in any event, and it is only the payment of the re-
tirement allowance that comes before you in your official capacity, in ac-
cordance with the long-established policy of this office to render opinions
only on those aspects of any matters presented for opinions which concern
the legal duties of the requesting ofiicial, I advise you that, as stated, there

120 P.D. 12.

can be no legal objection to the payment of the retirement allowance of the
person referred to in your request.

The question of the extent of the authority, under the provisions of the
Civil Defense Act referred to or of G. L. c. 32, § 91, of the Metropolitan
Transit Authority to pay for services rendered by a retired State employee,
is one which cannot come before you in the performance of your official
duties.

It is to be noted, however, that the general prohibition contained in
G. L. c. o2, § 91, against re-employment of retired persons, even without
the exceptions stated therein, is not a broad prohibition against the pay-
ment of a retired person for services rendered in any public employment.
The Legislature in the prohibition referred to explicitly enumerates with
some care the governmental entities which may not pay for the services
of former public servants receiving pensions from the Commonwealth, and
specifically enumerates, only "the commonwealth, or any county, city,
town or district ..." Public authorities such as the Metropohtan
Transit Authority, which was created by the provisions of c. 544 of the
Acts of 1947, with officers, agents, employees and a treasury of its own,
are not specifically included, and it is a general rule of statutory construc-
tion that expressio unius est exclusio allerius. That is to say, the express
mention of one matter in a statute excludes by implication other similar
matters not mentioned. It is well established by the decisions of our
Supreme Judicial Court that, as was said in the decision in Morss v. Boston,
253 ]\Iass. 247, 252, "Statutes must be interpreted as enacted. Omissions
cannot be supplied . . ." The expediency of the enactment of the statu-
tory provisions referred to, and the wisdom of the provisions, was for the
Legislature. See Howes Brothers Company v. Unemployment Compensation
Commission, 296 Mass. 275, 283.

Very truly yours,
Edwaed J. McCoRMACK, Jr., Attorney General.

Upon the discharge of trustees in proceedings for a corporate reorganization
under the Bankruptcy Act and transfer of the property held hy the trus-
tees to the corporation, motor vehicles so transferred must he re-registered.

April 20, 1961.
Mr. Clement A. Riley, Registrar of Motor Vehicles.

Dear Sir: — You have requested an opinion as to whether the re-
registration of vehicles registered in the names of the trustees of a corpor-
ation involved in reorganization proceedings in the Bankruptcy Court, in
the name of the corporation, is required under G. L. c. 90, § 2, upon the
discharge of the trustees and the transfer of the property held by the trus-
tees to the corporation.

Trustees appointed in proceedings for corporate reorganization under
c. 10 of the Bankruptcy Act (U. S. C. Tit. 11, §§ 501, et scq.), like trustees
appointed in regular bankruptcy proceedings, acquire the title of the cor-
poration to property owned by it. (U. S. C. Tit. 11, §§ 572, 110.)

The title to the motor vehicles of the corporation you refer to having

P.D. 12. 121

been in the trustees at the beginning of the 1961 registration period, the
said motor vehicles were properly registered, as you state, in the names of
the trustees as owners.

The discharge of the trustees in the corporate reorganization proceedings
affects the transfer of the title to the motor vehicle registered in the name
of the trustees to the corporation and, therefore, under G. L. c. 90, § 2,
new applications for registration are required to be filed and new registra-
tions issued for each of the motor vehicles involved.

The conclusion stated is supported by the opinion of June 1, 1943 (At-
torney General's Report, 1943-1944, p. 55), holding that motor vehicles of
one corporation merged with another corporation must be re-registered,
and by the opinion of July 13, 1927 (VIII Op. Atty. Gen., p. 336), holding
that a motor vehicle purchased by tlie surviving member of a partnership
dissolved by the death of one of the partners must be re-registered in the
name of the purchaser.

Very truly yours.

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

A covimunication signed by the Commissioner of Agriculture, referred to in
the opinion, did not constitute the certificate of approval, etc., by the Com-
missioner of the Nantucket Agricultural Society required by G. L. c. 128 A,
§ 3, in connection with an application by the Society for the issuance of
a license for a harness race meeting at the Bay State Raceway, Fox-
borough.

April 20, 1961.

Hon. Leo J. Madden, Chairmaii, Thomas J. Fleming and Morris H.

Leff, as they constitute The State Racing Commission.

Gentlemen : — ■ You have requested ni}^ opinion upon the following facts
and questions:

On Friday, March 31, 1961. an application for a license to conduct a
racing meeting at the reduced license fee provided for in G. L. c. 128A,
§ 4. was filed by the Nantucket Agricultural Society, Inc.

This is the initial application from this applicant.

The application requests permission to conduct a harness horse racing
meeting between the hours of 8:00 p.m. and 12:00 Midnight at the property
of the Bay State Harness Horse Racing and Breeding Association, Inc.,
Bay State Raceway, Foxborough, Norfolk County.

The application is accompanied by a lease on the property of the Bay
State Harness Horse Racing and Breeding Association, Inc., signed by
two officers of said Association and also signed by one officer of the Nan-
tucket Agricultural Society, Inc.

The application indicates that this Society was incorporated by the Gen-
eral Court under the provisions of St. 1856, c. 25, entitled, "An Act to
incorporate the Nantucket Agricultural Society."

122 P.D. 12.

The Nantucket Agricultural Society, Inc., did not operate a horse or
dog racing meeting under the provisions of G. L. c. 128A, prior to July 1,
1958, nor at any subsequent time.

On Monday, April 3, 19G1, a communication was filed with the commis-
sion by the Nantucket Agricultural Society, Inc. which reads as follows:

Commonwealth of Massachusetts,

Department of Agriculture,

41 Tremont Street, Boston 8, April 8, 1961.

To Whom It May Concern:

The records in the Department of Agriculture, Division of Plant Pest
Control and Fairs, show that the Nantucket Agricultural Society operated
an agricultural fair for a number of years. For the consecutive years from
1928 through 1934 it was a properly qualified agricultural fair and approved
by this Department.

For the past twenty years we have no knowledge of the operat'on of this
fair; nor have we allotted any money from the Agricultural Purpose Fund
to this fair,

Charles H. McNamara /s/

Charles H. McNamara,
Commissioner of Agriculture.

The Agricultural Purpose Fund as referred to in G. L. c. 128A, § 3, as
amended, and also in the communication dated April 3, 1961, from Charles
H. McNamara, Commissioner of Agriculture, was created by St. 1948,
c. 319.

Previous to the enactment of St. 1948, c. 319, creating the Agricultural
Purpose Fund, all monies paid for prizes, etc., at the various State and
county fairs throughout the Commonwealth were paid by the Department
of Agriculture through an appropriation from the General Fund.

The questions propounded by you are as follows:

1. Does the conduct of this fair in the years 1928 to 1934 meet the re-
quirements of G, L. c. 128A, § 3, as most recently amended by St. 1959,
c. 295, § 2, insofar as condition (1) is concerned?

2. Does the fact that this fair in the years 1928 to 1934 may have re-
ceived financial assistance from the Department of Agriculture in an ap-
propriation from the General Fund meet the requirements of G. L. c. 128A,
§ 3, as most recently amended by St. 1959, c. 295, § 2, insofar as condition
(2) is concerned?

3. Does the communication from Charles H. McNamara, Commissioner
of Agriculture, dated April 3, 1961, as set forth above meet the require-
ments of G. L. c. 128A, § 3, as most recently amended by St. 1959, c. 295,
§ 2, insofar as condition (3) is concerned?

4. Based on the facts as set forth above, does the application of Nan-
tucket Agricultural Society, Inc., appear to be in proper legal form on
which the commission may proceed with a pubUc hearing, as required by
G. L. c. 128A, § 3, and consideration of the merits of the application?

The applicable statute is as follows:
G. L. c. 128A, § 3:

P.D. 12. 123

"... and provided, further, that on an application for a license to con-
duct a horse or dog racing meeting in connection with a state or county
fair by an applicant which has not operated a horse or dog racing meeting
under the provisions of this chapter prior to July first, nineteen hundred
and fifty-eight, the applicant shall show (1) that the state or county fair
at which such racing meeting is to be held has operated for a period of at
least five consecutive years; (2) that said fair has received financial assist-
ance from the agricultural purpose fund for the same period of time, and
(3) a certificate from the commissioner of agriculture that said fair is prop-
erly qualified and approved by him; ... In determining whether a fair
is properly qualified under this paragraph, the commissioner of agriculture
shall consider the number of days such fair has operated each previous
year, the area of land used for fair purposes, the number of entries in agri-
cultural show events in previous years, the number and value of prizes
offered in such events and whether or not the granting of a racing license
would tend to promote the agricultural purposes of the fair."

Your third question relates to the certification and approval by the
Commissioner of Agriculture.

The requirements of G. L. c. 128A, § 3, set forth above include a provi-
sion that the Commissioner of Agriculture certify that the fair in question,
". . . is properly qualified and approved by him . . ." Assuming that the
letter addressed "to whom it may concern" is sufficient to meet the re-
quirements of certification contemplated by the Legislature, it is apparent
that said letter on its face does not comply with the said section of G. L,
c. 128A. At the best, the commissioner states, with respect to the Nan-
tucket Agricultural Society, ". . . For the consecutive years from 1928
through 1934 it was a properly qualified agricultural fair and approved by
this department." No statement is made that the said fair is now prop-
erly qualified and approved by him. Certainly, the letter of the commis-
sioner is in vague and indefinite terms and could not be construed to be
the approval required by the Legislature in paragraph (3) of § 3 of c. 128 A.
Selectmen of Topsfield v. State Racing Commission, 32-4 I\Iass. 309. The
reply, therefore, to the third question is in the negative.

Failure of the proponent of the license to provide as a condition prece-
dent the proper certification compels a negative reply to question 4 as pro-
pounded to this office by your commission. See, e.g. Mass. G. L. c. 233,
§ 76 (official documents as evidence in courts) ; Cincinnati, N. 0. & T. P.
Ry. Co. V. Fidelitij & Deposit Co. of Md., 296 F. 298, 300, 301 (certification
discussed).

My reply to questions 3 and 4 makes it unnecessary to answer your
first two questions.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Joseph T. Doyle,

Assistant Attorney General.

124 P.D. 12.

State highway construction contracts — date of beginning of period of limita-
tions on claims under; interest on disputed claims, and application of
new interest statute to claim which originated prior to its effective date;
issuance of extra work orders after completion of extra work covered.

April 20, 19G1.

Mr. Joseph Alecks, State Comptroller.

Dear Sir: — Your predecessor in office has requested an opinion con-
cerning the final payment on Contract No. 5650 between the Department
of Pubhc Works and IMarinucci Bros., Inc. You have asked the following
questions :

(1) "Is it proper for the Commonwealth to make payment on the above
claims without complying with the provisions of G. L. c. 260, § 3 A?

(2) "Is it proper for the Commonwealth to pay interest on iteins identi-
fied as Claim # 1 and Claim # 2 in accordance with the provisions of G. L.
c. 30, § 39G?

(3) "Would the provisions of G. L. c. 30. § 39G, which took effect
October 20, 1955, applv to claims for work which originated prior to that
date?

(4) "Where a contractor has not complied with the provisions of Ar-
ticle 23 of the Standard Specifications for Highways and Bridges relative
to claim for compensation for extra work not ordered, can the department
subsequently waive such provisions and approve payment to said con-
tractor?"

In reference to question No. 1. you state that the contract was awarded
on the 2nd day of March, 1954, and that the work was completed on
March 8, 1955. You state that on August 15, I960, you were informed
that the Department of Public Works had approved two claims of the
contractor, the first relating to foundation work and the second i-elating
to pumping during construction. The provisions of G. L. c. 260, § 3A,
to which you make reference are as follows :

"Petitions founded upon claims against the commonwealth prosecuted
under chapter two hundred and fifty-eight shall be brought only within
three j^ears next after the cause of action accrues."

If the statute of limitations of three years has expired, then, of course, the
claim for extra work should not be authorized. In the present case, an
examination of the records indicates that the semifinal estimate was not
prepared until 1958 and the final estimate, apparently, was not approved
until 1960. Under these circumstances, the contractor may well be able
to argue that his cause of action had not accrued until 1958 or perhaps
I960. In either event, the statute of limitations would not bar the ap-
proval of the claims in the present case.

Your second question relates to the payment of interest on the two
claims as provided by c. 30, § 39G. Under the statute in question, interest
would be paid on the undisputed amounts due which should have appeared
in the semifinal estimate which, in turn, should have been prepared within
sixty-five days of completion of the contract. Your letter apparently does
not raise any question on the payment of interest on such undisputed items.

P.D. 12. 125

Section 39G provides specifically for a semifinal estimate in the event that
items may be in dispute between the Commonwealth and the contractor.
As to the disputed items which may be excluded from such semifinal esti-
mate, the statute does not require the payment of interest. Your second
question is answered in the negative.

Your attention is called to the fact that we are not determining whether
the Comm.onwealth could be required to pay interest as a result of a legal
proceeding brought bj^ the contractor to recover monies he claims due.

The third question relates to the applicability of c. 30, § 39G, to con-
tracts awarded prior to the effective date of that statute. If the time for
preparing a semifinal estimate or a final estimate had not been reached at
the time said statute became effective, then the department in question
should follow the statute and prepare the estimates as required thereby,
even though the contract was awarded prior to its effective date. Only
in this way can the general intent of the statute be carried out. The con-
tract itself is not affected by the provisions of the statute but the contractor
should be given the benefit of an ol)ligation imposed upon State officials to
expeditiously prepare estimates. The answer to question three, therefore,
is in the affirmative.

Your fourth question relates to the right of the Commonwealth to ap-
prove a claim where the contractor may not have complied with the
technical provisions of the Standard Specifications concerning the filing of a
claim.

Your attention is called to the recent case of M. DeMatteo Construction
Co. v. Commonwealth, 338 Mass. 568, in which the court points out that
the department may issue an extra work order after the work is all per-
formed. Under such circumstances, compliance with the "claim" provi-
sions would not be required. Your fourth question is, therefore, answered
in the affirmative.

In the future, your department must, of course, comply with the pro-
visions of c. 771 of the Acts of 1960 relating to contract changes. This
statute, however, is not applicable to the present matter.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By John J. Grigalus,

Assistant Attorney General.

The provision of G. L. c. 41, § 96 A, that no person convicted of a felony shall
be appointed a police officer, is not applicable to a person who has
received a full pardon.

May 4, 1961.

Miss Rose Abrams, Secretary, Civil Service Commission.

Dear Madam : — Your letter of recent date to the Attorney General
relative to a person who took the examination for the police service of
Milton, has been handed to me for consideration. In it you state that the
person's application was cancelled by the director because of a court rec-
ord, and he has appealed to your commission. One of the items on the
court record you state is a felony, namely, breaking and entering in the

126 P.D. 12.

nighttime and larceny, of which he was found guilty on April 25. 1952, m
Suffolk Superior Court. You further state that at the hearing before your
commission the person referred to presented a pardon which was issued by
Governor Volpe with the advice and consent of the Executive Council.

You call our attention to the provisions of G. L. c. 41, § 96A, which
reads as follows :

"No person who has been convicted of any felony shall be appointed as
a police officer of a city, town or district."

In the light of the above circumstances you request the advice of this
office "as to whether the issuance of a pardon bj^ the Governor and Coun-
cil would make said applicant eligible for appointment to the police serv-
ice of Milton in view of the exact verbiage of the chapter and section of the
above-named law."

The Constitution of Massachusetts, pt. 2d, c. II, § I, art. VIII, provides
as follows:

"The power of pardoning offences, except such as persons may be con-
victed of before the senate by an impeachment of the house, shall be in
the governor, by and with the advice of council, provided, that if the offence
is a felony the general court shall have power to prescribe the terms and
conditions upon which a pardon may be granted ; but no charter of pardon,
granted by the governor, with advice of the council before conviction, shall
avail the party pleading the same, notwithstanding any general or par-
ticular expressions contained therein, descriptive of the offence or offences
intended to be pardoned."

The answer to your question depends upon the nature of the pardon.
As the Supreme Court of this Commonwealth said in the case of Perkins v.
Stevens, 24 Pick. 277 at page 280:

"We think the view taken by a former distinguished law officer of this
Commonwealth, whose long experience in the administration of criminal
law gave to his opinions the weight of authorities, are correct and sound.
He says, ' there is but one mode now in use, of restoring the competency of
a witness, and that is by pardon under the great seal of the State:' 'which,
when fully exercised, is an effectual mode of restoring the competency of a
witness. It must be fully exercised to produce this effect; for if the
punishment only be pardoned or remitted, it will not restore the com-
petency, and does not remove the blemish of character. There must be
a full and free pardon of the offence, before these can be restored and
removed.' "

You do not provide me with a copy of the pardon in this matter. Ac-
cordingly, I say that if the pardon is a full, absolute, unrestricted and un-
conditional one. the answer to your question is the applicant is entitled
to have his application considered.

I am aware that one of my predecessors in an opinion found in Attorney
General's Report, 1942, p. 60, in answer to a request by the Commissioner
of Probation as to his duty to expunge from his records a record of con-
viction of a person subsequently pardoned for the offence for which he was
convicted, ruled that the record should not be expunged inasmuch as under
the law it was the commissioner's duty to keep records. The Attorney
General further ruled that it was the duty of the commission to note the

P.D. 12. 127

fact of the pardon on the record in his files relating to the recipient. That
opinion was not inconsistent with the conclusion to which I have come.
The pardon in jny opinion extinguishes the conviction. It may well not
alter the commissioner's duty to preserve the record of it.

This office assumes, of course, that your letter has given us all the facts
germane to the subject matter you refer to.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assista7it Attorney General.

A tovm whose high school pupils are transported to a regional district high
school in another town, by it or the district, must provide similar trans-
portation to pupils attending private high schools outside the town.

May 4, 1961.
Hon. Owen B. Kiernan, Commissioner of Education.

Dear Sir: — In your letter of recent date, relative to the responsibility
of the town of Raynham to provide transportation to high school students
in view of the opening of the new Bridgewater-Raynham Regional High
School in Bridgewater, you pose the following questions: —

"Is Raynham compelled to provide continued transportation to the high
school students who attend private schools outside its town commencing
September 1, 19G1, when Raynham becomes a part of the regional school
district? AVould there be any difference in your opinion if the regional
school distrct, under G. L. c. 71, § 16C, provides the transportation for the
public school students as distinct from each town providing transportation
to the Regional School?"

You state that your department has an interest in this matter because if
transportation is mandatory, your department makes reimbursement un-
der G. L. c. 71, § 7A.

As you are doubtless aware, G. L. c. 71, particularly § 68, contains
numerous requirements for schoolhouses and the education of children in
the public schools of the Commonwealth. Section 68 also contains pro-
visions, under stated conditions, for the transportation of the pupils to and
from school.

General Laws, c. 76, including particularly § 1, embraces many pro-
visions for school attendance by the children including a paragraph de-
voted to the subject of transportation to private schools reading as follows:

"Pupils who, in the fulfillment of the compulsory attendance require-
ments of this section, attend private schools of elementary and high school
grades so approved shall be entitled to the same rights and privileges as
to transportation to and from school as are provided by law for pupils of
public schools and shall not be denied such transportation because their
attendance is in a school which is conducted under religious auspices or
includes religious instruction in its curriculum."

128 P.D. 12.

The Supreme Court of Massachusetts in the case of Quinn v. School
Committee of Plymouth, 332 Mass. 410 at 412, in discussing the above
paragraph, used the following language:

"... We think that by its enactment the Legislature intended to make
available to children in private schools transportation to the same extent
as a school committee within its statutory powers should make transporta-
tion available to children in public schools . . . The question is not what
the committee can be made to do. The requirement imposed is that there
be no discrimination against private school children in what the committee
in its discretion decides to do."

General Laws, c. 71, § 7 A, provides for reimbursement by the terms and
conditions therein stated by the Commonwealth to the several towns for
costs of transportation for school children.

General Laws, c. 71, §§ 14 to 161, inclusive, relate to the forming and
operation of regional school districts. In referring to the formation of a
district, § 14B provides that the regional district planning board may
recommend a proposed agreement made between the municipalities in-
terested in forming the district, which agreement may include:

"(e) The method by which school transportation shall be provided, and
if such transportation is to be furnished by the district, the manner in
which the expenses shall be borne by the several towns."

It further appears from § 1 6 that :

"A regional school district established under the provisions of the pre-
ceding section shall be a body politic and corporate with all the powers
and duties conferred by law upon school committees, and with the following
additional powers and duties: ..." (Emphasis added.)

Moreover, § 16C of c. 71 provides as follows:

" The regional school district shall he subject to all laws pertaining to school
transportation; and ivhen the agreement provides for the furnishing of trans-
portation by the regional school district, the commonwealth shall reimburse
such district to the full extent of the amounts expended for such transportation,
except that no such reimbursement shall be made for transportation of any
pupil who resides less than one and one half miles, measured by a commonly
traveled route, from the district school which he attends. The state
treasurer shall annually . . . pay to the regional school districts . . .
subject to appropriation, the sums required for such reimbursement and
approved by the commissioner of education. . . ." (Emphasis added.)

I am not aware that the provisions to which I have referred have been
repealed. Rather, the statutory provisions for the organization and op-
eration of regional school districts, to some of which I have adverted, seem
to envision their continuance in full force and vigor except as modified by
the provisions of law relating to regional school districts. As stated in § 16,
the regional school districts have all the powers of, and are subject to the
duties conferred by law upon, school committees.

Furthermore, the member towns of the district have the power by agree-
ment to adopt the method of school transportation of the pupils and if the
transportation is to be furn'shed by the district, the manner in which the
expenses shall be borne by them. Further, the regional school districts

P.D. 12. 129

are subject to all laws pertaining to school transportation; and when the
agreement provides for the furnishing of transportation by the regional school
district, the commonwealth shall reimburse such district to the full extent of
the amounts expended for such transportation, with the exceptions therein
stated.

Section 16C provides that the State Treasurer shall annually pay to the
regional school districts the sums required for reimbursement of trans-
portation which have been approved by the Commissioner of Education.

It is a well-settled rule of statutory construction that statutes are to be
so construed as to form an harmonious w^iole. The general provisions
relative to municipal responsibihties for the education and transportation
of school children, to which I have referred, must be construed harmoni-
ously with the regional school district's statutes and will stand, except as
modified, if at all, by them.

With this statutory pattern surrounding the subject matter about which
you write and subject to the foregoing, I answer your first question in the
afiirmative. Your second question I answer in the negative subject to
transportation problems covered by G. L. c. 71, §§ 14B (e) and 16C.
Ver}" truly yours,

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

By Fred W. Fisher,

Assistant Attorney General.

The Trustees of a Soldiers' Home would not have authority under G. L. c. 123,
§ 6 A, to lease land at the Home for a chapel.

May 4, 1961.

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

Dear Sir: — In your letter of recent date, relative to the powers of the
Board of Trustees of the Soldiers' Home in Massachusetts, you pose the
following question:

"The undersigned would like to specifically ask whether the Board of
Trustees of the Soldiers' Home in Massachusetts would be 'covered' by
G. L. c. 123, § 6A, inasmuch as under c. 6, § 41, our Board of Trustees has
'the same powers and duties as are given the Trustees in State hospitals
under chapter 123.'"

As you have observed, G. L. c. 6, § 41. provides that the Board of Trus-
tees of the Soldiers' Home

"... shall have the management and control of said home and all prop-
erty, real and personal, belonging to the commonwealth and occupied or
used by said home ... In the management and control of said home as
aforesaid, said board of trustees shall have the same powers and perform
the same duties as are vested and imposed in the trustees of state hospitals
under the provisions of chapter one hundred and twenty-three, so far as
applicable."

130 P.D. 12.

General Laws c. 123, § 27, provides that the trustees of each State hos-
pital shall be a corporation for the purpose of taking and holding, by them
and their successors, in trust for the Commonwealth, any grant or devise
of land, and any gift or bequest of money or other personal property, made
for the use of the State hospital of which they are trustees. They may ex-
pend any unrestricted gift or bequest, or part thereof, in the erection or
alteration of buildings on land belonging to State hospitals, subject to the
approval of the department, but all such buildings shall belong to the
State hospital and be managed as a part thereof.

Section 29 of c. 123 further defines the powers of the trustees of a State
hospital in ways not here important.

Section GA of c. 123 provides:

"The department, after a determination by the commissioner, subject
to the approval of the trustees of the respective institutions, that it is in
the best mterests of the patients, may lease, upon such terms and condi-
tions as may be stipulated by the commissioner, sufficient land belonging
to state institutions described in section twenty-five for the purpose of
constructing thereon chapels for the use of the patients of said institu-
tions. . . ."

The lease shall remain in effect so long as the chapel for the patients is
maintained thereon and so long as it shall be maintained in conditions sat-
isfactory to the superintendent and the Commissioner of Mental Health.
The commissioner shall select the lessees, and the design and location of
the chapel shall be subject to his approval.

From the express language of § 6A, it is quite clear that the trustees of
the State institutions, so far at least as the leasing of State property for a
religious chapel is concerned, have only a minor control of the lease. The
section authorizes the department, after a determination by the commis-
sioner, but with the approval of the trustees, to lease upon terms stipu-
lated by the commissioner, sufficient land belonging to State institutions
for construction of chapels for the use of the patients of said institutions.
The commissioner is the controlling party in matters of the kind referred
to in § 6A, not the trustees. The trustees' power is limited to the approval
or disapproval of the action of the department after a determination by
the commissioner.

It should also be borne in mind that the Board of Trustees of the Soldiers'
Home in Massachusetts serves under the Governor and Council and is sub-
ject to such supervision as the Governor and Council deem necessary and
proper. G. L. c. 6, § 17.

In view of the very limited jurisdiction of the board of trustees of State
institutions to lease State property for religious chapels as set forth in § 6A
of c. 123, a proper construction of § 41 of c. 6, giving as it does to your Board
of Trustees, the same powers and duties as are given the trustees of the
State hospitals, would seem to make it clear that your trustees, so far at
least as the subject matter you write about is concerned, have only a very
limited control over the situation.

Very truly yours,

Edward J. McCormack, Jr., Attorney Geneial,

By Fred W. Fisher,

Assistant Attorney General.

P.D. 12. 131

The Division of Employment Security could not consider a revised hid sub-
mitted by a bidder on a proposal to lease space, after the time for opening
bids had passed; but could call for new bids.

May 8, 1961.

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

Dear Sir : — You have requested an opinion as to a problem which has
arisen in connection with the apphcation of c. 620 of the Acts of 1960.

Said c. 620 requires, in part, that prior to the execution of a lease of
premises for the use of a State department, a notice inviting proposals,
stating the area to be leased, the term and other requirements of the pro-
posed lease, be posted conspicuously in the office of the State Superintend-
ent of Buildings for at least thirty days prior to the execution of the lease.

In your request you stated that a notice was posted as required inviting
proposals for office space for a local office of the division under a three-
year lease. It was further stated that two proposals were submitted and
the division, after surveying the property to which the lower bid related,
accepted that bid, subject to Federal and State approval. The invitation
for proposals had asked for alternate figures, with and without air condi-
tioning, and you inform us that since the Federal officials, while approving
the division's request for the leasing of the premises to which the lower bid
related, suggested that consideration be given to the inclusion of air con-
ditioning, the division made an amended request with the inclusion, and
the request is still pending.

Your request also stated that about three weeks after the initial approval
was received from the Federal authorities, the higher bidder sent a letter
to the State Superintendent of Buildings cutting its bid by SO. 35 per square
foot, and further qualifying it by offering the premises (which are now, and
have for many years been, occupied by the division) in their present con-
dition without regard to the specifications originally set forth. It was fur-
ther stated that, although the higher bidder contended in its letter to the
State Superintendent of Buildings that the proposal of the lower bidder
was not in accord with the specifications, in fact, the proposals received
were in accord with the specifications.

After the receipt of your request for an opinion, protests were made to
us on behalf of the liigher bidder against your statement that the low bid
was in accordance with the specifications, and we wrote j'ou asking you
to supply us with complete information as to the invitations and bids,
which information you furnished to us.

It appears from the material furnished us that proposals were invited for
the leasing of 3700 to 4700 square feet of space for the division.

The higher bidder filed three proposals, one for 3700 to 4700 square feet
at $1.55 per sqaare foot, the second for 3700 to 4700 square feet at $1.69
per square foot, and the third for 3700 to 4700 square feet at $1.89 a square
foot with air conditioning.

The lower bidder also filed three proposals, one for 4675 square feet at
$1.41 per square foot, the second for 4675 square feet with air conditioning
at $1.74 per square foot, and the third for 4,675 square feet at $1.90 per
square foot with air conditioning and elevator service.

The higher bidder claims that the notice to bidders, properly construed,
required bidders to offer the entire range of minimum to maximum space

132 P.D. 12.

requirements set forth, and, therefore, that the bid of the lower bidder for
a specific area of space within the range was not a compliance with the in-
vitation for proposals.

The division's acceptance of the bid of the lower bidder, the statement
in the request for an opinion that the proposals received were in line with
the specifications, and the statement in the form attached to the division's
original letter to the Federal authorities that it had considered a bid of the
higher bidder for 4700 square feet of space, make it apparent that the di-
vision considered that under the invitation for proposals a bidder could re-
strict its offer to a specific area or areas within the range, or could offer to
lease to the division any area within the range which the division should
see fit to decide to lease. It is also apparent from the method of bidding
adopted by the low bidder that it construed the notice inviting proposals
in the same way the division did. It is not apparent from the bid of the
higher bidder, by itself, how it construed the notice.

It cannot be said that the construction of the notice by the division and
the low bidder was not a reasonable construction of the invitations for pro-
posals, and, therefore, it cannot be ruled that the bids of both the high
and low bidders were not in accordance therewith.

Your specific ciuestion is:

"In your opinion are we complying with the provisions of c. 620 of the
Acts of 1960 and all other pertinent statutes if we either accept or reject
this latest proposal received from the ..." original higher bidder?

In view of the purpose of such statutes as G. L. e. 8, § 10 A, as stated in
Morse v. Boston, 253 Mass. 247, 252,

"to establish genuine and open competition after due public advertisement
in the letting of contracts ... to prevent favoritism in aw^arding such con-
tracts and to secure honest methods of letting contracts in the public in-
terests.",

it is my opinion that an awarding authority could not decide to accept the
offer of a higher bidder to change his bid after the time for submission and
opening of bids had been passed. I advise you, therefore, that in my opin-
ion only those bids filed in response to the notice inviting bids under the
statute can be considered by the awarding authority.

However, it is to be noted that under G. L. c. 8, § lOA, a lease by the
division must be approved by the State Superintendent of Buildings, the
Governor and Council, and the Commission on Administration and Fi-
nance.

The mere indication of approval of the proposal of the lowest bidder for
the lease advertised for the division, manifested by the division's accept-
ance of the bid and initiation of proceedings looking to the execution and
final approval of the formal lease do not effect a contract. See Edge Moor
Bridge Works v. Comity of Bristol, 170 Mass. 528, 532. AVs Lunch, Inc.
V. Revere, 324 IMass. 472.

In the situation you describe, it is my opinion, therefore, that no lease
binding on the division comes into existence until a formal lease executed
by the division and the lessor has been approved in the manner required
by the statutes, and that the division can prior to such execution and ap-
proval determine not to proceed further with its action looking to the final
approval and execution of a lease, and to readvertise for proposals for a
lease of premises for the purpose desired.

P.D. 12. 133

It is for the division, and not for this office, to determine whether in
view of all the circumstances the proceedings initiated looking to the final
execution and approval of a lease based on what, as stated above, was the
valid low bid, should be discontinued and a new invitation for proposals
for a lease be posted, or the proceedings should be continued with a view
to the final execution and approval of a lease based on the original low
bid.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher.

Assistant Attorney General.

A military substitute who entered the armed services in 1942 but on discharge
ivas not re-employed by the Commonwealth because the permanent in-
cumbent of the position had returned to it, subsequently becoming em-
ployed by the Commonwealth, is not entitled to have the period of his
military service credited toward his retirement.

May 23, 1961.

Hon. John T. Driscoll, Chairman, State Board of Retirement.

Dear Sir: — In your recent letter relative to Kenneth Rhodes, you
state that he was employed as a farmhand at the Belchertown State School
from May 10, 1937, to March 1, 1942. He was then emploj'ed as a farmer
on a military substitute basis on April 1, 1942, and continued in this em-
ployment until he entered the armed forces on September 26. 1942. He
was separated from the armed forces on February 1, 1946. A few days
prior to January 17, 1948, which was within the two-year period estab-
lished in the law for returning to State service, Mr. Rhodes contacted the
school requesting reinstatement. He was advised that the position of
farmer in which he had been a military substitute had been filled by the
return from military service of the original holder of the position and the
school ruled that it had no obligation to reinstate a military substitute.
You further state that a previous decision of this office makes it manda-
tory that a military substitute be reinstated for at least one da}', which
was not done in this case.

Under the above circumstances, you ask our opinion on the following
question :

"Is Kenneth Rhodes entitled to be credited with the time spent in the
armed forces as creditable time towards retirement?"

Chapter 708 of the Acts of 1941 is entitled

"An Act to meet certain contingencies arising in connection with the
service of public officers and employees and certain other persons in the
military or naval forces of the United States during the present national
emergency."

This act concerns itself with the status of public employees who left their
public employment for the purpose of serving in the military or naval

134 P.D. 12.

forces of the United States. Section 6 of c. 708 provides that any person
referred to in § 1 who was or shall be separated from the service of the
Commonwealth while holding an office or position not subject to G. L.
c. 31 shall, if he so requests in writing to the appointing authority within
one year after the termination of his military or naval service, be rein-
stated or re-employed in said office or position. I understand that Mr.
Rhodes was not under civil service.

Section 1 of c. 708 provides that under the circumstances therein stated,
persons who have left their position in the service of the Commonwealth
for the purpose of serving in the military or naval forces of the United
States shall be deemed to be on leave of absence until the expiration of
one year from the termination of said mihtary or naval service.

Section 2 provides, among other things, that certain persons so entering
the armed forces from the service of the Commonwealth shall upon request
be reinstated. It also provides for the filling temporarily of the positions
vacated by reason of such entry into the armed forces. Section 2 goes on
to say that:

''All appointments, transfers and promotions made on account of such
leaves of absence shall be temporary only and the person so appointed,
transferred or promoted shall be known as a military substitute; . . ."

A reading of §§ 1, 2 and 6, leads me to the conclusion that the tenure of
a non-civil service military substitute terminated upon the return to his
position of the permanent employee, and the Belchertown State School
was under no obligation to reinstate ]\Tr. Rhodes since the position he
sought had already been filled by the return of the permanent occupant
of the same position from the armed forces.

The legislation above referred to has been covered in various statutes
subsequently enacted. General Laws, c. 32, § 4 (1) (h), in the third sub-
paragraph, inserted by St. 1960, c. 619, reads as follows:

"Any member who served in the armed forces between January first,
nineteen hundred and forty and July first, nineteen hundred and sixty-
two, shall have such actual service credited to him as creditable service
when reinstated or re-emploj^ed in his former position or in a similar po-
sition within two years of his discharge or release from such service. The
provisions of sections nine and nine A of chapter seven hundred and eight
of the acts of nineteen hundred and forty -one, as amended, and as may be
further amended, shall be applicable to any such veteran referred to
therein."

The General Court apparently exercised much care in an endeavor to
protect the rights of public employees for service in the Armed Forces. It
seems clear, however, from a reading of the subparagraph, that credit for
actual service could be had onlj^ when the member was reinstated or re-
employed in his former position or in a similar position within two years
of his discharge or release from such service. I am advised that Mr.
Rhodes was not reinstated or re-emiployed in his former position or in a
similar position within that period but went into private employment and
subsequently returned to employment in the Commonwealth. If there is
any difference between the provisions of St. 1941, c. 708, and the above
subparagraph, it is my opinion that the latter, being the last word on the
subject, will control.

P.D. 12. 135

As the court said in the case of McDonald v. Superior Court, 299 Mass.
321 at page 324:

"That problem was State-wide. There was importance in uniformity
in the law to govern the administration of the subject. A statute of that
nature displays on its face an intent to supersede local and special laws
and to repeal inconsistent special statutes."

Section 3 of St. 1960, c. 619, also covers the subject of credit for wartime
service as applied to veteran retirements by inserting a new § 58A into
G. L. c. 32.

In the light of the foregoing, I am constrained to answer your question
in the negative.

Very truly yours,

Edward J. McCormack, Jr.. Attorney General,

By Frt-.d W. Fisher,

Assistant Attorney General.

The State Department of Public Works may participate in, and contribute to,
the cost of a study of highway needs although a private agency is also
participating.

May 24, 1961.
Mr. George C. Toumpouras, Associate Commissioner of Public Works.

Dear Sir: — In your letter of recent date you have requested an opinion
in regard to the participation of the Department of Public Works in the
cost of a study called the North Terminal Study.

Under G. L. c. 81, § 1, which describes the general duties of the Depart-
ment of Public Works, the department may participate in that part of the
survey which pertains to highways. Section 1 of said c. 81 states in part:

"The department of public works . . . shall compile statistics relative
to the public vv^ays of counties, cities and towns, and make such investiga-
tions relative thereto as it considers expedient. ..."

In the opinion of this office, the fact that although a private agency is
involved and benefits from the study, such benefit is merely incidental to
the main purpose of the study, which is to benefit the general public.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By William D. Quigley,

Assistant Attorney General.

13C P.D. 12.

The rules and reg\dations authorized by G. L. c. 25, § 12H, as to gas fittings,
in view of G. L. c. L'fS, § 2A, apply to State-owned buildings other than
the State House.

May 24, 1961.

Mr. Stanley W. Ellis, Chairman, Board Administering Gas Code.

Dear Sir: — In your recent letter you request an opinion relative to
the scope of the various sections of St. 1960, c. 737 concerning the rules and
regulations therein referred to covering gas fittings in the Commonwealth.
I assume that you have been designated by the chairman of your commis-
sion as the representative from your department on the board referred to
in G. L. c. 25, § 12H. You inquire whether the provisions of law referred
to in c. 737 apply to State-owned buildings.

Section 1 of C 737 amends G. L. c. 25, relating to the Department of Pub-
lic Utilities, by adding after § 12G thereof, a § 12H which creates in the
Department of Public Utilities a board consisting of the chairman of the
commission, the Commissioner of Public Safety and Commissioner of
Public Health or representatives of their departments designated by them,
which shall make, and may alter, amend and repeal rules and regulations
relative to gas fittings in buildings throughout the Commonwealth, which
rules and regulations . . . are designed to prevent fire, explosion, injury
and death. Section 12H also provides any person aggrieved by a ruling
interpreting the rules and regulations made under the provisions of § 12H
with a right of appeal to your board subject to the provisions of G. L. c. 30A.

Section 2 of c. 737 amends G. L. c. 143 concerning the inspection and
regulation of buildings, by inserting after § 3L a § 3N (prohibiting persons
engaging in gas fitting except under stated conditions, and providing a
penalty for violation of any rule or regulation issued under § 12H of c. 25),
and a § 30 requiring each city and town to provide for the appointment
of an inspector of gas piping and gas appliances whose duties shall be the
enforcement of the rules and regulations adopted by the board under § 12H.

Section 3 provides that the existing local oliicials in charge of inspecting
gas appliances and piping shall continue and be designated as inspectors
as provided in § 30.

Section 4 provides that all by-laws and ordinances of cities and towns
relating to gas fittings within buildings are hereby annulled.

"There is a well-settled presumption of law that such an exercise of the
police power by the Legislature does not apply to property of the Common-
wealth, unless the Legislature has clearly manifested an intent that it
should do so." Attorney General's Report, 1941, p. 118 (hot water tank
requirements). "It is a general principle of law that statutes are not to be
interpreted as imposing burdens on the sovereign, the Commonwealth,
unless a clear legislative intent that they shou'd do so is apparent," ibid.
1942, p. 88 (land takings by county commissioners). See also I Op. Atty.
Gen. 290, 2!)7 (local board of health cannot regulate plumbing and drainage
facilities within State Reformatory) ; II ibid. 50 (Metropolitan I'ark Com-
mission need not obtain local building permit); II ibid. 300 (Boston build-
ing commissioner has no jurisdiction over State House elevators) ; IV ibid.
537 (no local amusement license necessary for entertainment in armorjO ;
Attorney General's Report, 1!)32, p. 86 (no local plumbing and wiring
licenses required for State-owned buildings); ibid. 1933, p. 38 (no license
required for inmate of State prison colony assigned to operation of steam

P.D. 12. 137

shovel); ibid. 1933, p. 47 (no local amusement license necessary for enter-
tainment in armory); ibid. 1933, p. 65 (no approval by county commis-
sioners required for construction of a dam in a State forest) ; ibid. 1 934,
p. 75 (plumbing at Reformatory for Women not subject to local inspection) ;
ibid. 1935, p. 38 (State-owned buildings not subject to general laws relating
to the licensing of plumbers); ibid. 1939, p. 42 (national guard need not
obtain local permit to maintain fires on State land used for military pur-
poses).

Despite, however, the foregoing, it is my opinion that the legislation you
have referred to, subject to its express provisions, applies to State-owned
as well as municipal buildings. The fact that the (5^eneral Court has ex-
pressly provided in § 12H of c. 25, as inserted by St. 1960, c. 737, § 1,
that the rules and regulations referred to therein are designed for the pur-
pose of preventing ". . . fire, explosion, injury and death . . .", is an
indication of such an intent. Obviously protection of the public from
injury and death would seem to be equally important in public as well as
private buildings.

IVtoreover, G. L. c. 143, relating to the inspection and regulation of
buildings, is inextricably intertwined with the objects sought to be at-
tained by c. 737. Indeed, § 2A of c. 143 specifically provides, in so many
words, that the provisions of c. 143, which naturally includes the new §§ N
and O, inserted by c. 737, shall apply to buildings and structures other than
the State House owned or controlled by the Commonwealth or depart-
ment, board or commission thereof, or by any of its political subdivisions,
in the same manner and to the same extent as such provisions apply to
privately owned or controlled buildings used or maintained for similar
purposes.

Very truly yours,

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

By Fred W. Fisher,

Assistant Attorney General.

The conduct of certain entertainments, on holidays on which the Sunday laws
apply, requires the approval of the Commissioner of Public Safety as well
as thai of the local authorities.

INTay 25, 1961.

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

Dear Sir: — Your recent letter relates to the provisions of G. L. c. 136,
§ 37. In it you refer to the provisions of the third paragraph of § 37. which
was inserted by St. 1960. c. 812, and pose the following question:

"Do the provisions of the third paragraph of c. 136, § 37, inserted by
St. 1960, c. 812, require the approval of the Commissioner of Public Safety,
of licenses granted by local liceiising authorities, in accordance with §§4
and 4A of G. L. c. 136, for the three legal holidays named: May thirtieth,
November eleventh and Christmas Day?"

Sections 4 and 4A of G. L. c. 136 provide, as 3'ou are aware, for the issu-
ance of licenses for public entertainments on the Lord's day and the main-
tenance and operation of enterprises at amusement parks, beaches or
resorts on the Lord's day. Without setting forth §§4 and 4A in full, they

138 P.D. 12.

provide for the issuances of licenses for entertainments and certain enter-
prises at amusement parks, beaches or resorts on the Lord's day and, in
addition, provide that such Ueenses shall not have effect until the proposed
entertainments and enterprises shall have been approved in writing by the
Commissioner of Public Safety.

The third paragraph of § 37 inserted by St. 1960, c. 812, § 3, to which
you refer, reads as follows:

"Any entertainment, amusement or enterprise mentioned in sections
four, four A and four B may be conducted or operated on any such legal
holiday, provided, however, that the provisions for licensing and the hours
of operation as contained in said sections shall apply on May thirtieth,
November eleventh and Christmas Day."

You will note from a reading of this paragraph that the entertainments,
amusements or enterprises mentioned in §§ 4, 4A and 4B, may be con-
ducted or operated on any legal holiday 'provided, however, that the provi-
sions for licensiiig and the hours of operation as contained in said sections
shall apply on May 30th, November 11th and Christmas Day.

Inasmuch as one of the important provisions for licenses requires the
approval of the proposed entertainment or enterprise by the Commissioner
of PubUc Safety, I answer your question in the affirmative.

You are doubtless familiar with the opinions of the Attorney General,
one dated August 22, 1955, found in Attorney General's Report, 195G,
p. 32, and the second dated June 27, 1956, ibid. p. 94.

You also doubtless have in mind the decision of the Federal court in
Crown Kosher Super Market of Mass. Inc. v. Gallagher (D. C. 1959), 176
F. Supp. 466, which is now before the Supreme Court of the United States
awaiting adjudication. (Reversed sub. nom. Gallagher v. Crown Kosher
Market, 366 U. S. 617, decided May 29, 1961.)
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

A contract of the Metropolitan District Commission for the construction of a
public work is not terminated by the contractor^ s acceptance of the final
estimate; termination would occur only upon acceptance of the final pay-
ment.

June 8, 1961.

Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.

Dear Sir: — You have requested advice as to whether the acceptance
of the final estimate by a contractor who refuses to accept the reserve be-
cause a claim for further payment under the contract is pending terminates
the contract under Article 26 of the contract.

From an examination of the question and Article 26 of the contract, we
feel that the contract has not been terminated by the contractor's accept-
ance of the final estimate. Under said Article 26, acceptance oi fmal pay-
ment by the contractor would terminate the contract and extinguish any
rights the contractor may have under said contract. According to the

P.D. 12. 139

facts supplied us. the contractor has accepted the final estimate but not
the last payment. If acceptance of the final estimate terminated the con-
tract, the contractor would have to reserve his rights in some way against
the Commonwealth.

Basing our opinion on the foregoing, we feel that the contract would not
be terminated by the contractor's acceptance of the final estimate.
Very truly yours,

Edward J. JMcCgrmack, Jr., Attor7iey General,

By William D. Quigley,

Assistant Attorney General.

Military service during "grandfather" period for registration as professional
engineer without exaynination does not extend the closing date for appli-
cation.

June 8, 1961.

Mrs. Helen C. Sullivan, Director of Registration.

Dear Madam: — In a recent letter you state that on November 15,
1960, the Board of Registration received an application for registration as
a professional engineer under St. 1958, c. 584, § 11, of a person who w^as on
active duty with the United States Army on January 1, 1959, when § 11
expired, and the apphcant was unaware of the enactment of the mandatory
registration law.

You then pose the following question :

"Can the Board consider this application under St. 1958, c. 584, § 11?"

Section 11 of c. 584 of the Acts of 1958 affects G. L. c. 1 12, § 81, and pro-
vides in the first paragraph :

"At any time within one year after June first, nineteen hundred and
fifty-eight, upon due application therefor and the payment of the regis-
tration fee . . . the board of registration of professional engineers and of
land surveyors shall issue a certificate of registration, without oral or writ-
ten examination, to any professional engineer . . . who shall submit evi-
dence under oath satisfactory to said board that he is of good character,
has been a resident of the commonwealth for at least one year imniediately
preceding the date of his application, and was practicing engineering . . .
on June first, nineteen hundred and fifty-eight, and in the case of a pro-
fessional engineer, has performed work of a character satisfactory to the
board."

This is recent legislation. The deadline is clear and unambiguous —
"one year after June first, nineteen hundred and fifty-eight."

Accordingly, it is my opinion that this application cannot properly be
granted.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

140 P.D. 12.

A change order within the scope of a contract for the construction of a State
building may be approved by the Director of Building Construction under
G. L. c. 7, § 30E.

June 8, 1961.

Mr. Hall Nichols, Director of Building Construction.

Dear Sir: — By your letter of May 19, 1961, you have requested an
opinion as to whether a change order described in your letter of r^lay 3,
1961, to a general contractor is in violation of any statute.

It has been contended that the decision in the case of Grande & Son,
Inc. V. School Housing Committee of North Reading, 334 Mass. 252, is au-
thority for the proposition that the proposed change order would violate
G. L. c. 149, § 44A. The Grande case stands for the proposition that the
awarding authority was required to reject a general bid which included a
subcontractor's bid for the application of acoustical tile in a manner con-
trary to the mode of application prescribed by the specifications because
the general contractor's bid was not for the complete work as specified.
The Grande case is to be distinguished from the problem before us as it does
not deal in any way with the validity of a change order subsequent to the
valid award of the general contract.

On the facts indicated in your letter, the contract was validly awarded
to the general contractor on February 26, 1960. The power to approve a
change order at this time is found in G. L. c. 7, § 30E. It provides:

"A request for any change in the plans, specifications or contracts for
any project may be initiated by . . . any contractor or subcontractor
working on the project . . . ."

The statute then prescribes the procedure for submitting requests for
change orders and provides for approval or disapproval by the Director
of the Division of Building Construction.

In addition to the statutory powder of the Director of Building Construc-
tion to approve such change orders, Article 16 of the contract reserves the
right in the Director of Building Construction to make or approve changes
in the plans, specifications and the contract at any time before, during or
after the commencement of the project work.

If you find as a fact that the work called for by the change order is
within the scope of the contract and necessary to properly complete the
contract, then, in my opinion, you may accept and approve a change order.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By John J. Grigalus,

Assistant Attorney General.

P.D. 12. 141

The Slate Board for Vocational Education has authority to administer Federal
grants for vocational training to relieve unemployment.

June 8, 1961.

Hon. Owen B. Kieenan, Commissioner of Education.

Dear Sir: — Your letter of recent date relates to Public Law 87-27, es-
tablishing a program to alleviate the conditions of substantial and per-
sistent unemployment and underemployment in certain economically
distressed areas.

In it you pose the following question:

"Does the State Board for Vocational Education have the authority,
under State law, to administer funds to be made available under section 16
of Public Law 87-27, effective May 1, 1961?"

In your letter you state that § 16 of this act places the responsibility for
providing training under this section with the State and local vocational
agencies. It also provides that the United States Secretary of Health,
Education and W^elfare shall provide assistance, including financial assist-
ance when necessary, to the appropriate State vocational agency (in Mas-
sachusetts, the State Board for Vocational Education).

You further state that it is expected that the operation of receiving these
funds will be much the same as under the Smith-Hughes and George-Barden
Acts, except that funds will be certified to States on the basis of projects
submitted.

Supplementing your letter, we have received a letter from the Director
of the Division of Vocational Education in your department, relative to
this subject matter, in which he states as follows:

"Mr. Ward Beard, Assistant Commissioner of Vocational Education in
the U. S. oflice of Health, Education and Welfare, who is in charge of all
the financial aspects of federal money for Vocational Education, informed
me that the money which will come into the states under the provision of
P. L. 87-27 will be considered to be in the same category as are all federal
monies which now come into the states under the provisions of the Smith-
Hughes and George-Barden Acts, except that no matching funds of state
and local money will be required in order to expend this 87-27 money.

Since 1917, Massachusetts has been receiving federal funds for Vocational
Education. These funds, once they have come into the State Treasury,
have been expended by the State Board for Vocational Education as pro-
vided in the law. Through the years, we, in Vocational Education, have
believed that Massachusetts legislation, as expressed in c. 15, § 6A, has
allowed Massachusetts to participate in all Vocational Education programs
for which federal money has been appropriated. We believe, and so does
the Federal Office of Vocational Education, that this section wherein it is
stated 'acts in amendment thereof and in addition thereto' relating to
Vocational Education has been broad enough to allow Massachusetts to
accept federal monies.

Public Law 87-27, Section 16, has been declared by the Federal Office as
being 'in addition to' the original federal law for Vocational Education.
The money under this law will come into the state to be used for training

142 P.D. 12.

and re-training workers in the fields of agricultural and trade and indus-
trial education."

General Laws, c. 15, § GA, provides for the organization of the State
Board for Vocational Education. Among other things, it provides that
the board shall co-operate with the ofhce of education. Federal Security
Agency, or its successors,

". . . in the administration of the act of congress approved February
twenty-third, nineteen hundred and seventeen, and any acts in amendment
thereof and in addition thereto, relating to vocational education in agricul-
ture, distributive occupations, household arts and trades and industries,
and secure for the commonwealth the benefits thereof and shall perform
such other duties as may be imposed upon it by law. ..." (Emphasis
added.)

The functions of the Federal Security Agency have been transferred to the
Department of Health, Education and Welfare.
General Laws, c. 74, § 20, provides as follows:

"The state treasurer shall be custodian of funds allotted to the common-
wealth from appropriations made under the acts of congress mentioned in
section six A of chapter fifteen. The funds so allotted from appropriations
under the act of congress mentioned in said section six A shall be expended,
without specific appropriation, under the order or the approval of the state
board for vocational education." (Emphasis added.)

Sections 21 and 22 of c. 74, provide for the use by the State Board for
Vocational Education of the funds received under the said acts of Congress
mentioned in § 6A of c. 15.

Reading the provisions of the sections I have referred to together, in the
hght of the uniform established practice over a long period of years of the
Federal authorities in control of the expenditure of funds for the purposes
referred to, I answer your question in the aifirmative.

It is a well-established principle of statutory construction in this Com-
monwealth that established uniform departmental practices of public of-
ficials are persuasive and sometimes compelling reasons controlling statu-
tory enactments. General Laws, c. 15, § 6A, dealing with the powers of
the State Board for Vocational Education, contains the statement that it

"shall co-operate . . .in the administration of the act of congress approved
February twenty-third, nineteen hundred and seventeen, and any acts in
amendment thereof and in addition thereto, relating to vocational education
in agriculture . . . and secure for the commonwealth the benefits thereof
and shall perform such other duties as may be imposed upon it by law."
(Emphasis added.)

General Laws, c. 74, § 20, provides that the State Treasurer shall be the
custodian of funds allotted to the Commonwealth

"from appropriations made under the acts of congress mentioned in sec-
tion six A of chapter fifteen. The funds so allotted from appropriations
under the act of congress mentioned in said section six A shall be expended,
without specific appropriation, under the order or the approval of the state
board for vocational education."

P.D. 12. 143

Sections 21 and 22 authorize the State Board for Vocational Education
to use the funds received "under said acts of congress mentioned in sec-
tion six A of chapter fifteen."

I construe the language of § 6A, in the light of the Federal practice you
have referred to, as justifying, if indeed not compelling, the answer which
I have already given you.

Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By Fred W. Fisher,

Assistant Attorney General.

The State Treasurer must borrow the funds for the purchase of tax title notes
under St. 1933, c. 1^9, as amended, and may borrow on noi^s, and -pur-
chase notes, payable within the maiurilAes fixed, in the 1967 amendment,
which was evaci^d by the two-thirds vote required in Article LXII of the
Amendments to the Constitut/'on; but may not borrow on, or purchase
notes, maturing thereafter, since the later amendments, fixing later dates,
were not enacted by the required vote.

June 23, 1961.

Hon. John T. Driscoll, Treasurer and Receiver General.

Dear Sir: — You have requested an opinion as to your authority,
under the provisions of St. 1933, c. 41^', as amended by St. 1957, c. 209, and
St. 1959, c. 387, to purchase a $300,000 tax title note of the city of Somer-
ville, approved by the Emergency Finance Board under the act cited.

Section 2 of said St. 1933, c. 49, as amended, with the dates hereinafter
referred to deleted, reads in part as follows:

"The treasurer of any city or town, if authorized by a two-thirds vote,
as defined by section one of chapter forty-four of the General Laws, and
with the approval of the m.ayor or the selectmen, may, on behalf of such
city or town, petition the board to approve of its borrowing money from
the commonwealth for ordinary maintenance expenses and revenue loans,
and the board may, if in its judgment the financial affairs of such city or
town warrant, grant its approval to the borrowing as aforesaid of specified
sums not at any time exceeding, in the aggregate, the total amount repre-
sented b}^ tax titles taken or purchased by such city or town and held by it ;
provided, that such borrowing is made at any time or times prior to . . .
In case of such approval, the treasurer of such city or town shall, without
further vote, issue notes, with interest at such rate as may be fixed by the
treasurer with the approval of the board, in the amount approved by the
board, for purposes of sale to the commonwealth only, and said notes, upon
their tender to the state treasurer, shall forthwith be purchased by the
commonwealth at the face value thereof. Such notes shall be payable in
not more than one year, and may be renewed from time to time, if author-
ized by the board, but no renewal note shall be for a period of more than
oneyear, and the maturity of any loan or renewal shall not be later than. . . .

144 P.D. 12.

Such notes shall be general obligations of the city or town issuing the same,
notwithstanding the foregoing provisions. Indebtedness incurred by a city
or town under authority of tliis act shall be outside its limit of indebted-
ness as fixed by chapter forty-four of the General Laws. The excess, if any,
of the amount of interest payments received by the commonwealth on
account of notes issued by cities and towns hereunder over the cost to the
commonwealth for interest on money borrowed under section five, expenses
of the board, including compensation paid to its appointive members, and
expenses of administration of the funds provided by sections three and five
shall be distributed to such cities and towns ..." (Emphasis added.)

Section 3 of said c. 49, contains the following provisions:

"Until payment to the commonwealth of all principal and interest on
account of any notes issued by a city or town hereunder and held by the
commonwealth, all amounts received during any month by such city or
town from the redemption or sale of land purchased or taken by it for
non-payment of taxes, or from the assignment of any tax title held by it,
shall, at the end of such month, be paid over to the state treasurer who
shall receive and forthwith apply the same toward the payment of any
note or notes issued hereunder by such city or town and then held by the
commonwealth, and thereafter interest shall be payable only on the balance
of such note or notes remaining unpaid."

Section 4 of the chapter makes provision for assessments on the city or
town in the event that it fails to make any payment of principal and inter-
est when due.

Section 5 of said St. 1933, c. 49, with the date hereinafter referred to
deleted, reads as follows:

"The state treasurer, with the approval of the governor and council,
may borrow from time to time, on the credit of the commonwealth, such
sums as may be necessary to provide funds for loans to municipalities as
aforesaid, and may issue and renew notes of the commonwealth therefor,
bearing interest payable at such times and at such rate as shall be fixed
by the state treasurer, with the approval of the governor and council;
provided, that the total indebtedness of the commonwealth under this
section, outstanding at any one time, shall not exceed ten million dollars.
Such notes shall be issued for such maximum term of years as the governor
may recommend to the general court in accordance with section 3 of
Article LXII of the Amendments to the Constitution of the Common-
wealth, but such notes, whether original or renewal, shall be payable not
later than . . . All notes issued under this section shall be signed by the
state treasurer, approved by the governor and countersigned by the
comptroller." (Emphasis added.)

The powers of cities and towns to borrow from the Commonwealth on
notes approved by the Emergency Finance Board under St. 1933, c. 49,
§ 2, were extended by St. 1959, c. 387, until July 1, 1961, the notes which
are to be issued being required to be payable in not less than one year,
and to mature not later than July 1, 19f)2.

Acts of 1933, c. 49, § 5, authorizing the State Treasurer to borrow on the
credit of the Commonwealth such sums as may be necessary to provide
funds for loans to municipalities under the act, and to issue notes therefor
for such terms of years as the Governor may recommend to the General

P.D. 12. 145

Court, was amended by St. 1959, c. 387, to provide that notes should be
payable not later than June 30, 1962. As most recently amended prior to
the enactment of said c. 387, said St. 1933, c. 49, § 5, had been amended
by St. 1957, c. 209, to provide that the notes or renewals thereof, issued
by the State Treasurer, under the section, should mature not later than
June 30, 1962.

You state that the 1957 amendment to St. 1933, c. 49, § 5, was enacted
by a vote taken by the yeas and nays of two-thirds of each house of the
General Court as required by Article LXII of the Amendments to the
Constitution of the Commonwealth, but that the amendment to said St.
1933, c. 49, § 5, by St. 1959, c. 387, was not enacted by such a vote. In-
asmuch as the provisions of said § 5 contemplate that the notes to be issued
thereunder may be issued for terms of more than one year, the provision
of § 2 of Article LXII of the Amendments to the Constitution permitting
borrowings without a two-thirds vote taken by the yeas and nays, in an-
ticipation of receipts from taxes or other sources, "such loan to be repaid
out of the revenue in which it is created," would not be applicable to
such notes.

It also appears that St. 1P57, c. 770, provided that the notes issued bv the
State Treasurer under St. 1933, c. 49, § 5, as amended by St. 1957, c.'209,
could be issued, and renewed one or more times, for terms not exceeding
one year, the final maturities to be not later than June 30, 1962, but that
no act was passed in 1959, as to the terms of the notes authorized to be
issued bv the State Treasurer by St. 1 933, c. 49, § 5, as amended by St. 1959,
c. 387. '

Section 1 of St. 1957, c. 770, reads as follows:

"Notwithstanding any provision of law to the contrary, the notes which
the state treasurer is authorized to issue under section five of chapter forty-
nine of the acts of nineteen hundred and thirty-three, as most recently
amended by section two of chapter two hundred and nine of the acts of the
current year, further extending the opportunity to cities and towns to
borrow under the act creating the emergency finance board, shall be issued
and may be renewed one or more times for terms not exceeding one year,
and the final maturities of such notes, whether original or renewal, shall
be not later than June thirtieth, nineteen hundred and sixty-two, as recom-
mended by the governor in a message to the general court, dated Sep-
tember twenty-first, nineteen hundred and fifty-seven, in pursuance of
section 3 of Article LXII of the amendments to the constitution of the
commonwealth."

You inform me that no notes issued under St. 1933, c. 49, § 5, as amended,
are presently outstanding.

You have asked the following questions :

"1. From the above facts, can I as Treasurer purchase the tax title
note of the City of Somerville for $300,000 and advance the city said sum
from the Treasury of the Commonwealth?

2. Is it necessary for me as Treasurer to follow c. 387, § 2, as amended,
to borrow on notes of the Commonwealth from purchasers of our notes,
such as banks or other such purchasers?"

I advise you in answer to your questions that the provisions of St. 1933,
c. 49, must be read as a whole, and so read, it is my opinion that you are

146 P.D. 12.

restricted under the act in purchasing city and town notes to the use of
funds which you have in turn borrowed on the credit of the Commonwealth.

It is also my opinion that the provisions of St. 1959, c. 387, are divisible
and that the amendment to St. 1933, c. 49, § 2, enacted by § 1 of the 1959
act, which amendment did not require a two-thirds vote by the yeas and
nays, is effective even though the amendment to St. 1933, c. 49, § 5, en-
acted by § 2 of the 1959 act required a two-thirds vote by the yeas and
nays. Consequently, as amended by the 1959 act, St. 1949, c. 33, § 2,
authorizes cities and towns to borrow at any time prior to July 1, 1961,
and to issue notes therefor maturing not later than July 1, 1962.

Under St. 1933, c. 49, § 5, as amended by St. 1957, c. 209, § 2, and the
provisions of St. 1957, c. 770, § 1, the State Treasurer is authorized to issue
notes under said St. 1933, c. 49, § 5, for terms not exceeding one year, the
final maturities to be not later than June 30, 1962.

It is my opinion, therefore, although the question is a difhcult one and
there are strong reasons for a contrary conclusion, that despite the failure
of the Legislature to enact the 1959 amendment to St. 1933, c. 49, § 5, by
a two-thirds vote by the yeas and nays, and the failure to provide for
legislation in that year fixing the terms of the notes authorized, a city or
town has the authority, at any time prior to July 1, 1961, to obtain the
approval of the Emergency Finance Board to its borrowing, and to bor-
row, from the Commonwealth, on notes payable in not more than one year
and finally maturing not later than June 30, 1962, and that the State
Treasurer to obtain funds to make the loan to the city or town may issue
notes under St. 1957, c. 770, § 1, for terms not exceeding one year, the final
maturities to be not later than June 30, 1962.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

The manufacture, etc., of a food product made to resemble, and to he marketed
as a substitute for, a food for which a standard has been established by
law, is prohibited by G. L. c. dJ^, § 187.

June 27, 1961.

Alfred L. Frechette, M.D., Commissioner of Public Health.

Dear Sir: — You have requested my opinion as to whether a food
product made to resemble, and to be marketed as a substitute for, cream,
which product does not satisfy the requirements set forth in G. L. c. 94,
§ 12, for cream, may be manufactured and/or sold in Massachusetts.

General Laws, c. 94, § 187, states one of the circumstances in which food
shall be deemed to be misbranded, as follows:

"First, if it is in imitation or semblance of any other food; provided,
that this paragraph shall not apply to an imitation of a food for which a
standard of quality or identity has been adopted under the provisions of
section one hundred and ninety-two, nor to an imitation of any other food
for which no standard has been established by law or regulation, if its
label bears in type of uniform size and prominence, the word 'imitation',

P.D. 12. 147

and, immediately thereafter the name of the food imitated; and, provided
further, that this paragraph shall not be construed to permit the imitation of
any food for which a standard has been established by law, other than as
specifically provided herein." (Emphasis added.)

General Laws, e. 94, § 192, referred to in the portion of § 187, quoted
above, provides, in part, as follows :

"The department of public health . . . except as to standards fixed by
law, may adopt standards, tolerances and definitions of purity or quality
or identity. Such standards, tolerances and definitions shall conform to
the standards, tolerances and definitions, if any, of purity or quality or
identity adopted or that may hereafter be adopted for the enforcement of
the Federal Food, Drug and Cosmetic Act, approved June twenty-fifth,
nineteen hundred and thirty -eight (Title 21, USC 301 et seq., 52 Stat.
1040 et seq.), or now or hereafter adopted for the enforcement of federal
law." (Emphasis added.)

General Laws, c. 94, § 190, penalizes one who manufactures an article
of food which is misbranded within the meaning of § 187; and § 191 penal-
izes one who delivers or offers to deliver a misbranded article of food.

The closing words of the paragraph of c. 94, § 187, quoted above,
specifically provide that it shall not be construed to permit the imitation
of any food for which a standard has been fixed by law, other than as pro-
vided therein. The other provisions of the paragraph refer only to the
conditions under which imitations of foods for which standards have been
set under G. L. c. 94, § 192, or for which no standard has been established
by law or regulation, may be marketed. As stated above, the standard
for cream was established by statute, G. L. c. 94, § 12, and not by the
Department of Public Health acting under the provisions of G. L. c. 94,
§ 192.

Li the case of 62 Cases of Jam v. United States, 340 U. S. 593, Justice
Frankfurter speaking for the court, stated, at page 601 :

"If Congress wishes to say that nothing shall be marketed in likeness to a
food as defined by the Administrator, though it is accurately labeled, entirely
wholesome, and perhaps more within the reach of the meager purse, our
decisions indicate that Congress may well do so." (Emphasis added.)

Upon a consideration of the various statutory provisions above re-
ferred to, it is my opinion that our statutes prohibit the manufacture and
marketing of a food product in the semblance or likeness of, and intended
as a substitute for, a food, such as cream, for which a standard has been
established by statute, and that such a prohibition is, as stated by Judge
Frankfurter, a valid exercise of legislative power.
Very truly yours,

Edward J. McCormack, Jr., Attorney General,

By James J. Kelleher,

Assistant Attorney General.

INDEX TO OPINIONS

PAGE

Accounts, Director of; disposition of fines for violations of motor boat law . 51
Adjutant General; may not permit use of armory for wedding receptions . 47
Administration, Commissioner of:

Bids differing from invitation 40

Approval of charges for care in state mental hospitals of Blue Cross

subscribers 60

Administration and Finance, Commission on:

Expenditure of funds for assistance of Governor-elect prior to certification

of election 76

No appeal to, from decision of Director of Building Construction as to

accpptabiUty of materials 91

Administrative Boards; authority of Aeronautics Commission to swear

witnesses 74

Advances, by the State Treasurer to other officers, deposit .... 55
Aeronautics Commission, Massachusetts:

Provision for approval of contracts of local bodies by, does not give it

right to preselect engineers 75

Authority to swear witnesses 74

Age ; another year of age is attained on first moment of day before birthday 98

Architect. See Contract ^ for construction of state building.

Archives, Chief of Division of; computation of service for tenure of veteran

incumbent 96

Armories ; use of, for wedding receptions may not be permitted ... 47
Bailment; custody of public property by contractor as; duties of contractor 101
Bankruptcy ; re-registration of motor vehicle upon transfer of motor vehicle

to corporation in corporate reorganization by trustee, required . .120

Banks; deposits of State funds, advances 55

Bay State Eaceway. See State Racing Commission.
Betting. See State Racing Commission.
Bid. See Competitive bidding.

Bidding. On State highway construction contracts. See Contracts.
Bids, Bidding. See Lease.

Blue Cross; charges for subscribers who are patients in state mental institu-
tions 60

Borrowing, by Commonwealth; bill authorizing bond issue by University of

Massachusetts Building Association , . . 30

Borrowings, by Commonwealth. See Constitution.
Bridges :

Appropriation for reconstruction of covered bridge on Groton Street,

Pepperell. See Public Works, Department of.
Height over railroad tracks. See Railroad.
"Briggs Law". See Mental Health, Department of.

P.D. 12. 149

Building Construction, Director of Division of:

Decision of, as to acceptability of materials final 91

Acceptance of projects by, despite objections of operating agency . . 67
Approval of change orders, in State building construction contract, by . 140
Buildings, of Massachusetts Correctional Institution housing prisoners . . 50
"Change Order". See Contracts; Building Construction, Director of Divi-
sion of.
Chapel. See Soldiers' Home.

Cities and Towns; collective bargaining with employees. See Labor.
Civil Service. Pardon of felony. See Pohce Officer.
Competitive bidding; bids differing from invitation. See Contracts.
Comptroller. See State Comptroller.
Constitution :
Borrowing by the Commonwealth vote required to authorize . . . 143
Borrowing by Commonwealth — authorization of bond issue by Univer-
sity of Massachusetts Building Association 30

Contracts :

"Extra work order" for work incidental to contract work is valid; bid-
ding not required 29

Bid proposals differing from invitation, effect 40

"Over-run of estimated quantity" under Division of Waterways unit price

contract 41

Unit price stream clearance contract ^ — application of items for "clearing
and grubbing" and "removal of trees", in case of ambiguity — " orer-
runs of estimated quantities" application of G. L. c. 29, § 20A. . . 61
Acceptance of projects by Director of Building Construction despite objec-
tions of operating agency 67

Claim for payment for "extra work" under a State highway construction

contract, determinations required for approval 71

Comptroller not required to hold up payments under State highway con-
struction contract awarded to low bidder whose bid Auditor says was

unbalanced 83

For construction of State building, decision of director of Building Con-
struction final as to acceptability of materials; patented materials may

be called for 91

Contractor for public repair work is under a duty to use reasonable care

to protect public property removed bj^ him, from theft. 101
Vote of MetropoUtan District Commission approving request of abutter
for purchase of easement for driveway not a contract requiring execu-
tion of instruments to convey easement 102

For State highway construction — limitation period for claims under ;
interest on disputed claims, and on claims originating prior to effective
date of new statute, issuance of "extra work order" after extra work

done 124

For construction of public works, termination by acceptance of "final

pat/weni" only, and not of final estimate 138

For construction of State building — "change order" approval by Director
of Building Construction 140

150 P.D. 12.

PAGE

Correction, Department of; application of provisions of G. L. c. 143, § 2A,

to buildings housing prisoners 50

County Fair. See State Racing Commission.

Cream. See Food.

Degrees. See New Bedford Institute of Technology.

Deposits. See Banks.

Director of Building Construction. See Building Construction, Director of . 67

Dog Racing. See State Racing Commission.

Driveway; easement for, vote of Metropolitan District Commission approv-
ing request for purchase of, as contract. See Contracts.

Easement; for driveway, vote of Metropolitan District Commission approv-
ing request for purchase of, as contract. See Contracts.

Education :

Reallocations, under St. 1959, c. 620, § 2, of certain positions in state insti-
tutions of higher education 36

Degrees — See New Bedford Institute of Technology.

Education, Department of:

Provisions as to payment, and reimbursement, by Commonwealth, of
tuition of residents in vocational schools, of other towns, by towns not

maintaining, apphcable to high school graduates 70

"Higher education" within statute providing for scholarship aid to chil-
dren of certain deceased members of the armed forces .... 72

State aid for libraries 104

Reimbursement for transportation of pupils to private high schools outside
the town where pupils are transported to regional high school outside

the town 127

Vocational education, federal grants to relieve unemployment, administra-
tion of, by State Board for Vocational Education 141

When age limit for appointment as vocational teacher attained. See Age.

Election; vote at "next . . . election", for fluoridation of water supply . bl

Emergency Finance Board, tax title loans. See State Treasurer.

Employment Security, Division of. See Government Center Commission.

Engineers. See Professional Engineers.

Entertainments; Hcensing of, on holiday to which Sunday laws are applicable. 137

"Extra Work". See Contracts.

Extra work order, — for work incidental to contract work is valid ; bidding not

required 29

Extra work order. See Contracts.

Federal Grants. See Mental Health, Department of.

For vocational training. See Vocational Education, State Board of.

Fees ; fee for original license as real estate broker or salesman ... 78

Final estimate, under construction contract. See Contracts.

Fines. See motorboat law.

Fluoridation. See Water supply.

Food; manufacture, etc., of product made to resemble, and marketed as a

substitute for a food standardized by law, is prohibited 146

Foxborough, ]3ay State Raceway at. See State Racing Commission.

P.D. 12. 151

PAGB

Gas; rules relative to gas fittings, applicable to State-owned buildings other

than the State House 136

Gas Code. See Gas.

Government Center Commission, powers of, as to

Employment Security Building, under

pending bill 48

PoHtical party membership of

appointees of Governor to 52

Has the authority to fix the salary of

its Secretary 98

Governor :
Act authorizing city or town to bargain collectively wth labor organiza-
tions representing its employees 33

Expenditure of funds for assistance of Governor-elect prior to certification

of election 76

See University of Massachusetts Building Association.
See Government Center Commission.
Group Insurance:

For State employees, not applicable to physician receiving training as a
psychiatrist in a State hospital and paid from Federal Grant, where no

statute authorizes training programs 80

See Insurance ; State Employees Group Insurance Commission.
"Heart Law". See Retirement.
Helicopter. See Public Works, Department of.
Holidays ; approval by Commissioner of Public Safety of entertainments on,

to which Sunday laws are applicable 137

Horse Racing. See State Racing Commission.
Hospital Service Corporation. See Blue Cross.
Insane Persons. See Mental Health, Department of.
Insurance:
Certificate of coverage under compulsory motor vehicle liabiUty insurance

law, placing of on face of apphcation for registration . . . .111
Group fife, etc., contract for State employees — right to return of unused

reserves 112

Insurance, Commissioner of; person designated as personal representative of, on
Board of Appeal on Motor Vehicle LiabiUty PoHcies, does not acquire

tenure rights as veteran 86

Interest. See Contracts.

Judiciary; widow of judge who was a veteran entitled to benefit for veteran's

widow 94

Labor; act authorizing city or town to engage in collective bargaining with

labor organization representing its employees 33

Lease; of space for State office, bidding, procedure for 131

Libraries; State aid for 104

License :

Fee for original license as real estate broker or salesman .... 78
For entertainments on holidays to which Sunday laws are applicable . . 137

152 P.D. 12.

PAGE

Limitations. See Contracts.

Lord's Day. See Sunday.

Massachusetts Aeronautics Commission. See Aeronautics Commission.

Massachusetts, University of. See University of Massachusetts.

Medicine, Board of Registration in; appointee to, did not have quahfications

required by statute 81

Mental Health, Department of :

Liabihty for charges for care of persons committed to state hospitals after

being accused or convicted of crime .43

Psychiatric examinations under the " Briggs Law " 46

Charges for support of patients in mental institutions who are Blue Cross

subscribers 60

Physician receiving training as a psychiatrist in a State hospital paid from
a Federal grant is not an employee of the Commonwealth entitled to
group insurance benefits where no statute authorizes the training pro-
gram 80

Metropolitan District Commission:

Construction contract of, termination by acceptance of final jiayment only,

not of final estimate 138

Vote of, approving request of abutter for purchase of easement for drive-
way as a contract 102

See "Extra Work Order" — Contracts.
See Metropolitan Sewer System.
Metropolitan Sewer System; apportionment by the IVIetropolitan District
Commission of the costs of, made for five years, and cannot reflect

changes made in a capacity of a town's connections 32

Metropolitan Transit Authority; employment by, of retired state employee.

See State Comptroller.
Military substitute; credit toward retirement of military service of. See

Retirement.
Milton. See MetropoHtan Sewer Sj^stem.

Motorboat law ; disposition of fines for violation of 51

Motorboats, Director of Division of; as Division's executive and admin-
istrative head, has the responsibility of operating it 109

Motor Fuels Sales Law; effect of provisions of, as to posting prices, as to

giving trading stamps 116

Motor \^ehicles :
Certificate of insurance, placing on face of application for registration of . Ill
Re-registration of motor vehicle upon transfer of motor vehicle to corpora-
tion in corporate reorganization by trustee, required . . . .120
Motor Vehicles, Registrar of:

No right to rebate fee after suspension or revocation of registration . . 58
Does not have responsibilitj'^ of operating Division of Motorboats . . 109
Nantucket Agricultural Society; application to State Racing -Commission

for license for harness race meeting at Foxborough 121

Necessaries of Life, Division on the. See Motor Fuels Sales Law.

p.D. 12. m

PAGE

New Bedford Institute of Technology ; is authorized to grant Associate

Degrees 106

"Next . . . [municipal] . . . election;" vote for fluoridation of water sup-
ply at . 81

Pardon. See Pohce Officer.

Pari-mutuel betting. See State Racing Commission.

Patented Alaterials; specification of, in contracts for construction of State

buildings not prohibited 91

Pensions. See Retirement.

Pepperell; covered bridge on Groton Street, appropriation to reconstruct.
See Public Works, Department of.

Personnel and Standardization, Director of; has no authority as to the sal-
ary of the Secretary of the Government Center Commission ... 98

Physicians. See Medicine, Board of Registration in.

Pohce; See State Pohce 53

Police Officer; a person convicted of a felony who has received a full pardon

is not within prohibition of appointment of persons so convicted . . 125

Pohtical Party. See Government Center Commission.

Prisoners. See Correction, Department of. See Mental Health, Depart-
ment of.

Professional Engineers and Land Surveyors, Board of Registration of:

Registration without examination of persons holding certain civil service

ratings on December 31, 1958 88

Mihtary service does not extend "grandfather" date for registration with-
out examination 139

Public Health, Department of. See Food.

Pubhc Health; fluoridation of water supply. See Water Supply.

Public Records; records of Department of Pubhc Works as to land damage

cases and land takings 56

Public Safety, Commissioner of; approval by, of entertainments on certain

hohdays required 137

Public Safety, Department of; inspectors in Division of Inspection of, not

State police within G. L. c. 32, § 94 77

Public Utihties, Department of; rules as to gas fittings. See Gas.

Public Welfare; settlement of veteran in receipt of pubhc relief. See Veteran.

Public Works, State Department of :

No authority to rent its helicopter for private use 45

Cannot insure hehcopter being purchased 46

Advances to, by State Treasurer, deposit of 55

Records of, as to land damage cases and land takings, as pubhc records . 56
Claim for payment for "extra work" under a State highway construction

contract determinations required for approval 71

Appropriation to "reconstruct" covered bridge on Groton Street, Pepperell,

limits of expenditure ; participation in study of highway needs. . . 86
Unbalanced bid for State highway construction contract. See State Comp-
troller. Contracts.

154 P.D. 12.

PA.OE

Quorum; of Board of Regional Community Colleges 49

Racing. See State Racing Commission.

Railroad; Massachusetts statute as to height of bridge over tracks in yard,

has no extraterritorial application 90

Real Estate Brokers and Salesmen, Board of Registration of; fee for original

license as real estate broker or salesman 78

Records. See Public Records.

Regional Community Colleges, Board of; quorum 49

Regional High School. See Schools.
Retirement :
Inspectors in Division of Inspection not "State Police" within G. L. c. 32,

§ 94, as to presumption of service-connection of heart condition . . 77
Conditions for re-employment of retired person under St. 1950, c. 639, § 9.

(Civil Defense Law.) 90

Widow of judge who was a veteran entitled to benefit for veteran's widow

under G. L. c. 32, § 58B 94

State employee on leave of absence for employment in war industry entering

military service, credit toward retirement of time in such service . . 107
Prohibition of G. L. c. 32, § 91, of payment of retired public employees for
services in certain public employments, does not deprive him of his re-
tirement allowance 119

No credit for military service of person employed only as a miUtary sub-
stitute not re-emi^loyed because permanent incumbent had returned . 133
Scholarships; for children of certain deceased veterans. See Education,

Department of 72

Schools; transportation of pupils to private high schools outside the town

where pupils are transported to regional high school outside the town . 127
Senate, Committee on Ways and Means. See Government Center Com-
mission.
Settlement; of veteran granted public relief, as to whom notice under G. L.

c. 116, § 2 is not given 84

Soldiers' Home; trustees of, not authorized to lease land at, for a chapel . 129
State Buildings; rules as to gas fittings applicable to, except State House . 136
State Comptroller:

Not required to hold up payments under State highway construction

contract awarded to low bidder whose bid Auditor says was unbalanced S3
Has no duties with reference to employment of a retired State employee

by the Metropohtan Transit Authority 119

Claim for payment for ^^ extra work" under contract for constiiiction. See

Contracts 71

Retirement benefit rights of widow of judge who was a veteran. See

Retirement.
See also "Extra Work Order" — Contracts.
State Employees Group Insurance Commission; contract awarded after
competitive bidding to same insurer, not a renewal, and unused reserves
under earlier contract must be paid over to the Commonwealth and not
credited by insurer to reserves under later 112

P.D. 12. 155

FA.6E

State Finance:
Borrowings by the Commonwealth to purchase tax title notes under St.

1933, c. 49, as amended 143

Borrowing by Commonwealth 30

Deposits of state funds 55

State Highways:

Claim for payment for ^' extra work" under contract for construction. See

Contracts 71

Study of need for, participation in costs of, by State Department of Public

Works 135

Contract bids, for construction of. See Contracts.
State Officers and Employees :
Reallocations, under St. 1959, c. 620, § 2, of certain positions in state in-
stitutions of higher education 36

Pohtical party membership of appointees of Governor 52

Tenure rights of permanent employees in certain positions in institutions

upon promotion 68

Physician receiving training as a psychiatrist in a State hospital paid from a
Federal grant is not an employee of the Commonwealth entitled to group
insurance benefits where no statute authorizes the training program . 80
Conditions for re-employment of retired person under St. 1950, c. 639, § 9.

(Civil Defense Law) 90

Salary of position for which special provision is made, not subject to pay

plan 98

State employee on leave of absence for employment in war industry enter-
ing miUtary service, credit toward retirement of time in such service . 107
Employment of retired State employees by MetropoUtan Transit Au-
thority. See State Comptroller.
Credit toward retirement for military service of mihtary substitute. See
Retirement.
State Police; when to be considered "on duty at night" within G. L. c. 262,

§ 53B as to witness fees 53

State Racing Commission:
Application of Nantucket Agricultural Society for license for harness race

meeting at Bay State Raceway, Foxborough 121

" Twin double " system of wagering 65

Wagering pool on outcome of three or more races 63

State Treasurer:
Tax title loans to cities and towTis under St. 1933, c. 49, as amended . . 143

Deposit of advances made by 55

Statute; as to height of bridge over tracks in railroad yard has no extra-
territorial appfication 90

Stream Clearance; contract as to. See Contracts.

Strike; by pubfic employees. See Labor, collective bargaining.

Sunday; approval by Commissioner of Public Safety of entertainments on

hoUday to which Sunday laws are appUcable 137

156 P.D. 12.

Teacher; when age limit for appointments as vocational teacher attained.

See Age.
Tenure. See Veterans; Insurance, Commissioner of; State officers and

employees.
Theft; of public property in care of contractor. See Contracts.
Trading Stamps; giving of, on sales of motor fuels not prohibited . . .116
University of Massachusetts :

Trustees have no authority to convey land to Roman Catholic Bishop of

Springfield, a corporation sole, for student center and chapel ... 39
Reallocations, under St. 1959, c. 620, § 2 of certain positions in state in-
stitutions of higher education 36

University of Massachusetts Building Association; legislation relating to

bond issues by 30

Veteran :

Settlement of, granted public relief, as to whom notice under G. L. c. 116,

§ 2, is not given 84

Widow of judge who was a veteran entitled to benefit for veteran's widow 94
Prior separate service not to be counted towards three years' service re-
quired to attain tenure rights 96

State employee on leave of absence for employment in war industry enter-
ing military service, credit toward retirement of time in such service . 107
Credit toward retirement for military service of mihtary substitute. See

Retirement.
Tenure rights of person designated by Insurance Commissioner as his per-
sonal representative. See Insurance, Commissioner of .... 86
Scholarship aid to children of certain. See Education, Department of . 72
See Professional Engineers.
Vocational Education, State Board for; has authority to administer Federal

grants for vocational training to relieve unemployment .... 141
Vocational Schools; when age limit for appointments as vocational teacher

attained. See Age. See Education, Department of.
Wagering. See State Racing Commission.

Water Supply; fluoridation, vote for, under G. L. c. 40, § 4lB ... 81
Waterways, Division of. See Contracts.
Wedding Reception. See Armories.
Witness Fee. See State Police.
Witnesses, Swearing of. See Aeronautics Commission.