Public Document No. 12
tlTfje CommonUjealtf) of iWasigacfjusietts;
REPORT
ATTORNEY GENERAL
Year ending June 30, 1962
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Public Document No. 12
3rf)e Commontuealti) of ilflasisiacfjusiettg
REPORT
OF THE
ATTORNEY GENERAL
FOR THE
Year ending June 30, 1962
Publication op this Document Approved by Alfred C. Holland, State Purchasing Agent.
1100-6-63-935807 Estimated Cost Per Copt: $2.3
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€^f)e Commontoealtf) of iWasisiacfjusiettsJ
Boston, January 15, 1963.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith the report of the Department of
the Attorney General for the year ending June 30, 1962.
Respectfully submitted,
EDWARD J. McCORMACK, Jr.
Attorney General
arfje Commontoealtl) of iWas^gacfjusietts;
DEPARTMENT OF THE ATTORNEY GENERAL
Attorney General
EDWARD J. McCORMACK, Jr.
First Assistant Attorney General
Fred Winslow Fisher
Assistant Attorneys General
George W. Arvanitis S. Jason Ginsburg'^
James W. Bailey David S. Hoar
Gerald A. Berlin Bernard I. Kaplan
Lucy Broderick Brady* James J. Kelleher
Anna Chopek^ James F. Linnehan^
John J. Coffey" William F. Long, Jr.
Lawrence E. Cooke ^ William L. jSL\honey
Robert J. DeGiacomo^ Charles H. IVIcCue
Samuel R. DeSimone Pat J. Piscitelli^
Richard T. Dolan Robert M. Ready^
Richard M. DrayI" Theodore R. Stanley
Herbert E. Tucker, Jr.
Assistant Attorney General; Director, Division of Public Charities
Marion R. Fremont-Smith
Assistant Attorney General assigned to the Government Center Commission
Joseph T. Doyle
Assistant Attorneys General assigned to Department of Public Works
Domenico J. Alfano Philip Lemelman^
George Bregianes Joseph F. Lyons
Francis R. Dobrowski^ John Warren McGarry
Ralph Gordon Eugene G. Panarese
Daniel P. Kiley Robert H. Tobin 2,^
Abraham Saxe"
Assistant Attorneys General assigned to Metropolitan District Commission
Daniel W. Carney John J. Grigalus 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
Russell F. Landrigan
Head Administrative Assistant
Edward J. White
1 Terminated, July 31, 1961. ' Terminated, December 15, 1961.
2 Terminated, August 31, 1961. » Appointed, February 12, 1962.
3 Appointed, September 12, 1961. '^ Appointed, February 13, 1962.
4 Terminated, September 30, 1961. " Appointed, May 28, 1962.
5 Appointed, October 2, 1961. "i Appointed, June 4, 1962.
" Appointed October 16, 1961.
P.D. 12.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
for the Period July 1, 1961-June 30, 1962
Appropriations
Attorney General's Salary $ 15,000.00
Administration, Personal Services and Expenses .... 395,319.00
Veterans' Legal Assistance ........ 17,300.00
Claims, Damages by State Owned Cars 90,000.00
Moral Claims 10,000.00
Total $527,679.00
Expenditures
Attorney General's Salary ....
Administration, Personal Services and Expenses
Veterans' Legal Assistance ....
Claims, Damages by State Owned Cars .
Moral Claims ......
Total
$ 15,000.00
392,526.17
17,350.00
90,000.00
10,000.00
$524,876.17
Financial statement verified (under requirements of C. 7, S 19 GL), December 20, 1962.
By
L. A. BURKE,
For the Comptroller.
Approved for publishing.
JOSEPH ALECKS,
Comptroller
P.D. 12.
^rfjE Commanttjealtf) of iWasisiacljusiEttsJ
Department of the Attorney General,
Boston, January 15, 1963.
To the Honorable Senate and House of Representatives.
Pursuant to the provisions of section 11 of chapter 12 of the General
Laws, as amended, I herewith submit my report.
The cases requiring the attention of this department during the fiscal
year ending June 30, 1962, totaling 21,348, are tabulated as follows:
Extradition and interstate rendition ......•• 1^
Land Court petitions ......•••• ^^'
Land damage cases arising from the talking of land:
Department of Public Works 2,383
Metropolitan District Commission ....••• 1°'
Government Center Commission ....•••• ^^
Civil Defense .......•••• ■'•
Department of Mental Health .....••• ■••
Department of Natural Resources ....••• ^°
Department of Public Safety ....•••• ■•■
Lowell Technological Institute ....•••• ^
Massachusetts Maritime Academy ....••• ^
Massachusetts Turnpike Authority ....••• ^
State Reclamation Board ......••• ^
Miscellaneous cases, including suits for the collection of money due the Com-
monwealth 8,678
Estates involving application of funds given to public charities . • 1>596
Settlement cases for support of persons in State institutions .... 1'
Pardons:
Investigations and recommendations in accordance with G. L. c. 127, § 152,
as amended . . . . . . . • ■ • .119
Small claims against the Commonwealth ....••• ^''
Workmen's compensation cases, first reports ...••• OjO'^o
Cases in behalf of Division of Employment Security . . . • • 649
Cases in behalf of Veterans' Division .....••• 1>439
Introduction
In accordance with the provisions of G.L. c. 30, s. 32, that the annual
report of an elected state officer for the fiscal year preceding the termination
of his service as such may cover the period between the end of such fiscal
year and the termination of his services, this report includes material as to
the activities of the various divisions of the department of the Attorney
General for the period referred to, as well as for the preceding fiscal year.
Only those opinions which were rendered during the fiscal year are
included in this report however.
8 P.D. 12.
The demands and activities of the various divisions of the department
continued at the high rate of the previous period. The Criminal Division
of the office appeared before the Grand Jury and obtained indictments
against officials and others connected with the activities of the Massa-
chusetts Parking Authority and the Division of Waterways, and engaged
in other investigations and prosecutions.
The Division of Civil Rights and Liberties kept up the tempo of its
activities for the protection of the rights of our citizens. There are set out
hereafter summaries of some of the activities of the various divisions for
the period covered.
Division of Civil Rights and Liberties
During the period of this report the Division of Civil Rights and Lib-
erties was engaged in the following activities:
1. Rights of Accused.
Distribution of the third edition of the/'If You Are Arrested" pamphlet
was continued in bulk. There is a steady stream of requests for this
publication.
Work was commenced with the State Commission investigating the
need for revision and clarification of the Massachusetts laws and procedures
relating to illegal searches and seizures. In addition, advice and instruction
on this difficult question were provided to a number of law enforcement
officials at their request.
Conferences and negotiations with the police of the City of Boston in
respect to the establishment of a citizen's complaint review board con-
tinued. Efforts, both by legislation and persuasion, to complete the removal
of cages for unbailed criminal defendants in the courts of the Common-
wealth continued but without positive result.
The division participated in the investigation culminating in Grand Jury
proceedings of a prisoner's death in the House of Detention located in
Springfield.
2. Equality of Opportunity.
The division was extensively engaged in the drafting, sponsoring, and
work for the passage of various measures to extend the scope and tighten
the enforcement procedures of the Fair Housing Practices Law.
There was another unsuccessful attempt to outlaw the use of the word
"color" on birth, marriage, and death certificates.
As in the past, the division acted as general counsel for the Massachusetts
Commission Against Discrimination. In this capacity it was engaged in
several cases in which the new law providing for restraining orders against
the sale or rental of a dwelling involved in a discrimination complaint
was invoked.
There were conferences with the Commission Against Discrimination,
followed by several more with the Superintendent of Schools of the City
of Boston, in respect to investigation of the problem of de facto segregation
in the Boston School System.
P.D. 12. 9
The division prepared the brief and argued the case of Massachusetts
Commission Against Discrimination v. Colangelo, et al., 347 Mass. 387,
the first case to reach a state high court involving the constitutionahty of
the Fair Housing Practices Laws as they affect private housing not pubhcly
assisted. The Brandeis-type brief was one of the longest and most extensive
ever filed by a state agency in Massachusetts litigation and attracted a
considerable amount of national attention. The Supreme Judicial Court
upheld the constitutionality of the law. It is generally acknowledged that
this decision will have a profound effect upon a number of other cases
under litigation throughout the country.
3. Due Process in Administrative Agencies.
A two-year project culminated in the Attorney General's Opinion seeking
to furnish an administrative and statutory foundation for fairness, clarity,
simplicity and uniformity in the adjudicatory hearings and regulations of
the 200 agencies of government of the Commonwealth.
4, Freedom of Speech and Assembly.
The previous activities which had been commenced three years earlier
to insure the right of peaceful demonstrations in behalf of or against divers
causes such as sympathy for Southern sit-ins, a self-styled American
Fuehrer, and the like, continued. During the period of this report demon-
strations chiefly involved such issues of peace as the abolition of nuclear
testing, the abolition of the building of fallout shelters, the conduct of
civil defense drills and the like. As in the past, all peaceful demonstrations
were allowed to continue unobstructed, though on occasion not without a
certain amount of preliminary controversy.
The division drafted and filed an amicus curiae brief in the pending
United States Supreme Court case of Gideon v. Cochran, in which it asked
the court to set aside a twenty-year-old ruling that state courts need not
appoint counsel for indigent defendants in non-capital cases unless "special
circumstances" prevail. The Massachusetts brief based its contentions on
the due process and equal protection clauses of the XIV Amendment. It
stated that it was "unthinkable that in the world of today a man may be
condemned to penal servitude for lack of means to supply counsel for his
defense." Twenty-three states joined in the Massachusetts brief, including
Minnesota, Alaska, Colorado, Connecticut, Georgia, Hawaii, Idaho,
Illinois, Iowa, Kentucky, Maine, Michigan, Missouri, Nevada, New Jersey,
Ohio, North Dakota, Oregon, Rhode Island, South Dakota, Washington,
West Virginia.
The interest that this brief attracted was national in scope, resulting in
editorial comment from as far afield as the West Coast, the Deep South,
and the Mid-West. The compilation and drafting of the brief was the
culmination of four years of work of the division in its continuing attempts
to provide counsel for indigent accused.
Several years of attempts to provide public hearings in Boston for
citizens with complaints against the police came to a head in December,
1962, when the first such public hearing was held. Immediately a wide-
spread controversy ensued over procedures used in the conduct of the
hearings, most notable of which was the right of the aggrieved citizen to
10 P.D. 12.
retain counsel of his own choosing. The controversy and accompanying
notoriety served to point up the substantive and procedural difficulties of
insuring that the rights and hberties of both members of the public and of
the police are adequately protected.
Antitrust
Antitrust activity continued to increase. Pre-trial preparation of the
road material cases continued. One of the 18 defendants paid $50,000 in
damages and another paid $8,000 in damages, both by out of court settle-
ment. Negotiations for settlement were conducted with other defendants.
In February, 1962, I filed 17 separate suits in the United States District
Court at Boston for triple damages against 25 electrical equipment manu-
facturers charged with illegally fixingp rices and rigging bids in sales to
cities, towns, municipal lighting plants, the Metropolitan Transit Au-
thority, and the Metropolitan District Commission. These cases were
brought as a follow-up to the Federal Government's criminal prosecution
in Philadelphia and the questionnaires returned by the cities and towns
and other bodies to this office. The cases involved 7 to 10 million dollars
in purchases over the past several years. The suits were filed by the
Attorney General's office under the recent amendment to §10 of c. 12 of the
General Laws, giving the Attorney General the authority to institute and
prosecute such actions on behalf of the political subdivisions of the Com-
monwealth. Preliminary motions and other pre-trial matters in these
cases consumed much time and manpower. Liaison in preparation of the
cases was established with the Massachusetts Association of Municipal
Lighting Plants and the IMetropolitan Transit Authority, both large
volume purchasers of the equipment.
The Department continued its cooperation with the Antitrust Division
of the Department of Justice in its efforts to eliminate price-fixing and
bid-rigging in sales to public bodies. The Assistant Attorneys General
involved and I attended and participated in special conferences in Wash-
ington, D. C. on the electrical cases and the Annual Antitrust and Con-
sumer Protection Conference called by the Department of Justice. In
response to Executive Order No. 10936 by President Kennedy, I called a
conference in December, 1961 of all state, county, and municipal pur-
chasing officials to coordinate our activity in this field with that of the
Federal Government. In addition, I have referred various other indications
of antitrust violations to the Antitrust Division of the Department of
Justice for its attention.
To strengthen the law against collusive bidding, I secured passage of
c. 432 of the Acts of 1961 which provides criminal penalties for collusive
bidding to public bodies.
Antitrust activity remained high to the end of my administration.
Settlement negotiations in the road material cases resulted in the recovery
of an additional $10,000 out of court. Pre-trial preparation against the
remaining defendants and further settlement negotiations continued. In
the electrical cases, court conferences, interrogatories, and other pre-trial
matters continued. A special panel of Federal judges was established to
P.D. 12. 11
coordinate the pre-trial procedures and activity throughout the United
States. An Assistant Attorney General attended a conference in Chicago
of representatives of plaintiffs' counsel, which was called at the suggestion
of this panel.
Activities in Relation to the Commonwealth's Option to
Purchase the Old Colony Line of the New Haven Railroad
On May 10, 1961 the General Court passed c. 452 of Acts of 1961 creating
a South Shore Transportation District which was authorized to purchase
the railroad line known as the Old Colony on which the Commonwealth
has held an option since 1947 and to construct thereon a rapid transit
facility from Brain tree to Boston. Immediately on passage of the act, two
lines of actions were required of the Attorney General: the exercise of the
option in the Federal District Court in New Haven and the defense of the
constitutionality of c. 452 in four separate proceedings in the Supreme
Judicial Court brought by the cities and towns of the area involved, and
by taxpayers in those cities and towns.
1. The need for action in the Federal Court arose from the fact that
earlier attempts by the Commonwealth to exercise the option had not
been recognized by the District Court which had continued its existence
for various periods pending further action by the Commonwealth. There
were indications that the railroad's financial condition was again precarious
and it was feared that an intervening bankruptcy action would cancel the
option rights of the Commonwealth. Accordingly, on June 15, 1961, the
Commonwealth filed a motion for Decree and Order based on the grounds
that the legislation of 1961 constituted an effective execution of the option
and that the railroad held the property in trust free of claims of creditors
or future ties in bankruptcy. Hearings were held in New Haven on the
motion on June 22, 1961.
The Commonwealth submitted a brief, prepared for the Attorney
General by Special Assistant Attorneys General Paul Siskind and Nathan
Paven and Assistant Attorney General Marion Fremont-Smith. On
July 7, 1961, the New Haven Railroad began proceedings in bankruptcy.
On August 23, 1961 a memorandum of Decision was issued on the
Commonwealth's motion which stated in part that "the court concludes
that as of July 7, 1961 the Commonwealth has not exercised the option."
The Attorney General, on receipt of this decision consulted with the
Governor and his Special Assistants, and it was decided to file an appeal
with the Circuit Court of Appeals, which was done on September 19, 1961.
For reasons which will become apparent in the remainder of this report,
this appeal is still pending. Four extensions of time have been granted by
the Court, the most recent of which will remain in effect until March
19, 1963.
2. Simultaneously with the action in the Federal Court, the Attorney
General was called upon to represent the South Shore Transportation
District and the Treasurer and Receiver General of the Commonwealth,
12 P.D. 12.
defendants in four suits challenging the constitutionality of c. 452 of
Acts of 1961.
The first of these, filed July 3, 1961, Town of Weymouth, et al. v. Driscoll,
et al. was a petition for declaratory relief under c. 231 A brought by the
Towns of Weymouth, Braintree and Hingham and the City of Quincy, to
which the Commonwealth filed a Demurrer and Answer which was heard
on July 12th 1961.
The second case, Town of Hingham v. Driscoll, was a procedure for writ
of mandamus, filed July 7, 1961.
The third case, Delia Chiesa v. Driscoll, filed on July 13, 1961, was a
taxpayers' petition brought under c. 29, § 63 of the General Laws for
declaratory relief under G. L. c. 231 A. Petitioner's request for a temporary
preliminary injunction was heard on July 19, 1961 at the Single Justice
Session and denied by Judge Spiegel who ordered completion of pleadings.
The Attorney General filed an answer, plea in abatement and demurrer.
The fourth case, Clapp v. Driscoll, filed August 11, 1961, was a petition
for Writ of Mandamus filed by 1126 Citizens of the Town of Hingham.
The Attorney General's IMotion to Strike, Demurrer and Answer were
heard before the Single Justice of the Supreme Judicial Court on August
23, 1961.
After conference with Justice Spiegel, it was agreed by the parties to all
four actions that the taxpayers' case, Delia Chiesa v. Driscoll, be reserved
and reported to the full court for a decision on the merits of the constitu-
tional issues raised therein, which was done on October 5, 1961.
The Assistant Attorneys General immediately undertook the research
necessary for the respondent's brief. In the course of their study, they
became aware of substantial and grave defects in certain sections of c. 452,
not specifically under attack in the case before the Supreme Judicial Court,
but essential to the operation of the statute and sufficiently substantive as
to raise the possibility that the act would be void for indefiniteness.
The Attorney General immediately ruled that c. 452 of Acts of 1961
was inoperative and notified the Governor's legal staff and the Treasurer
of the situation and of the advisability of advancing no further funds to the
South Shore Transportation District until these matters were dealt with.
A formal memorandum to the Governor was sent by the Attorney General
on October 28 which outlined in detail his analysis of the statute and the
actions he had taken in connection therewith. The Supreme Judicial Court
was also notified of the situation and a continuance of the case was granted
to May, 1962. Action was taken to postpone the filing of the appeal in the
Cu'cuit Court of Appeals for the Second District, referred to above.
The Governor's office then commenced to draft remedial legislation
which was submitted to the Senate on March 5, 1962.
On Maj^ 10 the Chief Justice of the Supreme Judicial Court informed the
Attorney General's Office that the Court would not hear the case on the
constitutionality of c. 452 until the content of the statute in question
was fixed.
The General Court in 1962 took no action on the Governor's bill cor-
recting c. 452, nor did it pass any other legislation directly relating to the
P.D. 12. 13
South Shore Transportation situation. Accordingly, this case is still
pending before the Supreme Judicial Court. Petitioner's brief has been
filed. The brief for the Commonwealth relatmg only to the issues raised in
the original petition is in rough draft form.
Informal conferences were held by representatives of the Attorney
General and attorneys for the Trustees in Bankruptcy of the New Haven
Railroad during the fall of 1962 regarding the option to purchase the
railroad property. At a formal meeting in December, to which Attorney
General-Elect Brooke was invited, counsel agreed to discuss with the
trustees the possibility of placing the option on an inter-party basis by
establishing a definite option agreement between the trustees and the
Commonwealth, thus removing it from court determination and allowing
the cases in the Federal District Court and the Circuit Court of Appeals
to be terminated. The trustees have this matter under advisement.
Code of Ethics
Chapter 610 of the Acts of 1961 created a Code of Ethics for all govern-
ment employees in the Commonwealth and in § 2 created a Special Com-
mission to make an ''investigation and study of the subject matter of this
act, and all other existing laws related to conflict of interests and ethics in
government, and the need, if any, of further amendments thereto or
consolidation thereof."
The Attorney General was named in this statute as chairman of the
Special Commission, which, in addition, consisted of ten men appointed by
the Governor, five members of the Legislature, and one representative each
from the Boston Bar Association and the Massachusetts Bar Association.
On August 24, 1961, 1 sent to each appointee a letter stating the authority
and objectives of the Commission and convening it for its organizational
meeting, on Wednesday, September 13, 1961. On that date the Commission
convened and took oath of office. It was addressed by the Governor with
respect to the importance of its work and objectives. It adjourned to the
oflace of the x\ttorney General, which was its headquarters throughout its
period of activities. The entire resources of the office of the Attorney
General were placed at the disposal of the Commission.
The full Commission concluded fifteen meetings of substantial length, in
addition to separate investigations and studies conducted by the Attorney
General and by various members of the Commission. Following the third
meeting, a subcommittee on drafting composed of Professor Robert
Braucher of Harvard Law School and Professor Paul M. Siskind of Boston
University Law School was established and to which Mrs. Fremont-Smith
was assigned. This subcommittee met separately followmg each Commis-
sion meeting for the preparation of initial drafts of the proposed legislation
as it was developed in the regular full meetings.
The Commission was supplied with basic reference materials as indicated
in the next section, and was furnished with copies of minutes of each
meeting and proposed drafts of legislation, section by section, as the same
were prepared by the drafting subcommittee. On March 8, 1962, the
14 P.D. 12.
Commission reviewed the completed draft of the proposed legislation, and
ordered final revisions. These revisions were prepared and the final draft
submitted for approval on March 15, 1962. On the same date this report
was approved.
Reference Materials
In the course of its study, the Commission made basic use and employ-
ment of the excellent Report submitted by the Massachusetts Legislative
Research Council relative to conflicts of interest dated May 15, 1961, and
of the sources and materials referred to in that report. It also used as a
basic text the extensive three hundred thirty page bound study entitled
"Conflict of Interest and Federal Service" prepared by a special committee
on the Federal conflict of interest laws by the Association of the Bar of the
City of New York (Cambridge, Harvard University Press, 1960).
As a format and pattern of the proposed legislation, the Committee used
the bill numbered HR 8140, in the Congress of the United States, which
was entitled "An Act to strengthen the criminal laws relating to bribery,
and for other purposes". This Federal bill had passed the House of Repre-
sentatives in 1961 and in 1962 was enacted in modified form in the United
States Congress. Much of the language of the proposed legislation is taken
and adapted from this bill. In connection with that bill, the Commission
also employed the report of the Federal House of Representatives Com-
mittee on the Judiciary which reported it favorably.
The Commission also utilized independent studies and reports and
considered the existing General Laws of Massachusetts bearing on the
subject, as well as codes of ethics and conflict of interest statutes from
Kentucky, New York and other jurisdictions and opinions of the Attorneys
General from those states.
The heads of each department and agency of the Commonwealth were
requested to furnish all data, regulations and material on the subject
matter applicable to and used in such department or agency. All of the
data was turned over to the Commission.
Following its initial study and investigation, the Commission set about
to draft the legislation it deemed essential.
The Commission's examination of c. 268A of the General Laws, the
present "Code of Ethics", disclosed that the spirit of this legislation was
excellent, and its policy directed toward these necessary objectives, but
that in and of itself, it was not adequate to do the job. This statute was
neither sufficiently extensive nor sufficiently decisive.
The proposed legislation included broad coverage of bribery, supplanting
most of the existing legislation on this subject, and broad coverage of
conflicts of interest, including all representation by public officials of
interests adverse to the state, county or municipality and the holding of
any financial interests or deriving of any financial benefits by public
officials in any transactions with the state, county or municipality involved.
The original preamble of the present code of ethics was retained and a
modified set of Standards of Conduct included.
P.D. 12. 15
A final report was presented to the Legislature with the urgent and
wholly unanimous recommendation that the proposed legislation be enacted
by the Great and General Court.
Hearings on the proposed legislation were held on May 10, 1962 at which
I and other members of the Commission appeared. The bill was given
final approval on July 26, 1962.
Outside of three minor changes provided by the General Court, the
legislation as submitted by the Special Commission was enacted as recom-
mended. The act will not take effect until May 1, 1963.
Almost immediately upon passage, the Attorney General's office received
requests from state officials concerning the interpretation of various
sections of the statute, particularly those regarding the definition of special
state employees and former state employees.
Division of Public Charities
The activities of the Division of Public Charities during the past year
have been centered on improving the functioning of the division, con-
solidating changes introduced in the previous year, and augmenting and
refining the powers of the Division through legislation and regulation.
Legislation
Three bills were filed with the General Court by the Attorney General
for the Division of Public Charities in 1962. At the hearing of the Joint
Committee on Mercantile Affairs, their purposes were explained by the
staff of the division and members of the Advisory Committee. All three
bills were approved by the Legislature and are now in effect. They make
the following changes:
1. General Laws, c. 12, s. 8 has been amended by adding a new § 8J
which states:
''The trustee or trustees or the governing board of every public charity
established, organized or chartered in the commonwealth shall file with
the division a copy of its charter, articles of organization or agreement
of association, or instrument of trust, and a true copy of its constitution
and by-laws within thirty days following the issuance of such charter,
or the execution of such instrument of trust, or the creation of such
public charity, and shall also file with the division any amendments to
its charter, articles of incorporation, instrument of trust, constitution or
by-laws, within thirty days after adoption. Upon an information in
equity by the attorney general, the supreme judicial or superior court
may compel compliance with the provisions of this section."
This in effect creates a true registry of charitable funds and institutions
in the division. Prior to its passage, a charity was only required to file an
annual financial report with the division by June after the first year of
operation. It was also difficult to assess these reports without a copy of
the trust instrument or corporate charter. The division views this legis-
lation as being of major value for its supervisory functions, particularly
in the regulation of inter vivos trusts w^here there has been no mandatory
record or depository for such instruments.
16 P.D. 12.
2. General Laws, c. 12, § 8H, as enacted in 1954, requires that public
charities shall file annual financial reports which shall include, "... the
aggregate value of endowment and other funds, the aggregate value of
real estate, and the aggregate value of tangible personal property held
and administered by the public charity . . . and the aggregate income
and the aggregate expenditures of the public charity for such fiscal year. . ."
It has long been realized that the mere listing of aggregate figures was
not adequate to give a true picture of the financial affairs of a charitable
fund or organization and the reporting forms used since 1957 have re-
quested additional information. The aim of the new legislation was to
allow the Division of Public Charities broader power and greater flexibility
in relation to the information required from public charities. Thus c. 12,
§ 8H has been amended by the addition of the following words: "each
aggregate figure required being accompanied by an itemized statement on
forms provided by the director, of the component parts of such aggregate
assets, income and expenditures."
While no changes in Form 12 were made in the current year, it is recom-
mended that consideration be given to the desirabihty and feasibility of
requiring a detailed listing of all securities, as well as more specific infor-
mation as to the beneficiaries or charitable contributions.
3. The third bill was designed to clarify the statutory machinery for
dissolution of charitable corporations, with a guarantee that any funds
involved would continue to be used for charitable purposes. Prior to the
enactment of this bill, charitable corporations seeking dissolution used the
procedure in c. 155 which relates to business corporations and pro-
vides no guarantee for cy pres application of funds. There are several
early cases in which the Supreme Judicial Court stated that the provisions
of c. 155 did not apply to public charities, so that it was felt that a clarifi-
cation was in order. Two other factors led to the drafting of this legislation.
One was the feeling of the division that the power to dissolve inactive
public charities should rest with the Attorney General, as overseer of all
charitable funds. The second was that many individual Massachusetts
charitable corporations were having trouble obtaining tax exempt status
from the Federal Internal Revenue Service because the bureau did not feel
that the Massachusetts case law stated clearly enough the requirement that
funds donated to a charitable corporation were required to be applied cy
pres on dissolution.
The new statute, which is c. 180, § 11 A, contains two methods of dis-
solution. One of these is to be used by a charitable corporation which
contemplates dissolution, the second to be used by the Attorney General
in the case where a corporation has failed to file reports for two years or
where he is convinced that a charitable corporation is inactive and that its
dissolution would be in the public interest.
This bill became effective in August, 1962 and by that date there had
been six requests for action by the Attornej^ General under § 2 of the statute
or for advice on using § 1 . The Attorney General has brought three cases
seeking dissolution before the Supreme Judicial Court which will be heard
during the first week of January. One of them, initiated by the ofl&ce, will
P.D. 12. 17
rectify a situation which has persisted for many years involving a large
sum of money as Avell as cemeterj^ property.
With powers created by these three bills, Massachusetts now has the
most far-reaching and effective legislation dealing with accountability of
public charities of any of the fifty states. Individual members of the
Advisory Committee were consulted in the drafting of these bills and their
aid was invaluable in their preparation, as well as in the success with
which they passed the General Court.
Regulations
During 1961 members of the Division of Public Charities, working with
a sub-committee of the Advisory Group, drafted regulations governing the
activities of the Division. These were published on January 25, 1962.
Comments were received by February 15, and they were approved by the
Governor and Council on July 12, 1962, and have been in effect since
July 26, 1962, as provided by c. 30A, § 5.
Article 1 of the regulations deals with the term "public charity" in terms
of legal framework and provides a guide as to whether a charitable trust
holds property for "any religious purpose" and is thus exempt from the
reporting provisions of § 8F.
Article II deals with the filing of reports under § 8F and defines some
exemptions from the filing recjuirements. Other sections deal with charities
which hold funds for religious and non-religious purposes; situations where
there is a possible conflict of law; machinery for obtaining extension of
time for filing reports, and requirements in regard to signatures.
Article III contains detailed provisions for investigatory proceedings of
the administration of a public charity, while Article IV contains provisions
for adoption, amendment or repeal of regulations. Several hearings have
been conducted under the procedure in Article III, and the provisions of
Articles I and II are used daily to decide on requests for exemptions or
interpretations of c. 12.
Directory of Public Charities and the Continuing Search
for A^ on-Reporting Funds.
The search for non-reporting funds undertaken in 1961 was continued
and expanded, with the result that 647 charitable funds were added to the
registry in the first ten months of 1962^ — making a total of 1,002 new
listings since the inception of this phase of activity. A Supplement to the
Directory of Public Charities in Massachusetts was compiled in August 1962
and contained the additional charities as well as corrections, consolidations
and dissolutions occurring since the original publication.
This supplement was mimeographed by the staff of the Division of
Public Charities, but the printing of a new addition will be necessary in
1963 if the Directory is to remain an accurate, useful record of charitable
funds in the Commonwealth.
Investigations of Public Charities
Investigation of misapplication of charitable funds is the main function
of one of the Assistant Attorneys General assigned to the Division of
Public Charities. Routine procedure consists of evaluation of all financial
18 P.D. 12.
reports filed with the Division, first by the Executive Secretary, then by
the Assistant Attorney General. In some cases an accountant will be called
in to do intensive review of certain reports, while in others a member of
the State Police will undertake certain aspects of the investigation. During
the year 1962, one hundred thirty-two inquiries were sent out as a result
of the first scrutiny. They comprise the following categories: loan ques-
tions, excessive cash on hand, incomplete reports, small or no charitable
expenditures, and requests for copies of trust instruments. In many cases,
this first letter was sufficient to settle a case, but others were marked for
further investigation and administrative hearing. Loans to and from
charities are very carefully perused to see that there is compliance with the
law in regard to self-dealing. In two cases it was discovered that insurance
policies paid for by a charitable trust on the life of the settlor were not
irrevocably the property of the trust and these situations were rectified.
Recommendations to diversify investments were accepted by several
different charitable funds and in fifteen cases where there had been an
unwarranted accumulation of income, the funds have now been distributed
to charitable beneficiaries.
Special investigations were also conducted into irregularities which had
been brought to the attention of the division by reliable outside sources
and in many instances investigation will reveal a dispute between two con-
flicting factions of a given charitable organization. In one instance, how-
ever, a valid complaint led to action by the Attorney General against
Burrage Hospital Association, which is discussed below. In another case,
the division cooperated with the directors of a charitable hospital to pre-
vent an illegal sale of securities of a closely owned company held by a
charitable corporation.
It has been the feeling of the division that these routine investigations
are as important in their over-all influence on all charitable organizations,
as on those immediately affected. In many cases, ignorance has led to
abuses which are easily and willingly rectified. It is only in rare instances
that individuals have purposefully used charitable funds to their own
advantage. The policy of the division, therefore, has been to attempt to
take care of routine matters without undue publicity, since it is understood
that bad publicity may, in the long run, discourage the growth of philan-
thropy in the Commonwealth.
Cemetery Funds
Unsegregated perpetual care funds, established by cemeteries which are
engaged in the sale of cemetery lots with perpetual care, were ruled bj^ the
Attorney General in 1960 to be trust funds for a public purpose.
]\Iore than 700 cemeteries within the Commonwealth submitted reports
on request. Of these, approximately 80% were exempted from filing
annual financial reports because they were affiliated with religious organi-
zations, were city or town-owned, abandoned or privately owned. The
other 20% were classified as holding trust funds for a public purpose within
the ruling and about half of these are at present filing financial reports.
They have been processed in the same manner as reports from public
P.D. 12. 19
charities. About 1,500 other cemeteries did not reply to the initial request
for information and are being contacted again.
As a result of this supervision several irregularities have been rectified
and once the task of initial rulings is completed, these funds can be treated
in the same manner as other charitable funds. The division has also co-
operated with officials of several city and town Cemetery Commissions
seeking to consolidate trust funds left for individual perpetual care.
Probate Matters — Cy Pres
General Laws c. 12, § 8G states that "the Attorney General shall be
made a party to all judicial proceedings in which he may be interested in
the performance of his duties under section eight." This statute codified
the Common Law practice in the Commonwealth which required that the
Attorney General be made a party to any probate proceeding in which a
gift to charity was involved. It creates a large amount of the "so-called"
routine work of the division. One legal assistant reviews all wills, executors
and trustees' accounts, accounts containing charitable bequests, as well as
miscellaneous petitions, such as for sale of property. In the case of testa-
mentary trusts where the proceeds are being paid to a life beneficiary, this
is a vital means of assuring that the ultimate charitable interest is being
protected.
Prior to passage of c. 12, § 8G, the practice of citing the Attorney General
in these cases varied from county to county. The practice has become
more uniform in more recent years, and, as the result of Buden v. Levij, 343
Mass. 644, decided February 19, 1962, there should be less question as to
the need for notice. This case involved an appeal from a decree of the
Probate Court approving an agreement of compromise of a will which pro-
vided for distribution of an estate free of trust. The ultimate beneficiary
was a public charity. The Attorney General was not a party to the pro-
ceedings at any stage during probate of the will, nor of the hearing on the
compromise agreement. The appeal by the Executor of the Probate Court's
decision was argued at the September sitting of the Supreme Judicial Court
in Franklin County. Then, on December 20th, 1961, at the request of the
Chief Justice, the Attorney General filed an appearance in the case and a
brief, and later submitted his rights.
The decision of the Court affirmed the lower court decree, and in the
text mention is made of the fact that the Attorney General was made a
party to the case at the Court's direction.
The Attorney General, through the Division of Public Charities, also
participated in one other case heard by the Supreme Judicial Court in
which they joined in a brief with the Christian Science Church.
Several matters were argued before the Single Justice Session of the
Supreme Judicial Court for Suffolk County, the most noteworthy being
Franklin Foundation v. Attorney General. This case involved a petition by
the trustees of the trust fund established under the will of Benjamin
Franklin to provide loans during a 200 year period to young artificers
under certain specified conditions. No loans had been made since 1886.
A petition by the trustees in 1960 to terminate the trust had been refused
20 P.D. 12.
by the Supreme Judicial Court in a decision in which the Court suggested
that a program might be found for the loans within the general intent of
Franklin's will. The trustees in the recent case requested the authority to
make loans to medical students, residents and interns under a plan whereby
an independently organized foundation had agreed to provide a $100,000
guarantee for the loans. The Attorney General, after consultation with the
Advisory Committee, filed an answer and brief in which he requested the
court to broaden the scope of the plan so that loans could be made to
those in training in other technical sciences or crafts. The final decree
embodied this suggestion and the first loans have now been made.
In a second case involving the Franklin Foundation, the Court was
requested to interpret the wording of a gift made by Andrew Carnegie to
Franklin Institute, the technological school established by the trustees of
Benjamin Franklin's will at the end of the first 100 year period of the trust.
The Attorney General submitted his rights in this case to the determination
of the court, which held that this gift from Andrew Carnegie could not be
used by Franklin Institute to purchase land for expansion.
Several cases involving charitable trusts were also heard in the various
county Probate Courts and will be mentioned briefly:
1. A petition for instructions filed by the trustees under the will of
Catherine Johnson for the use and benefit of the Johnson Home for Aged
Women, requesting the court's determination of their duties in respect to
this trust. The property of the trust consists of a dwelling in North
Andover given to be used as a home, and funds now valued at approxi-
mately $117,000 to be used for support of said home.
The petition alleged that it was impossible to carry out the testator's
intent to establish a home for aged women and requested the court as to
whether they should make the dwelling marketable and sell same ; and also
whether the trust estate should continue to be held by them, applied in
some other manner or revert to the heirs. The Attorney General filed an
answer requesting the court to instruct the trustees to petition for cy pres
application of the property. Counsels for the heirs filed answers requesting
the court to have the property revert.
Memoranda of law were prepared by all parties. The decree of the
Probate Court for Essex held that 1 . the trustees should not distribute any
property of the said trust to the residuary legatees under the said will;
2. the trustees are instructed to present an appropriate procedure for the
administration of the trust in accordance with the doctrine of cy pres. The
heirs have filed an appeal of decision in the Supreme Judicial Court, which
will be heard early in 1963.
2. In the case of Jacohson v. Walsh, which has also been appealed to
the Supreme Judicial Court, ten taxpayers of the City of Boston brought
a petition in equity under G. L. c. 214, § 3(1) against the Chairman and
members of the Parks and Recreation Commission, Parks and Recreation
Department of the City of Boston, to prevent the proposed sale of land
given to the City of Boston for park purposes. The Attorney General's
petition to intervene on the grounds that there was a violation of law in
P.D. 12. 21
that the proceeds of said sale had not been designated for park purposes
was allowed. Briefs were filed by all parties, and a final decree was entered
on July 6, 1962 permanently enjoining the city from selling the land in
question except as part of a plan to adjust the park area of which it is a
part and arranging for acquisition of other park land to be purchased with
the proceeds of such sale. This case will also be heard by the Supreme
Judicial Court early in 1963.
3. The Attorney General has obtained an injunction against sale of
Bumpkin Island in Boston Harbor, leased for 500 years by Harvard Uni-
versity to Burrage Hospital Association, and a petition for an accounting
and cy pres of the funds and property is now pending. The island was the
site of a children's hospital from approximately 1903 to 1914, but has been
unoccupied since the end of the First World War. No reports have ever
been filed with the Division of Public Charities and there appears to be no
possibility that the hospital can be reactivated.
4. Several other cy pres petitions have been filed b}^ trustees at the
instigation of the Division of Public Charities and during this past year
four were allowed, involving substantial sums of money which are now
being actively used for charitable purposes.
As in the past, this is considered one of the most valuable contributions
of the division. Early in 1963 the Town of Weymouth will be presenting
a petition to allow the trust fund of nearly one million dollars left to the
Town under the will of Laban Pratt to establish a hospital in Weymouth
to be transferred cy pres to the South Shore Hospital in Weymouth to
build a Laban Pratt wing, with the South Shore Hospital providing an
additional one million dollars for the project. The division has partici-
pated in the negotiations leading to this petition and will appear in court
in its support.
SOLICITATION
During 1962 all records of charitable solicitation required by c. 68, § 17,
to be filed with the Attorney General were reviewed and consolidated with
the financial reports required under c. 12, § 8F.
This has created a more efficient method of processing and has facilitated
the evaluation of both types of reports. In January, 1962 letters were sent
to all public relations firms, advertising companies and fund raising
specialists in the Commonwealth, reminding them of the requirements of
c. 68 that all paid solicitors must file reports on their activities or be subject
to criminal action.
Investigation and hearings were held in four cases, each of which has
resulted in correction of abuses. Several others are pending investigation
by the State Police. In one of these the charitable organization was
raising funds by means of a used clothing collection under a contract with
a firm. It was revealed that the costs of such activity were 85% of the
total received. The contract with the salvage firm has now been cancelled.
In another case, a charitable fund drive conducted a party where gambling
devices were used to obtain additional revenue. The division cooperates
22 P.D. 12.
regularly with cities and towns which require licenses for solicitation, with
the better business bureaus, chambers of commerce and other independent
organizations interested in imparting information about this field.
For a short time in early 1962 a state trooper was assigned to the division,
but the press of activities of the Criminal Division in the Attorney General's
Office necessitated his transfer. It is strongly recommended that one State
Police Detective be assigned permanently on a full time basis to the
Division of Public Charities, for without such continuity, investigation and
correction of abuses is seriously hampered.
The regulation of solicitation practices continues to be a serious problem
in a few specific cases. The division still feels that c. 68, § 17 is unclear,
inadequate and in need of revision. A proposal by representatives of the
United Fund to file legislation creating a licensing system similar to that
used in Los Angeles County Avas explored, but further study is necessary
before attempting to revise so drastically the existing system.
PUBLIC ADMINISTRATION
The Division of Public Charities, acting for the Attorney General,
represents the Commonwealth in all court proceedings involving public
administration and estates of absentees. Approximately 1,039 public
administrations, involving 61 Public Administrators, were reviewed in
1962 covering such matters as: appointments of public administrators,
(2) review of all accounts filed, (3) review of all petitions for sale of real
estate ascertaining assessed value of property, purchase price and interest
of purchaser in estate, (4) review of all petitions for distribution, (5) col-
lection of all funds escheating to the Commonwealth. The office appeared
in court on several matters and in others filed memoranda of law. For
example, in one case the Attorney General appeared to uphold appointment
of a Public Administrator against claim of an employer to be administrator
and in another, the Attorney General prevailed in a disagreement with a
Public Administrator as to the relationship of a distributee, while in two
other cases the office supported the rights of the Commonwealth when
there was a question as to interpretation of gifts in a will and no heirs at
law. The division also reviewed matters involving 202 absentees.
Sutnmary
I should like to conclude this report with a discussion of the regulation
of charitable activities outside of Massachusetts, where there has been
considerable interest and activity during this past year.
In 1954, when the Massachusetts General Court created the Division of
Public Charities and established the reporting system, there were three
other states with similar provisions for state supervision of charitable
funds; New Hampshire, Rhode Island and Ohio. They have since been
joined by California, Iowa, Michigan and Illinois. In addition, Maine,
New York, Oklahoma, New Mexico and Minnesota have statutes which
require accounts from funds conducting public solicitation. There is now
evidence of an increasing interest in the regulation of charitable trusts and
foundations among the other states, the foundations themselves, and in the
United States Congress.
P.D. 12. 23
The division has maintained a highly profitable exchange of views with
the seven states which require financial reports from charitable funds. In
addition, it has answered requests from interested individuals in Missouri,
Pennsylvania and Wisconsin who are working for enactment of legislation
in their respective states.
The impetus to further state action has come in part from an investi-
gation being made by Congressman Wright Patman of Texas, Chairman
of the Select Committee on Small Business of the House of Representatives.
Congressman Patman has released several statements to the press in the
last two years and on December 31, 1962 pubhshed a 135 page report
entitled "Tax Exempt Foundations and Charitable Trusts — Their
Impact on our Economy". This report contains a study of the financial
activities of 534 funds during the period 1951 through 1960. While manj^
of Congressman Patman's final recommendations for revision of the tax
law are of great value, it is considered unfortunate by many that he has
approached the problem from the point of view that, to quote from his
letter of transmittal, "Unquestionably, the economic life of our Nation has
become so intertwined with foundations that unless something is done
about it they will hold a dominant position in every phase of American
lif e. ' ' and has urged "an immediate moratorium of foundation tax exemption. ' '
One direct result of the Congressman's statements has been an attempt
by the Register of Charitable Trusts of California, Mr. Frederic Auforth,
and the Assistant Attorney General for Charitable Trusts in Ohio, Mr.
John D. Barricklow, to alert the states and the National Association of
Attorneys General to the need for a uniform charitable trust law and a
standard system of accountability estabhshed as a separate division or
department in the offices of the Attorneys General of all the fifty states.
These men have been joined by Mr. Ernest D 'Amours, supervisor of
Charitable Trusts in New Hampshire, in seeking the estabhshment of a
national center for information on regulation of charitable activities. They
feel strongly that supervision is the responsibility of the individual states
and will prove more effective and workable than under a federal agency.
Our experience in Massachusetts substantiates this view. I would add
that it is our feeling that the regulation of charitable activities is more
than a question of tax exemption, involving as it does the law of trusts of
each state. The creation of a national regulatory agency would not meet
the problems of misfeasance by trustees, maladministration of funds, or
the need for a responsible authority to encourage cy pres actions for inactive
charities. In some instances it might well encourage practices which are
inconsistent with the standards long established for administration of trusts
by the courts. I believe the experiences in New Hampshire, Rhode Island,
California and Ohio, as well as in our own state, provide ample evidence
that it is possible to establish effective supervisory machinery at a state
level. The Michigan and ]\Iaine programs have just commenced, but give
every indication that they will be vigorously administered. If more states
take action in the near future to establish accountability statutes, and if
the Patman study leads to more efficient supervision by the Internal
24 P.D. 12.
Revenue Service of the tax aspects of the problem, there is little doubt that
the entire field of charitable activity will be benefited.
As a final word, it should be pointed out that there is a growing awareness
among the larger charitable foundations themselves of the need for public
accountability, led primarily by Russell Sage Foundation, which has long
had a primary interest in the field of philanthropy, and the Foundation
Library Center, which was established in 1956 to assemble and disseminate
information concerning foundation activity.
Massachusetts has long held a position of leadership in the field of
charitable trusts, dating back to the earliest decision of the Supreme
Judicial Court. The ground work for an effective and efficient program of
supervision of charitable funds within the Commonwealth is now well
established, and it is hoped that we may continue to perfect and refine this
program for the greater benefit of all the citizens of the Commonwealth.
Title Land 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 concerned.
This includes the protection of public rights in the great ponds, and in the
tidewaters of the Commonwealth, for fishing, fowling and navigation.
Several petitions were filed for the establishment of access to great
ponds, and in accordance with the statute, the office was represented at
hearings before the Public Works Commissioner in reference to these
petitions.
During this fiscal year, 142 petitions for registration in the Land Court
involved in some way the rights of the Commonwealth. Li some cases
pleadings were filed to protect the fee takings made in public highways
taken by the Department of Public Works on behalf of the Commonwealth
or of cities and towns; in others, to protect various takings made by the
]\Ietropolitan District Commission, or other departments, to protect the
rights of the public in the tidewaters of harbors, bays and rivers, and to
protect the rights of the public in the great ponds of the Commonwealth.
1249 cases on land takings made by the Department of Public Works
were forwarded for approval of the releases obtained therein. While these
releases are approved only as to form, nevertheless, it is necessary to check
the title to be certain that all possible interests in the property taken have
been properly released. Great care is taken to make certain that all inheri-
tance taxes due the Commonwealth, and all taxes and betterments due
the cities and towns are paid before any part of the settlement is paid
over to the owner.
Various departments of the Commonwealth, such as the Department of
Natural Resources, the Department of Education, the Armory Commission,
the Department of Mental Health, either sold, acquired or took property
by eminent domain during the year. Close contact was maintained with
these departments and advice was given as to procedure to be followed,
documents were prepared, and opinions as to the state of the title and
steps necessary to clear the same were given. All deeds conveying title to
P.D. 12.
25
Listed below is a break-
the Commonwealth and all deeds conveying title from the Commonwealth
were approved as to form.
Much time was spent in preparing an Information in Equity in a case
where it is believed there has been encroachment or trespass in Conga-
mond Lakes.
One case argued in the Supreme Judicial Court during this period, the
case of Johnson v. McMahen, 343 Mass. 348, was of great importance in
quieting titles to land. In this case the defendant sought to invalidate
certain acts of the Commissioner of Corporations and Taxation which pre-
ceded the foreclosure procedure of low-value lands which had been taken
for taxes. The Court affirmed our argument in the matter that General
Laws c. 60, § 79 was designed as a means more economical and more
expeditious than the judicial method of foreclosure of tax titles while
affording reasonable administrative safeguards to protect the rights of the
owner, in cases where the land taken was of low value. The Court held
that it provided for a final and effective termination of redemption rights
in land validly taken, where the affidavit of the Commissioner is issued and
recorded, where the treasurer otherwise complies with the provisions of
§ 79, and where the treasurer's deed is properly recorded within sixty
days after the sale.
Collections
Collections for the year totaled $118,919.61,
down for each department:
Mental Health
Public Works
Metropolitan District Commission
Public Health
Correction ....
Education ....
Labor and Industry-
Natural Resources
Office of the Secretary
Parole Board
Public Safety
Public Welfare
University of Massachusetts .
Worcester Office
During the fiscal year ending in June, 1962, and to the end of the adminis-
tration an Assistant Attorney General as well as a Legal Assistant have been
assigned to the Worcester area. Both have been busy handling the many
duties assigned to them. The Assistant Attorney General has attended all
the hearings of the Motor Vehicle Insurance Appeal Board held in Worces-
ter. The majority of the work done has been in connection with the
preparation and disposition of eminent domain cases, either by settlement
or by trial. The Assistant has also handled motor tort cases and work-
men's compensation cases for the Worcester area. Continuing the practices
53
$ 85,060.37
162
15,573.35
20
5,070.67
24
10,316.05
1
5.05
5
1,255.95
1
62.70
6
805.42
1
395.25
1
95.53
1
100.00
2
134.27
1
45.00
278
$118,919.61
26 P.D. 12.
instituted by this administration, the Assistant assigned to the Worcester
area has welcomed the opportunity to make his experience and knowledge
available to many of the surrounding towns in the solution of their problems.
Although an actual office has not been set up with secretarial staff,
there has been an increased amount of service to the members of the bar
in Worcester County in their relations with the office of the Attorney
General in Boston. An increased number of citizens in the Worcester area
has become aware that an Assistant Attorney General has been assigned
to the Worcester area to serve their needs. It is to be hoped that in the
future sufficient funds might be appropriated to permit the setting up of
an office for the Attorney General with adequate secretarial staff in the
City of Worcester. If this were done it would facilitate the work of the
Attorney General's office in the Worcester area and make for more efficient
operation.
Conclusion
This report concludes my service as the chief law enforcement officer
and legal advisor of the state for a period of more than four years covering
two full terms for which I was elected by the people and a short period in
the Fall of 1958, when, after my nomination as the Democratic candidate
for the office at the State Primary in that year I was elected by the Legis-
lature to fill the vacancy resulting from the death of George Fingold.
In retiring from my legal and law enforcement duties, I express my
appreciation to those who have served as members of my staff, to the
Governor, the other constitutional officers, the members of the Legislature
and the various executive officials of the State and Federal governments
whose departments and offices it has been my pleasure to serve.
Respectfully submitted,
EDWARD J. McCORMACK, Jr.
Attorney General
OPINIONS
The view that Constitution requires -places of town meetings for elections, and
probably for other purposes, be within town's limits, stated in considering
legislative proposal authorizing holding town meetings in regional schools.
July 17, 1961.
Mr. Herman C. Loeffler, Director, Legislative Research Bureau.
Dear Sir: — In your recent letter you request an opinion relative to
House 2017 proposing the addition of a new § lOA of c. 39 of the General
Laws.
The proposed § lOA which you have referred to reads as follows:
"Any town which is a member of a regional school district may call and
hold a town meeting in the regional school by agreement with the school
committee of said regional school district. A town meeting originally called
to meet elsewhere may vote to adjourn to the regional school by a similar
agreement."
In your letter it appears that the Legislative Research Bureau has voted
to request our opinion as to whether any constitutional barrier exists with
respect to the enactment of the proposal above referred to.
Doubtless you are aware of the fact that there are two types of town
meetings. The annual meeting, which, by G. L. c. 39, § 9, is required to
take place in February, March or April, and special town meetings which
are held under warrants issued by the selectmen (G. L. c. 39, § 10). Gener-
ally speaking, the constitutional and statutory pattern of the Common-
wealth is based upon the assumption that the town meetings are to be held
within the geographical limits of the town (G. L. c. 29, § 9). Said § 9 reads
as follows:
"Except as otherwise provided by special law, the annual meeting of
each town shall be held in February, March or April; and other meetings
may be held at such times as the selectmen may order. Meetings may be
adjourned from time to time, and to any place within the town."
At the annual town meeting the election of the municipal officers and
the transaction of the business of the town are usually held at separate
sessions, sometimes on the same day but more often, especially in the larger
towns, on different days. In any event, the election and the business
meeting are treated as parts of the annual town meeting.
Many of the towns, for purposes of election, are divided into voting
precincts whereby the voters of each described precinct are called upon to
cast their ballots in specified locations in the precinct in the town (G. L.
c. 39, § 20). For about three-quarters of a century our statutes have pro-
vided that if a town officer removes from his town, he thereby vacates any
town office held by him (G. L. c. 41, § 109).
As you state. Article XXIX of the Amendments to the Constitution of
Massachusetts expressly provides that the General Court shall have full
power and authority to provide for the inhabitants of the towns in this
Commonwealth more than one place of public meeting ivithin the limits of
each town for the election of officers under the Constitution. It is my judg-
ment that this provision contains at one and the same time a grant of
28 P.D. 12.
authority and a limitation upon that authority. ' The General Court is
authorized to provide for the inhabitants of the various towns places for
election, but those places are to be "within the limits" of the town. The
founding fathers were far-sighted; means of transportation were limited
when the Constitution was put together. Their primary purpose was to
insure free and open elections; to bring this about it was necessarj^ that the
voting places should be accessible to the voters within the town, since the
town elections were an integral part of the annual town meeting.
In my opinion, therefore, the proposed § lOA runs contrary to the con-
stitutional provision I have referred to, at least so far as it would permit
an annual town meeting for the election of town officers in a neighboring
town. It might be suggested that the constitutional limitation applies only
to the election of constitutional officers. I do not see the situation in that
light. State constitutional officers are provided for by the Constitution.
Municipal officers are provided for by statute under constitutional au-
thority. Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 314.
In so far then, at least as town meetings for election purposes are con-
cerned, in my opinion, they should be held within the municipal limits.
Whether town meetings in whole or in part for other than election purposes
may be held beyond the municipal limits may now be considered. As I
have said, the statutory pattern for over a century and a half indicates to
the contrary. General Laws c. 39, § 9, originating in 1785, to which I
have already referred, indicates to the contrary. Except perhaps for one
or two isolated instances, the entire history of political government in
this Commonwealth, covering centuries of time, is bare of evidence of
town meetings held beyond the town limits. Such a uniform practice over
such a long period in such an important matter may well be considered
pursuasive evidence of the legal propriety of the practice. Cases holding
that town meetings held beyond the limits of the town are invalid are
collected in 63 Corpus Juris, page 124, note 68, and 87 Corpus Juris
Secondum, page 43.
The laws relating to regional school districts may be found in G. L. c. 71,
§§ 14 to 20, inclusive. Read together, they provide a method whereby
several municipalities may become a separate corporate entity for edu-
cational purposes. Whether these provisions alter the time-honored and
traditional law requiring town meetings to be held within the municipal
limits may be a matter of some doubt. However, the Supreme Court in
the case of Cominonwealth v. Hudson, 315 IMass. 335, 345, used the following
language :
"But the powers of a town and of its town meeting, and the very existence
of the town, are subject to the will of the Legislature."
Of course, however, the General Court is itself bound by constitutional
limitations.
It is my opinion that a town, with the approval of the regional district
school committee, may hold a town meeting within the corporate limits.
It seems to me, however, unwise, lacking further word from the Supreme
Court, to encourage the General Court in the enactment of general legis-
lation such as is contained in the proposed § lOA, specifically in view of
the fact that both local, special and State elections are inextricably inter-
woven and form a part of town meetings.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher, Assistant Attorney General.
P.D. 12. 29
Appropriation for waterways projects contained in St. 1961, c. 544, requiring
local contribution of fifty percent of cost, could not he used for constructing
the sea wall in Hull under St. 1961, c. 31, in which the town's contribution
is fixed at less than fifty percent of the cost.
July 19, 1961.
Mr. Rodolphe G. Bessette, Director, Division of Waterways Depart me7it
of Public Works.
Dear Sir: — In your recent letter you refer to the proposed method of
financing the State's share of the cost of the construction of a sea wall in
the Kenberma section of the town of Hull.
You refer to St. 1961, c. 31, authorizing and directing the Department
of Public Works, through the Division of Waterways, to construct a sea
wall for the purpose of protecting the shore of the town of Hull from flood
and erosion by the sea, and providing that the department may use "any
available funds for said purposes." The act referred to further provides
that no work shall be done until the town of Hull has assumed liability in
the manner provided by G. L. c. 91, § 29, for all damages which may be
incurred under the act and there has been paid into the State Treasury the
sum of $136,000 which shall represent the town's share for the work to be
done under the act.
You state that the estimated cost of the proposed work, including the
costs of engineering during construction, is $700,000. You further state
that the town of Hull has available and will contribute the sum of $136,000
toward the cost of construction and that the State's share of the work will
be $564,000.
You inform us that 'Tn financing the State's cost, it is proposed to allot
the sum of $136,000 from c. 5-14 of the Acts of 1961 (Item 8262-22) and to
allot the sum of $328,000 from either c. 604 of 1959 (Item 8260-61) or
c. 774 of 1960 (Item 8261-44)," and ask to be advised "whether or not this
proposed method of financing the State's share of the cost of this project
is a proper one."
Acts of 1961, c. 31, was enacted on February 9, 1961. The act has an
emergency preamble and therefore, by force of the provisions of G. L. c. 4,
§ 1, it took effect immediately upon the date of its enactment.
Item 8260-61 of St. 1959, c. 604, § 2, reads as follows:
"For the improvement, development, maintenance and protection of
rivers, harbors, tidewaters, shores and great ponds; construction, recon-
struction or removal of dams; construction, reconstruction or repair of
town or city piers and wharves, the state pier in New Bedford and the
state pier in Plymouth; construction, reconstruction or repair of drains;
within the commonwealth, as authorized by section eleven of chapter
ninety-one of the General Laws, to be used in conjunction with any federal
funds made available for the purpose, to be expended with contributions
from municipalities or other organizations and individuals; provided, that
this item shall not be subject to section thirty A of chapter seven of the
General Laws, to be in addition to the amount appropriated in item
8259-93 of section two of chapter six hundred and fifty of the acts of
nineteen hundred and fifty-eight."
Item 8261-44 of St. 1960, c. 774, § 2, reads as follows:
"For the improvement, development, maintenance and protection of
rivers, harbors, tidewaters, shores and great ponds; construction, recon-
30 P.D. 12.
struction or removal of dams; construction, reconstruction or repair of
town or city piers and wharves, the state pier in New Bedford and the
state pier in Plymouth; construction, reconstruction or repair of drains;
within the commonwealth, as authorized by section eleven of chapter
ninety-one of the General Laws, to be used in conjunction with any federal
funds made available for the purpose, to be expended with contributions
from municipalities or other organizations and individuals; provided, that
this item shall not be subject to section thirty A of chapter seven of the
General Laws, to be in addition to the amount appropriated in item
8260-61 of section two of chapter six hundred and four of the acts of
nineteen hundred and fifty-nine."
Acts of 1961, c. 544, is the Special Capital Outlay Appropriation Act for
the current year. Item 8262-22 of § 2 of said act reads as follows:
"For projects for the improvement of rivers, harbors, tidewaters, fore-
shores and shores along a public beach, as authorized by section eleven of
chapter ninety-one of the General Laws, and for construction, reconstruc-
tion or repair of drains, to be used in conjunction with any federal funds
made available for the purpose; provided, that all expenditures, except the
cost of surveys and the preparation of preliminary plans, for work under-
taken hereunder, including the cost of engineering during construction,
shall be upon condition that at least fifty per cent of the cost is covered by
contributions from municipalities or other organizations or individuals
except that, in the case of dredging channels for harbor improvements, at
least twenty-five per cent of the cost shall be so covered."
Said c. 544 was enacted on May 27, 1961. The act has an emergency
preamble and, therefore, took effect on that date.
It is to be noted that under the provisions of Item 8262-22 of St. 1961,
c. 544, § 2, all expenditures, except the cost of surveys and the preparation
of preliminary plans, for the cost of such projects as the sea wall in question,
including the cost of engineering during construction, are upon condition
that at least fifty per cent of the cost be covered by contributions from
municipalities.
The provisions of Item 8260-61 of St. 1959, c. 604, § 2, and of Item
8261-44 of St. 1960, c. 774, § 2, do not, however, contain such a condition
as that just referred to.
On the facts stated in your letter, I see no reason why portions of any
available balances of the funds appropriated by the two items last mentioned
cannot be used to finance the State's share of the cost of the work contem-
plated by St. 1961, c. 31.
However, as noted above. Item 8262-22 of St. 1961, c. 544, § 2, contains
a condition, referred to above, that fifty per cent of all expenditures there-
under for the cost of projects, including the cost of engineering during
construction, exclusive of the cost of surveys and the preparation of pre-
liminary plans, be covered by contributions from municipalities, or other
organizations, or individually.
It would appear from the information given us in your letter that the
work in Hull contemplated by St. 1961, c. 31, involves a cost, including
the cost of engineering during construction, of $700,000, and since the
town's contribution of $136,000 towards that cost is less than fifty per
cent thereof, I must advise you that the condition set forth in Item 8262-22
P.D. 12. 31
of St. 1961, c. 544, to be met to authorize expenditures thereunder, pre-
vents expenditure of any amounts appropriated in that Item on the project
authorized under St. 1961, c. 31.
Very truly yours,
Edward J, McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
The State Commissioner of Public Works is the appointing offi,cer of the
Director of the Division of Waterways, within G. L. c. 31, § 43. Article
65 of the specifications for waterways contracts, prohibits assignment, etc.,
without the approval of the Public Works Commission. Performance of
a contract by one not the successful bidder, with the latter's consent, could
be found to be under an assignment; assignment being a question of fact.
July 25, 1961.
Hon. Jack P. Ricciardi, Coinmissioner of Public Works.
Dear Sir: — You have asked my opinion on the following:
Your first question reads as follows:
"1. Who is the appointing authority of the Director, Division of Water-
ways, Massachusetts Department of Public Works within the meaning of
G. L. c. 31, § 43?"
By St. 1950, c. 787, the office of the Director of the Division of Water-
ways is subject to the provisions of G. L. c. 31.
General Laws, c. 16, § 5A, imposes the respon.sibility of organizing the
Division of Waterways on the Commissioner of the Department of Public
Works. It further provides that "... The commissioner shall with the
approval of the governor, appoint a director to have charge of the work of
the division ..."
In answer to your first question, the Commissioner of Public Works is
the appointing authority of the Director, Division of Waterways, Massa-
chusetts Department of Public Works, within the meaning of G. L. c. 31,
§43.
In your second question you ask :
"2. Can a contract awarded to a contractor by the Board of Commis-
sioners of the Massachusetts Department of Public Works be legally
assigned, sublet or subcontracted by the said contractor to another without
the approval of the said Board of Commissioners?"
A contract for waterways work is awarded by the Board of Commis-
sioners of the Massachusetts Department of Public Works when it approves
a contract by majority vote pursuant to G. L. c. 16, § 4.
Article 15 of the "Standard Specifications for Waterways Work" requires
that the award be made to the lowest responsible bidder. The responsibility
of a bidder is a question of fact to be determined by the awarding authority.
{Capuano, Inc. v. School Building Committee of Wilbraham, 330 Mass. 494,
where there was a statutory requirement that the contract be awarded to
the lowest responsible bidder.)
32 P.D. 12.
Article 12 of the "Standard Specifications for Waterways Work" amply
evidences the fact that the determination of the responsibility of a bidder
is highly personal. His possession of the necessary facilities, experience,
ability, financial resources, and, in some cases, his individual skill and
experience may be determinative. The awarding authority's determination
of the responsibility of the party with whom it has voted to contract may
not be frustrated by assigning, subletting or subcontracting work which
the general contractor himself has undertaken to perform. Express pro-
hibition of such assignments or subletting without the prior consent of the
department may be found in Article 65 of the "Standard Specifications
for Waterways Work."
In answer to j^our second question, neither the contract itself nor any
portion of the work thereunder which the general contractor has, himself,
undertaken to perform legally may be assigned, sublet or subcontracted
without the prior written consent of the awarding authority.
Your third question reads as follows:
"3. If 3^our answer to No. 2 is in the negative, then if, in fact, the work
under the contract is performed by a person other than the contractor,
with the consent of the said contractor, would such prosecution of the
work constitute an assignment, subletting or subcontracting between
the two?"
In answer to your third question, an assignment is a contract subject to
the same requisites as to validity as other contracts. It need not be in
writing to be valid although some oral assignments may be unenforceable.
It is a question* of fact whether the doing of work, which is the subject
matter of a department's contract, by a third person with the consent of
the general contractor to whom the contract was awarded is an assignment.
It would appear that a trier of fact would be warranted in finding that the
doing of work by a third person with the prior knowledge and consent of
the general contractor gives rise to an implied contract, if not an express
contract, and would constitute an assignment within the meaning and
intent of the term as used in Article 65 of the "Standard Specifications
for Waterways Work."
Very truly yours,
Edw^ard J. McCoRMACK, Jr., Attorney General.
Actual re-employment after military service, and not mere reinstatement, of a
veteran 'public employee is required to entitle him to veterans pension
benefits.
July 27, 1961.
Hon. Charles Gibbons, Commissioner of Administration.
Dear Sir: — You have requested a formal opinion concerning G. L.
c. 32, § 58A. After referring to the terms of § 58A, you state that in the
instant case the veteran j^ou refer to served in the Navy from 1943 to 1945.
Immediately prior to his induction into the Navy you state he was employed
as a janitor in the Lynn school system. Within two years of his discharge
from the Navy he was reinstated, by vote of the school committee of the
city of Lynn, but he never did actually return to work for the Lynn school
P.D. 12. 33
system. It is further stated that at a later date he formally resigned. In
the light of these facts you ask:
(a) "As to whether under the provisions of § 58A of c. 32, the wartime
service of this veteran can be deemed creditable for purposes of retirement
under the provisions of G. L., c. 32, §§ 56 to 60, as amended."
Section 58A of G. L. c. 32, as inserted by St. 1960, c. 619, § 3, reads as
follows :
"A veteran eligible to retirement under section fifty-six, fifty-seven or
fifty-eight, who was employed in the service of the commonwealth, or any
county, city, town or district thereof, prior to his entry into wartime service
as defined in section twenty-one of chapter thirty-one, and upon whose
discharge or release therefrom was reinstated or re-employed within two
years in his former position or a similar position, shall have credited to
him as creditable service the period of his wartime service until the date
of his discharge or release from such service, which shall include credit
for any actual service in the armed forces between January first, nineteen
hundred and forty and July first, nineteen hundred and sixtj^-two."
The purpose of the General Court in inserting section 58A in the General
Laws is benign. It is a recognition by the sovereign of meritorious services
of the veteran in times of danger and stress and should be construed
broadly to effectuate its purposes. However, its language should not be
distorted in order to accomplish undesirable results. Section 58A, as we
have seen, authorizes a credit for wartime service if the veteran ''was rein-
stated or re-employed within two years in his former position or a similar
position." In my opinion, a man is not to be deemed re-employed who, in
fact, never actually was re-employed, nor should a veteran be considered
''reinstated" who never, in fact, was reinstated. The purpose of the
General Court should not be so subverted. One of the fundamental rules
of statutory construction is that we must look beyond the letter of a
statute where a literal construction would be inconsistent with the legis-
lative intent. Price v. Railway Express Agency, 322 Mass. 476, 484. Section
58A is limited by its express terms to veterans who were employed in the
service of the Commonwealth or pohtical subdivision thereof. "Service"
is defined in G. L. c. 32, § 1, as "service as an emploj^ee in any governmental
unit for which regular comperisation is paid." (Emphasis supplied.) I
assume from the tenor of the letter that no compensation was paid to or
claimed by the veteran within the period referred to after his retirement
from the armed forces. "Employee" is defined in § 1 of c. 32 dealing with
retirement systems and pensions as, ". . . any person who is regularly
employed in the service of any such political subdivision . . ."
In the light of the foregoing, I am of the opinion that the General Court
intended the benefits of § 58A to be provided for veterans who in truth
and in fact were reinstated or re-employed, and not for the benefit of those
who were not actually so reinstated or re-employed. I therefore answer
the question in the negative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
34 P.D. 12.
A specific statute providing for the extension of the Massachusetts Turnpike
into Boston being in effect at the time, the Legislature must have intended
that appropriations made for State highway construction he used for other
highways than any competitive with the extension, without further legis-
lative sanction, and certain legislative procedure referred to confirms
that view.
July 27, 1961.
His Excellency John A. Volpe, Governor of the Commonwealth.
Sir: — In your recent letter you requested my opinion and ruling on the
following questions :
"(1) Does St. 1952, c. 354, as amended by St. 1955, c. 47, prevent the
Department of Public Works from proceeding with the construction of a
Freeway from a point within the city of Boston to a point on Route 128
in the vicinity of the Massachusetts Turnpike?
(2) Is legislative authority necessary for the Department of Public
Works to proceed with the construction of a Freeway from a point within
the city of Boston to a point on Route 128 in the vicinity of the Massa-
chusetts Turnpike?"
Chapter 354 of the Acts of 1952 provided for the construction of a self-
liquidating express highway from a point in the vicinity of the city of
Boston to the New York State line, created the ]\Iassachusetts Turnpike
Authority, and provided for the financing of the highway. The method
of financing was by the issuance of turnpike revenue bonds payable from
tolls to be charged for the use of the turnpike. The act provides that when
all bonds issued thereunder have been paid, the turnpike shall become a
part of the State highway system, the Authority shall be dissolved and its
property shall vest in the Commonwealth.
Chapter 47 of the Acts of 1955 amended the 1952 act to authorize the
Authority to extend the toll turnpike to a point or points within the city
of Boston.
The Turnpike Authority is constituted a public instrumentality and it is
provided that the exercise by the Authority of the powers conferred in
the construction of the turnpike and the extension shall be deemed and
held to be the performance of an essential governmental function.
The reasonable construction of the specific provisions contained in the
1952 and 1955 acts cited is that it was the intention of the Legislature that
they were to provide the sole authority for, and method of, meeting the
public need for a modern express highway from a point or points within
the city of Boston to the New York State line, and that none of the funds
appropriated for the construction of State highways should be used by
the State officials to whom they were made available for the construction
of such highways to serve the same purposes as the turnpike and its
extension.
The 1952 act and the 1955 amendment are presentl}^ in full force and
effect. As stated, they represent the only provisions that the Legislature
has specifically made for a modern express highway from a point or points
in the city of Boston to the New York State line.
It is my opinion, in answer to your first question, that the Department
of Public Works would not be authorized to use any funds appropriated
by the Legislature under the recent statutes providing funds for the con-
P.D. 12. 35
struction of State highways for the construction of roads which would be
directly competitive with the turnpike or the extension.
The opinion expressed is confirmed by the fact that although the Legis-
lature knew during the last session, as was common knowledge, that the
Authority was having difficulties in presenting an acceptable offering of its
revenue bonds for the purpose of financing the extension of the turnpike,
no legislation was enacted to make any change in the plan of having the
extension of the turnpike to Boston constructed as a toll road. It would
appear that the Legislature contemplated that the Authority might be able
to surmount the difficulties it was experiencing, and was content to post-
pone consideration of what provisions should be made for the construction
of the extension, if it should finally appear that the Authority could not
finance the construction of the extension by revenue bonds within the
restrictions presently contained in the acts above referred to, to the next
session of the Legislature which is now less than six months away.
Li answer to your second question, I advise you in accordance with the
foregoing, that the Department of Public Works is not presently authorized
to proceed with a complete, or partial, substitute for the turnpike extension
provided for in the statutes referred to. What legislation could be enacted
to provide the department with that authority would depend on what
agreements and contracts have been, or may be, made by the Authority
with engineers, property owners, bond holders, and others, and the extent
to which rights thereunder have so far vested as to require that compen-
sation be made for any impairment of such rights. The final form any
such legislation which might be deemed advisable should take is a matter
of public policy for determination by the Legislature.
Very truly yours,
Edward J, McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
G. L. c. 30, § 39G, requiring contracting authority to retain amounts to satisfy
outstanding liens is not applicable to prohibit progress payments under a
State highway construction contract being completed for surety after de-
fault; surety acknowledging liability to lienors.
July 31, 1961.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — You have requested an opinion as to whether G. L. c. 30,
§ 39G, or G. L. c. 149, § 29 (referred to in your letter as St. 1957, c. 682),
prohibits payments of semi-monthly estimates to a general contractor in
amounts which would reduce the retainage withheld by the awarding
authority to less than the amount of the statutory liens filed against the
contract. It appears from your letter that you have no question as to the
power of the department to withhold payments in an amount sufficient to
equal the outstanding liens if it desires to do so.
Your letter states that after the default of the original contractor, the
surety arranged for the completion of the work by another contractor.
You further state that liens have been filed in the amount of $87,339.96,
36 P.D. 12.
and the usual ten per cent retainage on sums paid to the original contractor
amounts to $33,774.50. The completing contractor has filed a semi-
monthly estimate in order to obtain a periodic payment. You enclosed
with your request a letter from the surety on the bond of the original con-
tractor in which it acknowledged its liability to those subcontractors of
the original general contractor who established valid liens under G. L. c.
149, § 29.
General Laws c. 30, § 39G, requires the contracting authority to retain
sums sufficient to satisfy outstanding claims and properly filed liens when
making final or semi-final payments. The provisions referred to are ex-
pressly applicable only to payments against final or semi-final estimates,
and unless by necessary implication, they have no application to payments
against semi-monthly estimates. The effect of G. L. c. 30, § 39G, is to
prevent the general contractor from receiving the final payment until he
has disposed of the claims of his suppUers and subcontractors. General
Laws c. 30, § 39F, on the other hand, contemplates payments against
periodic estimates to general contractors out of which the general contractor
shall pay his subcontractors; it does not prohibit, by implication, such pay-
ments when statutory liens exceed the usual retainage. Thus, the depart-
ment may protect subcontractors, who have completed their work and
filed liens, by withholding payments against periodic estimates in an
amount sufficient to cover the statutory liens, or, in the exercise of its sound
discretion, it may pay the general contractor in the expectation that he
will satisfy the claims of his present subcontractors out of available funds
and, thereby, eliminate the need for further liens being filed against the
contract.
Li view of your receipt of the letter referred to above from the surety
on the bond of the original contractor, it is my opinion that in the instant
situation, you would be justified in making payments against periodic
estimates to the completing contractor.
You have suggested that G. L. c. 149, § 29, may complicate payment to
contractors against periodic estimates when statutory liens have been filed
in amounts greater than the usual retainage. General Laws c. 149, § 29,
requires the awarding authority to obtain security in the form of a bond
only; it does not impose an obligation on the department to retain any
additional security for the benefit of subcontractors.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
P.D. 12. 37
A loan hy a domestic mutual life insurance company to a domestic mutual
fire insurance company, the companies having common directors and
officers, loan to he used by the fire company to purchase, with others, the
stock of a foreign casualty company, would not violate the laws of the
Commonwealth where there is no evidence that an evasion of the prohi-
bition of investment of the funds of a domestic life company in the stock
of other insurance companies was intended.
Aug. 4, 1961.
Hon. Otis M. Whitney, Commissioner of Insurance.
Dear Sir : — You have requested an opinion with respect to the following :
A domestic mutual life insurance company contemplates the making of
a direct placement loan to a domestic fire insurance company, which, you
state has a full casualty charter. The domestic fire company intends to
utilize the proceeds of the loan to purchase the corporate stock of a foreign
casualty company. The fire company has interested other corporate
investors who intend to purchase stock of the same foreign casualty com-
pany provided that loans are made to them by the domestic mutual life
company for such purpose.
You further state that the stock of the foreign casualty company to be
acquired by the domestic fire company and other corporate investors is to
be placed in a voting trust for a term of not more than ten years and that
the domestic fire company may purchase options from the other corporate
investors to acquire their stock interests in the foreign casualty company
at a price to be mutually agreed upon by the parties.
You indicate that the domestic life company and the domestic fire com-
pany have some directors and officers in common, and that if the loans and
stock purchases are consummated, the stockholders of the foreign casualty
company may elect some of these men as officers and directors and that
the home offices of the foreign insurance company will be moved into the
Commonwealth.
In view of the magnitude of the above proposed loans, you state your
determination to give your approval or disapproval at the present time
rather than after the next regular triennial examination.
You ask specifically for my advice as to whether or not the above pro-
posed loans would constitute a violation of the laws of the Commonwealth.
A letter supplementary to your request and the correspondence attached
thereto indicate that the domestic life company has committed itself (to
the domestic fire company) to the making of a one million dollar loan for
a term of fifteen years at five per cent interest payable semi-annually,
without collateral, provided the net worth of the fire compan}^, including
special surplus funds, is maintained at four times the amount of the loan.
It further appears that the loan to the fire company is to be consummated
on or before July 26, 1961.
General Laws c. 175, § 63, deals with the payment and investment of
capital and reserve of domestic companies.
Section 63, as most recently amended by St. 1959, c. 128, provides that:
The capital of any domestic company, other than life, and three fourths
of the reserve of any domestic stock or mutual life company, shall be
invested only as follows :
"14A". In the bonds, notes or other evidences of indebtedness of com-
panies incorporated under the laws of the United States, or any state
38 P.D. 12.
thereof, or of the Dominion of Canada or any province thereof or of associ-
ations or trusts as defined in section one of chapter one hundred and
eighty-two, the average net earnings of the issuing company or such
association or trust, as the case may be, during the seven fiscal years next
preceding the date of investment having been not less than four times the
fixed charges, provided, however, that no more than one half of the capital
of any domestic company, other than life, and not more than one half of
the reserve of any domestic stock or mutual life company may be invested
under this paragraph . . .
"15. In loans accrued by collateral security consisting of any of the
above."
In view of the above provisions, it would appear that the domestic life
company can invest funds in the notes of the domestic fire companj^,
which is incorporated in the Commonwealth, provided that the financial
condition and history of the domestic fire company is such as to come
within the provisions of paragraph 14A and provided that the loan itself
is otherwise in accordance with the provisions of said paragraph. By
inference from paragraph 15, such loan under paragraph 14A is made
without collateral (i.e. direct placement). In view of the fact that you
have not given me specific facts concerning the financial condition and
history of the domestic fire company or the other corporate investors, I
can only state that such loan or loans must qualify under paragraph 14A
or other provision of law. In the event, as your letter indicates, that the
loan is to be made under the provisions of the second paragraph of § 66,
from funds not required to be invested under the provisions of § 63, § 66
does not prohibit the taking of such stock as collateral for an otherwise
permissive loan. In fact, § 66 contemplates such a possibility and provides
that:
"... and nothing in this section or section sixty-three shall prevent
any such life company from acquiring or holding any property acquired in
satisfaction of any debt previously contracted, or that shall be obtained
by sale or foreclosure of any security held by it; provided, that if the
property owned be such as is prohibited for investment by such company,
it shall dispose of such property, if personal, within one year, and if real
estate, within five years, from the date when it acquired title to the same,
unless the commissioner shall extend the time for such disposition for the
reason that the interests of the company will suffer materially by a forced
sale of such property."
General Laws c. 175, § 66, as amended by St. 1954, c. Ill, § 2, also
provides as follows:
"Except as otherwise provided, no domestic life company shall invest
any of its funds in any unincorporated business or enterprise, or in the
stocks or evidence of indebtedness of any corporation, the owners or
holders of which stock or evidence of indebtedness may in any event be
or become liable on account thereof to any assessment except for taxes,
nor shall such life company invest any of its funds in its own stock or in
the stock of any other insurance company. . . ."
The above-quoted provision of § 66 prohibits the domestic life company
from investing any of its funds in the stock of any other insurance company.
However, there is no express statutory provision which prevents a domestic
life company from making a loan to a domestic fire company, with which
it shares some officers and directors in common, for the purpose of pur-
P.D. 12. 39
chasing stock of a casualty company. No facts have been presented to
me, nor may I assume, without justification, that the life company will
utilize the fire company as a mere tool or agent to evade the express pro-
hibition of § 66. In the absence of such evidence, I am bound to assume
that the mandate of the statute will be respected. Should such evidence
exist or later be brought to light, your supervisory powers under the pro-
visions of the Insurance Law, c. 175, are sufficiently broad to enable you
to take appropriate action.
You have indicated that the domestic life company and the domestic
fire company have certain directors and officers in common and that some
of these will, at some future date, become officers or directors of the foreign
casualty company. General Laws c. 175, § 193C, inserted by St. 1948,
c. 617, provides that:
"Any domestic insurance company may have as a director a person ^yho
is also a director of another insurance company, which may be an alien,
foreign or domestic company, provided, however, that if the effect thereof
is to substantially lessen competition generally in the insurance business
or tends to create a monopoly therein, it shall be deemed a violation of
this chapter. . . ."
Because of statutory limitations, the domestic life company and the
domestic fire company are not in competition in the insurance business
and, I can assume, have had separate and distinct existences, purposes and
ownership. As a general rule, our courts recognize separate corporate
existences except in the case of perpetrating a fraud, evading a statute, or
committing a crime. You have furnished me with no facts or evidence to
indicate that the effect of the loans and the purchase of stock will be to
"substantially lessen competition generally in the insurance business or
tends to create a monopoly therein. ..." If you possess such evidence,
it would constitute a sufficient reason for you to disapprove the loans. If
such evidence should later appear, you can act under the provisions of
§ 193C to restrain such violation promptly.
Accordingly, I must advise you on the basis of the information which
you have furnished to me that the loan from the domestic mutual life
company to the domestic fire company does not appear to violate the laws
of the Commonwealth.
Very truly yours,
Edward J. ]^,IcCormack, Jr., Attorney General,
By Leo Sontag, Assistant Attorney General.
40 P.D. 12.
The State Treasurer may not loithliold 'payment of the retirement allowance of
a retired State employee appointed a member of the Metropolitan Transit
Authority; statutory prohibition being of payment for services rendered by
retired persons to certain public bodies; view expressed that Authority was
not one of the bodies included.
Aug. 9, 1961.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir : — You have written me stating that a person has since
March 30, 1957, been receiving a retirement allowance from the Common-
wealth, which I assume is a contributory retirement allowance, and that
on July 20, 1961, he qualified as Chairman of the Board of Trustees of the
Metropolitan Transit Authority, having been appointed by His Excellency
the Governor. You further state that as of July 28th the Comptroller has
requested the State Treasurer to withhold the payment of any further
retirement allowance checks to the person referred to, and under those
circumstances you request an opinion upon the following questions:
"1. What is the duty and the responsibility of the State Board of
Retirement with regard to including Mr. Tyler on the monthly warrant
for retirement allowance payment?
2. What is the duty and the responsibility of the State Treasurer with
regard to the payment of such retirement allowance to Mr. Tyler?"
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-
permitted 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(/i)), 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
retirement allowance that comes before you in your official capacity, in
accordance 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 official, I advise you that, as stated, there
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 Metro-
politan 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.
P.D. 12. 41
It is to be noted, however, that the general prohibition contained in
G. L. c. 32, § 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 amj 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 enum.erates, only "the commonwealth, or any county, city,
town or district ..." Public authorities such as the Metropolitan Transit
Authority, which was created by the provisions of St. 1947, c. 544, with
officers, agents, employees and a treasury of its own, are not specifically
included, and it is a general rule of statutory construction that ex-pressio
unius est exclusio alterius. 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 Morse v. Boston, 253 Mass. 247, 252, "Statutes
must be interpreted as enacted. Omissions cannot be supplied ..." The
expediency of the enactment of the statutor}^ provisions referred to, and
the wisdom of the provisions, were for the Legislature to determine. See
Howe Brothers Company v. Unemployment Compensation Commission, 296
Mass. 275, 283 .
The foregoing, I believe, answers both your questions.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Chairman of the Board of Trustees of the Metropolitan Transit Authority
is 7iot eligible for membership in the Contributory Retirement System for
State Employees.
Aug. 11, 1961.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir : — From your letter of recent date I understand that your
board is in receipt of an application from the then Chairman of the Board
of Trustees of the Metropolitan Transit Authority, for membership in the
State Employees' Retirement System.
You state that the person referred to was a member of the Retirement
System from 1949 to 1953 when he was serving as Assistant Secretary to
the Governor. You further state that immediately on terminating his
service in the Governor's office, he served as a member of the Industrial
Accident Board and continued in that position until 1957. During this
service, also, he was a member of the retirement system. You further
advise that at the time of the filing of his application he was serving as
Chairman of the Board of Trustees of the Metropohtan Transit Authority
under an appointment by the Governor, with the advice and consent of
the Council.
You now request an opinion,
42 P.D. 12.
"as to whether service as a member and chairman of the Board of
Trustees of the Metropohtan Transit Authority can be considered as
employment by the Commonwealth which would make him eligible for
membership in the State Employees' Retirement System."
In 1945 the General Court, by c. 658 of the Acts and Resolves of that
year, consolidated the various public contributory retirement systems.
Section 2 of G. L. c. 32, inserted by c. 658, describes the various public
contributory retirement systems. Section 1 contains many definitions of
various terms used in §§ 1 to 28, inclusive, of c. 32, inserted by c. 658.
"Employee" is defined in some detail. "Governmental unit" is also so
described. "Member," "membership service," "political subdivision,"
"regular compensation," "service" and "system" are defined also. Section
3 of c. 32 deals with the subjects of membership and eligibility for member-
ship, late entry into membership and other privileges, credit for service,
leave of absence and reinstatement into active service, dual membership,
and transfer of re-establishment of membership.
Without, at this time, going into great detail, it is clear to me that the
first qualification for membership under G. L. c. 32, §§ 1 to 28, inclusive,
relating to the public contributory retirement systems, is that the appli-
cant is paid regular compensation by one of the political entities subject
to the sections. The word "member" as defined in § 1 includes any em-
ployee included in the State Employees' Retirement System. The words
"membership service" are defined as service as an employee in any govern-
mental unit. "Political subdivision" is defined as the J^Ietropolitan District
Commission or any county, hospital district, city, town, district or housing
authority established under the provisions of § 26L of c. 121 or other public
unit in the Commonwealth. "Governmental unit" is defined as the
Commonwealth or any political subdivision thereof. The definition of the
word "employee" covers over half a page. The word "employee" as applied
to persons whose regular compensation is paid by any political subdivision
of the Commonwealth, except the Metropolitan District Commission,
shall mean any person who is regularly employed in the service of an}^ such
political subdivision. "Employee" as applied to persons whose regular
compensation is paid by the Commonwealth or the Metropolitan District
Commission shall mean any person, whether employed or appointed for a
stated term, who is engaged in duties which reciuire that his time be devoted
to the service of such governmental unit and who is regularly and per-
manently employed in such service.
The applicant is not, in my opinion, an employee of the Commonwealth
vv'ithin the definition of the word "employee" in § 1 of c. 32. He is employed
by and compensated by the Metropolitan Transit Authority, which is an
independent governmental entity created by St. 1947, c. 544, with its own
funds and its own treasury and its own property and its own liabilities.
It has an existence apart and distinct from that of the Commonwealth.
Opinions of the Justices, 334 Mass. 721, 734.
I am aware of the opinion of my predecessor to the effect that service
as a public trustee of the Boston Elevated Railway Company might be
construed as service for the Commonwealth in the computation of credit-
able service to justify the payment of a noncontributory veteran's pension
under the provisions of G. L. c. 32, §§ 56-60, inclusive. Attorney General's
Report, 1955, p. 80.
The situation in that case was quite different from the case at bar. The
question before us is the right of the Chairman of the Board of Trustees
P.D. 12. 43
of the Metropolitan Transit Authority to become a member of the State
Contributory Retirement System. In order to do that he must bring him-
self squarely within the provisions of §§ 1 to 28, inclusive, of c. 32. The
fact, as stated above, that under St. 1947, c. 544, the Authority is a distinct
entity, separate from the Commonwealth, distinguishes the status of the
trustees of the Authority from that of the public trustees of the Boston
Elevated Railway Company under St. 1918, c. 159. It was held under the
latter act that it created a contract between the company and the Com-
monwealth, and that the Commonwealth itself had taken the company
over as a public enterprise. Opinion of the Justices, 261 Mass. 556, 594;
Auditor of the Commonwealth v. Trustees of Boston Elevated Railway Co.,
312 Mass. 74, 78. Under all the circumstances, I am constrained to rule
that the Chairman of the Board of Trustees of the Metropolitan Transit
Authority is not within the definition of "employee" as set forth in G. L.
c. 32, § 1.
In this connection it is helpful to consider certain of the provisions of
St. 1947, c. 544, which is entitled "AN ACT PROVIDING FOR THE
CREATION OF THE METROPOLITAN TRANSIT AUTHORITY
AND THE ACQUISITION AND OPERATION BY IT OF THE EN-
TIRE ASSETS, PROPERTY AND FRANCHISES OF THE BOSTON
ELEVATED RAILWAY COMPANY." Section 18 of that act provides
in substance that cc. 30 and 31 of the General Laws shall not apply to the
officers of the Authority "nor shall chapter thirty-two of the General Laws
apply to any retirement or pension sj^stem of the authority, but the
trustees may continue payment of pensions and retirement allowances
under and in accordance with the present pension plan and authorizations
of the board of trustees of the company, as from time to time modified by
the trustees." Obviously since membership in the State Employees'
Retirement System depends upon eligibility and qualifications fomid only
in G. L. c. 32, and in view of the express provisions of § 18 of c. 544 that
c. 32 of the General Laws shall not apply to any retirement or pension
system of the Authority, the answer to your question, in my opinion, is
in the negative.
Very trul}^ yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Application of ^'Administrative Procedure Act", to State agencies and schedule
of agencies in their relation thereto.
Aug. 14, 1961.
Hon. Charles Gibbons, Commissioner of Administration.
Dear Sir: — Your predecessor in office, Hon. Charles Francis Mahoney,
requested an opinion as to which of the agencies of State government do,
and which do not, come within the purview of G. L. c. 30A, the State
Administrative Procedure Act.
Before such an opinion is ventured, it should be clearly understood what
purposes can be served by such a listing and what its limitations are.
The act, in par. (2) of § 1, defines "Agency" as including:
44 P.D. 12.
". . . any department, board, commission, division or authority of the
state government, or subdivision of any of the foregoing, or official of the
state government, authorized by law to make regulations or to conduct
adjudicatory proceedings, but does not include the following: the legislative
and judicial departments; the governor and council; military or naval
boards, commissions or officials; the department of correction; the youth
service board and the division of youth service in the department of edu-
cation ; the parole board ; the division of industrial accidents of the depart-
ment of labor and industries; the division of child guardianship of the
department of public welfare; and the division of civil service."
Thus, it is possible to list a certain number of agencies which are wholly
and expressly excluded from the operation of the act. It does not follow,
however, that all other agencies of State government are subject to the act.
They are within its coverage only if they are ''authorized by law to make
regulations or to conduct adjudicatory proceedings."
Both of these terms are defined in the act. ''Regulation" is defined in
par. (5) of § 1 to include:
"... the whole or any part of every rule, regulation, standard or other
requirement of general application and future efl'ect adopted by an agency
to implement or interpret the law enforced or administered by it, but does
not include (a) advisory rulings issued under section eight; or (6) regula-
tions concerning only the internal management or discipline of the adopting
agenc}^ or any other agency, and not directl}^ affecting the rights of or the
procedures available to the public or that portion of the public affected by
the agency's activities; or (c) regulations concerning the operation and
management of state penal, correctional, welfare, educational, pubhc
health and mental health institutions and soldiers' homes, or the develop-
ment and management of property of the commonwealth or of the agenc}^;
or (c/) regulations relating to the use of public works, including streets and
highways, when the substance of such regulations is indicated to the public
by means of signs or signals; or (e) decisions issued in adjudicatory
proceedings."
"Adjudicatory proceeding" is defined in par. (1) of § 1, to mean:
"... 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 definition,
adjudicatory proceeding does not include (a) proceedings solely to de-
termine whether the agency shall institute or recommend institution of
proceedings in a court; or (h) proceedings for the arbitration of labor
disputes voluntarily submitted by the parties to such disputes; or (c)
proceedings for the disposition of grievances of employees of the common-
wealth ; or (d) proceedings to classify or reclassify, or to allocate or reallo-
cate, appointive offices and positions in the government of the commonwealth.
The preparation of the list j^ou request thus requires that we identify
those agencies which, though not excluded expressly by name or desig-
nation in par. (2) of § 1, are nevertheless not even potentially subject to
the act because they have no authority "to make regulations or to conduct
adjudicatory proceedings," as those terms are defined in the act. It
becomes necessary, in other words, to interpret these two terms, since they
are the two principal criteria by which the coverage of the act is determined.
The central importance of these two criteria creates at least three prob-
P.D. 12. 45
lems in the preparation of the Hst of agencies covered by the act, of which
note should be taken by anyone using the Ust. These problems are:
1. The difficulties of compiling a list.
2. The impermanence of the list.
3. The partial value of the list.
Let me develop further what I mean by these problems.
(1) The difficulties of compiling a list. — The preparation of the list
requires, first, a most careful search of the General Laws to determine the
functions of each agency, and more particularly to see whether it is em-
powered to issue statements that are arguably "regulations" or to conduct
proceedings that are arguably "adjudicatory." There is inevitably the
danger of inadvertence in a search of so vast an expanse of detailed ma-
terial. Thus, an agency may be thought not to be included under the act,
simply because its power to determine some individual's rights "after
hearing" is buried in some complex statutory provision and goes unnoticed.
Li addition to the magnitude of the clerical check, there are serious
problems of statutory interpretation.
Whether a particular statement of policy by an agency is a "regulation"
may at times be difficult to determine. The comprehensive definition of
"regulation" quoted above should not present many difficulties of subject
matter, but it does pose questions in terms of the degree of formality with
which the agency acts. A statement of agency policy made by a department
head or commission chairman in an after-dinner speech should not be
regarded as a "regulation." Circular letters or bulletins, issued regularly
to those regulated occupy a more ambiguous status, and the determination
whether they are "regulations" may depend on the care and exactness
with which they are drawn, and the sanctions to be anticipated for
non-compliance.
It is obviously impossible, in the preparation of a list of agencies, to
make a close examination of the day-to-day practice of each agency to
see with what degree of formality it issues policy statements. All that can
be done is to determine whether the agency has the power to issue state-
ments with such formality and carrying such sanctions that they should
be regarded as "regulation." Listing an agency obviously may not prevent
it from issuing informal statements outside the act.
The principal interpretive problem relating to "adjudicatory proceed-
ings" arises from the provision that a proceeding is adjudicatory if a hearing
is required by "constitutional right." What in a given instance comprises
a constitutional right to a hearing can be one of the most baffling questions
of constitutional law, determinable only after a meticulous factual analysis
of the particular case at hand. It seems clear that a general listing of
agencies subject to the act must be based on the provision that a hearhig is
adjudicatory if it is required by "any provision of the General Laws."
This will in fact cover most of the instances where a constitutional right
may also be asserted. But a footnoted caveat must be added to the list,
to the effect that a proceeding is adjudicatory if there is a constitutional
right to a hearing, even though the General Laws may make no provision
for it.
(2) The Impermanence of the List. — Any list of agencies will be out-
dated by subsequent enactments of the Legislature, even though the
Administrative Procedure Act is not itself amended. An agency not in-
46 P.D. 12.
eluded in the list may subsequently be given new authority by the Legis-
lature to issue regulations or to conduct adjudicatory proceedings. Con-
versely, an agency that has such authority at the time the list is prepared
may later be deprived of it by the Legislature. In addition, new agencies
may be created by the Legislature with an authority that brings them
under the act.
(3) The Partial Value of the List. — An agency is in effect subject to
the act only in so far as it does in fact issue regulations or conduct adjudi-
catory proceedings. Its authority to do these things brings it within the
definition of "agency" in par. (2) of § 1, but the other provisions of the
act impinge on the agency only to the extent that it exercises that authority.
It follows from this that a listing of agencies subject to the act tells us
that these agencies must conform to its provisions if and when they issue
regulations or conduct adjudicatory proceedings, and not otherwise. The
very same agency may issue one statement of policy that comes within the
act's definition of ''regulation" and may issue another statement that does
not. If so, it must conform to the act only with respect to the former
statement. Similarly, an agency may in one month conduct a proceeding
that comes within the act's definition of an "adjudicatory proceeding,"
and in the next month the agency may conduct a proceeding that does not.
Again, the agency must conform to the requirements of the act only with
respect to the former proceedings.
Since the requested listing of agencies subject to the act must include all
agencies "authorized by law to make regulations or to conduct adjudicatory
proceedings," anyone who uses the list must understand what the list
signifies. It includes all agencies potentially subject to the act as of a
given time. But it does not tell the reader which of the activities of the
agency are subject to the act and which are not.
Appended hereto, then, is a consolidated schedule, to which is attached
an alphabetical index, classifying the State agencies in terms of their
obligations to comply with the Administrative Procedure Act in respect to
their regulation-making powers and their adjudicatory powers. Those
agencies created by the General Laws are listed first in the order in which
they appear in the statute book, followed by those agencies created by
special acts. The relation of each agency to the act is indicated by the
symbols "R2," "R3," "R9," and "A" respectively.
"R2" refers to regulations governed by § 2 of the act, which reads hi part:
"Prior to the adoption or amendment of any regulation as to which a
hearing is required by any law, or any other regulation the violation of
which is punishable by fuie or imprisonment except a regulation of agency
practice or procedure, an agency shall give notice and hold a public hearing,
as follows:
"(1) The agency shall, within the time specified by any law, or, if no
time is specified, then at least twenty-one days prior to the public hearing,
(a) publish notice of such hearing in such manner as is specified by an}^ law,
or, if no manner is specified, then in such newspapers, and, where appropri-
ate, in such trade, industry or professional publications as the ageiicy may
select; and (6) notify any person specified by any law, and, in addition, any
person or group filing written request, such request to be renewed yearly in
December, for notice of hearings which may affect that person or group,
notification being by mail or otherwise to the last address specified by the
person or group.
P.D. 12. 47
"R3" refers to regulations governed by § 3 of the act, which reads:
"Prior to the adoption or amendment of any regulation other than those
subject to section two, or the repeal of any regulation, an agency shall
give notice and afford interested persons an opportunity to present data,
views or arguments, as follows:
"(1) The agency shall, within the time specified by any law, or if no
time is specified, then at least twenty-one days prior to its proposed action
(a) publish notice of its proposed action in such manner as is specified by
any law, or if no manner is specified then in such newspapers, and, where
appropriate, in such trade, industry or professional publications as the
agency may select; and (b) notify any person specified by any law, and, in
addition, any person or group filing written request, such request to be
renewed yearly in December, for notice of proposed action which may
affect that person or group, notification being by mail or otherwise to the
last address specified by the person or group.
"The notice shall (a) refer to the statutory authority under which the
action is proposed; (6) give the time and place of any public hearing, or
state the manner in which data, views or arguments may be submitted to
the agency by any interested person; (c) either state the express terms or
describe the substance of the proposed action, or state the subjects and
issues involved ; and (d) include an}^ additional matter required by any law.
"(2) The agency shall afford interested persons an opportunity to
present data, views or arguments in regard to the proposed action orally
or in writing. If the agency finds that oral presentation is unnecessary or
impracticable, it may require that presentation be made in writing.
"(3) If the agency finds that the requirements of notice and opportunity
to present views on its proposed action are unnecessary, impracticable or
contrary to the public interest, the agency may dispense with such require-
ments or any part thereof. The agencj^'s finding and a brief statement of
the reasons for its finding shall be incorporated in the regulation, amend-
ment or repeal as filed with the state secretary under section thirty-seven
of chapter thirty.
"This section does not relieve any agency from compliance with any law
requiring that its regulations be approved by designated persons or bodies
before they may become effective."
"R9" refers to regulations within § 9 of the act. This section deals with
regulations governing hearings on the adoption, amendment, or repeal of
regulations as well as adjudicatory hearings. Section 9 reads:
"Each agency shall adopt regulations governing the procedures pre-
scribed by this chapter."
"A" refers to par. 1, § 1, of the act relating to adjudicatory proceedings,
the text of which is set out above.
I am assuming for purposes of this opinion that every agency must
comply with § 9 if it is subject to the act in any respect, other than in
respect to § 11 A, the so-called "Open Meeting" Law. The provisions of
section 11 A as to notice of meetings, records, pubhcations, etc., apply to
a number of agencies which are otherwise exempt from c. 30 A, and hence
I am exphcitly excluding that section from the purview of this opinion.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
48 P.D. 12.
Schedules of the Agencies of Government of the Commonwealth
OF jMassachusetts in Their Relation to the State Administrative
Procedure Act.
Note — The symbols below indicate the obligation of the agencies to
comply in terms of their respective regulation-making powers or adjudi-
catory powers or both.
"R2" refers to § 2 of the act governing the adoption and amendment of
regulations as to which a hearing is mandatory or whose violation invites
criminal sanctions.
"R3" refers to § 3 of the act governmg both the adoption or amendment
of all regulations not covered by § 2 and the repeal of any regulations; it
also prescribes the procedure for holding hearings or other public exchanges
pursuant to such adoption, amendment or repeal.
'*R9" refers to § 9 of the act, which deals with regulations governing
hearings on the adoption, amendment or repeal of regulations as well as
adjudicatory hearings.
"A" refers to par. (1), § 1, of the act relating to adjudicatory proceedings.
G. L. c. 6: The Governor, Lieutenant Governor and Council,
Certain Officers under the Governor and Council,
and State Library .
1. Armory Commission ((7. L. c. 6, §§ 17, 18) — — — —
2. Art Commission {G. L. c. 6, §§ 17, 19, 20) _ _ _ _
3. Commissioner of Veterans' Services (G. L. c. 6,
§§ 17-25; c. 115, §§ 2, 15) — R3 R9 A
4. Commissioners of Uniform State Laws {G. L. c. 6,
§§ 17, 26-28) _ _ _ _
5. Public Bequest Commission ((?. L. c. 6,^17, 28 A-D — — — —
6. State Ballot Law Commission {G. L. c. 6, §§ 17,
29-32; c. 58, § 12, 22A; c. 54, § 37) — R3 R9 A
7. Milk Regulation Board {G. L. c. 6, §§ 17, 42; c. 9^,
§§ 12A, 13, 13A, 16J R2 R3 R9 —
8. Alcoholic Beverages Control Commission {G. L.
c. 6, §§ 17, 43-45; c. 138, §§ 12, 15A, 18, 18B, 19-
25C, 64, 67, 77) R2 R3 R9 A
9. State Racing Commission {G. L. c. 6, §§ 17, 48;
c. 128 A, §§ 3, 9, 11) R2 R3 R9 A
10. Massachusetts Commission Against Discrimination
{G. L. c. 6, §§ 17, 56; c. 151B, §§ 3-(5), 5; c. 151C,
§§ 3, 5) R2 R3 R9 A
11. Massachusetts Aeronautics Commission {G. L. c. 6,
§§ 17, 53-59; c. 90, §§ 39, 44, 49B-R) R2 R3 R9 A
12. State Housing Board {G. L. c. 6, §§ 11 ,%4.;c.l21,
§§ 26U, 21AA, 21KK; c. 121A, § 4) — R3 R9 A
13. Youth Service Board {G. L. c. ^, §§ 65-69B) _ _ _ _
14. Weather Amendment Board (G. L. c. 6, §§ 17, 72) — — R9 A
15. Council for the Aging (G. L. c. 6, ^ 17, 73-84) _ _ _ _
16. Massachusetts Commission on Atomic Energy
(G. L. c. ^, §§ 17, 85-93) _ _ _ _
17. Finance Advisory Board (G. L. c. 6, §§ 17, 97, 98) — — — —
18. Boxer's Fund Board (G. L. c. 6, §§ 17, 99) _ _ _ _
P.D. 12. 49
19. Medical, Dental and Nursing Scholarship Board
(G. L. c. 6, §§ 17, 100) _ _ _ _
G. L. c. 7 Commission on Administration and Finance
Note ■ — Most of the activities of this commission relate to the Com-
monwealth's internal management or to matters expressly exempted from
the operation of the Administrative Procedure Act. In four cases, how-
ever, the commission, acting either du'ectly or through its subordmates,
the state purchasing agent, the director of buildmg construction, the
director of hospital costs and finances, or the state employers' group
insurance commission, may make regulations subject to Section 3.
State purchases (G. L. c. 7, § 22) — R3 R9 —
Building construction (G. L. c. 7, § 301) — R3 R9 —
Hospital Costs and Finances (G. L. c. 7, §§ 30K, L) — R3 R9 —
State Employees' Group Insurance (G. L. c. 32A,
§§ 3, 11) — R3 R9 —
G. L. c. 9 — Department of the State Secretary
1. The State Secretary (G. L. c. 110, § 9) — R3 R9 —
G. L. c. 10 — Department of the State Treasurer
1. State Board of Retirement (G. L. c. 10, §§ 18-20;
c. 32, §§ 3-6a, 4-2, 5, 9-3, 16-lA, B, c. 118C,
§§4,7) — R3 R9 A
G. L. c. 12 — Department of the Attorney General
1. Director of Public Charities (G. L. c. 12, §§ 8C, 81) — R3 R9 —
G. L. c. 13 — Department of Civil Service and Registration
1. Civil Service Commission — — — —
2. Director of Registration (G. L. c. 13, § 9A) — R3 R9 —
Note: In order to appreciate the significance of the Administrative
Procedure Act to this department it is necessary to note the following
extracts from the General Laws:
G. L. c. 13, § i — "There shall be a department of civil service and
registration, which shall consist of a division of civil service and a
division of registration. ..."
{Note: The division of civil service has been expressly exempted from
the operation of the Administrative Procedure Act.)
G. L. c. 13, § 5 — "The division of registration shall be under the super-
vision of a director, to be known as the director of registration, at such
salary, not exceeding six thousand dollars, as the governor and council may
determine. ..."
G. L. c. 13, § P — "The various boards of registration and examination here-
after mentioned in this chapter shall serve in the division of registration
and shall establish their offices in the state house within the spaces already
or hereafter assigned to the director of registration."
G. L. c. 13, § 5A — "The director of registration, subject to the approval
of the governor and council, may make such rules and regulations governing
the conduct of written and oral examinations by the several boards of
50 P.D. 12.
registration and examination aforesaid as shall tend to standardize pro-
cedure and protect the commonwealth and applicants for registration
against fraud; provided, that nothing in this section shall prevent any such
board from adopting under authority of other provisions of law specific
rules and regulations which are not in conflict with the rules and regulations
authorized by this section."
G. L. c. 112, ^ 1 — "The director of registration shall supervise the -work; of
the several boards of registration and examination included in the division
of registration of the department of civil service and registration. He
shall recommend changes in the methods of conducting examinations and
transacting business, and shall make such reports to the governor and
council as they may require or he may deem expedient."
The remaining sections of G. L. c. 13 provide for the appointment of nine-
teen different boards of examination and registration. Seventeen of these
boards have authority over one profession or occupation each. One has
authority over two. Another has authority over three. Twenty-two pro-
fessions and occupations altogether are thus subject to examination and
registration by these boards.
The remaining sections of G. L. c. 112 deal with the examination, regis-
tration, and regulation of twenty of these occupations. The order of
treatment is not the same as in G. L. c. 13.
General Laws c. I4I deals with the examination, registration, and regu-
lation of electricians.
General Laws c. I42 deals wdth the examination, registration, and regu-
lation of plumbers.
General Laws cc. 13, 112, I4I and I42 — four chapters altogether — are
thus devoted to the examination, licensing, registration, and regulation
of twenty-two occupations and professions. The following schedule is
arranged in the sequence dictated by G. L. c. 13. G. L. c. 112, §§ 61-65,
87N give each board authority to revoke registration for malpractice.
Other references to G. L. c. 112, I4I, 142 are inserted under the particular
boards of examination to which they relate.
3. Board of Registration in Medicine (G. L. c. 13,
§§ 10-11) R2 R3 R9 A
(a) Registration of Physicians and Surgeons
(G. L. c. 112, §§ 2~9A)
(b) Registration of Physical Therapists
(G. L. c. 112, §§ 23A-M)
4. Board of Registration in Chiropody (Podiatry)
(G. L. c. 13, § 12A-C) R2 R3 R9 A
(c) Registration of Chiropodists
(G. L. c. 112, §§ 13-22)
5. Board of Registration in Nursing (G. L. c. 13,
§§ 13-1 5B-D) R2 R3 R9 A
(d) Registration of Nurses
(G. L. c. 112, §§ 74-81 A-B)
6. Board of Registration in Optometry (G. L. c. 13,
§§ 16-18) R2 R3 R9 A
(e) Registration of Optometrists
(G. L. c. 112, §§ 68-70)
P.D. 12.
51
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R2 R3 R9 A
7. Board of Dental Examiners (G. L. c. 13, §§ 19-21) R2 R3 R9 A
(f) Registration of Dentists
(G. L. c. 112, §§ 43-52A-C)
8. Board of Registration in Pharmacy (G. L. c. 13,
§§22-25) R2 R3 R9 A
(g) Registration of Pharmacists
(G. L. c. 112, §§ 24-30)
(h) Licensmg of wholesale druggists
(G. L. c. 112, §§ 36A-D)
(i) Registration and licensing of Stores for
Transacting Retail Drug Business
(G. L. c. 112, §§ 37-41A)
9. Board of Registration in Veterinary Medicine
(G. L. c. 13, §§ 26-28)
(j) Registration of Veterinarians
(G. L. c. 112, §§ 55-59)
10. Board of Registration in Embalmmg and Funeral
Directing (G. L. c. 13, §§ 29-31)
(k) Registration of Embalmers and Funeral
Directors
(G. L. c. 112, §§ 83-87)
11. State Examiners of Electricians (G. L. c. 13, § 32) R2 R3 R9 A
(1) Supervision of Electricians
(G. L. c. 141)
12. Board of Registration of Certified Public Account-
ants (G. L. c. 13, §§ 33-35) R2 R3 R9 A
(m) Registration of Certified Public Accountants
(G. L. c. 112, §§ 87A-D)
13. Board of State Examiners of Plumbers (G. L. c. 13,
§§ 36-38) R2 R3 R9 A
(n) Supervision of Plumbing
(G. L. c. 142)
14. Board of Registration of Barbers (G. L. c. 13,
§§39-41) R2 R3 R9 A
(o) Registration of Barbers
(G. L. c. 112, §§ 87G-R)
15. Board of Registration of Hairdressers (G. L. c. 13,
§§ 42-43) R2 R3 R9 A
(p) Registration of Hairdressers
(G. L. c. 112, §§ 87A-n)
16. Board of Registration of Architects (G. L. c. 13,
§44) R2 R3 R9 A
(q) Registration of Architects
(G. L. c. 112, §§ 60A-H)
17. Board of Registration of Professional Engineers
and Land Surveyors (G. L. c. 13, §§ 45-47) R2 R3 R9 A
(r) Registration of Professional Engineers and
Land Surveyors
(G. L. c. 112, §§ 81E-T)
18. Board of Registration of Dispensing Opticians
(G. L. c. 13, §§ 48-50) R2 R3 R9 A
(s) Registration of Dispensing Opticians
(G. L. c. 112, §§ 73C-J)
52 P.D. 12.
19. Board of Registration of Sanitarians (G. L. c. 13,
§§51-53) R2 R3 R9 A
(t) Registration of Sanitarians
(G. L. c. 112, §§ 87MM-00)
20. Board of Registration of Real Estate Brokers and
Salesmen (G. L. c. 13, §§ 54-57) R2 R3 R9 A
(u) Registration of Real Estate Brokers and
Salesmen
(G. L. c. 112, §§ 87RR-DDD)
21. Board of Registration of Electrologists(G.L.c. 13) R2 R3 R9 A
(v) Registration of Electrologists
(G. L. c. 112, §§ 87EEE-MMM)
G. L. c. 14 ■ — Department of Corporations and Taxation
1. State Tax Commission (G. L. c. 14, §§ 2, 4; c. 62 B,
§§ 2, 5, 13, 21; c. 64A, § 4; c. 64B. § 2; c. 64C,
^ 25; c. 138,\U 20A, 21; C.200A, ^10 R2 R3 R9 A
2. Director of Accounts (G. L. c. 14, § 1; c. 44, § 43;
c. 69, § 23)
3. Commissioner of Corporations and Taxation
(G. L. c. 14, § 2; c. 55, § 1; c. loo, § 9
4. Appellate Tax Board (G. L. c. 58A, §§ 1-13; c. 131 A,
§10)
G. L. c. 15 — Department of Education
1. Board of Education (G. L. c. 15, § lA; c. 71, §§ 38G,
66)
2. Commissioner of Education (G. L. c. 15, § IB;
c. 93, §§ 21A-D, 22; c. 112, § 24B)
3. Board of Collegiate Authority (G. L. c. 15, § 3A;
C.69, §§30,31)
4. Board of Library Commissioners (G. L. c. 15, § 9;
c. 78, §§ 20, 25, 29)
5. Director of the Division of the Blind (G. L. c. 15,
§13;c. 69, §§25C, D)
6. Teachers' Retirem.ent Board (G. L. c. 15, §§ 16-18;
c. 32, §§ 3-6-a, 4-2, 5, 9-3 16-lA, B; c. 118C,
§§ 4, 7)
7. School Building Assistance Commission (Acts of
1948 c. 645, § 8)
G. L. c. 16 — Department of Public Works
1. Commissioner and Associate Commissioners {G. L.
c. 16, §§ 2, 4, 5A, 6; c. 90, § 31 A; c. 91, §§ 27, 34,
38, 60, 61) R2 R3 R9
2. Registrar of Motor Vehicles ((?. L. c. 16, §§ 5, 6;
c. 90, §§ 2, 7A, 7C, 20, 22, 23, 31, 32G; c. 90 A,
§16)
3. Outdoor Advertising Board (G. L. c. 16, § 5D;
c. 93, §§ 29-32)
4. Director of Division of Motor Boats {G. L, c. 16,
§ 12; c. 90B, § 11)
G. L. c. 17 — Department of Public Health
Nearly all of the many sections relative to public health which confer
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P.D. 12. 53
authority to make regulations or conduct adjudicatory proceedings confer
this authorit}^ on "the department." The practical interpretation of this
phrase seems to be governed by the following sections of the General Laws :
G. L. c. 17, ^ 1 ■ — "There shall be a department of public health, con-
sisting of a commissioner of public health and a public health council."
Sec. 3 ■ — "The public health council shall consist of the commissioner,
ex officio, and six appointive members, of whom three shall be physicians.
G. L. c. Ill, § ^ — "The commissioner shall administer the laws relative
to health and sanitation and the regulations for the consideration of
the council ..."
In view of these sections, all authority to make regulations and to con-
duct adjudicatory proceedings which is conferred by law on "the depart-
ment" is deemed to be vested in the public health council.
1. Public Health Council (G. L. c. 17, §§ 1, 13; c. 94,
§§ 6, 9F, 9L, lOB, GET, 12A, 41, 43, 48C, D,
65J, Q, 66, 124, 131, 139A, 146, 147, 147A, 160,
187, 187A, 192, 193, 270A, 303B, 305B, C; c. Ill,
§§ 2, 5, 5BCDE, 6, 8, 8A, 17, 21, 54, 55, 71, 72,
94H, 107, 111, 117, 128, 142, 142B, 143, 150A,
152, 160, 162, 184A; c. lU, §§ 9, 36; c. 130, § 76;
c. 155, § 2B) R2 R3 R9 A
2. Commissioner of Public Health ((?. L. c. i7, §§ 1, 2;
c. 49A, §§ 2, 7; c. H, § 198B; c. 94B, §§ 2, 18;
c. 130, §_§ 22, 76; c. 131, § 28; c. H9, § 142A) R2 R3 R9 A
3. Director of the Division of Food and Drugs {G. L.
c. 17,14; c. 94, § 73A) R2 R3 R9 —
4. Board of Review • — Aquatic Nuisances (G. L. c.
Ill, § 5E) — — R9 A
6. Board of Review — Hospitals and Sanitoria (G. L.
c. Ill, §71) — — R9 A
G. L. c. IS — Dej)artment of Public Welfare
1. Department of Public Welfare (G. L. c. 117, § 46;
c. 118, §§ 4A, 5, 8; c. 118A, §§ 1, 3, 6A, 10, 18,
19, 20, 21; c. 118D, §§ 9, 15; c. 119, §§ 5, 12, 18,
2\,p;c.l80,^Q — R3 R9 A
2. Division of Urban and Industrial Renewal (G. L.
c. 121, § 26DDD) — R3 R9 —
G. L. c. 19 — Department of Mental Health (G. L. c. 123, § 33)
R9 A
G. L. c. 20 — Department of Agriculture
1. Commissioner of Agriculture {G. L. c. 20, §§ 1-3;
c. 94, §§ 16K, 42A, 42H, 90B, 106, 107, 117,
AEIJ, 139E, 152A; c. 128, _ §§ 10, 25, 32) R2 R3 R9 A
2. Director, Division of Dairying and Animal Hus-
bandry {G. L. c. ^0, § 6; c. 94, §§ 16DFG) — — R9 A
3. Director, Division of Livestock Disease Control
{G. L. c. 20, I Q; c. 129, §§ 2, 14B, 26A, 33, 33B,
33C, 39, 43) R2 R3 R9 A
4. Director, Division of Plant Pest Control and Fairs
(G. L. c. ^0, §6;c. i^5, §§ 18, 27, 29) R2 R3 R9 A
54 P.D. 12.
5. Director, Massachusetts Agricultural Experiment
Station {G. L. c. ^0, § 6; c. 5^, §§ 1, 28, 230, 235,
255, 256, 260, 261 IJ) — R3 R9 A
6. T^Iilk Control Commission {G. L. c. 20, §§ 7-9;
c. 94A, §§ 2, 5, 6, 7, 10, 11, 22) R2 R3 R9 A
G. L. c. 21 — Department of Natural Resources
1. Board of Natural Resources (G. L. c. 21, §§ 1, 2;
c. i5^ §§ 45A, 64, 65, 68, 80) R2 R3 R9 —
2. Commissioner of Natural Resources {G. L. c. 21,
§§ 1, 3; c. 132, §§11, 17, 41) R2 R3 R9 A
3. Director, Division of Marine Fisheries {G. L. c. 21,
§§ 1, 3; c. 130, §§ 46, 70, 75, 76, 77, 80, 89, 94) R2 R3 R9 A
4. Director, Division of Fisheries and Game (G. L.
c. 21, §§ 1, 3, 7F; c. 131, §§ 2, 37, 41A, 48, 59, 62,
63, 66, 81, 87, 92, 103-111) R2 R3 R9 A
5. Water Resources Commission (G. L. c. 21, §§ 8-15) — R3 R9 —
G. L. c. 22 — Department of Public Safety
1. Commissioner of Public Safety {G. L. c.22,^ l,Z;
c. 1^8, § 87; c. 102, § 15; c. 136, §§ 4, 4A; c. IJfi,
§§ 180G, 185 A-E; c. lli.3, §§ 15A, 34, 38, 54, 73,
81, 82, 85, 86; c. lli.6, § 63; c. IJ^l, §§ 5, 25, 27,
37; c. 11^8, § 10) R2 R3 R9 A
2. State Fire Marshal (G. L. c. 22, § 3; c. 1J^8, § 13) — — R9 A
3. Board of Boiler Rules {G. L. c. 22, § 10; c. H6,
§§ 2, 3, 35, 43) R2 R3 R9 —
4. Boards of Appeal on Licenses to Act as Engineer,
Fireman, or Operator of Hoisting Machinery
(G. L. c. 146, § 66) — ~ R9 A
5. Board of Elevator Regulations {G. L. c. 22, § 11;
c. 143, §§ 68, 69, 70, 71C) R2 R3 R9 A
6. Board of Elevator Appeals ((?. L. c. 22, § llA;
c. 143, § 70) — — R9 A
7. Board of Schoolhouse Structural Standards (Acts
1955, c. 675; Acts of 1960, c. 596) R2 R3 R9 —
8. State Boxing Commission {G. L. c. 22, § 12; c. 147,
§§ 32, 35, 42, 46) R2 R3 R9 A
9. Board of Standards {G. L. c. 22, § 13; c. 143 §§ 3B,
21C) R2 R3 R9 —
10. Board of Fire Prevention Regulations {G. L. c. 22,
§ 14; c. 143, §§ 3L, 9, 10, 13, 28, 38, 39A, 46) Rs R3 R9 —
G. L. c. 23 — Department of Labor and Industries
1. Commissioner of Labor and Lidustries {G. L. c. 23,
§§ 1, 3, IIJ; c. 98, § 29; c. 149, §§ 1, 6, 8, 24G, 54,
63, 120A, 133, 142A-E, 145, 146, 147, 147A-E,
159A; c. 150, § 2; c. 151, § 11; c. 152, § 1) R2 R3 R9 A
Note: G. L. c. 23, § 3 gives this official power to prepare ". . . all
. . . rules and regulations which the department is authorized by
law to make." This section is interpreted to mean only that, when
the General Laws state that The Department shall have power to
make rules, then the Commissioner has the poAver. The reason for
P.D. 12. 55
this is that the law too clearly puts power to make regulations in
other bodies in The Department; see for example c. 23, § 90.
2. Director of Standards and Necessaries of Life
(G. L. c. 23, § 8; c. 94, §§ 9, 182, 239A, 295IBK;
c. 95,% I; c. 98, §§ 13, 14A, 15, 18, 23, 28A, 29,
46A, 47; c. 101, §§ 25, 30) R2 R3 R9 A
3. Director, Division of Employment Security {G. L.
c. 23, § 91J; c. 151A, §§ 14 (k), 38) " — R3 R9 A
4. Board of Review, Division of Employment Security
((y. L.c.^S, §9N(b);c.i5M, §§14, 40, 41) — — R9 A
5. Labor Relations Commission {G. L. c. 23, § 90-R;
c. i50A, §§5, 6, 6A) — R3 R9 A
6. Health, Welfare, and Retirement Trust Funds
Board {G. L. c. 23, §§ lOA-C, c. 151D) — R3 R9 —
7. Director of Apprentice Training (G. L. c. 23,
§§ llE-L) — R3 R9 —
8. Lidustrial Accident Board {G. L. c. 23, §§ 14, 15;
c. 30A, § 1 (2) _ _ _ _ _ _
9. Industrial Accident Rehabilitation Board (G. L.
c. 23, §§ 14, 24; c. 30A, § 1 (2)) _____
10. Minimum Wage Commission (G. L. c. ^5, § 1; c.
149, §§ 27, 27A; c. 151, §§ 5, 8, 19) R2 R3 R9 —
G. L. c. 25 — Department of Public Utilities
1. Public Utilities Commission (G. L. c. 25, § 1)
Note: The functions of this commission are so varied and extensive,
and the statutes under which it may act are so numerous, that it
seems convenient to arrange the statutory citations under the
different industries which are subject to regulation by the commission
rather than to collect them in a single group.
A. Aircraft {G. L. c. 90, §§ 40HI, 44) R2 R3" R9 A
B. Securities (Blue Sky Law) (G. L. c. IIOA §§ 2,
3 (k), 4 (i) (j), 9, 12, 13) R2 R3 R9 A
C. Common Carriers {G. L. c. 159, §§4, 4A, 16,
20, 21, 30, 31, 32, 33, 54, 58, 59, 65, 80,
81,84) — R3 R9 A
D. Carriers of Passengers by Motor Vehicle {G. L.
c. 159A, §§ 1, 3, 4, 7, 7A, 8, 9, llA, 12;
c. 159A, Aw. §§ 1-5) R2 R3 R9 A
E. Carriers of Property by Motor Vehicle {G. L.
c. 159B, §§ 3, 4, 6, 7, 8, lOB, 11, llA, 12
15A, 16, 18, 20) R2 R3 R9 A
F. Railroads (G. L. c. 160, §§21, 60, 102, 103,
104, 110, 113, 128A, 131, 131A, 134A, 137,
139, 141, 142, 147, 152, 213, 215) — — R9 A
G. Locomotive Boilers (G. L. c. 160, § 168) R2 R3 R9 —
H. Street Railways {G. L. c. 161, §§ 7, 27, 28, 38,
39, 40, 47, 48, 49, 53, 55, 58, 70, 71, 77, 85 R2 R3 R9 A
L Electric Railroads {G.L.c. 162, ^^,\2,n,U) R2 R3 R9 A
56 P.D. 12.
J. Trackless Trolley Coiwpanies (G. L. c. 163,
§§ 1, 6, 12) - - R9 A
K. Manufacture arid Sale of Gas and Electricity
(G. L. c. 164, §§ 5, 15, 17A, 23, 30, 43, 47,
52, 54, 56D, 68, 70A, 72, 75BCE, 88, 92,
92A, 93, 94, 94F, 96, 97, 105A, 106, 109,
121, 122) R2 R3 R9 A
L. Water and Aqueduct Companies (G. L. c. 165,
§§ 1, 4B, 5, 9, 10) — R3 R9 A
M. Telephone and Telegraph Companies and
Lines for the Transmission of Electricity
(G. L. c. 166, §§ 4, 11, 22A, 28)
2. Board of Gas Fitting Regulations (G. L. c. 25,
§ 12H) R2 R3 R9 A
G. L. c. 26 — Department of Banking and Insurance
1. Commissioner of Banks {G. L. c. 26, § 1; c. 93,
§§ 24A; c. UO, §§ 96, 97, 101, 103; c. 167, §§ 2A,
6; c. 167A, §5; c. 168, §§ 35 (11, 12), 36, 38, 56,
64; c. 170, §§ 11, 12, 24A, 42; c. 171, § 6; c. 172,
§§ 14, 16, 47, 69, 70, 84; c. 172A, § 15; c. 255B,
§§ 2, 3, 5, 7, 8) R2 R3 R9 A
2. Board of Bank Incorporation {G. L. c. 26, § 5;
c. 167A, § 4; c. 168, § 73A, 78; c. 170, §§ 3, 49;
c. 172A, § 2) — — R9 A
3. Small Loans Regulatory Board {G. L. c. 26, § 5A;
c. 140, § 100) R2 R3 R9 —
4. Board for Removal of Bank Officers {G. L. c. 167,
§5) — — R9 A
5. Commissioner of Insurance {G. L. c. ^^, § 1; c. 152,
§§ 52, 52C-F, 60BG, 65GKL; c. 174A,% 2, 6-18;
c. 175, §§ 25, lOlB, 108, 113BFHI, 163, 166,
172A, 173, 174, 177B, 193D; c. 175A, §§ 6-19;
c. 176, §§ 34, 35; c. 176A, §§ 6, 10, 25; c. 176D,
§§ 6, 9; c. 178, § 7) R2 R3 R9 A
6. Board of Appeal on Fire Insurance Rates {G. L.
c. 26, § 8. This section creates the board but
does not assign it any functions, and no func-
tions appear to be assigned to it anywhere else
in the General Laws.)
{G. L. c. 17 4A — Regulatio7i of Rates for Fire,
Marine and Inland Marine Insurance, and
Rating Organizations does not mention this hoard) — — — —
7. Board of Appeal on Motor Vehicle Liability Policies
(G. L. c. 26, § 8A; c. 90, § 28; c. 175, § 113D.
For rulings from which appeals may be taken
see, among others, c. 90, §§ 3, 7E, 22, 26, 29, 32G;
c.90A,%%^,^;c. 159 A, III) — — R9 A
8. Board of Premium Instalment Rates for Brokers
and Agents {G. L. c. 175, § 162B) R2 R3 R9 —
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G. L. c. 28 ■ — Metropolitan District Commission (G. L.
c. 92, §§ 1, 38, 39, 74, 76A, 76B) R2 R3 R9 A
G. L. c. 32, § 164 — Contributory Retirement Appeal
Board
G. L. c. 103, §§ ^, 5 — Commissioners of Pilots
G. L. c. 252, §§ ^, 5, 5 A, 7 — State Reclamation Board
Acts of 1899, c. 378, § 4 — Wachusett Mountain State
Reservation Commission
Acts of 1903, c. 264, § ^ — Mount Tom State Reservation
Commission
Acts of 1907, c. 540, § 5 — Deer Hill State Reservation
Commission
Acts of 1907, c. 541, § 3 — Mount Sugar Loaf State
Reservation Commission
Acts of 1908, c. 571, § 4 — Mount Everett Reservation
Commission
Acts of 1919, c. 327, § 5 — Purgatory Chasm State
Reservation Commission
Acts of 1922, c. 499, § 3 — Walden Pond State Reser-
vation Commission
Note: All the enabling statutes of the foregoing seven agencies except
the last contain a section substantially as follows:
"Sec. — The commission shall have the same powers in acquiring land
. . . which are given to the metropolitan park commission by chapter 407
of the Acts of 1893 and acts amendatory thereof, and shall be vested with
full power and authority to care for, protect and maintain the same on
behalf of the commonwealth."
Acts of 1893, c. 407 referred to in the foregoing contains the following
section :
"Section 4 — Said board shall have power to acquire, maintain, and
make available to the inhabitants of said (metropolitan park) district open
spaces for exercise and recreation ; and to this end . . . shall be authorized
to take, in fee or otherwise, in the name and for the benefit of the Common-
wealth, by purchase, gift, devise or eminent domain, lands and rights in
land for public open spaces within said district . . . ; and to preserve and
care for such public reservations ... In furtherance of the powers herein
granted, said board may employ a suitable police force, make rules and
regulations for the government and use of the public reservations under
their care, and for breaches thereof affix penalties not exceeding twenty
dollars for one offence, to be imposed by any court of competent
jurisdiction ..."
It is believed that the above quoted section from the acts establishing
the various Reservation Commissions above listed should be construed as
extending to these commissions the same power to make regulations and
affix penalties as is conferred on the metropolitan parks commission by
Acts of 1893, c. 407, § 4. While the language of the act creating the Walden
Pond State Reservation Commission is not identical, it is believed to be
sufficient to produce the same result.
58 P.D. 12.
Acts of 1947, c. 544 — Metropolitan Transit Authority — — — —
Acts oj 1952, c. 354 — Massachusetts Turnpike Authority — — — —
Acts of 1953, c. 606 — MountGreylock Tramway Authority — — — —
Acts of 1953, c. 660 — Boston Arena Authority — — — —
Acts of 1956, c. 465 — Massachusetts Port Authority — — — —
Acts of 1958, c. 606 — Massachusetts Parking Authority — — — —
Acts of 1960, c. 701 — Woods Hole, Martha's Vineyard
and Nantucket Steamship Authority — — — —
Note: The seven last mentioned organizations are corporations of a
kind not generally recognized up to about thirty years ago. Although each
is subject to public management one way or another, each is authorized to
adopt an official seal, to acquire and dispose of property, to sue and be
sued in its own name, plead and be impleaded in like manner as other
corporations are. Each thus has a corporate personality distinct from that
of the Commonwealth.
No express power to make regulations appear to have been conferred
on the Metropolitan Transit Authority, the Mount Greylock Tramway
Authority, or the Woods Hole, Martha's Vineyard and Nantucket Steam-
ship Authority. Express power to make regulations is conferred on each
of the other four authorities. The pertinent language in each case is as
follows :
Massachusetts Turnpike Authority (Acts of 1952, c. 354, § 5 (0) "To
establish rules and regulations for the use of the turnpike;"
Boston Arena Authority (Acts of 1953, c. 669, § 3 {g)) "To estabhsh rules
and regulations, and fix policies, for the use of said arena as an indoor
hockey and skating rink and for the other purposes provided for in this
act;"
Massachusetts Port Authority (Acts of 1956, c. 465, § 3 (g)) "To ....
operate the projects under its control, and to establish rules and regulations
for the use of any such project;"
Massachusetts Parking Authority (Acts of 1958, c. 606, § 5 (/i)) "To estab-
lish and revise from time to time rules and regulations for the use of the
common garage project, and to provide penalties for the violation of said
rules and regulations not exceeding fifty dollars for each such offence,
which upon payment into court shall be accounted for and paid to the
Authority;"
It is thought that the regulations authorized by the foregoing statutes
are not "Regulations" within the meaning of the Administrative Procedure
Act; and that the seven "Authorities" here under discussion do not "en-
force" or "administer" any "law," but are rather to be regarded as pro-
prietors exei'cising the powers of an owner with respect to the properties
severally in their charge. These "Authorities" are to be distinguished from
the seven "Reservation Commissions" previously listed in that the prop-
erties managed by the several "authorities" are their own corporate
property, whereas the property managed by the several "Commissions" is
not the corporate property of anyone but is rather the public, or common,
property of all the people of the Commonwealth.
The "Commissions," in other words, act as agents of the General Court.
The "Authorities," on the other hand, act as trustees of an express trust.
P.D. 12. 59
INDEX TO SCHEDULE OF AGENCIES
Note: This alphabetical index of the agencies listed in the foregoing
schedule uses columnar references; First: To the chapter of the
General Laws under which the agency is listed; Second: To the
identification number of the agency under the chapter; Third: An
entry "R" if either "R2" or "R 3" appears opposite the agency in
the schedule; Fourth: An entry "A" if the letter "A" appears
opposite the agency in the schedule.
Caveat: The index should not be relied upon as a means of determining
the number of agencies listed, since an attempt has been made to
hst each agency under each word which a searcher is hkely to use.
Consequently, many agencies are entered twice, and a few three
times.
G.L.
Chapter Item R A
A
Accountants; Board of Registration of
Accounts; Director of
Aeronautics Commission
Agriculture; Commissioner of
Agricultural Experiment Station; Director of
Alcoholic Beverages Control Commission
Animal Husbandry; Director of Division of
Appellate Tax Board
Apprentice Training; Director of
Architects; Board of Registration of
Armory Commission
Art Commission
Atomic Energy; Commission on
B
Ballot Law Commission
Bank Incorporation; Board of
Banks, Commissioner of
Barbers; Board of Registration of
Bhnd; Director of Division of
Board for Removal of Bank Officers
Board of Appeal on Fire Insurance Rates
Board of Appeal on Licenses to Act as Engineer
Board of Appeal on Motor Vehicle Liability Policies
Board of Bank Incorporation
Board of Boiler Rules
Board of Collegiate Authority
Board of Dental Examiners
Board of Education
Board of Elevator Appeals
Board of Elevator Regulations
Board of Fire Prevention Regulations
Board of Gas Fitting Regulations
Board of Library Commissioners
Board of Natural Resources
Board of Premium Installment Rates
13
12
R
A
14
2
R
—
6
12
R
A
20
1
R
A
20
5
R
A
6
8
R
A
20
2
—
A
14
4
—
A
23
7
R
13
16
R
A
6
1
—
6
2
—
6
18
—
6
6
R
A
26
2
—
A
26
1
R
A
13
14
R
A
15
5
R
—
26
4
—
A
26
6
—
22
4
—
A
26
7
—
A
26
2
—
A
22
3
R
15
3
—
A
13
7
R
A
15
1
R
A
22
6
—
A
22
5
R
A
22
9
R
25
2
R
A
15
4
R
21
1
R
26
8
R
60
P.D. 12.
G.L.
Chapter
Itetn
R
A
Board of Registration (of) (in)
Accountants, Certified Public
13
12
R
A
Architects
13
16
R
A
Barbers
13
14
R
A
Chiropody
13
4
R
A
Electrologists
13
21
R
A
Embalming
13
10
R
A
Engineers ; Professional
13
17
R
A
Funeral Directing
13
10
R
A
Hairdressers
13
15
R
A
Medicine
13
3
R
A
Nursing
13
5
R
A
Opticians; Dispensing
13
18
R
A
Optometry
13
6
R
A
Pharmacy
13
8
R
A
Real Estate Brokers and Salesmen
13
20
R
A
Sanitarians
13
19
R
A
Surveyors; Land
13
17
R
A
Veterinary Medicine
13
9
R
A
Board of Retirement; State
10
1
R
A
Board of Review; Aquatic Nuisances
17
4
—
A
Board of Review; Employment Security
23
4
—
A
Board of Review; Hospital and Sanatoria
17
5
—
A
Board of Schoolhouse Structural Standards
22
<
R
—
Board of Standards (Department of Public Safety)
22
8
R
—
Board of State Examiners of Plumbers
13
13
R
A
Boiler Rules, Board of
22
3
R
—
Boston Arena Authority; Acts of 1953 c. 660
—
—
—
—
Boxer's Fund Board
6
21
—
—
Boxing Commission; State
C
Chiropody; Board of Registration in
22
7
R
A
13
4
R
A
Civil Service Commission
13
1
—
—
Collegiate Authority; Board of
15
3
—
A
Commission on Administration and Finance
7
—
R
A
Commission Against Discrimination
6
11
R
A
Commissioner (of) (on)
Agriculture
20
1
R
A
Banks
26
1
R
A
Corporation and Taxation
14
3
R
A
Education
15
2
R
A
Insurance
26
5
R
A
Labor and Industries
23
1
R
A
Natural Resources
21
2
R
A
Public Health
17
2
R
A
Public Safety
22
1
R
A
Veterans' Services
6
3
R
A
Commissioners of
Pilots
103
—
R
A
Public Works
16
1
R
—
Uniform State Laws
6
4
—
—
P.D. 12. 61
Contributory Retirement Appeal Board
Corporations and Taxations; Commissioner of
Council for the Ageing
D
Dairying; Director of Division of
Deer Hill State Reservation Commission; Acts of
1907, c. 540
Dental Examiners; Board of
Department of Mental Health
Department of Public Welfare
Director of
Accounts
Agricultural Experiment Station
Apprentice Training
Blind, Division of the
Dairying and Animal Husbandry; Division of
Employment Security; Division of
Fisheries and Game; Division of
Foods and Drugs; Division of
Livestock Disease Control; Division of
Marine Fisheries; Division of
Motor Boats, Division of
Plant Pest Control and Fairs; Division of
Public Charities
Registration
Standards and Necessaries of Life; Division of
LTrban and Lidustrial Renewal; Division of
Discrimination; Commission against
E
Education; Board of
Education; Commissioner of
Electricians; State Examiners of
Electrologists; Board of Registration of
Elevator Appeals; Board of
Elevator Regulations; Board of
Embalming; Board of Registration in
Employment Security; Board of Review
Employment Security; Director of Division of
Engineers; Board of Registration of
F
Finance Advisory Board
Fire Lisurance Rates; Board of Appeal on
Fire Marshall; State
Fire Prevention Regulations; Board of
Fisheries and Game; Director of Division of
Food and Drugs; Director of Division of
Funeral Directing; Board of Registration in
G
G.L.
Chapter
Item
R
A
32
—
—
A
14
3
R
A
6
17
—
—
20
2
—
—
_
R
13
7
R
A
19
—
—
A
18
1
R
A
14
2
R
20
5
R
A
23
7
R
—
15
5
R
—
20
2
—
A
23
3
R
A
21
4
R
A
17
3
R
—
20
3
R
A
21
3
R
A
16
4
R
A
20
4
R
A
12
1
R
—
13
2
R
—
23
2
R
A
18
2
R
—
6
11
R
A
15
1
R
A
15
2
R
A
13
11
R
A
13
21
R
A
22
6
—
A
22
5
R
A
13
10
R
A
23
4
. —
A
23
3
R
A
13
17
R
A
6
20
26
6
—
—
22
2
—
A
22
9
R
—
21
4
R
A
17
3
R
—
13
10
R
A
62
P.D. 12.
H
Hairdressers; Board of Registration of
Health ; Welfare and Retirement Trust Funds Board
Housing Board; State
I
Industrial Accident Board
Industrial Rehabilitation Board
Insurance; Commissioner of
J
G. L.
Chapter
Item
R
13
15
R
23
6
R
6
14
R
23
8
23
9
26
5
R
K
Labor and Industries; Commissioner of
Labor Relations Commission
Library Commissioners; Board of
Licenses to Act as Engineer, etc. ; Board of Appeal on
Livestock Disease Control; Direction of Division of
M
Marine Fisheries; Director of Division of
Massachusetts Aeronautics Commission
Massachusetts Atomic Energy Commission
Massachusetts Discrimination; Commission Against
Massachusetts Parking Authority ; Acts of 1958, c. 606
Massachusetts Port Authority; Acts of 1956, c. 465
Massachusetts Turnpike Authority; Acts of 1952,
c. 354
Medicine, Dental, and Nursing Scholarship Board
Mental Health; Department of
Metropolitan District Commission
Metropolitan Transit Authority; Acts of 1947, c. 544
Milk Control Commission
Milk Regulation Board
Minimum Wage Commission
Motor Boats; Director of Division of
Motor Vehicles Liability Policies, Board of Appeal on
Motor Vehicles; Registrar of
Mount Everett Reservation Commission; Acts of
1908, c. 571
Mount Greylock Tramway Authority; Acts of 1953,
c. 606
Mount Sugar Loaf State Reservation Commission;
Acts of 1907, c. 541
Mount Tom State Reservation Commission; Acts
of 1903, c. 264
N
Natural Resources; Board of
Natural Resources; Commissioner of
Nursing; Board of Registration in
23
1
R
A
23
5
R
A
15
4
R
—
22
4
—
A
20
3
R
A
21
3
R
A
6
12
R
A
6
18
—
—
6
11
R
A
6
22
—
—
19
—
—
A
28
—
R
A
20
6
R
A
6
7
R
—
23
10
R
—
16
4
R
A
26
7
—
A
16
2
R
A
—
—
R
R
R
—
21
1
21
2
R
A
13
5
R
A
G.L.
Chapter
Item
7?
A
16
3
R
A
13
18
R
A
13
6
R
A
13
8
R
A
103
2
R
A
20
4
R
A
13
13
R
A
6
5
—
12
1
R
17
2
R
A
17
R
A
22
R
A
25
R
A
18
R
A
16
R
P.D. 12. 63
Outdoor Advertising Board
Opticians; Board of Registration of
Optometry; Board of Registration in
Pharmacy; Board of Registration in
Pilots; Commissioner of
Plant Pest Control; Director of Division of
Plumbers; Board of State Examiners of
Public Bequest Commission
Public Charities; Director of
Public Health; Commissioner of
Public Health Council
Public Safety; Commissioner of
Pubhc Utilities Commission
Public Welfare; Department of
Public Works; Commissioner of
Purgatory Chasm State Reservation Commission;
Acts of 1919, c. 327 — — R
Q
R
Racing Commission; State 6 9 R
Real Estate Brokers and Salesmen; Board of Regis-
tration of
Registrar of Motor Vehicles
Registration; Director of
Retirement Board; Contributory
Retirement Board; Teachers'
Retirement; State Board of
S
Sanitarians; Board of Registration of
School Building Assistance Commission
Schoolhouse Structural Standards; Board of
Small Loans Regulatory Board
Standards, Board of (Department of Public Safety)
Standards and Necessaries of Life; Director of Di-
vision of (Department of Labor and Industries)
State
Ballot Law Commission
Board of Retirement
Boxing Commission
Examiners of Electricians
Examiners of Plumbers
Fire Marshal
Housing Board
Racing Commission
Reclamation Board
Secretary
Tax Commission
Surveyors, land; Board of Registration of
13
20
R
A
16
2
R
A
13
2
R
—
32
—
—
A
15
6
R
A
10
1
R
A
13
19
R
A
15
7
R
—
22
7
R
—
26
3
R
—
22
8
R
—
23
2
R
A
6
6
R
A
10
1
R
A
22
7
R
A
13
11
R
A
13
13
R
A
22
2
- —
A
6
14
R
A
6
9
R
A
252
—
—
A
9
1
R
—
14
1
R
A
13
17
R
A
64 P.D. 12.
G. L.
Chapter Item R A
T
Teachers' Retirement Board 15 6 R A
TrustFundsBoard;Health, Welfare, and Retirement 23 6 R —
U
Uniform State Laws, Commissioners of 6 4 — —
Urban and Industrial Renewal; Division of 18 2 R —
V
Veterans' Services; Commissioner of 6 3 R A
Veterinary Medicine; Board of Registration in 13 9 R A
W
Wachusett Mountain State Reservation Commis-
sion; Acts of 1899, c. 378 — — R —
Walden Pond State Reservation Commission; Acts
of 1922, c. 499
Water Resources Commission
Weather Amendemnt Board
Wood's Hole, Martha's Vineyard, and Nantucket
Steamship Authority; Acts of 1960, c. 701 — — —
X
Y
Youth Service Board 6 15 —
Z
—
—
R
21
5
R
6
16
—
P.D. 12. - 65
The services of a non-member of the Contributory Retirement System for State
Employees who is a State official, terminates upon his attaining the maxi-
mum age.
Aug. 14, 1961.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir : — In your letter of recent date you request an opinion
relative to your duties concerning the chairman of the Government Center
Commission.
You state that your board has been advised that William F. Callahan,
chairman of the Government Center Commission, attained age 70 as of
June 12, 1961; that Mr. Callahan is not a member of the State Employers'
Retirement System, having commenced his present period of service after
attaining age 60. You further state that Mr. Callahan applied for member-
ship in the retirement system but withdrew the application.
In view of those facts, you request my opinion "as to what duty or
responsibility now evolves upon the board when considering Mr. Callahan's
case under the provisions of G. L. c. 32, and more specifically under the
provisions of § 20, (5) (e)."
Your request requires a construction of various provisions of G. L. c. 32,
entitled "Retirement Systems and Pensions." One fact impresses me as
I read the various sections, apparently put together with much care by
the General Court, relating to matters raised by your request. The statu-
tory pattern of c. 32 indicates a general over-all intent that public employees
must not continue to serve after arriving at the age of 70, except in specific
cases and subject to the provisions of St. 1950, c. 639, § 9 (/i). For example,
§ 1 of c. 32 defines "maximum age" as the age on the last day of the month
in which any member classified in Group 1 as provided for in subdivision
(2) {g) of § 3 attains age 70 or, if classified in Group 2 or Group 3, attains
age 65.
Section 3 contains many restrictions and limitations of the right to
become entitled to the benefits of membership in the public contributory
retirement system. Subdivision (2) (e) and (/) of § 3 read as follows :
"(e) No member, except as otherwise provided for in subdivision (1) of
section five or in section ninety-one, or in section twenty-six of chapter
six hundred and seventy of the acts of nineteen hundred and forty-one,
or in chapter sixteen of the acts of nineteen hundred and forty-two as
amended, shall remain in service after attaining the maximum age for his
group or after the date any retirement allowance becomes effective for him,
whichever event first occurs. (Emphasis supplied.)
"(/) No person who enters or who re-enters the service of any govern-
mental unit as an employee after attaining age sixty, and after the date
when a system becomes operative therein, shall become a member except
as otherwise provided for in this section. No such employee other than an
elected official or a state official, as defined in section one, shall remain in
the service of such governmental unit after attaining the maximum age
for the group in which he would have been classified if he had become a
member, except under the same conditions which are applicable to a member
as set forth in paragraph (e) of this subdivision. Any employee who was
not eligible for membership because of originally entering the service of any
governmental unit after attaining age fifty-five but before attaining age
sixty, may apply for and be admitted to membership upon the terms and
66 . P.D. 12.
conditions set forth in subdivisions (3) and (3A) if under the maximum age
for his group on the date of his appUcation." (Emphasis supplied.)
Section 5 contains numerous conditions for allowance of superannuation
retirement benefits. Subdivision (1) (d) of § 5 contains detailed provisions
for holding over after reaching the maximum age limit of elective public
officials. Section 20 of c. 32 seems to be clear and unequivocal. Section
20 (5) (e) reads as follows:
"(e) The board of each such sj^stem shall keep a record of the date of
birth of each member of the system, and also shall keep a record of the
date of birth of each other employee who entered or re-entered the service
of the governmental unit to which such system pertains after attaining
age sixty and after the date when the system became operative therein.
It shall be the duty of such board to notify each such member or employee,
the head of his department and the treasurer or other disbursing officer
responsible for paying his compensation, of the date when such member
or employee will attain the maximum age for his group, and such member
or employee shall not be employed in any governmental unit after such
date except as otherwise provided for in sections one to twenty-eight,
inclusive. Such notification shall be made in writing not less than thirty
days nor more than four months prior to such date." (Emphasis supplied.)
It should be noted that the General Court took pains to include within
its scope not only members of the contributory retirement system but also
non-m.ember employees. You advise me that Mr. Callahan is a non-
member employee in the service of the Commonwealth. It would appear
that § 20 applies to the situation you refer to. Section 91 provides another
indication of the legislative intent relative to retirement at age 70. It is
there provided that no person after having been retired shall, while receiv-
ing his retirement allowance, be paid for certain pubUc services specified
therein with an exception in favor of those appointed for a term of years
to a position by the Governor with or without the advice and consent of
the Council, in which event the retired employee may be paid the compen-
sation to which he is entitled under the new appointment provided he
waives his retirement allowance while so re-employed.
However, since you advise me that the chairman does not belong to
the State Employees' Retirement System, the provisions of § 91 do not
apply to him. Those provisions do, hovrever, indicate a determination by
the General Court not to permit the re-employment of public officials
after the attainment of the maximum age limit of 70 except in a very
limited number of cases, of which the instance you refer to is not one.
My attention has been called to an opinion of the Attorney General
dated May 27, 1946 (Attorney General's Report, p. 115), which ruled that
a State emploj^ee who had voluntarily elected not to join the State Em-
ployees' Retirement System was not obliged to retire at 70 because the
controlling statute did not so provide. In discussing the subject, the
Attorney General stated that a non-elective employee, not a State official,
was obliged to retire at the maximum age and from that it might be inferred
that a State official was not. However, it is quite apparent that the
Attorney General did not take into consideration § 20 (5) (e).
It is possible to argue that § 3 (2) (/), quoted above, which requires non-
members to retire on reaching the maximum age for their group, may con-
tain in it an exception on behalf of elected officials and State officials. The
language, however, is somewhat ambiguous. It should not be construed to
create an exception to the general policy set forth in c. 32. As previously
P.D. ]2. 67
stated, the chapter covers retirement of all State employees whether or
not members of the retirement system. It has, among others, the purpose
of preventing employees from accepting a salary in addition to a retirement
allowance. It also has the purpose of requuing employees to retire at a
fixed age, thus creating an incentive to other employees who may look
forward to promotions. Such desirable purposes should not be defeated
by an over legalistic interpretation of an isolated subdivision of the statute.
It is more reasonable to assume that the Legislature expected that State
officials, whether or not members of the system, should all be treated alike
as indicated by the fact that paragraph (/) specifically provides that excep-
tions as to the continued employment of non-members shall be the same as
the exceptions available to members set forth in paragraph (e).
In the light of the foregoing, I am of the opinion that pursuant to the
provisions of G. L. c. 32, § 20 (5) (e), Mr. Callahan's tenure of office is
terminated by the statute.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The Alcoholic Beverages Control Commission was not -precluded from rehearing
its disapproval of a local grant of a package store license because of the
local hoard's rescission of its grant.
Aug. 21, 1961.
Alcoholic Beverages Control Commission.
Gentlemen: — In your recent letter you requested an opinion on the
following facts:
On April 17, 1961, you received notice from the Board of Selectmen of
the town of Weymouth that an application for a "Package Goods" Store
license for the sale of all kinds of alcoholic beverages for certain premises
had been approved. Under date of May 19, 1961, notice was sent to the
applicant advising that a hearing would be held at the commission's office
on Tuesday, June 6, 1961, on the question of the approval by the Com-
mission of the application for the license. The hearmg was held as scheduled.
Under date of June 8, 1961, notice was sent to the apphcant that its appli-
cation had been disapproved. Notice of this action was also sent to the
Board of Selectmen. On June 15, 1961, the applicant filed a motion for
rehearing with your commission. On July 11, 1961, the commission voted
to grant the applicant's motion for a rehearing on the question of grantmg
approval to its application, and assigned Tuesday, August 1, 1961, as the
date thereof. On July 26, 1961, the commission was in receipt of a notice
under date of July 25, 1961, advising of a vote taken by the Board of
Selectmen of the town of Weymouth at a regular meeting held on July 24,
1961, wherein it rescinded its approval of the application of April 12, 1961.
You now ask the following question : Whether or not, as a matter of law,
in view of the facts cited herein, the July 23, 1961 vote of the Board of
Selectmen of the town of Weymouth precludes further action by your
commission at this time on the application referred to for a "Package
Goods" Store license for the sale of all kinds of alcoholic beverages for the
premises uivolved.
68 P.D. 12.
General Laws c. 138, § 16B, provides that:
"Applications for licenses or permits authorized to be granted by the
commission shall be granted or dismissed not later than thirty days after
the filing of the same, and, except as provided in section sixteen A, appli-
cations for licenses authorized to be granted by the local licensing authori-
ties, and applications for transfers of licenses issued by such local licensing
authorities under section twenty-three, shall be acted upon within a like
period and if favorably acted upon by the said authorities shall be sub-
mitted for approval by the commission not later than three days following
such favorable action. ..."
Once the thirty-day period has ended, the local licensing authority has
exhausted its powers in the matter. Then this section gives jurisdiction to
the commission after the local licensing authority has acted.
The decision was adverse to the applicant, who then availed itself of a
right to a rehearing which is provided for in regulations numbered 49 and
49A of Commission Regulations which provide as follows:
(49) "When, after hearing and consideration, an issue upon appeal has
been decided there shall be no rehearing of the same issue within the
current license year, except that upon motion by the aggrieved party
accompanied by his affidavit, filed within seven days from the time said
party received notice of said decision from the Commission. . . ."
(49A) "The provisions of Regulation No. 49 shall apply to rehearings
upon applications for approval of licenses and upon petitions to investigate
the granting of licenses or the conduct of the business being done
thereunder."
A rational construction of the statute and regulation indicates that the
Legislature, which empowered the commission to regulate this entire
industry, gave jurisdiction over the approval of all licenses to the com-
mission at the stage of the proceedings beyond the action of the local board.
In this matter, a rehearing appeal was pending when the local licensing
authority purported to act. The matter had passed from the local juris-
diction to the control and dominion of the commission. The Legislature
would not have provided this machinery for disposing of these applications
if such legislation could be rendered ineffective. "An intent to pass an
ineffective statute is not to be imputed to the Legislature." Repucci v.
Exchange Realty Co., 321 Mass. 571.
For the local authorities to be able to abort these statutory procedures
would be a usurpation of the duties and jurisdiction of the commission.
Li view of this reasoning, the action of the Wej^mouth Board of Select-
men of July 24, 1961, in rescinding its prior approval of April 12, 1961,
is a nullity.
I ansAver your ciuestion, accordingly, in the negative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By John J. Coffey,
Assistant Attorney General.
P.D. 12. 69
The 1961 amendment to G. L. c. 92, § 5 A, does not permit the Metropolitan
District Commission to change the percentage of the assessment on Boston
to be apportioned over the rest of the Metropolitan Sewerage District while
the Boston inain drainage district remains unconnected with the Metro-
politan system.
Aug. 28, 1961.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.
Dear Sir : — Your letter of recent date relates to ivletropolitan Sewerage
District assessments.
In it, after calling our attention to St. 1961, c. 230, amending G. L. c. 92,
§ 5A, as appearing in St. 1959, c. 612, § 3, you state that St. 1959, c._ 612,
§ 9, provides that if on any November first the Boston Main Drainage
District is not connected to sewers operated by the Metropolitan Sewerage
District, 52% of the amount which would be apportioned to the city of
Boston, under G. L. c. 92, shall be divided among the other cities and
towns in the sewerage district.
In the light of the foregoing, you request the opinion of the Attorney
General
". . . as to whether or not under St. 1961, c. 230, the commission has
the authority to make any changes in the 52% ratio specified in St. 1959,
c. 612, § 9, if any inequities may be found to exist under this ratio."
Chapter 612 of the Acts of 1959 is entitled "AN ACT REVISING THE
BASIS FOR APPORTIONMENT OF COSTS OF CONSTRUCTION
AND OPERATION OF THE SEWERAGE SYSTEM OF THE METRO-
POLITAN DISTRICT COMMISSION." Section 3 of c. 612 amends
G. L. c. 92 by striking out §§5 and 6 and inserting in place thereof four
new sections. The new § 5 provides in substance that the proportion to
be paid the Commonwealth annually to meet interest and principal require-
ments shall be determined by dividing the aggregate capacity of municipal
sewers of each city and town connected to sewers operated by the com-
mission by the total capacity of all municipal sewers connected to district
sewers with certain limitations therein stated.
A new § 5 A inserted by § 3 provides that not later than September 1,
1960, and in every fifth year thereafter, the commission shall establish the
proportion in which each of the cities and towns served by the system shall
annually pay money to the Commonwealth to meet interest and principal
requirements to be borne by all cities and towns served by the metro-
politan sewerage system as provided in § 5 with certain limitations as to
changes made in the proportions established in the year 1960.
Section 5 of c. 612 provides that in determining the proportion in which
the fBeveral cities and towns served by the metropolitan sewerage system
shall pay money to the Commonwealth to meet interest and principal
requirements in the year 1960, the commission, in discharging duties
imposed upon it by G. L. c. 92, § 5A, inserted by St. 1959, c. 612, § 3,
shall adopt the following apportionment. The apportionment for each
city and town in the district is set forth in § 5 in terms of percentages.
Boston's percentage is 36. IS.
Section 9 of c. 612 provides that if on any November first the Boston
main drainage district has not been connected to sewers operated by the
Metropolitan Sewerage District, 52% of the amount which would be
apportioned to the city of Boston under G. L. e. 92 shall be divided among
all other cities and towns in the sewerage district.
70 P.D. 12.
In this state of affairs you now inquire whether your commission has
authority to make any changes in the 52% ratio specified in § 9, if any
inequities may be found to exist under this ratio.
In the case of Town of Milton, et ah. v. Metwpolitan District Commission,
342 Mass. 222, the Supreme Court had occasion to interpret the legislation
above referred to. Following this decision, the General Court enacted
St. 1961, c. 230, which struck out the first sentence of § 5A of G. L. c. 92,
as appearing in § 3 of c. 612, and inserted a new first sentence in place
thereof. The principal changes resulting from c. 230 are that your com-
mission is required to establish not later than September 1, 1961, and in
each year thereafter, the proportion in which each of the cities and towns
served by the system shall annually pay money to the Commonwealth to
meet interest and principal requirements instead of each five years as
provided in § 5A prior to the enactment of c. 230. Section 5A as amended
by c. 230 is broadened substantially by a provision authorizing changes in
the proportions established, justified by inequities, if any, which the com-
mission, prior to September 1, 1961, may find to exist in the proportions
established in the year 1960.
A reading of the various sections dealing with the subject matter you
refer to leads me to the conclusion that the commission, under the appli-
cable provisions of the statutes above referred to, has the duty to apportion
and fix the proportions which the several cities and towns served by the
metropolitan sewerage system shall pay money to the Commonwealth to
meet interest and principal requirements.
It, in my opinion, has no power to change the statutory provision found
in § 9 of c. 612 providing for a division among the other cities and towns
of the sewerage district, of 52% of the amount which would be apportioned
to the city of Boston under c. 92.
The General Court has specifically fixed, by the provisions of § 9, the
percentage of the city of Boston's apportionment among the other cities
and towns in the event of the circumstances authorizing such division.
I am aw^are of no provision authorizing your commission to vary the
"52%" provision.
Very truly yours,
Edward J. McCormack, Jr., Attorneij General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 71
The road construction ivork to be done at the cost of Boston University under
St. 1961, c. Jf.25, if certain conveyances of land along Storrow Drive
should be made to the University, could be effected by an agreement of the
University to assume the cost thereof and the awarding by the Commission
of a contract stipulating that the contractor is to look only to the funds
supplied by the University for payment for the work to be done.
Aug. 31, 1961.
Hon. Robert F. ]\'Iurphy, Commissioner, Metropolitan District Commission.
Dear Sir: — You have requested an opinion as to whether certain pro-
cedures would satisfy the requirements of the provisions of St. 1961, c. 425.
As you point out in the letter in which you make the request, the statute
referred to author zes the commission, if it makes certain determinations,
to discontinue parts of certain public streets in the city of Boston parallel-
ing the James J. Storrow Memorial Drive and to substitute therefor an
additional lane, or additional lanes, of roadway to the southerh^ roadway
of said Drive. It further authorizes the commission to enter into a con-
tract with Boston University providing (1) for the conveyance by the
commission to the University, subject to such conditions and restrictions
as to the manner of use thereof as the commission decides should be im-
posed, of the portion of Bay State Road discontinued and such other lands
adjacent thereto as the commission determines are no longer needed for
the purposes of the Charles River Reservation, and (2) that the University
will reimburse the commission for the cost of constructing such extra lane
or lanes of roadway and the cost of the construction of connections there-
with to existing public ways, and will pay to the commission such other
amounts, if any, as may be mutually agreed upon.
You state in your letter that the Legislature did not appropriate any
funds for paying the cost of the construction work which is involved if the
conveyance authorized should be made, and ask whether, in the event of
such conveyance, an arrangement under which the estimates of work done
by the contractor should be paid upon approval by the commission directly
to the contractor by the University would be in conflict with the act or
any other provision of law.
I assume you have in mind that in addition to the actual cost of con-
struction, as to which you suggest the procedure stated, there would be
other direct and indirect costs which would necessarily be paid directly by
the commission and that you plan to have a separate agreement with the
University for a determination of those costs and reimbursement to the
commission therefor.
It is to be noted that the act you refer to was declared by the Governor,
acting under the provisions of Article XLVIII of the Amendments to the
Constitution, to be an emergency law, to take effect forthwith, in order to
facilitate the construction of a new law school building for the University
to replace the present building which has been taken as part of the site for
the State Office Building.
It would appear, in view of the declaration of the Governor, the circum-
stances referred to by him and the provisions of the act that the act is to
be taken to authorize the making of some arrangements by which the
direct cost of construction represented by payments under a contract for
the doing of the actual construction work involved would be paid by the
72 P.D. 12.
University, with the result that the only costs to be incurred by, and reim-
bursed to, the commission would be those referred to above.
In an opinion of the Attorney General dated April 7, 1937, Attorney
General's Report, 1937, p. 79, referring to a contract under which a con-
tractor agreed to look only to funds supplied by the Federal Government
for the performance of the work under the contract, it is stated, at page 81 :
"The company, however, was bound by the terms of its contract, and
its total compensation could not exceed the amount forwarded by the
Federal government for the performance of its work. The exclusive source
of payment of this contract was Federal funds, and the contractor could
not look to the Commonwealth for payment. It has been frequently held
by our courts that a provision of a contract by which one obligates himself
to look to a special source or fund for his compensation is valid, and it has
been consistently upheld. Hussey v. Arnold, 185 Mass. 202; McCarthy v.
Parker, 243 Mass. 465; Baker v. James, 280 Mass. 43."
I advise you, therefore, that if an agreement is entered into with the
commission by which the obligation referred to is assumed by the Uni-
versity, under such terms and conditions as the commission determines are
necessary to protect the public interest, and it is made clear in the proposals,
specifications and contract for the work that the contractor is to look only
to funds which the University is to make available under the terms of its
agreement with the commission for his compensation for the work to be
done under the contract, and the contract otherwise meets the require-
ments of law as to contracts for the construction of public works for the
commission, the contemplated procedure would not be in conflict with the
act referred to or any other provision of law.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
The statute providing for ''no-fix" notices of motor vehicle violations is apyli-
cable to the State Police.
Sept. 1, 1961.
Hon. Frank S. Giles, Commissioner of Public Safety.
Dear Sir : — You have requested an opinion as to the application of
St. 1961, c. 592, to your department.
Chapter 592 of the Acts of 1961 is entitled "AN ACT RELATIVE TO
SUMMONSES FOR VIOLATIONS OF THE MOTOR VEHICLE
LAWS REQUIRING FILING OF COPIES THEREOF AND PRO-
VIDING FOR AN AUDIT SYSTEM IN CONNECTION THERE-
WITH." It has an emergency preamble stating that whereas, the deferred
operation of this act would tend to defeat its purpose, which is to provide
a system of summonses for violations of the motor vehicle laws, requiring
filing of copies thereof and providing for an audit system in connection
therewith, it is declared to be an emergency law, necessary for the immedi-
ate preservation of the public safety and convenience.
Section 1 strikes out the present § 27 of G. L. c. 90 and inserts a new
P.D. 12. 73
§ 27, which provides in substance that whenever an operator of a motor
vehicle is halted by a police officer for any violation of any statute, by-law,
ordinance or regulation relating to the operation or control of motor
vehicles other than violations of § 20A, the pohce officer shall make out a
notice of such violation and such notice shall be referred forthwith to the
chief of police or chief administrative officers of the traffic enforcement agency,
who shall either send a written warning, or refer the matter to the Registrar
of Motor Vehicles for action, or apply for a summons to the district court
having jurisdiction. Detailed provisions follow relative to the form, sub-
stance and endorsement of copies of the notice. Further enforcement
provisions, when necessary, are included.
A reading of the new § 27 discloses numerous references to the "police
department" and "the chief of police." It is to be noted that while the
words "chief of police" might be construed to limit the new § 27 to munici-
pal police departments, it should be observed that in almost every instance
where the phrase "chief of police" appears, it is followed by the provision
"or chief administrative officer of the traffic enforcement" or words of
similar import.
It is obvious to me, therefore, that the General Court intended that the
new § 27 should have broader application than merely to municipal or
local police officers. The purpose and scope of the measure as evidenced
by the title and emergency preamble would justify, if not require, a similar
conclusion.
A police officer initiates the proceedings under § 27. The term "pohce
officer" is defined in § 1 of c. 90 as "any constable or other officer authorized
to make arrest or serve process, provided he is in uniform or displays his
badge of office."
General Laws c. 147, § 2, provides that "all officers and inspectors of the
department shall have and exercise throughout the commonwealth the
powers of constables, police officers and watchmen, except as to service of
civil process." A patrolman in the Division of State Police of the Depart-
ment of Public Safety has been held to be a member of a police department.
Commonwealth v. Gorman, 288 Mass. 294. Hayes v. Lumberniens Mutual
Casualty Co., 310 Mass. 81.
I believe that a proper construction of this measure compels the con-
clusion that it should be and is applicable to State highways as well as
other public roads.
It is my opinion, therefore, that St. 1961, c. 592 is applicable to the
Department of Public Safety.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
74 P.D. 12
The installation of gas fittings and inspection thereof in state-owned buildings,
schools, and hospitals, is governed by the uniforjn state-wide code authorized
to be promulgated by the board established under St. 1961, c. 737, and
such inspection is not within the jurisdiction of the Board of Examiners
of Plumbers.
Sept. 6, 1961.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Madam: — • In your letter of recent date, relative to the inspection
of gas installations, you pose the following question:
"Does the inspection of gas installations in state-owned buildings and
in schools and hospitals in towns that do not have a plumbing code come
within the jurisdiction of this board?"
General Laws c. 142, is entitled "Supervision of Plumbing." It does not
contain many provisions relative to the subject of gas fitting except that
in § 3, as recently amended by St. 1960, c. 190, it is provided that any
licensed master plumber of journeyman may carry on the work of a gas
fitter throughout the Commonwealth notwithstanding any local ordinance,
by-law, rule or regulation to the contrary.
In 1960, however, the General Court made a serious effort to bring up
to date the business of gas fitting. Chapter 737 of that year is entitled
"AN ACT PROVIDING FOR THE PROMULGATION OF UNIFORM
RULES AND REGULATIONS TO GOVERN GAS FITTING IN
BUILDINGS THROUGHOUT THE COMMONWEALTH." Section 1
of c. 737 inserts a new § 12H of G. L. c. 25 relating to the Department of
Public Utilities. The new § 12H creates in the Department of Public
Utilities a board consisting of various officers of the Commonwealth or
persons designated by them, with the power to make, alter, amend and
repeal rules and regulations relative to gas fittings in buildings throughout
the Commonwealth. Said rules are to be reasonable, uniform, and designed
to prevent fire, explosion, injury and death and are not to be inconsistent
Avith the provisions of c. 142 or the rules and regulations made under
authority thereof or the qualification of master plumbers and journeymen
plumbers as gas fitters contained in § 3 of c. 142. "Gas fitting" is defined
to include installation, alteration and replacement of fixtures, appliances
and facilities used or intended to be used with fuel gas of any kind, includ-
ing natural gas, manufactured gas, and liquefied petroleum gas-air or
mixtures thereof.
Section 2 of c. 737 inserts after § 3L of G. L. c. 143, two new sections,
3N and 30. Section 3N provides, in substance, that no person shall engage
in gas fitting in Boston without making application and obtaining a permit
therefor in accordance with the Boston Building Code, nor engage in gas
fitting in any other city or town without first giving such notice as shall
be prescribed by rules and regulations made by the board, which I have
referred to. Section 30 provides, in substance, that each city and town
shall provide by ordinance or by-law for the appointment of an inspector
of gas piping and gas appliances in buildings, whose duty it is to enforce
the rules and regulations of said board.
Section 3 of c. 737 provides, in substance, that notwithstanding the pro-
visions of § 30 of c. 143, above referred to, any municipal officer or employee
who, on the effective date of the act, is charged with the duty of inspecting
gas piping and gas appliances shall continue to perform such duties and
P.D. 12. 75
shall be designated and named the inspector of gas piping and gas appli-
ances, as provided in § 30.
Section 4 of c. 737 provides that all by-laws and ordinances of cities and
towns relating to gas fitting within buildings are hereby annulled.
In answering your question, which relates to three different types of
buildings — state-owned, schools and hospitals — it may be well to bear
in mind at the outset that the purpose of c. 737 is to provide uniform rules
and regulations governing gas fitting in buildings throughout the Common^
wealth. As to the scope of the structures, it may be noted that § 2 of c. 737
ties this legislation up with G. L. c. 143 bj^ inserting §§ 3N and 30 therein.
Section 2 A of c. 143 provides specifically that
'The provisions of this chapter relative to the safety of persons in
buildings shall apply to buildings and structures, other than the state
house, owned, operated or controlled by the commonwealth, and to build-
ings and structures owned, operated or controlled by any department,
board or commission of the commonwealth, or by any of its political sub-
divisions, in the same manner and to the same extent as such provisions
apply to privately owned or controlled buildings occupied, used or main-
tained for similar purposes. The provisions of this chapter relative to the
inspection of buildings privately owned shall apply in the same manner to
the inspection of buildings subject to this section. . . ."
Accordingly, it is not difficult to understand that the gas fitting rules
and regulations relate to the structures referred to in your question. Since
the General Court has made such elaborate provisions for the promulgation
of rules and regulations governing gas fitting in buildings throughout the
Commonwealth and has made such careful provisions for the enforcement
thereof, and has by § 4 of c. 737 wiped out all by-laws and ordinances of
cities and towns relating to gas fitting within buildings, the full purpose of
this legislation should be given effect.
Accordingly, it is my opinion that the inspection of gas installations in
the structures you refer to does not come within the jurisdiction of the
State Board of Examiners of Plumbers.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The requirement of matching federal funds to make appropriations for Sport
Parachuting Commission effective, would not be satisfied by provision of
matching funds from private sources.
Sept. 7, 1961.
Mr. Roberta. Spatola, Executive Secretary, Sport Parachuting Commission.
Dear Sir : — In your recent letter you ask whether the requirements of
St. 1961, c. 617, will be satisfied if the matching funds referred to in the
act are obtained from private sources and without a government guarantee.
I point out to you that it is expressly provided in § 4 of the act that the
funds authorized by the act shall not become available "until matching
federal funds are made available by the federal government."
76 P.D. 12.
It is also to be noted that the proviso in the first sentence of § 1 of the
act is conditioned upon an agreement being made jointly or separately
"with the Sixth World Parachuting Championship Committee, Inc., and
with any cooperating agency of the federal government. . . .", as author-
ized by St. 1960, c. 527, § 3, for a grant, etc., of not less than $100,000.
Although § 3 of said c. 527 provides generally that the commission is
authorized "to avail itself of such aid and co-operation as will enable it to
carry out the duties conferred upon it and to conduct successfully said
championship meeting," the provisions of § 4 and § 1 of the 1961 act, are
not such general provisions but are specific provisions making specific
reference to funds to be made available by the Federal Government, in
said § 4, and to a separate or joint agreement with the Sixth World Para-
chuting Championship Committee, Inc., and a co-operating agency of the
Federal Government, in said § 1.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
The appropriation for the operation of the North Reading State Sanoiorium,
which was o be closed, permitted operation for only part of the fiscal year
and, therefore, the separation from the service of employees having civil
service and longevity tenure is required.
Sept. 11, 1961.
Robert E. Archibald, M. D., Deputy Commissioner of Public Health.
Dear Sir: — In your letter of recent date, relative to the employees in
the Sanatorium at North Reading under your jurisdiction, you state that the
Legislature failed to appropriate sufficient monies for the employees in the
1961-1962 budget as the initial step of a state-wide consolidation of tuber-
culosis care as the result of a diminishing incidence of tuberculosis in the
face of advances in medical science, except for a limited carry-over appro-
priation for the purpose of closing out the institution.
You further state that the Division of Personnel and Standardization
provided in its 1961-1962 budget for 208 permanent positions at the Sana-
torium despite the fact that the Legislature failed to provide monies for
these positions except for the limited carry-over, above referred to, for
closing out the institution.
You further state that the employees were notified by letter on May 17,
1961, that the 1962 budget did not provide for continued operation of the
Sanatorium after June 24, 1961; that the endeavors of your department
and other State agencies have satisfactorily placed some of the employees,
with the result that the personnel at the Sanatorium has now been reduced
to approximately 65 permanent employees, fifteen of whom are so-called
civil service employees, the remainder coming under the provisions of
G. L. c. 30, § 9B. You further state that some of the employees have
refused to accept a transfer and others have requested an opinion as to
their rights under the civil service law and § 9B.
P.D. 12. 77
In the light of the foregoing, you pose the following question:
"Would you kindly favor us with an opinion as to whether or not the
fact that the Legislature did not provide an appropriation for employees,
except a limited appropriation for the purpose of closing out the institution,
in its 1961-1962 budget, deprives the present employees at North Reading
Sanatorium, who all have civil service protection under G. L. cc. 30 and 31,
of their rights not to be transferred, discharged, dismissed, removed or
suspended without their consent?"
General Laws c. 29, § 26, provides as follows:
"Expenses of offices and departments for compensation of officers,
members and employees and for other purposes shall not exceed the
appropriation made therefor by the general court or the allotments made
therefor by the governor. No obligation incurred by any officer or servant
of the commonwealth for any purpose in excess of the appropriation or
allotment for such purpose for the office, department or institution which
he represents, shall impose any liability upon the commonwealth."
To appropriate has been defined as "to set apart from the public revenue
a certain sum of money for a specified object, in such manner that the
executive officers of the government are authorized to use that money,
and no more, for that object and for no other." Opinion of the Justices,
323 Mass. 764, 766 and cases therein cited. The General Court has by
statute imposed rigid restrictions upon the incurring of liability by munici-
pal corporations in excess of appropriations made. G. L. c. 44, § 31. Similar
rigid restrictions are imposed upon State officers. G. L. c. 29, §§26 and 27.
The Constitution of Massachusetts itself contains restrictive provisions
regulating carefully the payment of public funds from the treasury of the
Commonwealth. Part 2d, c. II, § I, art. IX.
From the foregoing statutory and constitutional provisions, it appears
that you have no power to expend monies nor to incur obligations in excess
of appropriations. You state that some of the employees m the Sanatorium
are civil service employees, so-called. Your rights and duties and their
rights are, therefore, controlled by the pertinent provisions of G. L. c. 31
and the rules and regulations made thereunder, particularly § 43. The
rights of such of the employees as come within the purview of G. L. c. 30,
§ 9B are as therein set forth.
I am certain that you are familiar with the provisions which are referred
to, but for your convenience I enclose a recent compilation, issued by the
Division of Civil Service, of the civil service law and rules. You will notice
that there are special provisions in § 43 in cases where the separation from
the service results "from lack of work or lack of money or from abolition
of positions."
Very truly yours,
Edward J, McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
78 P.D. 12.
The only duty of the Secretary of the Commonwealth is to file a certificate of
change of membership of a Redevelopmerit Housing Authority, and he
has no concern with the legality of a person appointed in anticipation
of a vacancy taking the oath before the expiration of the term of the
incumbent.
Sept. 19, 1961.
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Sir: — In your letter of recent date, relative to the Somerville
Redevelopment Authority, you state that on November 8, 1960, you
received a notice from the City Clerk of Somerville advising that on
April 14, 1960, Dennis F. Coleman was appointed to the Somerville Re-
development Authority to replace Francis X. Burns, said term to expire in
1965. You further state that on November 14, 1960, you advised the City
Clerk that the appointment would be for the remainder of the term ex-
piring September 13, 1960, the date of expiration of the term of Francis X.
Burns, and requested a new certificate to that effect.
You further state that on August 15, 1961, you received a letter from
the Assistant City Clerk repeating the fact that the appointment was for
five years, to which you replied requesting a certificate of reappointment
because the vacancy should have been for the "remainder of the term."
You go on to say that you have been advised on the telephone that Mr.
Burns did not resign and Mr. Coleman did not take office until after the
expiration of the term of Mr. Burns.
In the light of these facts, you pose the following questions:
"Could an appointment be made validly on April 21, 1960, by the Mayor
and Board of Aldermen to replace a member whose term does not expire
until September 13, 1960, for a term of five years?
"Would the qualifying oaths under this appointment which were taken
April 22, 1960, have any effect, considering that the term of the incumbent
would not expire until September 13, 1960?"
General Laws c. 121, § 26QQ, provides, among other things, that when
a Redevelopment Authority is organized
". . . its members shall be appointed and a certificate of organization
shall be issued, in the same manner as is provided b}^ law in the case of a
housing authority. ..."
and further that
". . . all the provisions of law applicable to housing authorities in cities
and towns, and the members thereof with respect to land assembly and
redevelopment projects shall be applicable to redevelopment authorities
and the members thereof ..."
General Laws c. 121, § 26L, dealing wdth the election or appointment of
members of housing authorities, provides, among other things, as follows:
"As soon as possible after the qualification of the members of a housing
authority the city or town clerk, as the case may be, shall file a certificate
of such appointment, or of such appointment and election, as the case may
be, with the board and a duplicate thereof in the office of the state secretary.
If the state secretary finds that the housing authority has been organized
and the members thereof elected or appointed according to law, he shall
issue to it a certificate of organization and such certificate shall be con-
clusive evidence of the lawful organization of the authority and of the
election or appointment of the members thereof. Whenever the member-
P.D. 12. 79
ship of a housing authority is changed, by appointment, election, resignation
or removal, a certificate and a duplicate certificate to that effect shall
promptly be so filed. A certificate so filed shall be conclusive evidence of
the change in membership of the housing authority referred to therein."
You will note from the above that upon receipt of the certificate of
organization if the State Secretary finds that the housing authority has
been organized and the members thereof elected or appointed according to
law, he shall issue to it a certificate of organization and such certificate
shall be conclusive evidence of the lawful organization of the authority and
of the election or appointment of the members thereof. While you do not
so state, I assume that the foregoing has been done and that you have
issued the certificate of organization as provided by law. Following the
above sentence, there are two more sentences dealing with a change in
membership of a housing authority. You will note that the provisions are
quite different from the foregoing. Section 26L goes on to say
"Whenever the membership of a housing authority is changed, by
appointment, election, resignation or removal, a certificate and a duplicate
certificate to that effect shall promptly be so filed. A certificate so filed
shall be conclusive evidence of the change in membership to the housing
authority referred to therein." (Emphasis supplied.)
You will note that no finding by the State Secretary is required. His
duty is merely to receive the filed certificate and duplicate certificate. The
accuracy of the certificate or its legal effect is not for the State Secretary to
determine. He is not required to police the situation nor adjudicate the
rights of the parties. The statute imposed upon the housing authority the
duty to file the certificate and duplicate certificate. A corresponding duty
rests upon the State Secretary to receive and file the same.
However, it might not be inappropriate for me to point out that the
making of an appointment to fill a vacancy before it occurs, under some
circumstances, may not be improper. V. Op. Atty. Gen. 116. In an
opinion to the Executive Council dated May 12, 1960, concerning a some-
what similar situation, I stated :
"If the Governor and Council did not have authority to make appoint-
ments for anticipated vacancies during a reasonable period in advance of
such vacancy, then it would not be possible to select an appointee in sufla-
cient time so that he could occupy his oflace during the full statutory period
established by the Legislature."
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assista?it Attorney General.
80 P-D. 12.
A State eynployee who resigned and requested the withdrawal of her retirement
deductions was no longer a "member-in-service" of the retirement system
and, therefore, could not apply for accidental disability retirement.
Sept. 19, 1961.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir: — You have written me stating that on November 18, 1958,
the Industrial Accident Board approved a lump sum settlement in the
amount of $3, COO to an employee upon an agreement between the em-
ployee and the Commonwealth; that on January 11, 1959, the employee
returned to work at the Belchertown State School where she had previously
been employed and remained in service until March 29, 1959. You further
state that on March 29, 1959, the employee resigned her position as attend-
ant nurse and on April 1, 1959, filed with your board a request for a refund
of her accumulated total deductions; that under date of March 31, 1959,
the Belchertown State School certified that the employee resigned on
March 29, 1959; that in November of 1959, a check in the amount of
$264.18 was forwarded to the employee representing the total credited to
her account in the annuity savings fund, which check, uncashed, was for-
warded on January 12, 1961, to the office of your board with the statement
by the employee that "While the signature on the photostat (on the with-
drawal request) looks like mine, I have no recollection of signing a Request
for Withdrawal, nor did I ever intend to sign one, as it has been my inten-
tion to file an application for Accidental Disabilit}^ Retirement"; that the
employee has now filed an application for retirement for reasons of acci-
dental disability dated February 10, 1961, and filed with the board on
February 14, 1961.
In the light of the foregoing, you pose the following question :
"Whereas this employee resigned in March of 1959 and Avhereas in com-
pliance with her request her accumulated total deductions were repaid to
her in November of 1959, is this person a member in service of the retire-
ment system and entitled to make application for retirement for reasons of
accidental disability under the provisions of chapter 32, section IT'
While I have no means of knowing whether the claim for an accidental
disability retirement allowance is for the same injury for which the lump
sum settlement was made, I assume, in the absence of anything to the
contrary, that it is; no indication is given, also, of the date of the injury
for which the lump sum settlement was made.
However, as you are, of course, aware, G. L. c. 32, § 7(1), which deals
with the subject of accidental disability retirement allowances, provides
specifically that "any member in service . . . who becomes totally and
permanently incapacitated ... by reason of a personal injury sustained
or a hazard undergone as a result of and while in the performance of his
duties at some definite place and at some definite time . . . without
serious and wilful misconduct on his part ..." upon application and sub-
ject to the provisions of § 7, shall be retired for accidental disability. No
such retirement shall be allowed unless such injury was sustained within
two years prior to the filing of such application or, if occurring earlier, unless
written notice thereof was filed with the board within ninety days after
its occurrence.
P.D. 12. 81
General Laws c. 32, § 7(3) (a) provides that lapse of time or failure to
file notice of an injury sustained shall not be a bar to proceedings under § 7
if the member received payments on account of such injury under the
provisions of G. L. c. 152.
The term "Alember in Service" has been given special attention by the
General Court in § 3(1) (a) (i), which reads as follows:
"Any member who is regularly employed in the performance of his
duties, except a member retired for disability who upon partial recovery
is restored to active service as provided for in paragraph (2) (a) of section
eight. Any member in service shall continue as such during any period
of authorized leave of absence with pay or during any period of authorized
leave of absence without pay if such leave is due to his mental or physical
incapacity for duty. In any event the status of a member in service shall
continue as such until his death or until his prior separation from the
service becomes effective by reason of his retirement, resignation, failure
of re-election or reappointment, removal or discharge from his office or
position, or by reason of an authorized leave of absence without pay other
than as provided for in this clause. Any member in service shall have full
voting powers in the system as provided for in section twenty."
I call your attention particularly to the following provision of § 3(1)
(«)(i):
"In any event the status of a member in service shall continue as such
until his death or until his prior separation from the service becomes effective
by reason of his retirement, resignation, failure of re-election or reappoint-
ment, removal or discharge from his office or position, or by reason of an
authorized leave of absence without pay other than as provided for in
this clause." (Emphasis supplied.)
Section 10(4) deals with the subject of return of accumulated total de-
ductions and provides under the circumstances therein referred to for a
return of the member's accumulated total deductions
"... upon his written request therefor on a prescribed form filed with
the board on or after the date of his termination of service, ..." (Emphasis
supplied) .
Section 11(1) (a) provides for a return of accumulated total deductions
to members entitled thereto under the provisions of subdivision (4) of §10.
General Laws c. 152, § 73, provides that any person entitled under § 69
to receive compensation from the Commonwealth and who is also entitled
to a pension by reason of the same injury, shall elect whether he will receive
such compensation or such pension and shall not receive both except in the
manner and to the extent provided by § 14 of c. 32.
In view of the above circumstances, it is my opinion that the employee
in question was not a "^Member in Service" of the retirement system and
entitled to make application for an accidental disability retirement allow-
ance under the provisions of § 7 of c. 32.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
82 P.D. 12.
In view of the ambiguous wording of the waterways projects item of the Capital
Outlay Act of 1961, the cost on which local contributions are figured
should not exclude working plans as '^preliminary plans." The Legis-
lature can provide refunds if it considers the ambiguity shoidd be so
Sept. 20, 1961.
Mr. John D. Bradford, Acting Director, Division of Waterways, Depart-
ment of Public Works.
Dear Sir : — You have asked for an opinion as to the meaning of certain
language contained in Item 8262-22 of St. 1961, c. 544, § 2.
The act referred to is the Capital Outlay Act of 1961. The item cited
provides funds for a special capital outlay program of the Division of
Waterways, and reads as follows:
"For projects for the improvements of rivers, harbors, tidewaters, fore-
shores and shores along a public beach, as authorized by section eleven
of chapter ninety-one of the General Laws, and for construction, recon-
struction or repair of drains, to be used in conjunction with any federal
funds made available for the purpose; provided, that all expenditures,
except the cost of surveys and the preparation of preliminary plans, for
work undertaken hereunder, including the cost of engineering during con-
struction, shall be upon condition that at least fifty per cent of the cost
is covered by contributions from municipalities or other organizations or
individuals except that, in the case of dredging channels for harbor improve-
ments, at least twenty-five per cent of the cost shall be so covered . . .
$3,000,000"
You state your question as follows :
"Your particular attention is directed to the phrase '. . . except the
cost of surveys and the preparation of preliminary plans. . .,' which phrase
has raised a question (discussed in detail below) as to what plans are
included within the meaning of the words quoted.
In general, when a Waterways project has been authorized, a consultant
is employed to do the preliminary work necessary for the preparation of
construction plans and specifications. The consultant then prepares these
plans and during the progress of same confers with the Division's engineers
who may revise and modify them to insure that certain project require-
ments are followed. These plans are then presented to the Chief Water-
ways Engineer for final acceptance and approval. If the Chief Waterwaj^s
Engineer gives his approval of these construction plans and specifications
he signifies this fact by affixing his signature thereto. We have always
taken the position that these construction plans and specifications are
referred to as preliminary plans and specifications until such time as they
are finally approved by the Chief Waterways Engineer. The signed plans
are the ones on which bids are received and under which the work is done.
Our question is whether all plan and specification work prior and up to
the signing and approval of the final construction plans and specifications
on which bids are received should be considered as being within the mean-
ing of the phrase '. . . except the cost of surveys and the preparation of
preliminary plans . . .' as contained in item 8262-22 of St. 1961, c. 544, § 2."
Ordinarily the words "preliminary plans" would be taken to mean only
plans of such detail as to permit a consideration of the general nature of
P.D. 12. 83
the work to be done and an estimation of the costs thereof, as contrasted
with the final, accurate, detailed working plans.
However, the meaning of words is to be ascertained from the context in
which they are used.
It is to be noted that in Item 8262-22, the words are used as part of a
proviso, the material parts of which are "that all expenditures, except the
cost of surveys and the preparation of preliminary plans, for work under-
taken hereunder . . . shall be upon condition . . ."as stated. In that
context it could well be argued as, in effect, you state the division has con-
strued the provision, that all the plans which are a necessary preliminary
to the contracting for, and construction of, such projects as are referred
to in the item, were intended to be referred to by the Legislature by the
words, "... preliminary plans, for work undertaken hereunder . . ."
Whether the latter consideration controls the ordinary meaning of the
words "preliminary plans," creates an ambiguity which would most
appropriately be resolved by the Legislature, and to that end I advise you
that in carrying out projects to be financed under the item, you should
construe the pr-ovision referred to as excluding from the "cost" of a project,
as the "cost of . . . the preparation of preliminary plans," the cost of
only such preliminary plans as would be included in the ordinary meaning
of the words "prehminary plans," as stated above. The contribution to
be made will, therefore, be based on a cost including the cost of the prepara-
tion of the working plans, and you will continue to exclude any charge for
preliminary plans prepared by the department, or any credit to the spon-
soring organization for the cost of any preliminary plans prepared b}^ it
for the purpose of submitting the project to the department for approval.
The department, or the sponsoring organizations interested, can, if it is
deemed advisable, file a bill or bills with the next Legislature for a clarifi-
cation of the provisions of the item referred to and, in the event that the
Legislature should determine that the cost of the preparation of the
working plans should also be excluded from the "cost" of construction
upon which contributions are to be based, it could make provision for
refunds of the amounts by which the contributions of any sponsoring
organizations were increased by the department to include the cost of the
preparation of working plans.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General
84 P.D. 12.
The Department of Mental Health does not have the legal responsibility to
store the medical records of a licensed private mental institution for which
a receiver was appointed; such records are the property of the receiver
and subject to disposition by court order.
Oct. 4, 1961.
Harry C. Solomon, M.D., Commissioner of Mental Health.
Dear Sir : — In your letter of recent date relative to the records of the
Ring Sanatorium after referring to G. L. c. 123, §§ 3 and 33, relative to
licensing of places for the care and treatment of the mentally ill, you refer
to the Ring Sanatorium, formerly located in Arlington, licensed by your
department. You further state that in February of 1959, this private
institution ceased to operate and went out of business after having been in
existence for approximately seventy-five years.
You further advise us that upon closing, it was decided that the medical
records of this institution should be packaged and stored in a building at
the Gushing Hospital where they presently are. Moreover, you state that
from time to time you have received numerous requests from individuals,
State, Federal and private agencies for information contained in the records.
In the light of the foregoing, you pose the following questions:
"1. Is it the legal responsibility of the Department of Mental Health,
upon the closing of a private institution licensed by it, in accordance with
statute, to take and store medical records of such an institution?
"2. If your answer to question #1 is in the affirmative, is it then legally
proper for the Department of Mental Plealth to divulge information con-
tained in these records to individuals, State, Federal or private agencies
without a court order?
"3. If your answer to question #1 is in the negative, what action, if any,
should the Department of Mental Health take pertaining to medical
records of an institution licensed by it, in accordance with statute when
such an institution terminates its business operation?
"4. If your answer to question #1 is in the negative, what action should
be taken regarding the records of Ring Sanatorium presently stored at
Gushing Hospital?"
I answer your first question in the negative. Your second question is
based upon a positive answer to question number 1 . Relative to your third
question, I understand that a receiver of the property of the Sanatorium
was appointed by the court. Presumably he is the one entitled to the
control of its records. If I am correct in assuming that the receiver is
currently in control of the assets of the corporation, the records may be
transferred to him for proper disposition under order of the court.
Your department has informed me that this institution is not licensed
by the Department of Public Health under the provisions of G. L. c. Ill,
§ 71. If it were, the provisions of § 70 of c. Ill could apply to the records
you refer to.
Very truly yours,
Edward J. McGormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 85
The Metropolitan District Commission could waive a -provision of a building
constructio7i contract which was not required by statute to be included
therein. The Commission could not make a direct payment to a sub-
- contractor under G. L. c. 30, §§ 39F or 39G, since sub-contractor had
filed a lien for an amount greater than that which was due the general
contractor.
Oct. 9, 1961.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Co7nmission.
Dear Sir: — You have requested the opmion of this office on three
questions of law arising out of contract No. 1127.
Your first inquiry is whether the commission, under the provisions of
Article XXV of the contract, can waive the apparent informality occasioned
by the failure of the general contractor to obtain approval of the painting
subcontractor as required by Article XVI.
There is no statutory requirement that the awarding authority give
prior approval to individual subcontractors. This requirement originates
with the commission and stems from Article XVI of its standard contract.
As such, it may be waived by a vote of the commission in accord with
Article XXV of the contract.
The answer to your first question is in the affirmative.
Your second question is "Can the commission make the direct payment
requested by [the painting subcontractor], and if so, what steps must be
taken so that such payment will conform to the law and afford protection
to the commission?"
Direct payment by an awarding authority to a subcontractor, ^'out of
sums payable to the general contractor," is permitted by G. L. c. 30, § 39F,
under specified conditions and "such direct payment . . . shall discharge the
obligation of the awarding authority to the general contractor to the extent
of such payment." Assuming that all other conditions are met, it does not
appear that the awarding authority is holding any sums payable to the
general contractor.
Your letter calls attention to a lien filed in accordance with G. L. c. 149,
§ 29, by the subcontractor seeking the direct payment, in the amount of
$97,348. The final estimate is $22,561.87.
The only sum that could be payable to the general contractor is the
final estimate — $22,561.87. However, G. L. c. 30, § 39G, applicable to
the contract in question, provides that:
". . . The contracting authority shall deduct and retain from payment
of said final estimate a sum sufficient to satisfy any and all outstanding
claims or liens that have been duly filed against a contractor under the
provisions of . . . section twenty-nine of chapter one hundred and
forty-nine ..."
The fact that there is a disputed claim for extra work, and a semi-final
estimate may be prepared in lieu of a final estimate, is of no effect for
§3 9G further provides :
"In such cases, a semi-final estimate shall be prepared — but subject
to the same deductions and retainage as set forth above. ..."
Since the statutory lien exceeds the amount of the final or semi-final
estimate, the commission has no sums payable to the general contractor
at the present time. In answer to your second question, if the commission
were to make the direct payment requested, there would be no statutory
86 P.D. 12.
authority to claim a pro taiito discharge of the commission's obligation to
the general contractor on his contract.
Your third question is prefaced, "In the event that your answer to the
first question is in the negative. ..." In view of my affirmative answer
to your second question, no response is required to your final inquiry.
Very truly yours,
Edward J. McCormack, Jr., Attorney Qeneral,
By William D. Quigley,
Assistant Attorney General.
Under the applicable statutes the Metropolian District Commission has no
obligation to construct sewers in Quincy other than such as may he neces-
sary to enable the city to drain its territory by gravity.
Oct. 11, 1961.
Hon. Robert F. Murphy, Commissioner, Metropolitan DistrictCommission.
Dear Sir : — You have written me calling my attention to a portion of
St. 1899, c. 424, § 8, and stating that Commissioner Herbert of the city of
Quincy has requested information of your commission as to what relief can
be granted to the city of Quincy for a low area in the vicinity of Bower
Road and West Howard Street which he states is urgently in need of
sewerage facilities and which cannot be serviced by gravity sewers. The
letter concludes by asking the opinion of the Attorney General under the
above provision as to whether or not the Metropolitan District Commission
has the responsibility to provide relief for this area at the expense of the
^Metropolitan District so that this area may drain by gravity to the Metro-
politan Sewer.
Section 8, above referred to, reads as follows:
"Any city or town, within the limits of which any main sewer shall have
been constructed under the provisions of this act, shall connect its local
sewers with such main sewer, except as hereinafter provided, subject to the
direction and control of said board, and any person, firm or corporation
may, subject to the direction, control and regulation, from time to time, of
said board, and subject to such terms, conditions and regulations as each
city or town may prescribe, connect private drains with such main sewer:
provided, that the said board shall, without expense to the city of Quinc}^
make all connections and take and construct such intercepting sewers as
may be necessary to e}iable the city of Quincy to drain by gravity its
territory into said metropolitan sewer. The present pumping station and
force mains of the city of Quincy shall be taken and paid for by said board
of metropolitan sewerage commissioners, and said board shall build and
operate such new force main or mains and pumping stations as may be
necessary to enable the city of Quincy to drain its sewerage systems into
said metropolitan sewer. The sewerage systems of all drainage areas not
now drained by the south metropolitan system, which are constructed
after the passage of this act, shall be constructed in accordance with the
so-called separate .system of sewerage."
P.D. 12. 87
The responsibilities of the Board of Metropohtan Sewerage Commission-
ers under c. 424 are now in your commission by virtue of St. 1919, c. 350,
§ 123. It is a matter of interest as well as of law that the portion of § 8,
which is referred to in the letter to this office, is now incorporated almost
verbatim in G. L. c. 92, § 2. That section reads as follows:
"Any town, within the limits of which any main sewer under the control
of the commission is situated, shall connect its local sewers with such main
sewer except as hereinafter provided, subject to the direction, control and
regulation of the commission, and any person may, subject thereto and
subject to such terms, conditions and regulations as each town may pre-
scribe, connect private drains with such main sewer; provided, that the
commission shall, without expense to Quincy, make all connections and
take and construct intercepting sewers necessary to enable Quincy to drain
by gravity its territory into the metropolitan sewer. The sewerage systems
of all drainage areas not now drained by the south metropolitan system
shall be constructed in accordance with the so-called separate system
of sewage."
It will be observed from a reading of § 8 of c. 424 that the proviso you
are interested in is
"... that the said board shall, without expense to the city of Quincy,
make all connections and take and construct such intercepting sewers as
may be necessary to enable the city of Quincy to drain by gravity its territory
into said ynetro'politan sewer. ..." (Emphasis supplied.)
The portion of § 8 to which the letter refers now appears in § 2 of c. 92,
as I have stated. A careful reading of both sections discloses a legislative
intent that your commission shall make connections and construct sewers
necessary to enable Quincy to drain by gravity its territory into the Metro-
politan Sewer.
Commissioner Herbert, you state, has requested information as to what
relief your commission can give to the city of Quincy for a low area which
cannot be serviced by gravity sewers. The proviso in §§ 8 and 2 with
which we are concerned indicates a legislative intent to authorize your
commission to make, without expense to Quincy, all connections and con-
struct intercepting sewers necessary to enable Quinc}^ to drain by gravity its
territory into the Metropolitan Sewer. The obligation of the commission
in this respect has not been changed in the last sixty years as shown by
the repetition found in the 1899 legislation and in the current § 2 of G. L.
c. 92.
It is assumed from the letter of the commissioner that the sewers needed
to meet the demands of the city of Quincy cannot be gravity sewers. Your
commission is not authorized, in my opinion, to undertake expense under
the provisions we have referred to except such as is necessary to enable
Quincy to drain by gravity its territory into the Metropolitan Sewer.
There is no other duty upon your commission.
This office, of course, must interpret statutes as enacted. Omissions
cannot be supplied by this department. It may well be that further legis-
lation will be found necessary to achieve the desired result.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
88 P.D. 12.
The coyiduct of sporting events of any type being permitted on any legal holiday
under the provisions of G. L. c. 136, § 37, high school football games may
be played on Thanksgiving morning.
Oct. 17, 1961.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir: — In your letter of recent date, relative to "Thanksgiving
Day," after referring to G. L. c. 4, § 7, cl. 18th, and G. L. c. 136, § 21, you
state that many high schools in the Commonwealth play their most im-
portant and traditional rivals on Thanksgiving morning and that this is
a practice which has been in existence for a great many years. You then
pose the following question :
''I would greatly appreciate receiving an opinion from you as soon as
possible, whether § 37 of c. 136 may be so interpreted so that one-thirty and
six-thirty post meridian restriction of § 21 of c. 136 may be disregarded.
In other words, can the high schools play football on Thanksgiving morning,
or are they limited to the hours of one-thirty and six-thirty post meridian?"
As you are aware, G. L. c. 136, §§21 and 25, inclusive, provide for
certain sports and games on the Lord's day in such municipalities as accept
those provisions in the manner provided by § 21. Moreover, certain
amateur sports are permitted in certain cities and towns on the Lord's day
in accordance with the provisions of G. L. c. 136, §§ 26 to 32, inclusive.
As you are also doubtless aware, said c. 136 was amended by the pro-
visions of St. 1960, c. 812, entitled "AN ACT RELATIVE TO THE
OBSERVANCE OF LEGAL HOLIDAYS WITHIN THE COMMON-
WEALTH." Section 3 of c. 812 adds five new sections to c. 136. Said
new sections are numbered 33, 34, 35, 36 and 37. This new § 33, under the
caption "LEGAL HOLIDAYS," is as follows:
"The provisions of this chapter shall apply from midnight to midnight
on each of the following holidays, except as provided in section thirty-
seven, and the public offices shall be closed on all of said days: January
first. May thirtieth, July fourth, First Monday of September (by amend-
ment, Columbus Day), November eleventh. Thanksgiving Day, and
Christmas Day."
The new § 37, still under the caption "LEGAL HOLIDAYS," provides
that
^^Notwithstanding the provisions of this chapter {referring, of course, to
chapter 136), sporting events of any type, including those authorized under
chapter one hundred and twenty-eight A, may be conducted on a7iy legal
holiday, and any business licensed under chapter one hundred and thirty-
eight may be conducted in accordance with the provisions of said chapter
on any such day. Hunting, if otherwise lawful, shall not be prohibited on
November eleventh. Florist shops may be kept open all day on May
thirtieth." (Emphasis supplied.)
There follow two more paragraphs not now germane.
Section 21 of c. 136 refers to outdoor sports on the Lord's day. The
new § 37 provides that "sporting events of any type . . . may be con-
ducted on any legal holiday." Thanksgiving day is a legal holiday.
P.D. 12. 89
Under the provisions of the new § 37, I am of the opinion that football
games may be conducted on Thanksgiving morning as usual. I, therefore,
answer your question in the affirmative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
By Fred W. Fisher,
Assistant Attorney General.
The Commissioner of Public Safety has authority to license dancing acts on
certain holidays under the conditions applicable to Sunday.
Oct. 24, 1961.
Hon. Frank S. Giles, Commissioner of Public Safety.
Dear Sir: — In your recent communication you requested my opinion
"as to whether dancing will be approved for (November 11th) by (your)
department, especially with regard to tap dancing, acrobatic dancing,
ballet dancing and musical comedies." Your letter explains that your
"department has interpreted G. L. c. 136, § 2, as amended, to include the
prohibition of any dancing on Sunday including dancing acts that ore part
of a so-called entertainment.^' (Emphasis supplied.)
By virtue of § 1 of St. 1960, c. 812, entitled "AN ACT RELATIVE TO
THE OBSERVANCE OF LEGAL PIOLIDAYS WITHIN THE COM-
MONWEALTH," certain dates, including November 11th, were declared
to be legal holidays, the observance of which was to be governed as pro-
vided in c. 136 except as otherwise specifically stated therein.
Section 3 of said St. 1960, c. 812, added five sections to G. L. c. 136
under the caption "LEGAL HOLIDAYS." Your question deals with the
last of these five sections, now incorporated as § 37 of c. 136, and more
particularly with the last paragraph thereof, which states:
^^Any entertainynent , 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 oper-
ation as contained in said sections shall apply on May thirtieth, November
eleventh and Christmas Day. (Emphasis supplied.)
I am unable to find, as you suggest, any reference in c. 666 of the Acts
of 1960, which extends the Lord's day laws in the area of entertainment,
to May thirtieth, November eleventh and December twenty-fifth. How-
ever, this extension was made in the act to which I have above referred.
By virtue of the last paragraph of § 37 quoted above, "any entertain-
ment" mentioned in § 4 may be licensed on November eleventh as provided
in said § 4. That section provides, in effect, that if the "proposed enter-
tainment shall have been approved in writing by the commissioner of
public safety as being in keeping with the character of the day and 7iot incon-
sistent with its due observance,'' the mayor or selectmen, as the case may be,
may grant to an applicant "a license to hold on the Lord's day" such
public entertainment. (Emphasis supplied.)
Among other activities not here pertinent, § 2 of c. 136 to which you
90 P.D. 12.
refer, excludes from its broad prohibitions "dancing at a wedding or cele-
bration of a religious custom or ritual if no charge is made for being present
or for dancing . . ." Accordingly, being present at or taking part in such
dancing is specificall}'^ permitted on November eleventh and falls without
the scope of the approval requirement and licensing provision of § 4.
More imminently, your inquiry deals, I assume, with the duty devolving
upon you by virtue of the approval requirement of § 4 regarding entertain-
ment activities conducted in restaurants, hotels, nightclubs, and the like,
where such entertainment takes the form of tap dancing, acrobatic dancing
and ballet dancing, and also where such dancing may be performed in con-
junction with musical comedies.
In view of the specific exception to dancing quoted above, it must be
assumed that dancing other than as specifically excepted falls within the
broad prohibition against "public diversions" in § 2. Section 2, however,
grants a further exception for those present at "a public entertainment duly
licensed as provided in section four," and again for those "(taking) part in
any . . . public diversion, except as aforesaid." The italicized clause has
among its antecedents the reference to duly licensed public entertainment.
Little is required to regard dancing, as you have described it, as a form of
public entertainment; your communication is based on this assumption
with which I am in accord.
Accordingly, it is my opinion that "dancing acts that are part of a so-
called entertainment" are not prohibited on November eleventh by § 2 as
a matter of law. The duty devolves upon you, under the approval require-
ment of § 4, to determine whether "the proposed entertainment ... is
in keeping with the character of the day (November eleventh) and not
inconsistent with its due observance," mindful of the further authority
delegated to you thereby to suspend, revoke or annul such license upon the
same considerations, after notice and hearing.
The following language in Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass.
207. 212, referring to c. 136, § 4, may serve you as a guide in this respect:
"No censorship is authorized. The licensing authority cannot become
a censor. He is not without standards for the granting or denial of a
license. In his quasi judicial capacity he must act reasonably and not
whimsically. His duty includes action for the preservation of public order
in public entertainment. ..."
Very trulj^ yours,
Edward J. McCormack, Jr., Attorney General,
By Eugene G. Panarese
Assis
ESE,
ssistant Attorney General.
An autopsy should not he performed on the body of a deceased patient at a
State hospital unless all the next of kin consent.
Oct. 25, 1961.
Mr. .Iohn L. Quigley, Commandant, Soldiers^ Home, Chelsea.
Dear Sir: — You have in(iuired whether or not 3^ou have the right to
permit an autopsy performed on a deceased patient where the next of kin
consists of a son and daughter and one consents to the autopsy but the
P.D. 12. 91
other does not. In the situation you refer to, the consenting party was
Hsted as "next of kin" for notification, presumably by the patient upon
entrance to your institution.
Our Supreme Judicial Court, most recently in the case of Kelley v. Post
Publishing Co., 327 Mass. 275, 277, has said that one who intentionally
mistreats the body of a dead person is liable in tort to the member of the
family of such person who is entitled to the disposition of the body. This
is the same position adopted by the Restatement of Torts, § 868. In Sheehan
V. Commercial Travelers Ass'n, 283 Mass. 543 at 553, it was said:
"The right of possession of a dead body ... for the purpose of an
autopsy, ... is vested, at least in the absence of a different provision by
the deceased, in the surviving husband, wife, or next of kin."
I am unaware of any authority which settles the issue you raise where
some of the next of kin but not all consent to the autopsy. It is my opinion,
therefore, that it would be unwise to permit an autopsy unless all the next
of kin grant permission for it.
This opinion does not, of course, apply to those situations referred to in
G. L. c. 38, § 6, wherein a State Medical Examiner may be authorized or
required to perform an autopsy nor to those referred to in G. L. c. 113.
An opinion was sent to you relative to the same subject matter under
date of December 31, 1956.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
G. L. c. 30, § 21, prohibiting the receipt of two salaries from the Commonwealth
does not prevent a salaried state employee being employed in another state
agency where his compensation is not salary but is in the nature of wages
for special services.
Oct. 26, 1961.
Hon. Patrick A. Tompkins, Commissioner of Public Welfare.
Dear Sir: — You have requested a formal opinion as to whether a part-
time salaried employee in your department may be compensated for
services rendered to another State agency. It appears that the compen-
sation paid to the employee in question for the services rendered to the
other State agency is not in the nature of a regular salary, but is compen-
sation for services rendered in connection with specific matters handled.
A series of opinions from this office, the latest of which is reported in
Attorney General's Report, 1956, p. 42, established the principle that the
provisions of G. L. c. 30, § 21, do not prohibit a person receiving a "salary"
from the Commonwealth for services in one department from being em-
ployed by another State agency where the compensation paid for the
services rendered to the second agency is not in the nature of a salary, but
is in the nature of "wages" for special services from time to time performed.
I am enclosing herewith a copy of the opinion cited. You will note that
the prior opinions on the question are fully reviewed therein.
Inasmuch as the person to whom you refer is only a part-time employee
in your department, the possible conflict of working hours is less than in
92 P.D. 12.
the case of full-time emplo3^meiit, and the cautionary statement made in
the opinion above cited that the special services for which it was there
held compensation could be paid must be "in the nature of overtime work,"
would not, therefore, be as applicable to such an employee as it would be
if he were a full-time employee in your department.
Very truly yours,
Edw^ard .J. McCoRMACK, Jr., Attorney General.
Under G. L. c. 91, § 11 the Division of Waterways could not construct a
replacement for a privately-owned footbridge supplying access to a private
industrial site, 7iot shown to he necessary to a stream improvement project.
The requirements of public ownership of works under the section would
preclude construction of the bridge on private property; and fact that
bridge spans tidal waters, and the taking of easements by a town, does not
justify constructing a bridge to connect properties of a private owner.
Oct. 30, 1961.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir : — You have requested an opinion as to whether the Division
of Waterways has the right to construct a footbridge across Herring Brook
in the town of Weymouth.
Your letter states that a privately-owned bridge presently spans the
brook and provides access to an industrial site. Proposed stream improve-
ments to be undertaken by the Division of Waterways will render the
existing bridge unsuitable, and if the bridge were to be replaced, a structure
with a longer span and larger hydraulic capacity would be reciuired. No
inquiry is raised as to the liability of the Commonwealth, acting through
its Department of Public Works and its Division of Waterways, for the
removal of, or damage to, the existing, privately-owned bridge. Your
specific inquiry concerns the right of the division to construct a new
bridge and its ownership thereafter.
The Division of Waterways is authorized to expend its appropriation
for projects and improvements "as authorized by section eleven of chapter
ninety-one of the General Laws" {e.g. St. 1961, c. 544, § 2, Item 8262-22).
General Laws, c. 91, § 11, provides:
"The department shall undertake such construction and work for the
improvement, development, maintenance and protection of tidal and non-
tidal rivers and streams ... as it deems reasonable and proper. . . .
The department, in pursuance of the work authorized, may construct . . .
bridges . . . and may do such other incidental work as may be deemed
necessary for the improvement and safety of waterways."
The reasonableness and propriety of a stream improvement is a determi-
nation to be made solely by the department, but there is no authority
under G. L. c. 91, § 11, for the independent construction of a bridge. On
the contrary, this section provides authority only for the construction of
such bridges as are incidental to the proposed stream improvement, etc.,
and are necessary to the improvement and safety of the waterway.
You were previously advised in an opinion dated November 21, 1958,
that the department "has no right to expend public monies for an unneces-
P.D. 12. 93
sary improvement in the nature of a vehicular bridge merely because it
will be an addition to the town if it is not necessarily incidental to the
improvement work on the Brook." It was further stated in that opinion
that whether the proposed bridge is reasonably necessary to complete the
improvement work is an engineering and not a legal problem.
In the instant case, it is my opinion that the department has no right
under G. L. c. 91, § 11, to construct a footbridge merely as a replacement
for the existing footbridge which must be removed, unless the construction
of the new bridge is incidental to, and necessary for, the construction of
the proposed improvement or the safety of the waterway. It appears from
your letter that the only sense in which the proposed footbridge can be
considered necessary is to supply access to a private industrial site; it
does not appear that the bridge is necessary, in an engineering sense, to
the accomplishment of the stream improvement.
Furthermore, if the department should determine that the construction
of the footbridge is necessary, in an engineering sense, in order to accom-
plish the stream improvement, there is no authority in G. L. c. 91, § 11,
to construct the bridge on private property. You were advised by an
opinion dated January 20, 1960, that one of the essential requirements for
construction or work under this section is public OAvnership. (See also
Attorney General's Report, 1954, pp. 53-54, to the same effect.)
The fact that the proposed bridge would span tidal waters and public
property is not sufficient to constitute public ownership, and the fact that
the town has taken the easement to w^hich you refer is not sufficient to
justify the construction by the department under G. L. c. 91, § 11, of a
footbridge to connect properties of a private owner.
In view^ of the negative answer to your first question, no response is
required to your second inquiry.
Verj^ truly yours,
Edward J. McCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
Materials in excess of those originally estimated which are required to complete
a bridge under a state highway contract are to he paid for at unit prices
as an ^^ Alteration," and not at cost as ''Extra TFor/j," and the provision
of the standard specifications disclaiming any guarantee of estimates is
in accord.
Oct. 31, 1961.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir : — You have requested an opinion as to a payment for
expenses incurred by Warner Brothers, Inc., during construction of a
project in the tow^n of Lee.
Your letter states that a quantity of steel pilings in excess of the original
estimate was needed to complete the project. Because of a steel strike,
the additional steel pilings had to be purchased at .0945 cents per pound
or at a cost of .027 cents per pound more than those originally purchased.
Your question is whether the department is required to recompense the
94 P.D. 12.
contractor for the payment of .027 cents per pound on the 50,800 additional
pounds of steel pilings purchased.
In answer to your question, it is first necessary to determine whether
the additional work was an alteration or extra work. The question should
be determined by reference to the contract which incorporates by reference
the following definitions in Division I of the "Standard Specifications for
Highways and Bridges" 1953 Ed.
"Alteration" — "Change in the form or character of any of the work
done or to be done."
"Extra Work" — "Work or materials for which no price agreement is
contained in the contract and which is deemed necessary for the proper
completion of the improvement."
Broadly, the definition of alteration quoted above, must be taken to
refer to those things which lie within the scope of the work "done or to be
done" as defined in the particular contract. By contrast, the definition of
extra work carries the implication that the work in question and not
merely the amount of it, was not originally anticipated, and was not called
for by the plans and specifications but was deemed necessary to be added
in order to complete the project.
Opinions of the Massachusetts Supreme Judicial Court agree in the
general definition of an alteration as a modification in some details, leaving
the general purpose and effect of the original contract intact. See Morse v.
Boston, 253 Mass. 247. An extra, however, is generally defined as work
not contemplated or required by the original contract and which the
department could not require the contractor to perform without separate,
additional compensation as in Russo v. Charles I. Hosnier, Inc., 312
Mass. 231.
In this instance, it was clearly contemplated and intended by the parties
to the contract that the contractor supply a sufficient quantity of steel
pilings to complete the project. The additional work was in the nature of
a modification within the scope of the original contract. Therefore, the
additional work involved was an alteration and not extra work.
The work in this contract was to be done according to the "Standard
Specifications for Highways and Bridges" 1953 Ed. (amendments included).
The rules governing the payments for alterations in construction contracts
is stated in Article 79 of those specifications. The article provides in part:
"An increase in quantities of work to be performed will be paid for at the
contract unit price for the actual work done in the same manner as if such
work had been included in the original estimated quantities." The pro-
vision makes it clear that the unit price to be paid for the additional quan-
tity of steel pilings should be the same as that bid for the quantity of
pilings originally estimated. Thus, while the department must recompense
the contractor for the additional work at the unit price of .0675 cents per
pound, it need not pay him at the increased price of .0945 cents per pound.
The department is not, therefore, liable for the payment of .027 cents per
pound on the additional 50,880 pounds.
You make reference to the fact that the boring data furnished was very
misleading. Article 4 of the Standard Specifications declares that: "State-
ments as to conditions under which the work is to be performed, including
plans, surveys, measurements, calculations, estimates, borings, etc., are
made solely to furnish a basis for comparison of bids, and the Party of
the First Part does not guarantee or represent that they are even approxi-
mately correct. The contractor must satisfy himself by his own investi-
P.D. 12. 95
gation and research regarding all conditions affecting the work to be done
and labor and material needed, and make his bid in sole reliance thereon."
This provision makes the complaint about misleading boring data im-
material since it indicates that the contractor should not rel}^ upon the
estimates furnished by the department.
Very truly yours,
Edward J. jMcCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
The statutes requiring registration as a 'pharmacist to dispense drugs, and
regulations thereunder, are applicable to such dispensing in state institutions.
Oct. 31, 1961.
Mr. John L. Quigley, Commandant Soldiers' Home, Chelsea, Mass.
Dear Sir: — You have recently inquired what the effect of the Proposed
New Rules and Regulations of Professional Conduct of Pharmacists being
promulgated by the Board of Registration in Pharmacy would be on your
hospital pharmacy and your pharmacist. You are particularly concerned
with the following proposed rules :
"4. The registered pharmacist shall not substitute any other product in
place of brand-named drugs prescribed, unless approval is obtained from
the prescriber at the time of dispensing.
"22. A registered pharmacist connected with and emploj^ed by a
hospital or clinic shall only dispense medicine or drugs to inpatients, and
to out-patients who are under the immediate treatment of the hospital
or clinic."
It should be noted that the Proposed New Rules and Regulations of
Professional Conduct of Pharmacists were filed with the State Secretary
on September 29, 1961, pursuant to G. L. c. 30A, § 5, and said statute
provides that they become effective on that date since no other date has
been specified by the board.
The Board of Trustees of the Soldiers' Home in Massachusetts is granted
the same powers in regard to management and control as the trustees of
State hospitals. G. L. c. 6, § 41. Trustees of State hospitals may appoint
superintendents who in turn are authorized to appoint "assistant physicians
and necessary subordinate officers and other persons." G. L. c. 123. § 28.
The statutes relating to narcotic drugs and the dispensing of drugs,
medicines, chemicals, or poisons for medicinal purposes would seem to
require the employment of a pharmacist registered under the provisions of
G. L. c. 112 in a private hospital that maintains its own pharmacy. (G. L.
c. 94, §§ 197-217; c. 112, §30).
The Board of Registration in Pharmacy, in promulgatmg the above-
referred to rules and regulations, presumably acted pursuant to G. L. c. 112,
§ 42A, as most recently amended in 1960. That section reads in part:
"The board may by rule or regulation adopt, amend or repeal rules of
professional conduct. Every person who holds a certificate, license, regis-
tration or permit to practice pharmacy or engage in the retail drug business
96 P.D. 12.
in this commonwealth shall be governed and controlled by the rules and
regulations of professional conduct adopted by the board."
While, as a general rule, statutes of a general nature do not apply to
the State unless expressly stated (see Attorney General's Report, 1958,
pp. 61, 65), there are many exceptions to this rule which require us to
examine the purposes of the statute. It seems to me that the object of the
statutes relating to narcotic drugs and the dispensing of medicines is the
protection of the citizenry from the evils that may result from untrained or
improper persons having custody of and dispensing the same. I therefore
conclude that the Legislature intended the statutes regarding the care,
custody and dispensation of narcotic drugs and medicines to apply to
State hospitals and other institutions. This being so, if you maintain a
pharmacy, you must employ a registered pharmacist and his professional
conduct will be governed by the rules and regulations promulgated by the
Board of Registration in Pharmacy.
The Attorney General in 1913 rendered a similar opinion when asked
whether physicians practicing medicine in State hospitals must be registered
in accordance with State law. IV Op. Atty. Gen. 432. He stated at
page 433 :
"The statute as to registration of physicians does not in terms impose
any penalty or obligation upon the employer, but applies rather to the
person who attempts to practise medicine. Any effect upon the State by
its general enforcement in all cases, including employees in public institu-
tions, would be merely an indirect result of such enforcement.
"The object of these statutes is, of course, the promotion of the public
good and the protection of the citizens against the evils naturally resulting
from the attempts of unskilled persons to practise medicine. No good
reason suggests itself why the protection thus afforded should be less to
those citizens who are cared for in State institutions than to those w^ho
are not."
I might, in closing, refer you to § 4 of c. 30A which provides that any
person may petition an agency, in this case the Board of Registration in
Pharmacy, requesting the adoption, repeal or amendment of any regulation
and may accompany his petition with such data, views and argument as
he thinks pertinent.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 97
An agreement for the construction by the State Department of Public Works
of new water wells to replace those of a city damaged by the construction
of a State highway did not authorize the Department to supply chemicals
required to make water potable.
Nov. 1, 1961.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — You have requested an opinion as to whether there is any-
legal barrier to an agreement by the department with the city of Lowell
for the department to supply chemicals for a period of one year for the
operation of new water wells in that city.
It appears from your letter that the new wells are part of new water
facilities being constructed by your department pursuant to an agreement
dated March 8, 1960, between the department and the city of Lowell
Department of Public Works. The construction of a State highway through
the "City's Cook Well Field Water Supply" made the construction of
replacement facilities necessary. It appears from the collateral material
you submitted with your request that the new wells have developed a high
sulphide content and that the chemicals in question are required to render
the water potable.
The agreement referred to above, dated IMarch 18, 1960, contemplated
the possibility of a change in the quality of the city's water supply by the
new construction. The provision entitled "Release of Damage" provides:
". . . In consideration of the new water facilities the city hereby
agrees: . . .
"3. To relinquish any and all claims for damage which maj^ be attributed
to the effect on the quality and quantity of the city's water supply by the
construction of the State highway and related construction."
By the same agreement, the department agreed to carry the entire cost
of preparing plans and specifications and the cost of construction. The city
agreed that upon "completion of the new water facilities," it will assume
the responsibility for the maintenance thereof and the entire cost pertaining
to the operation and maintenance. Unless a year's supply of chemicals is
to be considered part of the construction of facilities rather than part of
the cost of maintenance, then your department has no obligation to supply
such chemicals. When the new water facilities are completed according to
the plans and specifications, by the terms of the agreement, it will become
the duty of the city to accept the facilities, assume the cost of maintenance,
and thereby release all claims attributable to the effect on the quality of
the city's water supply by the construction of the State highway.
"A 'facility' is a thing that promotes the ease of any action, operation,
transaction, or course of conduct . . ." {Coldwell v. McMillan, 224 S. C,
150.) The equipment necessary or convenient to the process of adding
chemicals to the water supply may be considered "facilities." The chemi-
cals themselves do nothing to promote the ease of the process and cannot,
within the common usage of the term, be considered "facilities."
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
98 P.D. 12.
The Competitive Bidding Law 'prevents negotiating with the low bidder on a
construction contract for a reduction of an unbalanced bid on a unit item
when State funds only are involved, but not when Federal funds also are
involved and G. L. c. 81, § SO, is applicable.
Nov. 2, 1961.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — You have requested an opinion concerning the renegotia-
tion of unit prices prior to the award and execution of contracts.
It appears from the example in your letter that the department occasion-
ally receives an unbalanced bid - — that is, when there is a small estimated
quantity for a given item, the contractor may submit an unreasonably
large unit price for that item with a minimal effect on the total bid price.
If, by chance, or by unexpected circumstances, the original estimate is
insufficient, the successful bidder will make an unreasonably large profit
on that item at the expense of the Commonwealth.
You propose to avoid such speculation by comparing the low bidder's
unit prices against engineering estimates of fair prices and then, prior to
the award of the contract, renegotiating unit prices which appear to be
out of line.
Your first question is:
"1. On a project financed only with local funds, may the department
before the award and execution of an agreement renegotiate any of the
items?"
General Laws, c. 29, § 8A, requires that public works contracts of one
thousand dollars or over be awarded on the basis of free competitive bid-
ding. In construing this section, the Supreme Judicial Court has said:
"Statutes of this general character are designed 'to establish genuine
and open competition after due public advertisement in the letting of
contracts ... to prevent favoritism in awarding such contracts and to
secure honest methods of letting contracts in the public interests.' ... In
the Morse case, 253 Mass. 247, 252, it was said that such 'statutes must be
interpreted, if reasonably possible, so as to effectuate the purpose of the
framers' and 'every presumption is to be indulged that the General Court
intended to put in force . . . legislation effectual to remedy the evil at
which it appears to be aimed.' "
Pacella v. Metropolitan District Commission, 339 Mass. 338, at 342.
It has been held that there must be strict compliance with the statutory
requirements of competitive bidding laws applicable to building construc-
tion contracts {Poorvu Construction Co. Inc. v. Nelson Electrical Co. Inc.,
335 Mass. 545), and that a benefit to the Commonwealth is not a ground
for ignoring the bid statute. (See Gifford v. Commissioner of Public Health,
328 Mass. 608, 616-G17; East Side Construction Co. Inc. v. Adams, 329
Mass. 347.)
The power to negotiate a unit price different from the bid originally
submitted against the declared purpose of the bid statute — "to secure
honest methods of letting contracts." The fact that the department is
desirous of exercising a power to negotiate prices for the purpose of securing
lower unit prices for the benefit of the Commonwealth will not justify the
practice.
A recent opinion rendered to the Metropolitan District Commission
stated, in effect, that the commission could not renegotiate unit prices
P.D. 12. 99
after the execution of the contract without risking a violation of the compet-
itive bidding statute. The fact that the department seeks to renegotiate
a submitted unit price bid prior to the award and execution of the contract
is not a controlling distinction.
It is my opinion that in the absence of permissive legislation, contracts,
financed wholly with local funds, must be awarded in accord with prices
established by competitive bidding rather than by negotiation.
Your second inquiry is :
"2. On a project where there are Federal funds mvolved, may the de-
partment before the award and execution of an agreement renegotiate any
of the items?"
General Laws, c. 81, § 30, provides:
"The department may make all contracts and agreements and do all
other things necessary to co-operate with the United States in the con-
struction and maintenance of highways . . . and may make any agree-
ments or contracts that may be required to secure federal aid in the con-
struction of highways . . ."
If the renegotiation of unit prices is necessary to co-operate with the
United States "or required to secure Federal aid," the department may
award contracts on the basis of such negotiated prices.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The furnishing by a town of transportation of a pupil to a private school in
another town is required only when similar transportation is being fur-
nished to pupils in the public schools in the same grade.
Nov. 2, 1961.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir : — In your letter of recent date you request an opinion
relative to the subject of reimbursement for school transportation to the
town of Seekonk.
You state that the town of Seekonk does not have a four-year public
high school but that under the provisions of G. L. c. 71, § 6, it sends pupils
in grades 10, 11 and 12 outside the towai of Seekonk for which it pays
tuition and transportation. Seekonk, you advise us, maintains grades 1
through 9 in the town, and the parents are requesting transportation under
G. L. c. 76, § 1, for children of residents of the town who go to a private
school outside of Seekonk in grade 9. After calling our attention to the
decision of the Supreme Court in the case of Quinn v. School Committee
of Plymouth, 332 Mass. 410, and the language of the opinion in that case:
"(2) to provide transportation to the Sacred Heart School in Kingston
for pupils in grades III through VI to the extent that transportation is
provided by the committee for elementary school pupils in the pubUc
school in Bourne,"
you pose the following question:
"Does this mean Seekonk would only have to provide transportation to
private schools in grades 10, 11 and 12?"
100 P.D. 12.
As you point out in your letter, the Supreme Court in the case of Quinn
V. School Committee of Phjmouth, 332 Mass. 410, has appHed G. L. c. 76,
§ 1, to a similar situation. I believe that the court in that case requires a
grade by grade comparison of the treatment of public school pupils to
private school students with respect to transportation costs. Since, there-
fore, no public school students are transported to grade 9 outside the town,
in my opinion, private school students in this grade are not entitled to
such transportation.
In my opinion, therefore, 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.
The provisions of G. L. c. 40, § 21 (16) authorizing town by-laws for removing
vehicles impeding snow plowing were not repealed by the enactment of
G. L. c. 40, § 23.
Nov. 2, 1961.
Mr. Edward J. McCarthy, Chief Engineer, Department of Public Works.
Dear Sir : — In your recent letter you refer to the letter which you have
received from the town counsel of the town of Williamstown relative to
municipal action under the so-called "towing law" (St. 1961, c. 322).
Under the provisions of G. L. c. 40, § 21(16), it is provided that towns
may make by-laws
"For authorizing the superintendent of streets or other officer having
charge of ways, for the purpose of removing or plowing snow, or removing
ice, from any way, to remove, or cause to be removed, to some convenient
place, including in such term a public garage, any vehicle interfering with
such work, and for imposing liability for the cost of such removal, and of
the storage charges, if any, resulting therefrom, upon the owner of such
vehicle."
You will note that this provision authorizes the enactment of town
by-laws.
General Laws c. 40, § 22, authorizes, as you know, municipal ordinances
or by-laws, or rules and orders by the board of aldermen or the selectmen
"for the regulation of carriages and vehicles used therein." As you are
also well aware, § 21(16) is a statute of state-wide application.
Chapter 322 of the Acts of 1961, inserting a new § 22D in G. L. c. 40,
is a local option statute, so called, becoming operative only in municipalities
which specifically accept its provisions. Moreover, it does not attempt to
authorize the enactment of ordinances or by-laws which are ordinarily
dealt with by the legislative branches of the municipalities but provides
that:
"... the city council or board of selectmen or . . . some other board
or commission , . . empowered to establish traffic regulations . . . may
adopt, amend, alter or repeal rules and regulations ... to remove . . .
any vehicle parked or standing on any part of any way ... in such a
manner as to impede in any way the removal or plowing of snow or ice
P.D. 12. 101
or in violation of any rule or regulation which prohibits the parking or standing
of all vehicles on such ways . . ." (Emphasis supplied.)
Moreover, there is no express repealer provision in c. 322.
It is, as you know, a well-settled rule of statutory construction that a
statute is not to be deemed to repeal or supersede a prior statute in whole
or in part in the absence of express words to that effect or of clear impli-
cation. Mayor of Haverhill v. Water Commissioners of Haverhill, 320 Mass.
63, 68.
It is also a principle of statutory interpretation that statutes alleged to
be inconsistent with each other, in whole or in part, must be so construed
as to give reasonable effect to both unless there be some positive repug-
nancy between them. Ryan v. Marlborough, 318 Mass. 610, 613.
We have, then, in effect a statutory provision, G. L. c. 40, § 21(16),
authorizing towns to enact by-laws for the purpose of removing motor
vehicles interfering with the removal or plowing of snow or removal of
ice from the public ways. This provision, as I have stated, is of state-wide
application and has been on our statute books for about twenty years.
The new § 22D of c. 40, inserted by St. 1961, c. 322, is simply a local
option statute providing for traffic regulations as distinguished from by-
laws authorizing the removal of motor vehicles impeding the removal or
plowing of snow or ice and also in violation of any parking rules or regulations.
In view of the absence of any repealer provision in the new § 22D and
the fact that it deals with, in part at least, a new and different subject
matter from § 21(16), I am not satisfied that the new § 22D repeals the
present § 21(16).
In the light of the foregoing, I am in accord with your conclusion that
proper action under § 21(16) by a municipality remains effective without
the necessity of further action under the new § 22D. While I am of the
opinion that both § 21(16) and the new § 22D are in force and effect, I am
in agreement with you that municipalities in the future desiring to legislate
concerning the towing of motor vehicles should, as a practical matter, act
under the new § 22D.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Commissioner of Public Safety has the authority, subject to appropriation,
to pay installation charges for teletypewriter equipment in the head-
quarters and sub-stations of the State Police.
Nov. 2, 1961.
Hon. Frank S. Giles, Commissioner of Public Safety.
Dear Sir: — You have recently requested my opinion as to whether
you, as Commissioner of Public Safety and Chairman of the Board of Tele-
typewriter Regulations, by authority of St. 1953, c. 474, may authorize
installation charges for the expansion of j^our Teletype Communication
System for a more efficient and modern system which will allow for con-
tinued growth.
In your letter you state that the Communications Analyst in the office
of the Commissioner of Administration and Finance, has objected to the
102 P.D. 12.
payment of installation charges proposed by the New England Telephone
and Telegraph Company on two grounds:
(1) The Commonwealth paid for such charges when the present equip-
ment was installed.
(2) Under St. 1953, c. 474, the Commissioner of Public Safety is authorized
only to pay rental fees.
Your request for an opinion properly relates only to the second objection
since the first is one which does not concern your legal authority but rather
your business judgment.
The pertinent portions of St. 1953, c. 474, are as follows:
"The commissioner of public safety is hereby authorized to provide for
the installation, operation and maintenance of a teletypewriter communi-
cation system at the general headquarters of the state police, and at such
substations or detached posts thereof as he may designate, to insure the
prompt collection, exchange, dissemination and distribution of such
information as may be necessary for the efficient administration and oper-
ation of the state police, and to connect said system directly or indirectly
with similar systems in this or adjoining states. . . .
". . . Any law enforcement agency of the United States government or
of any city or town within the commonwealth may use, or make teletype-
writer connection with, the system herein provided. . . .
"The commonwealth shall pay all rental fees for necessary wire or
circuit mileage required to convert teletypewriter communication stations
of state departments or divisions, and of city and town law enforcement
agencies with the teletypewriter communication system authorized herein."
It is to be noted that this act was passed in 1953 at a time when there
was already existing a sytem of teletypewriter communication in the State
Police headquarters and substations. The provision for payment by the
Commonwealth of rental fees is obviously broader in scope than the
reference to "installation, operation and maintenance"; whereas rental
fees are to be paid by the Commonwealth for all State agencies and all
participating cities and towns, the Commissioner of Public Safety is
authorized to "provide for" installation, operation and maintenance only
in the State Police headquarters and substations.
Therefore, if you are authorized to incur expenses for installation it
would be only for facilities in the State Police headquarters and substations.
In my opinion, the words "provide for the installation, operation and
maintenance" do authorize you to make expenditures for those purposes.
The words "to provide" have been construed to include the power to
purchase. Swarlz v. Lake County Com'rs. 63 N.E. 31 (Ind.), City of North
Muskegon v. Rodgers, 154 N.W. 71 (Mich.). See also: McQuade v. N. Y.
Central Rd. Co., 320 Mass. 35.
If, in your judgment, it becomes necessary to pay for installation charges
for the expansion and modernization of the State Teletypewriter Communi-
cation System, in my opinion, you are authorized to do so provided the
charges are restricted to State Police headquarters and substation instal-
lations and provided also your department has an appropriation for such
purposes. G. L. c. 29, § 26.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 103
Returns to the Excise Tax Bureau of monthly sales, etc., of motor fuels and
alcoholic beverages, are "public records", and disclosure of the contents
is not prohibited by the provision G. L. c. 268A, "Code of Ethics" as to
disclosing confidential information.
Nov. 10, 1961.
Hon. Guy J. Rizzotto, Commissioner of Corporations and Taxation.
Dear Sir: — In your letter of recent date you refer to G. L. c. 268A,
inserted by St. 1961, c. 610, entitled "Code of Ethics."
You state that it has been the practice of your Excise Tax Bureau and
that of its immediate predecessor the Division of Excise Taxes to issue
statistics dealing with monthly sales of alcoholic beverages and gasoline.
You further state that the names of the respective taxpayers, with their
individual monthly sales, appear in a publication set up for distribution
to the members of the various associations in the industries. The prior
commissioner ruled that in view of the fact that G. L. c. 62, relating to
income taxes, G. L. c. 63, concerning taxation of corporations, and G. L.
c. 65, covering taxation of legacies and successions, contain provisions
specifically limiting the right of examination of returns and the significant
omission of such provisions in c. 64A, relating to taxation of sales of gasoline
and § 21 of c. 138, referring to taxation of sales of alcoholic beverages, the
intent of the General Court was that the latter were not to be regarded in
the same light as the former and that information could be given out as
indicated.
Moreover, you state that no one has questioned the propriety of the
Commissioner's procedure in divulging the above information. After
calling my attention to § 4(c) of c. 268 A, you request my opinion as to
whether or not the information contained in the returns filed under G. L.
c. 64A and G. L. c. 138, § 21, is to be regarded as confidential.
General Laws c. 64A, § 4, provides for the monthly filing of returns under
oath, on forms to be approved by the State Tax Commission, stating the
number of gallons of fuel sold by the taxpayer in the Commonwealth during
the preceding calendar month, and such return shall contain or be accom-
panied by such further information as the commissioner shall require.
Section 4 also provides that every unclassified importer shall, on or before
the last day of each month, file with the commissioner a return under oath
stating the number of gallons of fuel imported or caused to be imported
into the Commonwealth during the preceding calendar month and shall
contain such other information as the commissioner shall require.
General Laws c. 138, § 21, provides that every person subject to that
section shall keep a true and accurate account of all alcoholic beverages or
alcohol sold by him other than malt beverages, imported into the Common-
wealth by him, and a like account of all malt beverages imported into the
Commonwealth by him, and shall make a return thereof to the Commissioner
of Corporations and Taxation within twenty days after the last day of
each month covering such sales and importations by him during such
month.
Chapter 610 of the Acts of 1961 inserts a new c. 268A in the General
Laws entitled "Code of Ethics," which, after § 1 entitled "Declaration of
Interest," § 2 entitled "Definitions," and § 3 entitled "Rule with respect
to conflicts of interest," takes up under § 4 the subject of "Standards."
In paragraph (c) it is provided
"No officer or employee of an agency should disclose confidential infor-
104 P.D. 12.
mation acquired by him in the course of his official duties nor use such
information to further his personal interests."
General Laws c. 4, § 7, twenty-sixth, provides that in construing statutes
the following rules shall be observed, unless their observance would involve
a construction inconsistent with the manifest intent of the law-making body
or repugnant to the context of the same statute :
" 'Public records' shall mean any written or printed book or paper . . .
of the commonwealth . . . which is the property thereof, and in or on
which any entry has been made or is required to be made by law, or which
any officer or employee of the commonwealth . . . has received or is
required to receive for filing ..."
General Laws c. 66, § 10, provides that
"Every person having custody of any public record shall, at reasonable
times, permit them to be inspected and examined by any person, under
his supervision, and shall furnish copies thereof on payment of a reasonable
fee . . ."
In II Op. Atty. Gen. 381, the Attorney General ruled that annual state-
ments of insurance companies filed in the office of the Insurance Com-
missioner, according to the provisions of R. L. c. 118, § 96, were papers
which the Insurance Commissioner was by law required to receive for
filing and were, therefore, open to inspection as public documents.
In III Op. Atty. Gen. 122, the then Attorney General ruled that annual
returns made by companies engaged in the transmission of intelligence by
electricity were public records and as such open to the inspection of the
public. See also opinion of former Attorney General Paul A. Dever,
Attorney General's Report, p. 27, relative to applications for racing
licenses.
In the case of Direct-Mail Service, Inc. v. Registrar of Motor Vehicles,
296 Mass. 353, the court, in a case involving a petition for a writ of man-
damus to obtain access to records of the Registrar of Motor Vehicles, said :
"The right to inspect commonly carries with it the right to make copies
without which the right to inspect would be practically valueless. . . .
We see no reason why the right to make copies is not coextensive with the
right to inspect. We believe that in general the pubHc interest will be best
served by the largest freedom in the use for lawful purposes of public
records kept at the public expense. . . ."
In the light of the foregoing, it is my opinion that the gasoline and alco-
holic beverages returns you have referred to are public documents and
their contents may be treated as such. Chapter 268A, § 4(c), prohibiting
the disclosure of confidential information acquired in the course of the
official duties of an officer or employee of a State agency, in my opinion,
does not limit what I have already said. "Confidential" implies secrecy.
It seems quite clear that secrecy does not and should not apply to public
records.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 105
The Executive Director of a local housing authority which has accepted the
Retirement Law, who is a member of the system, and has attained age 70,
ca7inot forego his retirement allowance, and cannot he employed after
retirement, except on the temporary basis permitted under the Civil
Defense Act.
Nov. 10, 1961.
Mr. Leo F. Benoit, Chairman, State Housing Board.
Dear Sir: — By your letter of October 18, 1961, supplemented by that
of November 2, 1961, you have requested an opinion relative to the Execu-
tive Director of the Chicopee Housing Authority.
In your letter of November 2nd, you state that Alfred J. Plante has been
the Executive Director of the Chicopee Housing Authority since May, 1951,
and that he attained the age of seventy on October 16, 1961; that he is
entitled to receive his contributory retirement allowance but is desirous of
foregoing his retirement allowance and remaining as Executive Director.
You further state that it is the wish of the Authority to retain ]\Ir. Plante's
services, if possible, and you are asked, as Chairman of the State Housing
Board, if this can be done.
While you do not so state, I assume that the Chicopee Housing Authority
has accepted the provisions of G. L. c. 32, § 28(5), and has brought its
employees under the contributory retirement system of the city of Chicopee
and that Mr. Plante is a member in good standing of that system.
Section 1 of c. 32 defines, for the purposes of §§ 1 to 28, inclusive, of said
chapter, the words "maximum age" as
"the age on the last day of the month in which any member classified
in Group 1 as provided for in paragraph (2) (g) of section three attains age
seventy . . ."
Section 1 also defines the word "employee." It also defines the word
"member" as
"any employee included in the State employees' retirement system, in
the teachers' retirement system or in any county, city or town contributory
retirement system established under the provisions of sections one to
twenty-eight inclusive, or under corresponding provisions of earlier laws,
and if the context so requires, any member of any contributory retirement
system established under the provisions of any special law."
The word "service" is defined as
"service as an employee in any governmental unit for which regular
compensation is paid."
"Governmental unit" is defined as
"the commonwealth or any political subdivision thereof . . ."
"Political subdivision" is defined as
"the metropolitan district commission or any county, hospital district,
city, town, district or housing authority established under the provisions of
section twenty-six L of chapter one hundred and twenty-one, or other
public unit in the commonwealth."
General Laws c. 32, § 28(5) (a) (6), provides for the acceptance of the pro-
visions of §§ 1 to 28, inclusive, by any housing authority established under
the provisions of § 26L of c. 121. Read together, the foregoing provisions
indicate that Mr. Plante is entitled to the benefits of and subject to the
provisions of §§ 1 to 28, inclusive.
Section 3(2) (e) provides that
"No member, except as otherwise provided for in subdivision (1) of
106 P.D. 12.
section five or in section ninety-one, or in section twenty-six of chapter
six hundred and seventy of the acts of nineteen hundred and forty-one, or
in chapter sixteen of the acts of nineteen hundred and forty-two as amended,
shall remain in service after attaining the maximum age for his group or
after the date any retirement allowance becomes effective for him, which-
ever event first occurs."
Moreover, under the provisions of G. L. c. 32, § 20(5) (e), it is provided,
referring to the retirement boards, that
". . . It shall be the duty of such board to notify each such member or
employee, the head of his department and the treasurer or other disbursing
officer responsible for paying his compensation, of the date when such
member or employee will attain the maximum age for his group, cmd such
member or employee shall not he employed in any governmental unit after such
date except as otherwise provided for in sections one to twenty-eight, inclusive.
. . ." (Emphasis supplied.)
Accordingly, by virtue of the express provisions of §§ 1 to 28, inclusive,
of G. L. c. 32, in my opinion Mr. Plante may not remain as Executive
Director.
However, under and subject to the provisions of St. 1950, c. 639, relating
to civilian defense, particularly § 9{h), with the written approval of the
housing authority, Mr. Plante may, having been retired, be temporarily
re-employed, his retirement allowance being deducted from his compensation.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Non-citizens to he employed as teachers in the puhlic service, if not exchange
teachers, are required to take and suhscrihe to the oaths required by
G. L. c. 264, § U-
Nov. 14, 1961.
Mr. Everett V. Olsen, Assistant to the President, Lowell Technological
Institute, Lowell, Massachusetts.
Dear Sir : — In your letter of recent date, relative to the contemplated
employment of a non-citizen, part-time instructor who might be considered
a teacher, you pose the following two questions :
"1. Can the Institute employ non-citizen teachers who might not find
it consistent with their national allegiance to sign or subscribe to either of
the aforementioned oaths?
"2. If a non-citizen teacher or employee finds that he cannot subscribe
to one or both of these oaths, can he be employed and compensated for
his services from State appropriations?"
As you state, G. L. c. 71, § 30A, is restricted to citizens of the United
States who become teachers within the Commonwealth. A previous
Attorney General has ruled that this provision does not apply to a non-
citizen. Attorney General's Report, 1936, p. 31.
However, G. L. c. 264, § 14, provides in part that
"Every person entering the employ of the commonwealth or any political
P.D. 12. 107
subdivision thereof, before entering upon the discharge of his duties, shall
take and subscribe to, under the pains and penalty of perjury, the following
oath or affirmation: — . . ."
In this connection it should be noted that § 14A of c. 264 does apply to
non-citizens entering the employment of any city or town of the Common-
wealth. This section relates to exchange teachers from abroad and the
concluding sentence specifically provides that
"The exchange teacher from abroad shall not be required to take or sub-
scribe to any oaths or pledge of allegiance which is inconsistent with his
citizenship in a foreign country."
In my opinion, therefore, G. L. c. 264, § 14, does apply to non-citizens
entering the employment of the Commonwealth.
Subject to the foregoing, I therefore answer your questions 1 and 2 in the
negative.
In addition to the above questions, you have asked two hypothetical
questions regarding visiting professors and non-citizens generally. In
Attorney General's Report, 1935, p. 31, the then Attorney General Paul A.
Dever stated :
"The long-continued practice of this department and the precedents set
by my predecessors in office indicate, what is undoubtedly the correct rule
of law, that it is not within the province of the Attorne}^ General to deter-
mine hypothetical questions w^hich may arise . . . nor is it the duty of
the Attorney General to attempt to make general interpretations of statutes
or of the duties of officials thereunder, except as such mterpretations may
be necessary to guide them in the performance of some immediate duty."
Accordingly, I feel constrained not to answer those questions at the
present time.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
"Code of Ethics" provision as to disclosure of interests in activities regulated
by agencies of, or entities doing business with, the Commonwealth, requires
statement only of the holding of such an interest, but furnishing further
information is desirable.
Nov. 20, 1961.
Hon. Kevin White, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion as to whether the follow-
ing statement, filed by a member of the Legislature pursuant to St. 1961,
c. 610 (G. L. c. 268A, § 4(j)), comphes with the requirements of this section.
The statement reads as follows:
"Dear Mr. Secretary:
In compliance with Chapter 610 of the Acts of 1961 (Section 4, Para-
graph J), I herewith file my name with you, being subject to jurisdiction
by state regulatory agencies."
The aforesaid § 4(j), inserted by St. 1961, c. 610, reads as follows:
"If any officer or employee of the commonwealth, a member of the
108 P.D. 12.
legislature, legislative employee, or his spouse, any of his children, or any
spouse of an}^ of his children shall have a financial interest, direct or in-
direct, having a value of ten thousand dollars or more in any activity which
is subject to the jurisdiction of a regulatory agency or in any business
entity which does business with the commonwealth, he shall file with the
state secretary, within ninety days after the effective date of this act, and
thereafter within thirty days after such interest comes into being, a written
statement that he has such a financial interest in such activity which
statement shall be open to public inspection. If any such officer or employee
shall fail to file any such written statement required hereby, he shall be
punished after conviction by a fine of not more than one thousand dollars."
It is a well-settled principle of statutory interpretation that the intent
of the Legislature must be effectuated. The obvious intent of the Legis-
lature in enacting this Code of Ethics for public servants as stated in § 1
of c. 610 was to assure the public that "no substantial conflict between
private interests and official duties exists in those who serve them."
It does not appear to be the intent of the statute to compel disclosure
by a public servant of the identity and extent of those private interests
which are so remote from the area of his public responsibilities that, in the
normal course of events, no possible conflict of interest could arise. For
example, § 4(j) should not be deemed to require the detailed reporting of
items in which the employee and members of his family have no beneficial
interest, as in property held as fiduciary, or the fisting of such items as life
insurance and bank deposits by those officers and employees not engaged
in agencies regulating such activities. Similarly, § 4(j) should not require
the detailed reporting of holdings of usual investment securities, acquired
in ordinary course, where the duties of the public servant do not call upon
him, acting as representative of the Commonwealth, to conduct business
with or regulate the company in which the investment exists.
It is my opinion that the statement which you have submitted to me
satisfies the minimal requirements of § 4(j) of G. L. c. 268A, for I construe
it to mean, "I herewith file my name with you since I have a financial
interest in an activity subject to the jurisdiction of state regulatory
agencies."
Llowever, in the light of the statement of intent and of the standards of
conduct for public servants set out in § 4, it is my further opinion that,
while not legally required, it is desirable that a public servant supply such
information as is necessary to indicate whether or not a conflict of interest
exists for that individual by virtue of financial interests reported and his
position in government. It is to be noted that the statement submitted
does not deny the possibility of the existence of such a conflict.
My answer to your question is, therefore, in the affirmative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
P.D. 12. 109
A special statute providing for retroactive adjustments in compensation for
em.ployees of the State Department of Public Works who performed duties
of positions of higher grade, is not subject to general limitation provisions.
Nov. 21, 1961.
Hon. Charles Gibbons, Commissioner of Administration.
Dear Sir : — You have requested an opinion as to the proper interpre-
tation of the effect of St. 1961, c. 624.
Said chapter reads as follows:
"Notwithstanding the provisions of section twenty-four B of chapter
thirty of the General Laws, or any other general or special law to the
contrary, employees in the department of public works who have been
assigned the duties of a position allocated to a higher class in the general
salary schedule for the pay plan of the commonwealth than that to which
their payment or temporary positions have been allocated shall be paid
the difference in the salary actually received by them and the salary which
they would be entitled to receive if they had been properly appointed by
their appointing authority to such position allocated to a higher class in
said general salary schedule from the date determined by the director of
personnel and standardization when such work was performed by them and
the effective date of this act or the time when their assignment to such
higher class was corrected by approved requisition whichever is the lesser,
provided such employment would have been in accordance with the civil
service laws and rules. Approved June 2, 1961."
You state that appeals are being made to the Director of Personnel and
Standardization under said c. 624 by employees of the Department of
Public Works who claim to have been working out of classification as far
back as 1956.
You ask the following questions:
'*A. Does St. 1961, c. 624, apply solely to the appeals before the Director
of Personnel and Standardization initiated and heard by said Director of
Personnel and Standardization prior to the actual signing of the act?
"B. Does St. 1961, c. 624, apply to appeals initiated with the Director
of Personnel and Standardization after the signing of the act but before its
effective date?
"C. Does St. 1961, c. 624, apply to appeals initiated with the Director
of Personnel and Standardization at any time after its effective date?
"D. What effect does G. L. c. 30, § 24B, have on questions B and C?
"E. What effect does G. L. c. 260, § 3A, have on questions B and C?"
There is no reference whatsoever in an^'' part of c. 624 to appeals initiated
before its effective date and no provision is contained in the act restricting
in any way the benefits provided for the emploj^ees referred to, who per-
formed work in higher classifications than that for which they were paid
prior to the effective date of the act. The answer to your question A,
therefore, is "No," and the answer to your questions B and C is, in each
instance, "Yes."
It is specifically provided at the beginning of c. 624 that its provisions
shall apply "Notwithstanding the provisions of section twenty-four B of
chapter thirty of the General Laws, or any other general or special law
to the contrary ..." and, therefore, the answer to your question D is
that said § 24B has no effect in the respects referred to.
110 P.D. 12.
Chapter 624 is a special provision made by the Legislature for the benefit
of certain employees of the Commonwealth itself. The act contains no
provisions limiting its application to any particular period prior to its
effective date and, therefore, the answer to your question E is that said
G. L. c. 260, § 3 A, has no effect in the respects referred to.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
A high 'powered air rifle is a "rifle,'' within G. L. c. I40, § 123, requiring
a license for the sale of firearms, rifles, etc.
Nov. 30, 1961.
Hon. Frank S. Giles, Commissioner of Public Safety.
Dear Sir: — You have recently inquired of me whether a person who
engages in the business of selling high powered air rifles is required to be
licensed as provided for in G. L. c. 140, § 122, as amended by St. 1957,
c. 688.
General Laws, c. 140, § 122, as amended, reads in part:
"The chief of police or the board or officer having control of the police
in a city or town . . . may, after an investigation, grant a license to any
person except an alien, a minor, or a person who has been convicted of a
felony or of the unlawful use, possession or sale of narcotic or harmful drugs,
to sell, rent or lease firearms, rifles, shotguns or machine guns, or to be in
business as a gunsmith. ..."
Section 121 of this chapter defines "firearms" as used in §§ 122 to 131F
of said chapter ("a pistol, revolver or other weapon . . . from which a shot
or bullet can be discharged and of which the length of barrel, ... is less
than eighteen inches"), but does not define "rifles" or "shotguns." Attor-
ney General Clarence A. Barnes rendered an opinion that the definition of
"firearms" included an air pistol or air rifle from which a shot or bullet
may be discharged, the barrel of which is less than eighteen inches in
length. Attorney General's Report, 1948, p. 62. I agree with my pred-
ecessor's opinion in this regard, and, by the same reasoning, I would say
that air rifles with barrels in excess of eighteen inches in length are within
the category of either "rifles" or "shotguns."
Therefore, it is my opinion that the answer to your question is in the
affirmative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. Ill
Meetings for inductidn of newly elected city officials may he held on New
Yeai-'s Day despite provisions that Sunday laws shall he applicable on
that day.
Dec. 1, 1961.
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Sir : — In your recent letter you state that you have been asked
"Can the City Council of Taunton legally meet to organize on the first
Monday of January next, as their charter stipulates, in view of the fact
that that day happens to be January 1, a legal holiday?" Your letter
further indicates that this same problem "concerns Pittsfield, Boston, and
possibly other cities in the Commonwealth."
The basis for your query obviously relates to G. L. c. 136, § 33, inserted
by St. 1960, c. 812, § 3, as amended by St. 1961, c. 338, which provides that:
"The provisions of this chapter shall apply from midnight to midnight
on each of the following holidays, except as provided in section thirty-seven,
and the public offices shall be closed on all of said days: January first,
May thirtieth, July fourth, First Monday of September, October twelfth,
November eleventh. Thanksgiving Day, and Christmas Day."
In so far as the provisions of c. 136 may now be applied to legal holidays,
the question is basically whether any provision of c. 136, extended to
January first, proscribes the activity described in your query.
The foundation stones of c. 136 are §§ 2, 3 and 5, which in a general way
prohibit all work and play on Sundays and now on legal holidays, with
exceptions not here material. Other prohibitions are found throughout
c. 136 but they are not germane to your query.
Chapter 136, as you know, was sustained by the Supreme Court of the
United States in the case of Gallagher v. Crown Kosher Super Market of
Massachusetts, Inc., U. S. (May 29, 1961) 29 U.S.L. Week 4505. While I am
unaware of any decision of our Supreme Court on the subject matter, it is
my opinion that a careful reading of the sections of c. 136 enumerated
above, fails to disclose any purpose to interrupt or paralyze the organization
of the municipal governments of the State.
In this connection, I direct your attention to G. L. c. 43, § 17 which
directs that "On the first Monday in January following a regular municipal
election, at ten o'clock in the forenoon, the mayor-elect if elected by the
people, the councillors-elect, and the assessors-elect if elected by the people,
shall meet and be sworn to the faithful discharge of their duties." And
again in § 15: "In each city adopting any plan provided for by this chapter,
the municipal year shall begin and end at ten o'clock in the morning of the
first Monday of January in each year." Similarly in § 11: ". . . and their
terms of office shall begin at ten o'clock in the forenoon of the first Monday
of January following their election." (Emphasis supplied.)
With so many cities deriving their form of government from c. 43,
I should hesitate to, attribute to our Legislature an intent to be inferred
in c. 136 contrary to any of the provisions contained in c. 43 without express
language to that effect. A continued orderly, effective, legal organization
of city government without interruption even for a short time is, in my
opinion, imperative.
A word of caution seems appropriate at this point. It is obvious that
among the cities of our Commonwealth, there are differences in the pro-
visions of their respective charters and ordinances which conceivably may
call for activities that might be regarded as more than ministerial or which.
112 P.D. 12.
if permitted to suffer delay, would not disrupt the orderly organization of
government. It would be virtually impossible to anticipate all such activi-
ties. Accordingly, it must be understood that I have expressed my views
only on the general question which you have raised in an attempt to co-
operate with your request. They are not an expression of opinion on any
specific factual situation which may arise in a particular city.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The funds available to the Board of Library Commissioners for extension of
library services may not be used for direct payments of additional com-
pensation to a local library official for his administrative direction of a
regional library; only aid to municipalities and libraries is permissible.
Dec. 6, 1961.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir: — In your letter of recent date relative to G. L. c. 78, §§ 19C
and 19D, you state that the program budget for the Western Regional
Public Library System Plan, with headquarters at City Library in Spring-
field and under the administrative direction of the Springfield Library and
Museums Association Director, provides for a payment from State regional
public library service funds up to one-fifth of the salary of the Springfield
Library Director as a reimbursement for his administrative direction of the
regional library system. You further state that the Springfield Library
Director is currently serving as an unpaid member of the Board of Library
Commissioners and that it is understood that the above payment w^ould
be over and above his regular salary as Springfield Library Director for
work performed outside of and beyond his regular tour of duty. You now
request whether under the circumstances such a reimbursement payment
from State funds can legally be made. In my opinion it may not.
General Laws c. 78, § 19, provides that the Board of Library Commission-
ers may expend such sums as may be appropriated for the extension and
encouragement of librar^y services within the Commonwealth. The board
is designated as the State agency to deal with the Federal Government with
respect to Federal grants which may be made available to the Common-
wealth for promoting library services and to administer such State plans as
may be approved as a condition of such grants. "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 librar}^ services as
may be agreed upon. ..." (Emphasis supplied.)
Section 19C of c. 78, inserted bv St. 1960, c. 760, provides, among other
things, (1). —
"In so far as practicable the board shall enter into an arrangement or
arrangements with 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, books, periodicals and other
library materials. ..." (Emphasis supplied.)
Subdivision (2) provides that: —
"Said board shall also designate such public library or libraries in each
P.D. 12. 113
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 amount allocated for such reference and research service to
be applied only to the cost of such reference . . . and to the cost of the
personnel employed in such reference and research service ; . . . (Emphasis
supplied.)
It should be borne in mind that c. 760 is entitled, "AX ACT PROVID-
ING STATE AID FOR FREE PUBLIC LIBRARIES."
While the matter may not be fully free from doubt, the statutory pattern
of the legislation already referred to indicates, in my opinion, an attempt
on the part of the General Court to "aid" the political entities and public
and private libraries referred to therein. It does not envision the Board of
Library Commissioners supplementmg local salaries with salaries paid by
the commissioners. The legislation contemplates "aid" by the Board of
Library Commissioners to the municipalities and public and private
libraries referred to. I am constrained, therefore, in the light of the fore-
going, to say that, in my opinion, the proposed supplem.ental payment by
the commissioners to the salary of the Springfield Library Director directly
would not be proper.
Very truly j'ours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
A -prisoner arraigned on separate dates in separate counties and later sentenced
in each county is entitled under G. L. c. 127, § 129B, to credit against each
sentence for the period he spent in jail awaiting trial from the time of
arraignment until the date of the first sentence.
Dec. 6, 1961.
Hon. George F. McGrath, Commissioner of Correction.
Dear Sir : — In a letter requesting an opinion as to a certain person,
you state the facts are as follows:
September 29, 1956, the person referred to was ordered by the Chelsea
Court to be confined at Charles Street Jail awaiting trial for offenses in
Suffolk County.
November 13, 1956, he was indicted in r\Iiddlesex County (while in
Charles Street Jail) and habeas corpus issued to answer.
November 16, 1956, he was removed from Charles Street Jail on habeas
corpus and arraigned in Middlesex Superior Court on the same day;
pleaded not guilty; ordered to recognize .^20,000 bail and remanded back
to Charles Street Jail and was so removed the same day.
February 10, 1957, he was taken by legal process from Charles Street
Jail to Middlesex County Jail to await trial for four days.
February 14, 1957, he was sentenced as follows: 9-10 years, armed
robbery; 9-10 years, from and after, for armed robbery.
February 20, 1957, he was again taken by legal process from State
Prison to Suffolk Superior Court where he received sentence of 15-18
114 P.D. 12.
years, concurrent with previous sentence in Middlesex County and 3-4
years, concurrent for robbery armed.
Suffolk County sentence has been reduced by 133 days for the period of
September 29, 1956, to February 10, 1957, while he was awaiting trial at
Charles Street Jail by crediting the Suffolk County sentence as having
been deemed to have been served 133 days prior to February 20, 1957, the
date he received his Suffolk County sentence. He received four days'
credit for the period from February 10, 1957, to February 14, 1957, on his
Middlesex County sentence.
Question: Under the above facts, has the person referred to been prop-
erly credited the number of days spent in confinement awaiting trial on
each sentence under G. L. c. 127, § 129B?
General Laws c. 127, § 129B, as most recently amended by St. 1961,
c. 74, reads as follows:
"The sentence of any prisoner in any correctional institution of the
commonwealth or in any house of correction or jail, who was held in custody
awaiting trial shall be reduced by the number of days spent by him in
confinement prior to such sentence and while awaiting trial, unless the
court in imposing such sentence had already deducted therefrom the time
during which such prisoner had been confined while awaiting trial."
The quoted statute has been interpreted in Stearns, -petitioner. 343 Mass.
53. In that case one Stearns was arrested on January 9, 1946. He was
confined to the Middlesex County House of Correction from January 10,
to February 8, 1946. From February 8 to March 18, 1946, he was at the
Metropolitan State Hospital for observation. Thereafter, he was committed
as insane and confined at Bridge water State Hospital. From February 8,
1950, to April 20, 1950, he was again in jail, East Cambridge, "awaiting
trial." On April 20, 1950, he was sentenced to 15-20 years on two counts of
assault with intent to murder, being armed, and 8-10 years on assault
and battery with a dangerous weapon, all sentences to run concurrently.
The court held that Stearns was entitled to time spent in the hospital as
an insane prisoner under criminal process. The court stated at page 1097:
"There can be no doubt that § 129B applies to the time spent in jail
between the day of arrest and the day the indictment was reached for
trial."
The question asked is whether the proper number of days was credited
under the provisions of G. L. c. 127, § 129B.
Broadly speaking, a convict should be credited with all time spent in
jail after arrest in connection with the offense by which he has been sen-
tenced, although he may be denied credit where he is not considered
"awaiting trial" or he is in a place of confinement not regarded as a prison
or jail. Price v. McQuinness, 269 F. 977; People ex rel. Le Carta v. Warden,
193 N. Y. 561; Murphy v. Holcomb, 181 N. Y. S. 780.
Under statute, a convict may be entitled to credit for time spent in jail
"awaiting trial," although in the absence of statutory regulation the matter
rests to some extent in the court's discretion and credit may or may not
be allowed for such time, or for time spent awaiting sentence after con-
viction. Gabriel v. Warden, 178 N. Y. 595; Ex parte Doirs (Texas), 160
S. W. 459; Moloney v. Warden, 229 N. Y. S. 536; People v. State Prison,
66 N. Y. 342.
A Massachusetts statute that was controlling on this point was § 33A
of G. L c. 279, which read as follows:
"The court on imposing a sentence of commitment to a correctional
P.D. 12. 115
institution of the commonwealth may, in its discretion, order that the
prisoner be deemed to have served a portion of said sentence, such portion
to be determined by the court and not to exceed the number of days spent
by the prisoner in confinement prior to such sentence awaiting and during
trial." (Emphasis supplied.)
It is a court custom in this Commonwealth to credit a prisoner with
the number of days spent ui jail in each specific sentence accorded by differ-
ent counties. However, there is nothing in the wording of § 33A that leads
me to believe that the court cannot do otherwise if it so pleases. In point
of fact the statute reads specifically ". . . may, in its discretion. ..."
There no longer appears the discretionary feature of § 33A but rather
the General Court stated most emphatically ''. . . shall be reduced ..."
in the above section.
The only other case on this issue as to what is meant by "awaiting trial"
was decided in 1910 wherein a North Dakota statute provided that terms
of the county court held in the months of February, June, and December
shall be Jury Terms, provided there be a criminal case ''awaiting trial."
The court in interpreting the statute to its own set of facts concluded that:
"We do not think that a case is awaiting trial when the accused has only
been bound over and is not confined in jail, but at large under a bond for
his appearance." State v. Fleming, 20 N. D. 105, 107.
As to the Middlesex sentence, in accordance with the decision in the
Stearns case, supra, the person referred to should be credited with all time
spent in custody from the date of his arraignment in Middlesex County,
i.e., November 16, 1956, up to February 14, 1957, the date on which he
was sentenced in the Middlesex Superior Court, regardless of whether this
time spent in custody was in the Suffolk or Middlesex County jails. Like-
wise, the Suffolk County sentence is to be reduced by the time attributable
to the period from September 29, 1956, to February 14, 1957.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Joseph T. Doyle,
Assistant Attorney Genei'al.
The Commissioner of Mental Health is authorized under G. L. c. 123, § 7, to
establish regulations, with penalties, as to parking and speed of motor
vehicles on the grounds of State hospitals; form of proposed regulations,
application of Administrative Procedure Act and police officers to enforce,
discussed.
Dec. 8, 1961.
Harry C. Solomon, M. D., Commissioner of Mental Health.
Dear Sir : — In your letter of recent date relative to controlling motor
vehicle traffic on the grounds of hospitals withm the jurisdiction of your
department you ask the following questions :
"1. Am I legally authorized to establish regulations of a punitive nature,
which affect the general public on the grounds of institutions under the
jurisdiction of this department, within the provisions of G. L. c. 123, § 7,
as amended?
116 P.D. 12.
"2. If the answer to (1) above is in the affirmative, are the two proposed
regulations adequate and proper for legally authorized police officers or
special State police officers appointed in accordance with G. L. c. 147,
§ lOB, as amended, to make requests to the respective courts for the
issuance of summonses for alleged violations thereof?"
The proposed regulations referred to in your second question are as
follows :
"1. Parking of motor vehicles on the grounds of the State hospitals is
prohibited in posted areas. Parking within 12 feet of a fire hydrant is
prohibited. Parking within 12 feet of an entrance to a hospital building is
prohibited.
"2. Speeds in excess of 20 miles an hour are prohibited on the grounds
of the mental hospital. When patients are crossing the road, motor vehicles
will come to a complete stop, proceeding when the patients have crossed
the road. The penalty for above violations will be $5.00 for the first
offense and $10.00 for the second offense and every offense thereafter."
General Laws c. 19, § 1, provides in part as follows:
"There shall be a department of mental health, in this chapter called
the department, and a commissioner of mental health who shall have the
exclusive supervision and control of the department "
General Laws c. 123, § 4, provides that the commissioner shall administer
the laws relative to persons in institutions under his general supervision.
Section 7 of c. 123 provides that
"The department shall provide for the efficient, economical and humane
management of the State hospitals. It shall establish by-laws and
regulations, with suitable penalties, for the government of said State
hospitals. ..."
Section 8 A of said chapter provides :
"Upon request of the department, the department of public works may
construct and maintain roads on the grounds or property of a State hospital;
and expenses so incurred shall be paid from appropriations for the main-
tenance of such hospital."
The wording of sections 1, 4, 7 and 8A, hereinbefore referred to, provide
you, as head of the Department of Mental Health, in my opinion, with the
authority to establish reasonable regulations relative to parking and traffic
of motor vehicles on the grounds of the various State hospitals under your
jurisdiction and to establish suitable penalties for the violation thereof.
The answer to your first question, therefore, in my opinion, is in the
affirmative.
The proposed regulations, in my opinion, are within the scope of your
authority. While it is not the function of this office to draft and pass upon
regulations of this kind in advance of actual rights involved thereunder,
I suggest that your regulations deal with the different offenses in different
sections. The penalty provisions should be contained in a separate section.
The regulations are, of course, made by the department acting through you
as its commissioner.
The State Administrative Procedure Act (G. L. c. 30 A, § 1(5) ), defining
the word "regulation," specifically excludes from the definition "regulations
concerning the operation and management of state penal, correctional,
welfare, educational, public health and mental health institutions ..."
However, it is proper that you should see that copies of your regulations
are permanently posted at all points needful to inform those to whom they
P.D. 12. 117
apply, of their existence. Moreover, I suggest that permanent evidence be
kept in your files of the posting. If your rules are carefully drafted, as I
know they will be, and carefully posted, you should have no trouble.
In response to your second question, it is my opinion that the special
police officers referred to in G. L. c. 147, § lOB, appointed in accordance
with its provisions, and acting within the scope of their authority, should
be adequate to enable you to secure summonses from the different courts
for violations thereof.
There may be some doubt as to whether G. L. c. 30, § 37, applies to rules
and regulations such as the ones you propose. However, out of an abun-
dance of caution, I would say that an attested copy of them, together with
a citation of the law by authority of which the same purport to have been
issued, is placed on file with the Secretary of State as therein provided.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The provisions of G. L. c. IIOA, §§ UB and llC, applicable to "Periodic
payment plan certificates" are not applicable to "Face amount plan
certificates," sold on the installment plan, by Investors Syndicate of
America.
Dec. 8, 1961.
Hon. Roy C. Papalia, Chairman, Deportment of Public Utilities.
Dear Sir : — You have recently inquired of me whether Face Amount
Plan Certificates of Investors Syndicate of America, Inc. offered for sale
on an instalment basis by Investors Diversified Services, Inc. come within
the purview of G. L. c. llOA, §§ IIB and IIC.
At your suggestion I conferred watli the supervisor of your Securities
Division, who was most helpful in my examination of this question and
who supplied me with the forms of certificates in question together with a
1960 annual report and a 1961 prospectus of the issuing company.
The sections of G. L. c. llOA, in question are part of an amendment
by St. 1950, c. 822 which added the italicized words to § 11 of said chapter:
"No person . . . shall sell any security, i^icluding periodic payment plan
certificates and face amount plan certificates, . . . which is to be paid for
upon an instalment or partial payment plan, unless such plan has first been
approved by the commission." (Emphasis supplied.)
Sections 11 A, subsection (a), IIB and IIC read as follows:
"Section HA. The following terms shall, in sections eleven A to eleven
E, inclusive, have the following meanings, unless the context otherwise
requires : —
"{a) 'Periodic payment plan certificate' means (A) any certificate,
investment contract, indenture of trust, or other security providing for a
series of periodic payments by the holder or founder, and representing an
undivided interest in certain specified securities or in a unit or fund of
securities purchased or to be purchased wholly or partly with the proceeds
of such payments; and (B) any security the issuer or sponsor of which is
118 P.D. 12.
also issuing securities of the character described in clause (A) , and the holder
or founder of which has substantially the same rights and privileges as
those which holders or founders of securities of the character described in
clause (A) have upon completing the periodic payments for which such
securities provide.
^'Section IIB. Each periodic payment plan certificate shall contain or
have attached thereto (1) a schedule showing the total deductions including
sales load and all other charges which are to be paid or taken from the first
instalment payment made by the holder or founder, and also the sales load
and deductions which are to be taken from all succeeding payments; (2)
a complete description of the terms, conditions, privileges, duties and
responsibilities of the holder or founder, and of the sponsor, issuer, custo-
dian and trustee.
^'Section llC. If after making his initial payment, whether for one or
more instalments, and prior to making a succeeding payment, the holder
or founder shall for any reason whatsoever elect to surrender his periodic
payment plan certificate for cancellation, he shall be refunded the full
amount paid in by him; provided, that written request for cancellation is
made within thirty days after mailing of the registered letter and statement
required by section eleven B by the issuer, sponsor, custodian, or trustee,
and before a second succeeding payment has been made by the holder or
founder. If no such written request for cancellation is made within thirty
days as aforesaid, it shall be presumed that the holder or founder fully
understood at the time of the issuance of the periodic payment plan certifi-
cate all of its terms and provisions and has agreed to be fully bound thereby."
The question you have presented is simply whether or not issuers of
"face amount plan certificates" are required to comply with the specific
provisions in §§ 11 B and IIC which refer to "periodic payment plan certifi-
cates." In the statute there is no definition of "face amount plan certifi-
cate" and thus I considered the possibility that the definition of "periodic
payment plan certificate" contained in § 11 A comprehended "face amount
plan certificates." Consistent with the recognized canons of statutory
interpretation, I examined the Report of the Special Commission estab-
lished to Investigate and Study the Sale and Distribution Within the
Commonwealth of Certain Securities and Investment Contracts Upon
Installment or Periodic-Payment Plans, July, 1949. The recommendations
contained in the Majority Report were enacted intact as St. 1950, c. 822.
On page 7 of the Report is found the following description of "face-amount-
certificate-plan" :
"Of the four companies which appeared before the Commission, only
Investors Syndicate of America, Inc., has been qualified to do business in
practically all the 48 States as w^ell as Canada. Investors Syndicate of
America, Inc., has an entirely different plan from the other companies
under study. It is designated as the face-amount-certificate plan, in which
the certificates are the direct obligations of the issuer in a definite amount
of each plan. The issuer is committed to repay a definite amount under
stated conditions of payment and length of time, and to maintain minimum
certificate reserves. The certificate holder knows in advance the surrender
value of his shares at various times, and the value is not affected by changes
in the market value of the investment fund."
Immediately following the above, on pages 7 and 8, the Report went on:
"The other types of plans offer what is called a unit-investment-trust
P.D. 12. 119
plan under which each periodic-payment, less certain expenses or load,
produces a balance which is available for the purchase of an undivided
interest in the investment fund. As income is received on the investments,
and is available for distribution, it is either (1) paid to the holder or founder
(with deductions for certain fees), or (2) reinvested for the holder or founder
through the purchase of an additional undivided interest in the fund. The
number of shares (of undivided interest) which may be purchased through
the investment balance of a periodic payment or through the distribution
of income depends on the market value of the fund at the time of such
purchase or distribution. When a holder or founder wishes to terminate
his plan, he has a certain total number of shares of interest in the plan, but
the amount he will receive therefor depends on the market value of the
funds at the time of termination. The value of a holder's or founder's
interest in the fund, therefore, is affected by changes in the market value
of investments in the fund."
It is apparent from the above excerpts that not only are there very
material differences between "face amount plan certificates" and "periodic
payment plan certificates" but that the drafters of the legislation in ques-
tion were quite conscious of the differences. Indeed, it should be noted that
the "face-amount-certificate plan," referred to by the Special Commission,
is the same plan of Investors Syndicate of America, Inc. with which you
are presently concerned. I find it significant that "face amount plan
certificates" were specifically included with "periodic payment plan certifi-
cates" in § 11 and yet were omitted from the following sections. Under the
usual rules of statutory construction where a matter is specifically referred
to, there is an inference that all omissions were intended. This principle
of "expressio unius est exclusio alterius" was applied to a similar problem
in lannelle v. Fire Comm'r of Boston, 331 Mass. 250 (1954).
There is no evidence in the statutes nor in the documentary legislative
history that the Legislature intended to include "face amount plan certifi-
cates" in the definition of "periodic payment plan certificates" set forth
in § llA nor does that definition in fact describe "face amount plan certifi-
cates." The principles of statutory construction do not permit me to con-
sider the "intent" of legislators or others concerned in the drafting of the
legislation here under examination where that intent cannot be found in
the documented legislative history. Sutherland, Statutory Construction,
(1943) c. 50.
In conclusion, I must say that it is my opinion that G. L. c. IIOA,
§§ IIB and IIC, do not apply to the face amount plan certificates issued
by Investors Syndicate of America, Inc. even though they are sold on an
instalment basis.
Since the securities involved are in fact being sold in the Commonwealth,
I assume that the instalment payment plan used has been approved by
the commission as provided for in § 11.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
120 P.D. 12.
Earlier loan appropriations for recreational construction by the Metropolitan
District Commission could be expended for work at the Franklin Park,
and Middlesex Fells, Zoos, despite a later appropriation for a special
recreational construction program by the Commission including a specific
amount for the zoos.
Dec. 11, 1961.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.
Dear Sir : — You have requested an opinion on the following question :
"Does the appropriation Item Xo. 9027-03 (St. 1961, c. 517) preclude
the further use of funds from the 1957 and 1959 Recreational Loans (St.
1957, c. 627; St. 1959, c. 549) for construction and improvements at the
Frankhn Park Zoo and the Middlesex Fells Zoo?"
You state the following as to the matter referred to in your question:
"Under the provisions of St. 1957, c. 627, and St. 1959, c. 549, the Metro-
politan District Commission was authorized to construct recreational
facilities and to enlarge and improve existing facilities.
"Among the projects planned was one for a service center at the Franklin
Park Zoo. An architect was retained in 1960 and plans have since been
prepared. Sealed bids for the construction award are due to be opened on
Tuesday, December 5, 1961.
"In the meantime, the Legislature enacted St. 1961, c. 517, which con-
tained the following item :
" '9027-03 For the construction, reconstruction, alteration and im-
provement of the facilities at the Franklin park zoo in the Dorchester
district of Boston and the Middlesex Fells zoo in Stoneham, including the
cost of furnishings and equipment; and for the construction, enlargement
and improvement of parking facilities in connection therewith $750,000.' "
You stated that the Comptroller has informed you that you
"... may not charge the 1957 or the 1959 recreational loans with the
contract for the service center at Franklin Park or with any contract for
either the two zoos mentioned in Item 9027-03. He bases his objection on
G. L. c. 29, § 15, which states that an appropriation shall supersede an
earlier one made for the same object."
Acts of 1957, c. 627, authorized and directed the Metropolitan District
Commission "to construct, enlarge and improve its recreational facilities
within the metropolitan parks district ... at such locations as it may
determine," and provided that to meet the expenditures necessary in
carrying out the construction and improvements authorized, the State
Treasurer should issue serial payment bonds not exceeding $5,000,000 in
the aggregate, to be paid by district assessments, assessed by methods
fixed by law.
Acts of 1959, c. 549, authorized and directed the Metropolitan District
Commission "to construct recreational facilities within the metropolitan
parks district, and to enlarge and improve existing facilities, in such manner
and at such locations as it may determine," and provided that to meet the
expenditures necessary in carrying out the construction and improvements
authorized, the State Treasurer should issue serial payment bonds, not
exceeding $5,000,000 in the aggregate, to be paid by district assessments,
assessed by methods provided by law.
Acts of 1961, c. 517, in § 1 states that "to provide for a special program
of construction, reconstruction, alteration and improvement of the various
P.D. 12. 121
recreation and other facilities within the metropoUtan parks district, the
sums set forth in section two . . . are hereby made available subject to the
approval of the metropolitan district commission. ..." (Emphasis sup-
plied.) Section 2 of the act contains three items, the first, 9027-01 of
$3,900,000; the second, 9027-02 of $350,000; and the third, 9027-03 of
$750,000, for a total of $5,000,000. Section 3 provides that to meet the
expenditures necessary in carrying out the provisions of § 2, the State
Treasurer shall issue serial payment bonds, not exceeding $5,000,000 in the
aggregate, to be paid by district assessments, assessed by methods fixed
by law.
General Laws c. 29, § 15, reads as follows:
"An appropriation shall supersede an earlier one made for the same
object." (Emphasis supplied.)
In order for G. L. c. 29, § 15, to be applicable it must appear that two
appropriations have been made for "the same object." If so, the super-
seding effect given to the later appropriation would effect a reverter to the
State treasury of the earlier appropriation, or balance thereof, which was
available for the same object specified in the later appropriation.
Acts of 1961, c. 517, expressly states that the sums set forth in § 2 are
made available for the several purposes stated, to provide a special pro-
gram of construction, etc., of the various recreation and other facilities
within the metropolitan parks district. The reference to a special program
in the 1961 act is indicative of a legislative intent that the 1961 authori-
zations are to be additions to the prior authorizations and are not to have
any effect on such prior authorizations.
Item 9027-03 of the 1961 act is a separate authorization for the expendi-
ture of $750,000 on the Franklin Park and Middlesex Fells Zoos in addition
to whatever amounts might be expended by the commission on said zoos
from the amounts authorized by the 1957 and 1959 acts and does not have
the effect of changing the purposes for which the unexpended balances of
the funds authorized by those acts may be expended, by prohibiting the
expenditure of any of such balances for work at the two zoos referred to.
I advise you, therefore, in answer to your specific question that in my
opinion Item 9027-03 is to be construed to authorize expenditures to the
amount stated therein, for the purposes stated therein, in addition to any
expenditures for said purposes that might have been, or shall be, made
under the broader authorizations made in the 1957 and 1959 acts, and that
the use of any available funds provided by those acts for construction and
improvements at the Franklin Park Zoo and Middlesex Fells Zoo is not
precluded by said Item 9027-03.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
122 P.D. 12.
The Board of Certified Public Accountants has authority to initiate proceedings
for suspension or revocation of registration; only residents may he registered.
Dec. 12, 1961.
Mr. Edward Waldstein, Chairman, Board of Certified Public Accountants.
Dear Sir: — Your letter of recent date inquires as to "the extent of
the powers of your board in regard to complaints against certified public
accountants."
Your particular inquiry is what course of action you may pursue where
you know of flagrant misconduct by a certified public accountant but have
not received a formal complaint.
Citing apparently a specific case you state that:
"A Massachusetts certified public accountant has been found guilty by
the Federal courts of another State of preparing false tax returns for
clients. If no formal complaint is brought against this man by someone
other than a board member, where do we stand?"
If your board has credible evidence of violations of the laws of this
Commonwealth, it may properly present the same to the police authorities,
the appropriate district attorney, or to this office for appropriate action.
Furthermore, I believe that if your board acts under the authority and
within the limits of G. L. c. 112, § 61, and in accordance with all the
applicable provisions of the Administrative Procedure Act (G. L. c. 30A)
relative to adjudicatory proceedings, your board can, on its own initiative,
suspend or revoke a certificate issued by it. I might also add that, in my
opinion, it would be advisable for your board to adopt regulations govern-
ing suspension and revocation proceedings, if this has not already been
done. (See c. 112, §§ 61 and 87 A, and c. 30A, § 9.)
Your remaining question reads as follows:
"May we grant a certificate under these sections to a non-resident of
Massachusetts who fulfills all the requirements of the Board?"
General Laws c. 112, § 87 A, provides, among other things, that "The
board of registration of certified public accountants . . . shall examine
applicants for registration as certified public accountants. ..." Section
87B, dealing with the qualifications of the applicants, provides that:
"T/ie board shall examine any citizen of the United States resident in the
commonwealth and not less than twenty-one years of age, who may apply
for a certificate. . . ." (Emphasis supplied.)
Section 87C provides that:
"Any applicant whom the board deems to have the necessary qualifi-
cations and professional ability shall be registered as a public accountant
by the board and shall receive a certificate thereof signed by the chairman
and secretary of the board."
You will note from the foregoing that one of the qualifications for
examination is that the applicant must be a "citizen of the United States
resident in the commonwealth."
In my opinion, therefore, your board may not grant a certificate to a
non-resident of Massachusetts.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 123
The State Treasurer may invest Highway Fund or General Fund money in
notes of the Commonwealth issued to provide funds for loans to cities and
towns on tax titles under St. 1933, c. 49; the notes of the Commonwealth
to he payable within the maturities fixed in St. 1957, c. 309, which was
enacted by the two-thirds vote required by the Constitution.
Dec. 12, 1961.
Hon. John T. Driscoll, State Treasurer.
Dear Sir: — You have requested an opinion on the following questions
relating to a request made to you by the city of Chelsea under St. 1933,
c. 49, § 1, as most recently amended by St. 1961, c. 205, § 1, for the borrow-
ing of $70,000:
"1. Can I loan Chelsea $70,000, as approved by the Emergency Finance
Board?
"2. Whether or not I, as State Treasurer, must sell said notes to banks
or other such purchasers.
"3. Whether or not I, as State Treasurer, may borrow from the High-
way Fund or General Fund of the Commonwealth, such borrowing to be
approved under G. L. c. 29, § 38(fe), by the Governor and Council.
"4. For what period of time may I, as State Treasurer, issue a note of
the Commonwealth, if your answer to either item one or two is in the
affirmative?"
You inform me that the city's request was approved by the Emergency
Finance Board at its meeting on December 5, 1961, and point out that
said St. 1961, c. 205, was not enacted by a two-thirds vote as required by
§ 3, of Art. LXII of the Amendments to the Constitution of the Common-
wealth, and that St. 1961, c. 591, did not include a section fixing the terms
of any notes which might be issued under said c. 205.
Acts of 1961, c. 205, § 1, amends St. 1933, c. 49, § 2, authorizing cities
and towns to make tax-title borrowings from the Commonwealth on notes
approved by the Emergency Finance Board to permit such borrowing until
July 1, 1963. Section 2 of said c. 205, amends St. 1933, c. 49, § 5, authoriz-
ing the State Treasurer to borrow on the credit of the Commonwealth, with
the approval of the Governor and Council, such sums as may be necessary
to provide funds for loans to municipalities under the act and to issue notes
therefor up to a total of $10,000,000, for such term of years as the Governor
may recommend to the General Court, to provide that such notes may be
payable not later than June 30, 1966. However, as you state, the 1961
act was not enacted by the two-thirds vote required under Art. LXH of
the Amendments to the Constitution.
As most recently amended, prior to the enactment of said c. 205, said
St. 1933, c. 49, § 5, had been amended by St. 1959, c. 387, § 2, and next
prior to that amendment, by St. 1957, c. 209, § 2.
Said St. 1959, c. 387, like St. 1961, c. 205, was not enacted by the two-
thirds vote required by said Art. LXH. However, St. 1957, c. 209, was
so enacted and the terms of notes or renewals thereof authorized thereby
to be issued by the State Treasurer payable not later than June 30, 1962,
were fixed by St. 1957, c. 770, § 1. The date of final maturity so fixed was
said June 30, 1962.
In an opinion to you under date of June 23, 1961, it is pointed out that
the two-thirds vote required by § 3 of Art. LXII of the Amendments to
124 P.D. 12.
the Constitution would be necessary only on such amendments to St. 1933,
c. 49, as related to borrowings by the Commonwealth under § 5 of that
act, and that amendments to § 1 of the 1933 act extending the time for
borrowings by cities and towns would be effective despite the lack of a
two-thirds vote. It was also ruled in the opinion referred to that since the
amendment to St. 1933, c. 49, § 5, by the 1957 act was enacted by a two-
thirds vote, and that amendment, and St. 1957, c. 770, authorize the
issuance of notes for borrowings by the State Treasurer to provide the
funds for loans to municipalities with final maturities of June 30, 1962,
such notes might be issued under St. 1957, c. 770, § 1, the final maturities
to be not later than June 30, 1962, although it was stated that the question
was a difficult one and there are strong reasons for a contrary conclusion.
It also appears from that opinion that the limitation of borrowings per-
mitted by St. 1933, c. 49, § 5, as amended, would not be exceeded by the
loan now in question.
In accord with the opinion cited, I advise you in answer to your first
and fourth questions that you may make loans under the provisions of
St. 1933, c. 49, § 5, as amended by St. 1957, c. 209, § 2, and under said
St. 1957, c. 770, § 1, to cities and towns, but that the notes you issue for
the borrowings to provide funds for such loans must mature not later than
June 30, 1962, and, therefore, the notes given to you b}^ the cities and towns
should be payable on or before said date.
In answer to your second and third questions I advise you that under
G. L. c. 29, § 38(6), you may invest moneys in the Highway Fund or the
General Fund, with the approval of the Governor and Council, in notes
of the Commonwealth issued for borrowings by you to provide funds for
loans under St. 1933, c. 49, § 1, which course, or a similar course, we under-
stand has been followed in the past, or borrow from banks or other pur-
chasers, and you are not restricted to borrowing from the latter.
Very truly yours,
Edw^ard J. McCoRMACK, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
School committees should be elected in the towjis comprising a regional school
district. In the absence of local school committees the regional committees
may handle the matters of tuition and transportation.
Dec. 26, 1961.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir : — You have requested an opinion concerning the Southern
Berkshire Regional School District and problems of reimbursement in
cases where no school committees have been elected by various towns.
You state that the Southern Berkshire Regional School District is com-
posed of five different towns and comprises all the schools from kindergarten
through grade twelve. You further state that there are now no elected
school committees for such towns and after referring to G. L. c. 41, § 1,
you pose the following question:
P.D. 12. 125
''(1) Does a Regional School District formed under G. L. c. 71 relieve
the individual towns from the necessity of electing a local school committee,
and does the regional school committee replace the local school committee?"
You further state that you are mformed by Superintendent George H.
Daniel of the Southern Regional School District that there are a few boys
attending vocational schools outside the towns of the region because there
are no vocational school facilities in the towns of the region. After referring
to G. L. c. 74, § 8A, you pose the following question:
"(2) How, in the absence of a local school committee, should the matter
of tuition and transportation be handled?"
General Laws c. 41, § 1, provides that:
"Every town at its annual meeting shall in every year when the term
of office of any incumbent expires, and except when other provision is made
by law, choose by ballot from its registered voters the following to^.^^l officers
for the following terms of office :
. . . Three, five, six, seven or nine members of the school committee for
terms of three years. . . ." (Emphasis supplied.)
General Laws c. 74, § 7, provides that residents of towns in the Common-
wealth not maintaining approved independent distributive occupations,
industrial, agricultural, household arts and practical nurse training schools
offering the type of education desired may, upon the approval of the com-
missioner under the direction of the state board, be admitted to a school in
another town. Section 8 of c. 74 provides that the town where a person
resides who is admitted to the school of another town under § 7 shall pay
a tuition fee to be fixed by the commissioner, and in default of payment
shall be liable therefor to the contract of such other town. Section 8A of
c. 74 provides that a town where a person resides who is admitted to a day
school in another town under § 7 shall, through its school committee, 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; provided, that no transportation shall
be provided for, or reimbursement made on account of, any pupil who
resides less than one and one-half miles from the school which he attends.
General Laws c. 71, § 14B, concerning a regional school district provides:
"(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."
As you are aware, G. L. c. 71, § 16, dealing with the powers of the regional
school district, provides that it shall have "all the powers and duties con-
ferred by law upon school committees. ..." Moreover, § 16C provides
that:
"The regional school district shall be 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, 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. ..."
I notice in connection with § 1 of c. 41 relating to the election of school
committees that annual elections are provided for "except when other pro-
vision is made by law." It is also to be noted that by virtue of the express
126 P.D. 12.
provisions of c. 71, § 16, it is provided that "A regional school district
established under the provisions of the preceding section shall be a body
politic and corporate with all the powers and duties conferred by law upon
school committees. . . ." (Emphasis supplied.) The purpose apparently of
regional school districts is to provide for co-operative action by the smaller
towns of the State where individual schools might place an undue burden
on each alone.
It is my opinion that unless and until school committees are elected as
provided for in G. L. c. 41, § 1, the regional district school committee, by
virtue of the express powers conferred by the provisions of G. L. c. 71, § 16,
should act in the place of the town school committee. It would appear
wise for each town to have its own school committee. However, where the
towns have united in a regional school district, the district committee
appears to act in the place of the local schools.
Answering, therefore, your second question, the matter of tuition and
transportation may, in the absence of a local school committee, be handled
by the regional district school committee.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W, Fisher,
Assistant Attorney General.
There is nothing in the applicable statutes which requires a conclusion that
local licenses may not be issued restricted to sole of milk, or of cream, but
con only be issued for the sale of both milk and cream.
Dec. 26, 1961.
Alfred L. Frechette, M.D., Commissioner of Public Health.
Dear Sir: ^ — You have requested an opinion regarding G. L. c. 94,
relating to the licensing of milk dealers by local inspectors. In your letter
you stated:
"The inspector for the city of Newton has refused to issue a license to
a company to sell milk and cream in that city. The principal reason for
this refusal' is that the company's cream comes from an out-of-state pro-
ducer whose standards do not meet the requirements of the Commonwealth
of Massachusetts. It appears that the milk sold in the city meets the
standards as required in G. L. c. 94, § 12, and the standards estabhshed
under the rules and regulations of the licensing city."
You also set forth the definitions of "milk," "cream," and "milk prod-
ucts" in the regulations relative to the care of milk and milk products
adopted by the city of Newton.
You also refer to a further regulation of the city of Newton reading as
follows :
"No person, firm or corporation shall sell, offer for sale, hold in posses-
sion with intent to sell, exchange or deliver any milk, skimmed-milk, cream
P.D. 12. 127
or 7nilk products in the city of Newton until he has made apphcation for a
hcense so to do and has been granted such a hcense by the milk mspector."
You now inquire whether or not the city may issue a license for milk
only, or conversely, w^hether the city must issue a license for "milk and
cream."
Unlike c. 94A, relating to the Milk Control Commission, separate
standards for "milk" and for "cream" are to be found in c. 94, e.g., see
§§ 12, 16, and 21. The licensing sections specifically mvolved read in part
as follows: (G. L. c. 94, §§ 40 and 41).
"SECTION 40. No person . . . shall deliver, exchange, expose for
sale or sell . . . any milk, skimmed milk or cream in any town w^here an
inspector of milk is appointed, wdthout obtainmg from such inspector a
license . . . Whoever in such a town engages m the business of selling
milk, skimmed milk or cream from any vehicle shall display conspicuously
on the outer side of each vehicle so used the name and principal place of
business of the licensee in Gothic letters not less than one and one-half
inches in height. No person, other than a producer selling milk or cream,
or hath, shall display the word 'dairy' on any vehicle used by him ... in
the business of selling milk, skimmed milk or cream, unless such person
has a license. ..." (Emphasis supplied.)
"SECTION 41. An inspector of milk in any town, for the purposes
mentioned in the preceding section and subject to the regulations estab-
lished by the board of health of such town, may grant licenses to suitable
persons, ... If the applicant for a license fails to comply with any regu-
lation of the board of health of the town where the application is made, a
license may be refused until he has complied with such regulation; . . .
If a license is so refused ... an appeal may be taken to the department
of public health, whose decision shall be final. ..."
I find nothing in the applicable statutes which prohibits the city from
issuing a license for milk nor do I find such a prohibition in that portion
on the regulations of the city of Newton referred to in your letter. On the
contrary, § 40 refers to "milk, skimmed milk or cream." Again § 40 states
that "Whoever m such a towai engages in the business of selling milk,
skimmed milk or cream" and again "No person, other than a producer
selling milk or cream, or both, shall display the word 'dairy' on any vehicle
used by him or his authorized agent in the business of selling milk, skimmed
milk or cream, unless such person has a license." Section 40 finally ends up
with a sentence reading as follows: "Whoever in such town engages in the
business of selling milk, skimmed milk or cream in a store, booth, stand or
market place shall have his license conspicuously posted therein." If, as
it appears to be the case, the inspector for the city of Newton has denied
a license to sell milk on the grounds that its regulations provide only for
a "milk and cream" license and the applicant's cream is not up to the
required standards, and if the applicant appeals to your department under
the provisions of § 41, your department may pass upon the validity of the
regulation as construed by the inspector. (Attorney General's Report
1933, p. 69.)
In connection with the foregoing, you will note that the phrase "any
milk, skimmed milk, cream or milk products" appears. The word "or"
usually indicates an alternative.
128 P.D. 12.
It may be that there are vaUd reasons for the construction of the regu-
lations which would permit the issuance of only "milk and cream" licenses.
I am unaware of them and the statutes which I have referred to do not
require such a ruling.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
A tax exemption under St. 1961, c. 4^4, cannot be granted to the New York,
New Haven & Hartford Railroad if it discharged, etc., employees, other
than as provided in the Act.
Dec. 26, 1961.
Hon. Roy C. Papalia, Chairman, Department of Public Utilities.
Dear Sir: — You have recjuested an opinion as to the present status of
the application filed on June 30, 1961, by the New York, New Haven and
Hartford Railroads, pursuant to St. 1961, c. 464.
If you have reference to the question of the eligibility of the railroad to
receive the tax relief provided for in said St. 1961, c. 464, my answer is as
follows :
If it appears that the railroad since July 1, 1961, has discharged, suspended
or laid off employees in Massachusetts and elsewhere and that in no such
case did the railroad seek or obtain the consent of a justice of the superior
court of Massachusetts, the application of the debtor railroad should be
rejected.
In order for the debtor railroad to qualify for the relief provided in
St. 1961, c. 464, it must meet standards set forth by the supervisor of
standards of railroad service and it must comply with the requirements set
forth in the act.
Acts of 1961, c. 464, §§ 12D and 13, provide as follows:
"SECTION 12D. No railroad corporation receiving a tax exemption
under this act shall discharge, suspend or lay off any person employed on
the effective date thereof except for just cause and with the consent of a
justice of the superior court after a hearing. Any railroad corporation
violating the provisions of this section shall forfeit the tax exemption pro-
vided by this act."
"SECTION 13. This act shall take effect as of January first, nineteen
hundred and sixty-one. Approved May 15, 1961."
In order to give effect to the legislative intent as expressed in §§ 12D and
13, and to prevent nullification of these sections of the act, the effective
date as set forth in § 13 of the act must be the critical and effective date
not only of the act but also of these sections.
In view of this reasoning, it would appear that the New York, New
Haven and Hartford Railroad is not eligible to receive this relief in the
year 1961.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 129
The negotiations for sales of land a7id buildings in Florida, purchasers being
required to enter into long term rental and management contracts, can he
handled only by licensed real estate brokers and salesmen.
Dec. 28, 1961.
Mr. John W. McIsaac, Acting Executive Secretary, Board of Registration
of Real Estate Brokers and Salesmen.
Dear Sir: — You have recently requested an opinion as to whether or
not the sale of so-called Investors Plans offered by General Development
Investors Plans, Inc., requires the use of licensed real estate brokers as
salesmen.
With 3^our request you forwarded a copy of the company's Prospectus,
a Specimen Certificate, petition to the Department of Public Utilities for
approval of plan, company counsel's letter to the Department of Public
Utilities dated October 13, 1961, order of the Department of Public Utili-
ties authorizing sale of Plans through qualified securities salesmen, and the
original letter of counsel addressed to your board dated November 30, 1961.
The Plan here involved is a package arrangement whereby a customer
purchases a certain designated residence in the Port St. Lucie Country
Club development in Florida, together with furniture and furnishings
therefor, with the aid of a conventional or F. H. A. mortgage, if desired,
and coincidentally enters into a contract with the company whereby the
company will act as a rental and managing agent for the property for a
minimum period of ten years. It is to be noted that at the time of purchase,
the customer receives a deed to the house he has purchased and assumes
the full risk of ownership. The selling agent is compensated by the seller
in the amount of eight to ten per cent of the sales price of the house pur-
chased, depending on the type of financing adopted. If the buyer wishes to
sell his house, he may do so but the company will have a three-month
exclusive sales agency and the house must be sold with and subject to the
terms of the rental and management plan.
In the words of the Prospectus (p. 10), "The Plan purchaser will own
the home and the Plan Company will act as agent in the maintenance,
record keeping, rental and repair of the home." The purchaser under the
terms of the Plan may occupy his home for any period of time during the
year by notifying the company sixty days prior to January 31; otherwise,
the company will allocate a four-week period, probably during an off-
season period, for his personal occupancy. During the rest of the year the
company will attempt to rent the house and credit the income to a fund
for the owner's carrying costs and expenses.
General Laws c. 112, §§ 87 PP through 87DDD, relate to Registration
of Real Estate Brokers and Salesmen and certain pertinent parts thereof
are hereinafter set forth:
§ 87PP. Definitions.
" 'Real estate,' any and every estate or interest in land and the improve-
ments thereon . . . whether or not said land is situated within the
commonwealth."
" 'Real Estate broker,'. . . any person who for another person and for
a fee, commission or other valuable consideration . . . sells, exchanges,
purchases, rents or leases . . . any real estate. ..."
§ 87QQ.
"The provisions of sections eighty-seven RR to eighty-seven DDD,
130 P.D. 12.
inclusive, shall not apply to the following: ... a person buying, sellmg or
otherwise dealing in any stock, bond or other security, or certificate of
beneficial interest in any trust; ..."
§87RR.
"Except as otherwise provided, no person shall engage in the business
of or act as a broker . . . directly or indirectly, either temporarily or as an
incident to any other transaction, or otherwise, unless he is licensed." (Empha-
sis supplied.)
§ 87SS. _
"No license to engage as a broker . . . shall be issued to any applicant
. . . unless he shall have satisfactorily passed a written examination con-
ducted by the board; ....
"Such examination shall be prepared by the board to enable it to de-
termine the competence of the applicant to transact the business of a
broker. ... In determhiing competence the board shall require proof that
the apphcant has a fair understanding of the principles of real estate
practice, real estate agreements and principal and agent relations, of the
rudimentary principles of the economics and appraising of real estate, and
of the provisions of sections eighty-seven PP to eighty-seven DDD,
inclusive. ..."
Upon a careful examination of the Prospectus and other documents
submitted describing the Plan it is my opinion that the type of transaction
contemplated was intended to be covered by G. L. c. 112, §§ 88PP-87DDD.
Each Plan purchaser makes a purchase of specific real estate in Florida and
the transaction is distinguished from an orthodox real estate purchase and
sale transaction only by the fact that the purchaser also enters mto a long-
term rental and management contract which the company undertakes to
perform on stated terms and conditions for all the purchasers in the de-
velopment. The exemption provided for in § 87QQ of persons selling stocks,
bonds, securities and beneficial interests in trusts does not seem to be
applicable to this Plan since, whether or not the rental and management
plan is a "security," we cannot escape the fact that the direct sale of real
estate is the basic part of the transaction. The rental and management
plan, in my opinion, follows and is incidental to the house purchase.
The Legislature has plainly expressed an intention to protect the public
against sales of real estate by persons who are unfamiliar with real estate
practice and it is my opinion that licensed real estate brokers should be
u.sed in the Commonwealth for sales of these Plans.
Very truly yours,
Edward J. IMcCgrmack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. 131
The provisions of G. L. c. Ill, § 70, as to furnishing copies of records of
hospitals of the treatment of patients are not applicable to such records of
the Soldiers Home.
Jan. 2, 1962.
Mr. John L. Quigley, Cornmandant, Soldiers' Home, Chelsea 50, Mass.
Dear Sir : — In your recent letter, relative to the release of a copy of
the medical record of one of your deceased patients, you state that an
83-year-old veteran was admitted to your institution in May of 1960, was
discharged to the Veterans' Administration Hospital on May 1, 1961, for
special treatment and expired at that hospital on May 5, 1961. In the
meantime, his elder son was appointed conservator. You further state that
you are now confronted with a request from the attorney of another son
who desires to obtain a copy of the medical record of the deceased veteran.
In the light of these facts you write :
"We should like to have advice ... on our rights to release the copy of
the record to the youngest son, without the attorney for the youngest son
going through the 'summons procedure.' "
Section 70 of G. L. c. Ill deals with the subject of inspection and copies
of hospital records. Prior to 1956, § 70 of c. HI provided that:
"Hospitals supported in whole or in part by contributions from the
commonwealth or from any town, incorporated hospitals offering treatment
to patients free of charge, and incorporated hospitals conducted as public
charities shall keep records of the treatment of the cases under their care
and the medical history of the same . . . Section ten of chapter sixty-six
..." (relating to copies for inspection of public records) "shall not apply
to such records; provided that such records and similar records kept in the
custody of the person in charge of the hospital may be inspected by the
patient to whom they relate, or by his attorney upon delivery, of a written
authorization from the said patient, and a copy shall be furnished upon his
request and the payment of a reasonable fee; and provided, further, that
upon proper judicial order, whether in connection with pending judicial
proceedings or otherwise, or, except in the case of records of hospitals
under the control of the department of mental health, upon order of the
head of the state department having supervision of such hospital, and in
compliance with the terms of said order, such records may be inspected and
copies furnished on payment of a reasonable fee."
You will note that not all hospitals are covered by this section; only
those referred to in the first sentence. Amendments have been made of the
first sentence so that it presently reads as follows :
"Hospitals, dispensaries or cHnics, and sanatoria licensed by the depart-
ment of public health shall keep records of the treatment of the cases under
their care and the medical history of the same." (Emphasis supplied.)
Section 70 as presently written also includes the provision that § 10 of
c. 66 shall not apply to such records. The proviso relative to inspection
and copies of records in its present form reads as follows:
"... provided, that such records and similar records kept by the
licensee may be inspected by the patient to whom they relate or by his
attorney upon delivery of a written authorization from the said patient,
and a copy shall be furnished upon his request and a payment of a reason-
able fee; and provided, further, that upon proper judicial order, whether in
connection with pending judicial proceedings or otherwise, or, except in
132 P.D. 12.
the case of records of hospitals under the control of the department of
mental health, upon order of the head of the state department which issues
the license and in compliance with the terms of said order, such records
may be inspected and copies furnished on payment of a reasonable fee."
I am advised, and I hope reliably so, that your hospital is not licensed
by the Department of Public Health. If this be true, this § 70 does not
apply to your hospital and the answer to your question is that you are
without power to supply copies of the medical record referred to in your
letter. Indeed, if it were applicable, § 70 authorizes inspection only "by
the patient to whom they relate or by his attorney upon deU^^ery of a
written authorization from the said patient." I understand the patient is
dead and I assume that the attorney you refer to is not the decedent's
attorney but that of one of his next of kin.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Under the amendments by St. 1961, c. 568, to G. L. c. 90, § 3, and G. L. c. 175,
§ USA, permitting a transferor of a motor vehicle to attach his old plates
to a newly acquired motor vehicle and protecting operations of, and
continuing compulsory insurance on, the new vehicle for two days, can-
cellation of insurance proceedings begun prior to the transfer is not
nullified, but a cancellation may not take effect until the expiration of
the period.
Jan. 2, 1962.
Mr. Clement A. Riley, Registrar of Motor Vehicles.
Dear Sir: — You have recently requested an opinion as to the following
question :
"Does St. 1961, c. 568, which becomes effective January 1, 1962, nullify
any cancellation of insurance proceedings which have been commenced
prior to the transfer as set forth in this chapter?"
Section 1 of St. 1961, c. 568, amendhig the fifth paragraph of § 2 of
G. L. c. 90, provides that a person who has transferred ownership or lost
possession of a registered motor vehicle and who intends to transfer the
registration to a newly acquired motor vehicle may operate the newly
acquired motor vehicle for two days following the transfer provided he
attaches his number plates to the newly acquired vehicle.
Sections 2 and 3 of c. 568 of said act read as follows:
"SECTION 2. Section 113A of chapter 175 of the General Laws is
hereby amended by inserting after provision (6) the following paragraph : —
Notwithstanding the foregoing provisions, a policy covering a registered
motor vehicle or trailer which is being transferred as provided in section
two of chapter ninety shall continue in force and cover a newly acquired
motor vehicle or trailer for a period beginning from the date of transfer of
the registered motor vehicle or trailer until five o'clock post meridiem of
the second registry business day following the date of transfer within the
P.D. 12. 133
same celendar year; provided, that the number plates issued upon regis-
tration of the transferred motor vehicle or trailer are attached to the
newly acquired vehicle.
"SECTION 3. This act shall take effect at one minute past twelve
o'clock ante meridiem on January first, nineteen hundred and sixty-two,
and shall apply only to motor vehicle policies and bonds issued for the
year nineteen hundred and sixty-two and subsequent years."
Provision (6) of G. L. c. 175, § 113A, is itself composed of five paragraphs,
the first of which provides for continued auto insurance policy coverage
for the legal representative of a bankrupt's estate and for the relatives and
legal representative of a deceased for the life of the policy but contains at
the end thereof the following sentence: "Nothing herein contained shall
operate to nullify any cancellation proceedings which have been commenced
prior to the death of the insured." This sentence, or one similar to it, is
conspicuous by its absence from the final paragraph of (6) which has been
added by St. 1961, c. 568. This final paragraph provides that the policy
"shall continue in force" for two registry business days, without qualification.
In my opinion, provision (6) of § 113A of G. L. c. 175, as amended by
St. 1961, c. 568, must be literally interpreted to mean that any cancellation
proceedings which would otherwise become effective during this two-day
period would be suspended until the end of said period, provided that all
of the other terms and conditions of said c. 568 had been complied with.
In direct answer to your question, it is my opinion that cancellation pro-
ceedings are not nullified by taking advantage of the law as amended by
St. 1961, c. 568, but simply that any cancellation due to take effect during
the two-day period is delayed until the end of that period.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
A member of a housing authority who is an official of a bank having interests
in property the authority is to take, neither he, nor one of his family,
owning stock in the bank, is not in violation of G. L. c. 12, § 260; and if
full disclosure is made and he refrains from acting as to property in
which the bank is interested, there is no substantial conflict of interest
within G. L. c. 268 A (the Code of Ethics Law).
Jan. 8, 1962.
Mr. Leo F. Benoit, Chairman, State Housing Board.
Dear Sir: — You have requested my opinion as to whether or not there
is any violation of G. L. c. 121, § 260 or G. L. c. 268A, the Code of Ethics
Law, in so far as the Chairman of the Andover Housing Authority is
concerned.
It is my understanding that the chairman is employed by the Merrimack
Valley National Bank as vice-president, but does not own any stock of the
bank. Further, property of the bank is scheduled for acquisition by the
Authority within the project area, and the bank holds a first mortgage on
two parcels within that area.
134 P.D. 12.
Chapter 121, § 260, reads in part as follows:
"No member, agent or employee of a housing authority shall, directly
or indirectly, have any financial interest in any property to be included in,
or any contract for property or materials to be furnished or used in con-
nection with, any project of such housing authority. Whoever violates
any provision of the preceding sentence shall be punished by a fine of not
more than one thousand dollars or by imprisonment for not more than one
year, or both."
The Code of Ethics Law, c. 268A, contains in § 3 a rule in regard to
conflict of interest, as well as a series of standards to be used in applying
this rule. The rule reads as follows:
"No officer or employee of an agency should have any interest, financial
or otherwise, direct or indirect, or engage in any business or transaction or
professional activity or incur any obligation of any nature, which is in
substantial confl ict with the proper discharge of his duties in the public
interest."
In Commonwealth v. Albert, 307 Mass. 239, the court ruled on G. L. c. 268,
§ 10, which provides that "a member of a city council or any branch thereof
or of a municipal board of a city who is personally interested, directly or
indirectly, in a contract made by the city council or by any branch thereof
. . ." shall be punished. In defining the term "interest" the court held
that it is one of broad significance and its meaning in any particular case
depends upon the setting in which it is emploj^ed. The court went on to
say : "The words 'personally interested' must be construed to mean interested
in a pecuniary or proprietary sense."
The question of the existence of a conflict of interest in a situation such
as that presented here is not clear-cut. If the chairman himself, or a mem-
ber of his family, were the owner of property scheduled to be acquired by
the Authority, it is clear that he would be required to resign or completely
divest himself of his interest in the property. His position as vice-president
of the bank, however, is not one which creates a pecuniary or proprietary
interest in the property of the bank.
Accordingly, I am of the opinion that no conflict of interest exists with
respect to c. 121, § 260.
The wording of c. 268A, however, is broader with respect to the interest
prohibited. It may be "financial or otherwise, direct or indirect." The
chairman's interest as vice-president of the bank does come within the
purview of this phrase. The statute then states, however, that this interest
must not be in "substantial conflict with the proper discharge of his duties
in the public interest." Nine "standards" are listed in § 4 of the statute
to be used as guides in interpreting the rule. I would call your attention
specifically to paragraphs (6), (e) and (h).
It is my opinion that no substantial conflict of interest exists in the
instant case so long as the chairman has disclosed the natui-e of his interest
(as provided in c. 268 A, § 4(j) ), and so long as he disqualifies himself from
any discussion or decision relating to the bank property or other property
on which, to his knowledge, the bank may hold a mortgage. I refer you to
the declaration of intent of c. 268A, in particular to the following words:
"Government is and should be representative of all the people who
elect it, and some conflict of interest is inherent in any representative form
of government. Some conflicts of material interests which are improper
for public officials may be prohibited by legislation. Others may arise in
so many different forms and under such a variety of circumstances, that it
P.D. 12. 135
would be unwise and unjust to proscribe them by statute with inflexible
and penal sanctions which would limit public service to the very wealthy
or the very poor. For matters of such complexity and close distinctions,
the legislature finds that a code of ethics is desirable to set forth for the
guidance of public officers and employees the general standards of conduct
to be reasonably expected of them."
Very truly yours,
Edward J. ]\IcCormack, Jr., Attorney General.
The psychiatrists to conduct the examinations provided for in G. L. c. 123 A,
^ 4, of persons convicted of certain sex offenses are not required to he
employees of the Commonwealth.
Jan. 9, 1962.
Harry C. Solomon, M.D., Commissioner of Mental Health.
Dear Sir : ■ — In your recent letter you present the following questions :
"Does G. L. c. 123A, § 4, as most recently amended, provide and require
that the two psychiatrists under whose supervision the person is placed,
and who must file with the court a written report of examination and
diagnosis, and their recommendations for disposition of such person, be
employees of the Department of Mental Health, i.e. the Commonwealth?"
No formal opinion is required in this instance because G. L. c. 123A, § 4,
is silent and no other section is applicable nor in conflict. There is no
specific intent of the Legislature wnthin said section requiring the psychia-
trists to be employed bj^ the State.
The applicable language reads as follows:
"... the court, may, upon its own motion or upon motion of the
district attorney, prior to imposing sentence, commit him to the center or
a suitable branch thereof for a period not exceeding sixty days for the
purpose of examination and diagnosis under the supervision of not less
than two psychiatrists who shall, within said period, file with said court
a written report of such examination and diagnosis, and their recom-
mendations for the disposition of such person. ..."
Under the broad language of the above-quoted statute there is no
limitation on the appointment of the two psychiatrists for a given case.
The judge himself can name the two psychiatrists. In the absence of such
designation by the judge, the Commissioner of Mental Health may assign
such psychiatrists as are necessary and proper to carry out the mandate
of the court. In his discretion, in the latter instance, the commissioner may
assign a consultant or advisory physician or an employee of the Common-
wealth who is qualified as a psychiatrist. The requirements of G. L. c. 123,
§ 53, do not apply.
The present practice of the commissioner in fulfilling his responsibilities
under § 4 of c. 123A, as most recently amended, by using consulting
psychiatrists who are not employees of the Department of Mental Health
136 P.D. 12.
is perfectly proper. Although not expressly provided for by statute, the
practice is well within the legislative intent because said practice provides
a wide variety of specialists at minimum cost to the Commonwealth and
its taxpayers.
Very truly yours,
V^ Edward J. McCormack, Jr., Attorney General,
By Theodore R. Stanley,
Assistant Attorney General.
The body of a deceased patient of a State institution should be delivered only
to the surviving spouse or next of kin; proof of rights and indemnity
agreements should be required in doubtful cases.
Jan. 15, 1962.
M-R. John L. Quigley, Commandant, Soldiers' Hoine, Chelsea 50, Mass.
Dear Sir: — You have recently requested an opinion as to who is
entitled to the possession of the remains of a deceased patient with particu-
lar reference to an immediate case which you describe as follows:
"In the instant case a 61-year-old veteran was admitted to our hospital
on November 10, 1961. He listed as his next of kin a neighbor who occupied
the apartment below him in a three-story dwelling owned by this veteran
patient. The patient was discharged to Massachusetts Memorial Hospital
for special laboratory and kidney procedures in mid-December and re-
admitted to our hospital on December 20, 1961. He expired at our hospital
on January 5, 1962. At the time of his original admission on November 10
and again at his readmission on December 20, the patient confirmed the
fact that his 'social condition' was 'single.' On both instances he gave the
next of km as the aforementioned individual. In accord with our usual
policy we notif}^ the 'next of kin' of the patient's having expired and
expecting the individual to make the necessary funeral arrangements. In
the interim we received a telephone call from the young lady visitor to the
patient who identified herself as the patient's 'daughter' and instructing us
that under no circumstances were the remains to be released to any other
person. Upon inquiry at our Nursing Station we find that this young lady
had visited the patient on several occasions and that he had introduced
her once or twice to some of our nursing personnel as 'my daughter.' "
The general rule of law applicable to such situation was set forth in
Sheehan v. Commercial Travelers &c. Ass'n., 283 Mass. 543 at page 553 as
follows:
"The right of possession of a dead body for the purpose of burial or
other lawful disposition ... is vested, at least in the absence of a different
provision by the deceased, in the surviving husband, wife or next of kin."
The mere listing by the patient of an unrelated neighbor as his "next of
kin" upon admission does not seem to me to be an adequate direction by
the deceased that his body should be delivered over to such person where
a claim for it is made by the person who is in fact his next of kin. In the
specific case before you there seems to be some doubt as to whether the
young lady who claims to be the deceased's daughter is in fact his daughter.
In my opinion, you would be justified in asking her to provide some evi-
P.D. 12. 137
dence of the claimed relationship such as a birth certificate. If it is not
practical to obtain this, you should require her to execute an aflfidavit
under oath stating that she is the deceased's daughter. If there is still
any doubt in your mind, you could properly ask her to execute an indemnity
agreement whereby she would agree to indemnify and hold harmless you
and the Commonwealth against any and all loss, damage, costs, expenses,
claims, liabilities, suits, etc., which you or the Commonwealth may incur
as a result of delivering the deceased's body to her as the next of kin.
I would suggest that such indemnity agreements be obtained in all
situations where a deceased's body is delivered to a person who is not, or
may not be, the next of kin of the deceased.
Very truly yours,
Edward J. "McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
The Trustees of the Soldiers Homes may provide for charges for care in proper
cases.
Jan. 16, 1962.
Mr. John L. Quigley, Commandant, Soldiers' Home, Chelsea 50, Mass.
Dear Sir: — You have written me relative to a veteran patient who
died at your hospital leavuig a substantial sum of money on deposit and
you request an opinion :
"... whether there is any provision in the General Laws which would
permit our making a charge against the estate for services rendered by our
hospital or dormitory to the veteran patient. The veteran was allowed to
accumulate this sum of money because of the services and facihties pro-
vided by the Commonwealth."
Your letter goes on to state that 3^our Board of Trustees are consideruig
the institution of a "Charge System" and that yow are concerned whether
there are any possible means of the Commonv*^ealth being even partially
compensated for the services rendered.
The answer to your question as to your right to charge for services
rendered depends upon two things: first, the status of your patient, and,
secondly, the obligations, by statute or otherwise, of your Soldiers' Home.
Chapter 452 of the Acts of 1931 is entitled, "AN ACT PROVIDING
FOR THE TRANSFER AND CONVEYANCE TO THE COMMON-
WEALTH OF THE PROPERTY OF THE SOLDIERS' HOME IN
MASSACHUSETTS AND ESTABLISHING A STATE BOARD OF
TRUSTEES OF SAID HOME." Section 1 of c. 452 provides that:
"The acceptance from the Commonwealth by the trustees of the Soldiers'
Home in Massachusetts, a corporation duly established by law, of the sum
of three hundred thousand dollars, made available by item one hundred
and sixty-one a of chapter two hundred and sixty-eight of the acts of the
current year, for the construction of new buildmgs at said institution shall
constitute a conclusive agreement on the part of said trustees, and their
successors, to transfer and convey to the Commonwealth, on December first,
138 P.D. 12.
nineteen hundred and thirty-four, all real and personal property held by
said trustees for the purposes of said institution. ..."
Section 1 further provides that said trustees are authorized to transfer
and convey such property except that the property included in the "legacy
fund" and the "effects accounts" and held in trust by said trustees shall
not be so transferred unless and until such transfer shall be authorized by
a decree of a court of competent jurisdiction and that upon the transfer and
•conveyance of all the property of said Soldiers' Home, said corporation
shall be deemed to be dissolved, and said home shall become a State
institution.
Section 2 of c. 452 amends § 17 of c. 6 of the General Laws by adding
the Board of Trustees of the Soldiers' Home in Massachusetts to other
commissions and boards serving under the Governor and Council and
subject to such supervision as the Governor and Council deem necessary
and proper.
Section 3 of c. 452 inserts the present sections 40 and 41 of c. 6 of the
General Laws relative to the organization of the Board of Trustees of the
Soldiers' Home including its powers and duties.
In 1954 the General Court apparently made a serious effort to clarify
the status of the Soldiers' Homes and those entitled to be cared for therein.
General Laws c. 115A, §§ 1 to 5, outline in much detail those eligible for
the benefits of the Homes. Section 5 of c. 115A provides, among other
things, that:
"Nothing in this chapter shall be construed to prevent the trustees of the
Soldiers' Home in Massachusetts and the trustees of the Soldiers' Home in
Holyoke from adopting, issuing and promulgating reasonable rules and
regulations governhig out-patient treatment at, admission to, and hospital-
ization in, said Homes; ..."
Whether in a given case your Home has a right to charge the patient
for its services depends upon several matters. Is your Home obligated by
Federal or State law to supply hospitalization services gratis? In many
such cases, of course, there is no obligation to pay. Worcester v. Quinn,
304 Mass. 276.
Speaking generally, where there is no obligation to furnish hospitalization
services gratis, the right to charge depends upon the arrangements between
the Home and the patient. If the arrangement is to pay, the hospital may
charge. If no express arrangement is made, then payment may be claimed
if as a reasonable person the patient should have known that payment was
to be required and the Home reasonably expected to receive compensation.
Naturally the Home cannot create a legal obligation to pay where none
existed in the first place. I am aware of the existence of c. 387 of the Acts
of 1960 authorizing deductions from unclaimed funds of former patients of
Soldiers' Homes of amounts "obligated to the Commonwealth for support
furnished ... at such Home. ..." I am not aware of any express
general provision of law relative to charges for hospitalization services at
Soldiers' Homes. You have not advised me of any rule or regulation
covering the subject although you state that compensation is now under
consideration by your Board of Trustees.
In the case you refer to in your letter, you feel that an obligation is or
should exist. The Home must be represented in the probate court in order
to protect your claim against the distribution of the estate. You will
P.D. 12. 139
understand that the general subject matter we have discussed must of
necessity be treated in a general way for the present, leaving specific
instances to be separately dealt with. I suggest that your Board of Trustees
in considering the entire subject matter will keep in mind the obligation,
if any, which your Home owes to the Federal Government and also the
Commonwealth because of Federal and State grants to it. As your board
proceeds, I shall be glad to discuss the situation with you from time
to time.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Civil Defense Act permits the temporary re-employment by the Common-
wealth of a person retired from a municipality, but such a person can be
paid only the difference between his retirement allowance and the salary
for the position; allowance cannot be waived.
Jan. 19, 1962.
Harry C. Solomon, M.D., Commissioner of Mental Health.
Dear Sir : — You have requested an opinion of the following questions :
"1. May an agency of the Commonwealth re-employ in accordance
with St. 1950, c. 639, § 9(/i), as amended, an individual who is retired or
pensioned from a political subdivision, but who is not retired or pensioned
from an agency of the Commonwealth?
"2. If the answer to question number one is in the affirmative, may we
re-employ the physician to whom I make reference at full compensation
for the position which he seeks; or at full compensation for the position
which he seeks less the retirement allowance granted him by the city of
Boston, payment of which he has voluntarily waived until further notifi-
cation by him?
"3. If the answer to question number two is in the affirmative, in so far
as it pertains to full compensation for the position which he seeks, what
protection is necessary to safeguard the interest of the Commonwealth, if
during the period of re-employment this individual should revoke his waiver
of retirement allowance payments from the city of Boston?"
Acts of 1950, c. 639, § 9, so far as material, reads as follows:
"Notwithstanding the provisions of chapter thirty-one of the General
Laws, or any other provision of law affecting civil service, and the rules
made thereunder on and after the declaration of a state of emergency, the
director of civil service, supported by a majority vote of the civil service
commission . . .
"(h) Shall approve in writing the temporary re-employment of any
former officer or emplo3^ee of the Commonwealth or of any pohtical sub-
division thereof who has been retired under any retirement or pension law,
or who has been separated from the public service by reason of super-
annuation or disability without a retirement allowance or pension to any
position or employment subject to chapter thirty-one of the General Laws.
Any person so employed shall receive full compensation for such services less
140 P.D. 12.
any retirement allowance or pension received by Mm. The written approval
of the appointing officer, board or committee shall be required in the re-employ-
ment of such former officers or employees to any office or employment not
subject to said chapter thirty-one. . . ." (Emphasis supplied.)
Although the provisions of paragraph {h) are not as clear as would be
desirable, my answer to your first question is in the affirmative.
With reference to your second question, it is to be noted that paragraph
(h) of § 9 of c. 639 specifically provides that a person re-employed there-
under is to be paid only the difference between the salary for the position
and the retirement allowance or pension. There are no provisions in the
paragraph permitting the payment of the full salary for the position upon
a waiver of his retirement benefits by the employee such as are contained
in G. L. c. 32, § 91, which specifically provides that retired persons appointed
to certain positions shall be paid the full salaries therefor, provided they
waive and renounce their retirement benefits. The provisions of G. L. c. 32,
§ 91, referred to, it was ruled in an opinion to the State Comptroller dated
September 8, 1959, "must be considered as stating the only conditions
under which the waiver or renunciation of a pension or retirement allow-
ance can operate to permit a retired person to be re-employed." In ac-
cordance with that opinion, and in view of the express provision of St. 1950,
c. 639, § 9(/0, that a retired person re-employed thereunder shall be paid
only the difference between the salary for the position in which he is
re-employed and his retirement allowance or pension, and the absence of a
provision permitting the payment of the full salary if the retirement
allowance or pension is waived, I advise you, in answer to your second
question, that a retired person re-employed under said § 9{h) is to be paid
only the difference between the full compensation for the position in which
he is re-employed and his retirement allowance or pension, and his waiver
of his retirement benefits would not permit the payment of the full compen-
sation or salary of the position to him without deduction of the retirement
allowance or pension.
In view of my answer to your second question your third question does
not require consideration.
Very truly yours,
Edward J. McCormack, Jr., Attorney Genend,
By James J. Kelleher,
Assistant Attorney General.
Only municipal by-laws or ordinances regidating the operation of motor boats
on local waters may be approved by the Director of the Division of Motor
Boats under G. L. c. 90, § 15. Any aidhority of the Lake Boone Com-
mission under St. 1941, c. 712, to regulate motor boats on the lake has
been superseded.
Jan. 19, 1962.
]Mr. Wilton Vaugh, Director, Division of Motorboats.
Dear Sir: — In your letter of recent date, relative to the Lake Boone
Commission, you state that:
"The Lake Boone Commission feels that according to St. 1941, c. 712,
the commission is authorized to make regulations affecting motorboats on
P.D. 12. 141
Lake Boone without the necessity of submitting these regulations to the
towns of Stow and Hudson to be adopted as by-laws.
"This division has felt that St. 1960, c. 275, required that such regulations
be adopted as by-laws of the towns involved before the approval of this
division could be granted."
You now request my opinion as to the mterpretation of the last sentence
of G. L. c. 90B, § 15(6), as inserted by St. 1960, c. 275, § 2.
Chapter 712 creates an unpaid special commission to regulate the use of
the waters of Lake Boone and defines its pow-ers and duties. Among other
things, the commission is empov/ered to establish rules and regulations for
the protection and policing of Lake Boone and regulating the use of motor
and other boats and canoes therein, and regulating the conduct of persons
upon, or bathing therein. Moreover, it authorizes the commission to make
rules and regulations relating to the conduct of the business of renting
boats and canoes used on the lake and to the use and maintenance of
bathing houses adjacent thereto.
Chapter 275 of the Acts of 1960, entitled "AN ACT REGULATING
THE USE OF MOTORBOATS AND REQUIRING THE REGISTRA-
TION THEREOF ON CERTAIN WATERS OF THE COMMON-
WEALTH," has an emergency preamble stating in substance that the
measure is to provide forthwith for the numbering of certain motorboats
and the promotion of boating safety on the territorial waters of the
Commonwealth.
Section 1 amends G. L. c. 16 by adding a new § 12 creating within the
Registry of Motor Vehicles a Division of Motorboats with a director
appointed by the Governor with the approval of the Council. Section 2
amends the General Laws by adding a new c. 90B, which contains numerous-
sections providing for the registration of motorboats with the director and
also covering the operation of motorboats. Section 4 provides that:
"Any ordinance, by-law or regulation of any city, town or other public
body or cmthoritij relative to the identification of motorboats . . . shall
become null and void upon the effective date of this act, and any such
ordinance, by-law or regulation relative to the operation of motorboats . . .
shall become null and void on the ninetieth day following said effective
date." (Emphasis supplied.)
Section 15(a)(6), inserted by § 2 of c. 275, provides in substance that
nothing contained in § 15 shall be construed as prohibiting a city or town
from regulating, by ordinance or by-law not contrary to c. 275 or to any
rule or regulation made thereunder, vessels subject to the provisions of
the chapter on such waters of the Commonwealth as lie within the city or
town, or any activity regulated by the chapter. The concluding sentence
of § 15(6) provides that "Such cities and towns may, by joint action, pro-
vide for such regulations for such waters b'ing in two or more cities or
towns."
In my opinion the provisions of c. 275, so far as they are inconsistent
with the provisions of c. 712, supersede the same. As the Superior Court
said in the case of McDonald vs. Superior Court, 299 Mass. 321, 324, in
dealing with a somewhat analogous situation, "That problem was State-
wide. There was importance in uniformity in the law to govern the admin-
istration 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."
142 P.D. 12.
Section 15(6) endeavors to make provisions authorizing in the future
further local legislation with the approval of the director. The concluding
sentence in that section to which you refer provides specifically that such
cities and towns may by joint action provide for such regulations for such
waters lying in two or more cities or towns. This sentence does not include
regulations by any other public body or authority such as the Lake Boone
Commission.
I am, therefore, constrained to rule that the Lake Boone Commission
is presently without power to promulgate and enforce rules and regulations
which are in any way inconsistent with the provisions of c. 275 or rules
and regulations of the director issued under authority thereof.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Special statutory authority would be required to authorize the Metropolitan
District Commission to make a rule authorizing its police to tow cars for
violations of traffic regulations or which are impeding the removing and
clearing of snow.
Jan. 19, 1962.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission .
Dear Sir : — Your letter of recent date requests my opinion as to the
right of your commission, under the provisions of St. 1961, c. 322, to make
a rule authorizing your police to tow cars for violation of traffic regulations
or which are impeding the removal and clearing of snow from parkways
and boulevards during or after storms, and charge fees therefor.
Chapter 322 of the Acts of 1961, is entitled "AN ACT AUTHORIZING
THE TOWING OF VEHICLES FROM CITY AND TOWN WAYS
WHERE SUCH VEHICLES ARE PARKED OR STANDING IN VIO-
LATION OF THE LAW." It inserts by amendment a new § 22D of
G. L. c. 40, which in substance authorizes a city or town which accepts this
section to establish traffic regulations covering the subject matter to which
you refer. It should be noticed, of course, that this statute only applies to
a city or town which accepts this section. It does not purport, as you have
seen, to authorize the IVIetropolitan District Commission to make rules or
regulations of the kind in which you are interested.
As you are doubtless aware, the General Court by the provisions of
St. 1961, c. 524, authorized the Department of Public Works by rule or
regulation to empower specified officers to tow and remove motor vehicles
obstructing or illegally parked on "a State highway." Metropolitan
District boulevards, however, are not "State highways." Medford v.
Metropolitan District Commission, 303 Mass. 537. As you are also doubtless
aware, G. L. c. 40, § 21(16), authorizes cities and towns to enact ordinances
or by-laws permitting the removal and towing of vehicles interfering with
snow removal; yet in my opinion neither this authority nor the powers
conferred by St. 1961, c. 322, are powers that cities and towns have over
P.D. 12. 143
public ways "in general" which your commission are accorded by virtue
of the last sentence of G. L. c. 92, § 35.
The statutory pattern relative to the subject as to which you inquire
apparently does not contain any express provision authorizing the activi-
ties you refer to. I am unable, therefore, to assume that the general pro-
vision you cite in §§ 37 and 61 of G. L. c. 92 were intended to authorize
the towing and removing of motor vehicles such as you describe.
It is my opinion, therefore, that your commission is not authorized
under the provisions of St. 1961, c. 322, to make a rule authorizing your
police to tow cars for violation of traffic regulations or which are impeding
the removal and clearing of snow from parkways and boulevards.
In the light of the foregoing, perhaps the General Court may consider
the advisability of clarifying legislation so as to make it clear beyond any
doubt that your commission has the necessary towing authority over the
ways under its control. Conceivably, it might be the general impression
that this had been accomplished. However, in the present state of the
pertinent statutes, the result desired has not been achieved, at least as
far as your commission is concerned.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Fines for violations of traffic regulations at the University of Massachusetts
must he paid into the Treasury of the Commonwealth.
Jan. 24, 1962.
Mr. John W. Lederle, President, University of Massachusetts.
Dear Sir : ^ In your recent letter, relative to the disposition of student
traffic fines, you state that on October 2, 1951, the executive committee
of the Board of Trustees of the University of Massachusetts voted to
authorize the treasurer of the University to assess students fines for viola-
tion of parking and traffic regulations at the University, and that such
fines would be paid into the treasury of the Commonwealth ; that students
through their Student Senate made a study of the problem and suggested
that the students themselves would like to enforce student traffic violations.
At a meeting of the Board of Trustees of the University on February 20,
1958, it was —
"VOTED: To approve the request of the Student Senate to add the
income from campus traffic fines to the trust fund account
entitled 'The University Scholarship Fund' and to treat this
income as a student activity fund."
Thereafter, fines collected for violation of campus traffic regulations were
no longer paid into the treasury of the Commonwealth but were deposited
in the University Scholarship Fund, a trust fund established under the
provisions of G. L. c. 75, and disbursements were made as authorized by
the University Scholarship Committee.
On August 17, 1960, the Comptroller addressed a letter to your treasurer
reading as follows :
144 P-D. 12.
"I have your letter of August 15 in reply to letter from this office dated
July 1 1 pertaining to student traffic fines.
'^Vhereas the State Auditor in his Report No. 60-20 stated that traffic
fines collected by the University were not being reverted to the State
Treasury as income but were credited to the Trust Fund account 'Uni-
versity Scholarship Fund' and our letter of July 11 expressed the opinion
that this office considered it income to the Commonwealth in accordance
with Article LXIII of the Constitution of the Commonwealth, it is sug-
gested that in order to resolve this question you present the facts to the
Attorney General for his opinion."
In this state of affairs you request my opinion as to whether the fines
before mentioned should be remitted to the State Treasurer. Article LXIII
of the Articles of Amendments to the Constitution of Massachusetts
provides that:
"All money received on account of the Commonwealth from any source
whatsoever shall be paid into the treasury thereof."
In Opinion of the Justices, 334 Mass. 716, at page 718, the Supreme
Court said :
"It is manifest that art. 63 was designed to place the fiscal operations of
the Commonwealth as far as possible on a strict budget plan by which all
money received on account of the Commonwealth from any source should
be paid into its treasury and all proposed expenditures of the Common-
wealth should be included in some appropriation bill."
General Laws c. 75, § 9, provides that the trustees shall, on behalf of
the Commonwealth, manage and administer the University and all prop-
erty, real and personal, belonging to the Commonwealth and occupied or
used by the University.
Section 10 provides that the trustees shall make reasonable rules and
by-laws consistent with law, with reasonable penalties, for the government
of the University and for the regulation of their own body.
Section 7 provides that the trustees shall administer property held in
accordance with special trusts.
Section 5A provides that the receipts from student activities, including
the operating of the University store, student operation of the home
economics practice house, dramatics, debating, musical clubs, band,
athletics and other like activities, shall be retained by the trustees in a
revolving fund or revolving funds and shall be expended as the trustees
shall direct in furthering the activities from which the receipts were derived.
Not, however, in contravention of the requirements of § 1 of Article LXIII.
It appears from your letter and the enclosures that, in the first instance,
the trustees themselves handled the assessment and collection of fines for
violation of your student campus traffic regulations, and the proceeds were
turned over to the Treasurer of the Commonwealth; that m 1958 the trus-
tees voted to add the income from campus traffic fines to the trust fund
account entitled, "The University Scholarship Fund," and to treat this
income as a student activity fund, smce which time the fines have been
treated accordingly.
At the outset, it is clear that, having in mind the provisions of Article
LXIII of the Amendments to the Constitution and of G. L. c. 75, § 5A,
a cardinal principle of State finance is, as stated in the Opinion of the
Justices, that "all money received on account of the Commonwealth from
any source should be paid into its treasury and all proposed expenditures
P.D. 12. 145
of the Commonwealth should be included in some appropriation bill."
Even § 5A of c. 75 relating to receipts from student activities is made
subject to the Constitutional Amendment above referred to.
The funds you refer to result from the use or misuse of property belonging
to the Commonwealth. The trustees of the University, under the express
provisions of § 9, shall manage and administer the University and all real
and personal property belongmg to the Commonwealth. By virtue of the
provisions of § 10, the trustees shall make reasonable rules and by-laws con-
sistent with law, with reasonable penalties, for the government of the
University and for the regulation of their own body. It is my opinion that
the trustees acted beyond their authority in voting as they did on Febru-
ary 20, 1958. A.L.A. Schechter Poultry Corporation v. United States,
295 U. S. 495.
A reading of § 5A requires, if not justifies, this conclusion. It says, "all
receipts from student activities, including the operation of the university
store . . . dramatics, debating, musical clubs, band, athletics and other like
activities, shall be retained by the trustees in a revolving fund . . . and
shall be expended as the trustees shall direct in furthering the activities
from which the receipts were derived. . . ." (Emphasis supplied.) It is
hard to believe that the General Court intended that the funds received
from the fines for violation of campus traffic regulations should be used m
"furthering" the activities from which the receipts were derived, namely,
violation and further indiscriminate continued violation of the campus
traffic regulations.
Under all the circumstances, in view of the constitutional provisions
above referred to, and the provisions of law relating to the trustees and
their responsibilities, and bearing in mind the laudable purposes which
your trustees undoubtedly had in mind in entering into the arrangement
which they have, it is my opinion that the monies received from fmes
referred to should be paid to the Treasurer of the Commonwealth.
Very truly j^ours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Department of Public Works can expend funds appropriated by St. 1961,
c. 544, for a special capital outlay program for the Commonwealth, with
funds contributed by the town of Provincetown, for the repair of the town-
owned MacMillan Wharf.
Jan. 29, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — In your letter of recent date relative to the so-called
MacMillan Wharf in Provincetown you state that your department has
been requested to repair the wharf, which is a town-owned wharf located in
Provincetown Harbor, and that the town is prepared to contribute fifty
per cent to the cost of the work. You request my opinion as to whether
your department has the authority under G. L. c. 91, to finance the State's
146 P.D. 12.
share of the cost of such work from Item 8262-22 of St. 1961, c. 544, § 2.
Item 8262-22 reads as follows:
"For projects for the improvement of rivers, harbors, tidewaters, fore-
shores and shores along a public beach, as authorized by section eleven of
chapter ninety-one of the General Laws, and for construction, recon-
struction or repair of drains, to be used in conjunction with any federal
funds made available for the purpose; provided, that all expenditures,
except the cost of surveys and the preparation of preliminary plans, for
work undertaken hereunder, including the cost of engineering during con-
struction, shall be upon condition that at least fifty per cent of the cost is
covered by contributions from municipalities or other organizations or
individuals except that, in the case of dredging channels for harbor im-
provements, at least twenty-five per cent of the cost shall be so covered."
General Laws c. 91, § 11, in its present form reads in part as follows:
"The department shall undertake such construction and work for the
improvement, development, maintenance and protection of tidal and non-
tidal rivers and streams, great ponds, harbors, tide waters, foreshores and
shores along a public beach as it deems reasonable and proper, and for this
purpose shall have the same powers conferred upon it by section thirty-one
... In selecting the places to do such work, the department shall consider
the general public advantage of the proposed work, the local interest
therein as manifested by municipal or other contributions therefor, the
importance of the industrial or commercial and other mterests to be
especially served thereby, and any other material considerations affecting
the feasibility, necessity or advantage of the proposed work or the expendi-
ture therefor. No work authorized by this section shall be begun until
after a public hearing has been held and a survey and an estimate of the
cost has been made."
The question of whether or not town wharfs may be repaired under the
provisions of G. L. c. 91, § 11, was answered in the affirmative by Attorney
General George Fmgold. Attorney General's Report 1953, p. 38. I see no
reason why this opinion should not be followed, particularly since the
Legislature has since amended this section without altering the language
upon which Attorney General Fingold's opinion was based.
I would call to your attention, however, the requirements of considering
the general public advantage, etc., and of a public hearing contained in the
last two sentences of § 11 as well as the requirement of approval of con-
tracts by the Governor and his Council contained in § 31, which seems to
apply to the contemplated work.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 147
A limitation of access Jrom public ways imposed by the Massachusetts Turn-
pike Authority on land acquired by it for the turnpike should be dis-
regarded in determining the value of the land for purposes of compensation
for a taking of the land for State highway purposes.
Jan. 29, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir : — You have informed me that your department has taken a
parcel of land in Weston for State highway purposes, title to which was
in the Massachusetts Turnpike Authority.
It has been explained to us that the parcel in question is part of a larger
parcel between Route 128 and the end of the Turnpike acquired by the
Turnpike Authority for future Turnpike purposes. The parcel borders in
part upon Route 128 and in part upon Riverside Road, a pubhc way in
Weston.
Your letter also stated, "The Massachusetts Turnpike Authority m a
subsequent Order of Taking #118, dated December 7, 1955, laid out a
Limited Access line, with exceptions, circumscribing the previously ac-
quired tract thereby restricting access thereto or therefrom to any public
way other than the Toll Road itself."
You request my opinion on the following questions:
"(1) Is it your opinion that the Massachusetts Turnpike Authority
would have the right to make an alteration that would create access to
Riverside Road and allow the Authority to sell any portion of its land not
required for highway purposes?
"(2) If the Alassachusetts Turnpike Authority has the right to make the
above changes, which of the following conditions should be considered in
the appraisals?
"(a) Value only to the Massachusetts Turnpike Authority (No access
to a public way).
''(b) The possibility of the Massachusetts Turnpike Authority to exer-
cise their rights and create access to this public w^ay thus creating salable
property."
The statute establishing the Turnpike Authority and authorizing it to
lay out and construct the Turnpike as a toll express highway, St. 1952,
c. 354, contains the following provisions:
"SECTION 5
"The Authority is hereby authorized and empowered
"(1) To designate the locations, and establish, limit and control such
points of ingress to and egress from the turnpike as may be necessary or
desirable in the judgment of the Authority to insure the proper operation
and maintenance of the turnpike, and to prohibit entrance to the turnpike
from any point or points not so designated. . . ."
"SECTION 7
"The Authority may sell the buildings or other structures upon any lands
taken by it, or may remove the same, and shall sell, if a sale be practicable,
or if not, shall lease, if a lease be practicable, any lands or rights or interest
in lands or other property taken or purchased for the purposes of this act,
whenever the same shall, in the opinion of the Authority, cease to be
needed for such purpose. The proceeds of any such sale or lease shall be
applied toward the cost of the turnpike or deposited to the credit of the
148 P.D. 12.
sinking fund for the turnpike revenue bonds issued under the provisions
of this act. ..."
In answer to your first question I advise you that under the provisions
just quoted the Authority had the power to change the hne of hmited
access between the Turnpike and Riverside Road at any time, and to
relocate the hne of access so as to permit access to the parcel in question
from Riverside Road, and egress therefrom to said way, and the Authority
also had the power to sell that parcel if in its opinion the land should cease
to be needed for the purposes of the act.
In answer to your second question, I advise you, therefore, that in
making appraisals of the parcel taken from the Turnpike Authority con-
sideration must be given to the possibility of the Authority exercising its
powers so as to provide access to and from the parcel and Riverside Road.
It is to be noted that the limitation of access to the parcel imposed by
the Authority was imposed by the Authority for its own benefit, and that
the limitation of access applied only to the public and did not prevent
access to and from Riverside Road and the land by the Authority or
persons having its permission.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The fee for filing a certificate of a change in corporate capitalization resulting
from eliminating one class of stock and increasing another class is to be
computed on the net amount of increase in capital.
Feb. 12, 1962.
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Sir: — In your letter of recent date, relative to the correct fee
for the filing of certain corporation papers, you state that $25 was paid and
accepted as the filing fee, the understanding being that an additional fee
of S355 would be paid if that amount were found to be properly due under
the circumstances.
It appears that the certificate filed called for the reduction and increase
of capital stock. The certificate reflects a single resolution to that effect
voted by the stockholders at a meeting on December 26, 1961. The resolu-
tion in effect eliminated 6,817 shares of Convertible Preferred Stock, par
value $100, from the authorized capital stock of the corporation (a reduc-
tion of capital of $681,700) and at the same time authorized 710,000
additional shares of Common Stock, par value $1 (an increase of capital
of $710,000).
It would seem that the whole resolution taken together results in a net
increase in capital of $28,300. The minimum fee of $25, in accordance with
the provisions of G. L. c. 156, § 54, was paid to you.
You now request my opinion as to whether a further fee of $355 is pay-
able for the full amount of the newly authorized stock.
In the case of a combined decrease and increase of capital, it was ruled
by this office in an opinion dated August 3, 1945, that the corporation need
not pay a fee on the entire amount of the increase but only on the 7iet
increase with a credit for the full amount of the reduction. Attorney
General's Report, 1946, p. 30. In a situation quite similar to the one
before you, Attorney General Barnes said that:
P.D. 12. 149
"In my opinion, the Legislature intended that a corporation should pay
a fee for filing a certificate providing for the net increase in capital stock."
See also Commonwealth vs. United States Worsted Co., 220 JXIass. 183.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
An application for examination for registration as an embalmer or funeral
director may be accepted from a person who is under twenty-one years
of age.
Feb. 21, 1962.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Madam : — In your letter of recent date, relative to the Board of
Registration in Embalming and Funeral Directing, you pose the following
question :
"Under G. L. c. 112, § 83, has the Board the authority to accept for
exaynination for registration as Embalmer or Funeral Director, a candidate
who has not as yet reached his twenty-first birthday."
General Laws c. 112, § 83, provides that applications for registration as
embalmers, funeral directors or apprentice embalmers, and for establish-
ment certificates, shall be made on blanks furnished by the board. The
statute contains no age limitation for the filing of the application. It does,
however, provide that :
"No person shall be registered by the board as an embalmer unless he
has been found by the board upon examination to be twenty-one years of age
or over, a resident of this Commonwealth, a citizen of the LTnited States,
of good moral character; ..." (Emphasis supplied.)
Section 83 contains many other requirements for registration and
certification.
Section 83 further provides that:
"No person shall be registered by the board as a funeral director unless
he has been found by the Board upon examination to be twenty-one years of
age or over, a resident of this Commonwealth, a citizen of the United States,
of good moral character. ..." (Emphasis supplied.)
Many additional requirements are contained in § 83 relative to appli-
cants for registration as funeral directors.
Section 83 also provides, as to both embalmers and funeral directors,
that upon payment of ten dollars an applicant for registration as an
embalmer or funeral director shall be examined by the board and, if found
to be qualified, shall be registered by the board and receive a certificate
thereof signed by the chairman and the secretary of the board.
While the question you pose may not be free from doubt, reading the
statute as it is written, among the other numerous qualifications for
150 P.D. 12.
examination § 83 requires onl}'' that the applicant has been found by the
board upon examination to be 21 years of age or over. There may be
reasons why an applicant should be 21 years of age at the time of filing his
apphcation. Nevertheless, there is no such requirement apparent in this
lation.
Accordingly, I answer your question in the affirmative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Board of Registration of Certified Public Accountants cannot provide by
rule for reciprocity certificates for non-residents.
March 1, 1962.
Mrs. Helen C. Sullivan, Director of Registration.
Dear JMadam : — Your letter of recent date relates to the Board of
Certified Accountants and its jurisdiction over non-residents.
In 3^our letter, referring to reciprocity certificates, you state that the
board grants reciprocity certificates to certified public accountants in other
States who become residents of Massachusetts and practice in this State
for at least one year immediately preceding the filing of their applications,
as noted in the enclosed copy of its rules on reciprocity. In the light of
that fact, it poses the following question :
"Since this is a rule of the board rather than part of the law, may we
grant reciprocity certificates to non-residents of Massachusetts who have
clients in this State?"
The Board of Registration of Certified Public Accountants, as you are
doubtless aware, is constituted under the provisions of G. L. c. 13, §§ 33-35,
inclusive. Its powers and functions are set forth in §§ 87A-87E, inclusive,
of G. L. c. 112.
By the provisions of § 87A, the Board of Registration of Certified Public
Accountants is provided with the power to "make such rules and regula-
tions as are necessary for the proper conduct of its duties." Section 87B
provides that "The Board shall examine any citizen of the United States
resident in the Commonwealth . . . who may apply for a certificate ..."
(Emphasis supplied.) It is, generally speaking, a well-established rule of
statutory construction that the power to make rules and regulations is
to be construed as power to make regulations implementing the juris-
dictional functions of the rule-making body but not increasing the juris-
diction of that body. As observed in § 87B, the right of the board to
examine is limited to "anj^ citizen of the United States resident in the
Commonwealth.'' (Emphasis supplied.) In dealing with the subject of
reciprocity, it may be noted in passing that there is a complete absence of
any provision in the section to which I have referred dealing with the
registration of certified public accountants, or of anj^ reference to reciprocal
activities between the board and similar boards in other States. I cannot
assume that such omission was by inadvertence. Such an assumption is
P.D. 12. 151
not to be implied, particularly in view of the fact that the statutes relative
to many of the boards under the jurisdiction of the Division of Registration
contain careful, detailed provisions authorizing reciprocal activities.
Without going into the matter in too great detail, it may be noted that
§ 2 of c. 112 authorizes the Board of Registration of Physicians and Sur-
geons to grant certificates of registration as qualified physicians to phy-
sicians who have been licensed or registered upon written examination in
another State. Section 16 of c. 112 authorizes the registration or licensing
of chiropodists who have been examined in other States, under the circum-
stances therein set forth. Section 23 D provides, under the circumstances
therein set forth, for the registration of physical therapists who have been
registered under the laws of other States. Section 24 authorizes the grant-
ing of certificates of registration to pharmacists who have been registered
by examination in other States. Section 48 provides for the registration of
dentists from other States, under the circumstances therein set forth.
Section 68 provides for the registration of optometrists from other States.
Section 73E authorizes local licensing of opticians licensed or registered in
another State. Section 76 authorizes local registration or licensing of out-
of-State nurses.
Section 8 IB authorizes the approval of schools for nurses or practical
nurses in other States. Section 810 provides for the issuance of certificates
of registration for professional engineers of other States. Section 85A
deals with the subject of reciprocal agreements with licensing authorities
of other States to allow conduct of funerals therein. Section 87Z of c. 112
provides specifically for reciprocal registration. Section 87NN authorizes
the issuance of certificates of registration without examination to persons
holding certificates of registration or licenses as sanitarians under the laws
of another State. Section 87WW provides for reciprocal licensing of non-
resident real estate brokers and salesmen. Section 87000 provides for
reciprocal licensure of persons practicing electrolysis.
In view of the foregoing, the omission of any reciprocal licensing pro-
visions of §§ 87A-87E, inclusive, becomes most significant. Therefore,
I am constrained to answer your question in the negative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The town of legal residence of a physically handicapped child and not the
regional school district of which it is a 7nemher is liable for the cost of
furnishing instruction to the child while in a h ospitalin another municipality.
March 1, 1962.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir : — You have recently requested an opinion regarding the
proper allocation of tuition cost for a handicapped child residing in the
town of Wrentham, which is a member of a regional school district. You
pose the question as follows:
"Wrentham students, grades 7-12, attend the Kmg Philip Regional
High School which is located in Wrentham. This Regional High School
152 P.D. 12.
also serves the towns of Plainville and Norfolk. If a Wrentham student
attending the King Phihp Regional High School becomes a patient at the
Children's Medical Center, under the category of physically handicapped,
is the town of Wrentham liable for the tuition cost or is the Regional School
District liable?"
You further state that the regional school agreement has no provision
relating to this matter and that the child involved is a student of the
regional school.
General Laws, c. 71, § 46x\, in its pertinent parts provides:
". . . In any town where there is a child of school age resident therein
... so physically handicapped as to make attendance at a public school
not feasible . . . the school committee shall . . . with the approval in
each case of the departments of education and public health, offer instruc-
tion to each such child in his home or at such place and under such con-
ditions as the committee may arrange. . . .
"If a town furnishing instruction under this section to a child confined in
a hospital . . . located therein is not the legal residence of the parent or
guardian of such child, the town where the parent or guardian has a legal
residence shall pay tuition to the town furnishing such instruction. ..."
General Laws, c. 69, § 29B, provides as follows:
"One-half of the cost of the expenses of the instruction, training and sup-
port of the children in the special classes . . . provided under section forty-
six, forty-six A or forty-six H of chapter seventy-one . . . actually rendered
or furnished, mcluding theii' necessary traveling expenses, whether daily or
otherwise, but not exceeding ordinary and reasonable compensation there-
for, shall be reimbursed to the towns or any regional school district by the
Commonwealth upon approval of the department and certification by it that
such classes . . . "meet the standards and requirements prescribed by it."
It would appear from your letter that the Wrentham child while at the
Children's Medical Center in Boston has been provided with instruction by
the city of Boston and the question now is whether the town of Wrentham
or the regional school district, of which Wrentham is a member, is liable
to reimburse Boston under the provisions of c. 71, § 46A.
First, it would seem to me that your department is not involved in this
problem: § 29B of c. 69, requires you to "reimburse" either the town or the
regional school district so that your obligation does not arise until one or
the other has actually made the payment under c. 71, § 46A, and then the
fact of payment will determine whom you reimburse. In other words,
this is a matter between the town and the regional school district for their
determination.
Plowever, in my opmion, the providing of special instruction at a hospital
outside of the regional district is not the sort of matter that the regional
school district plan is primarily designed to handle. Unless the regional
school district agreement specifically places the liability for this type of
expense on the district, I would be inclined to think that the town, in this
case Wrentham, would retain the liability in accordance with the literal
wording of § 46A of c. 71.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. 153
One whose service with the Commonivealth is uninterrupted is entitled upon
return to a position subject to the vacation rules to the vacation credits
he had at the time of accepting an appointment to a position not subject
to the rules.
March 1, 1962.
Hon. Charles Gibbons, Commissioner of Administration and Finance.
Dear Sir : — You have requested an opinion with reference to the
vacation credits to wliich a State employee will be entitled who held an
office subject to the rules and regulations under G. L. c. 28, § 7, governing
vacation allowances of State employees, who was appointed by the Gover-
nor to an office exempted from those rules, and who now is to return to
his former position.
Your inquiry is as to the effect of the rules under G. L. c. 28, § 7, on the
vacation credits to which the person referred to had a right on the date of
his appointment to the exempt position, but which, because of his appomt-
ment, could not be granted to him while he held the position.
It appears that there is a Rule L^^-5 which you paraphrase in your letter
as stating that, "Vacation credits which are unused after a period of two
years are cancelled. ..." However, the rule referred to does not contain
any such direct wording. The rule states, so far as material, that, "The
department head is charged with the responsibility of seeing that vacation
is taken in the succeeding year in order that the employee may not lose
vacation credits. ..." If the rule is to be applied as you state, in a
situation where a department head neglected or refused to grant an em-
ployee the vacation to which he was entitled before the expiration of the
time referred to, since an employee could not take vacation leave without
the consent of the department head, the effect would be to penalize an
innocent employee for the default of his department head. Even the possi-
bility of such a construction of the rule indicates a necessity for amendment
and clarification of the rules.
It is clear that in the situation you describe in your letter, once the
employee in question began service in the position exempted from the
rules, since, although continuing in the service of the Commonwealth he
was serving in an office which is exempted from the rules, he could not,
while the service in the exempt position continued, have been granted any
such vacation allowances as are contemplated by the applicable statute
and the rules thereunder. In such a situation where the person after his
service in the exempt position is to return to a position subject to the
vacation rules it would be eminently fair that he should be entitled on his
return to the accrued vacation credits he Vv^as entitled .to at the time he
began service in the exempt position, and to such additional credits as he
might earn for service in the vacation year in which he returns to the
covered position. Further, he should not lose any vacation credits earned
by him until the expiration of the vacation year in vvhich he returnsto the
exempt position, and arrangements should be made for a paid vacation for
him at his then current salary in due season to prevent any loss of vacation
credits to him.
Vacation Rule LV-20, provides that "A person whose employment by
the Commonwealth is uninterrupted shall retain all accrued vacation
credits."
As you state in your letter to me, "There is no question that . . . [the
154 P.D. 12.
employment of the person as to whom you inquire] . . . was unbroken
when he . . . [began service in the exempt position] . . . and that as far
as service is concerned it could be said that he has been continuously em-
ployed. . . ." He would, therefore, under the provisions of LV-20, quoted
above, retain all his accrued vacation credits, unless he can be said to
have lost them because of the indirect language of Rule LV-5, quoted
above. Since, however, as has been stated, it would have been impossible
for the person in question to have been granted any vacation credits while
he held the exempt position, forfeiting his accrued rights in the situation
would be most unfair, and in my opinion the provisions of LV-20 are to be
construed as entitling one whose service with the Commonwealth is unin-
terrupted to retain, upon his return to a position subject to the vacation
rules, the vacation credits he had earned and which had accrued to him
and which he had not been granted at the time he left a position subject to
the vacation rules and began service in an exempt position.
I would suggest, as I have alread}^ done as to the provisions of Rule LV-5,
that the provisions of LV-20 also be amended and clarified to expressly
negative any implication that employees are to lose vacation credits earned
by them and to which they are justly entitled, because department heads
refuse to, or cannot legally, grant them within any particular period.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The Department of Public Works should obtain clarifying legislation before
engaging in a rental program of real estate acquired for State highway
purposes during the period after the taking and until the property is
needed for construction.
March 6, 1962.
Hon. Jack P. Ricciardi, Conwiissioner of Public Works.
Dear Sir: — You have recently requested an opinion as to whether
j^our department can collect rents from the occupants of property taken
by eminent domain under c. 79 or purchased under the provisions of the
several bond issues for highway purposes. Specifically you have asked
whether under the existing statutes your department can :
"1. Collect rent from the former owners of the property for the period
of their occupancy after the department obtains title.
"2. Collect rent from present tenants and lessees for the same period.
"3. In case of vacant property, rent or lease to parties who were not
occupants or lessees at the time of the taking.
"4. Rent or lease vacant land until needed for construction."
General Laws, c. 79, § 3, specifies the method by which property is
acquired by eminent domain and in its pertinent parts now reads as follows:
"... Upon the recording of an order of taking under this section, title
to the fee of the property taken . . . shall vest in the body politic . . .
on behalf of which the taking was made; and the right to damages for such
taking shall thereupon vest in the persons entitled thereto . . . ; provided,
however, that when a taking is made for the purpose of a highway . . . ,
P.D. 12. 155
title to the fee of the property taken . . . shall not vest in the body politic
. . . nor shall the right to damages vest until such way . . . has been
entered upon or possession thereof has been taken for the purpose of con-
structing the same, and if such entry is not made or possession taken within
two years of the date of the order, the taking shall be void; . . ."
It is to be noted that where a taking is for highway purposes the title
does not vest in the body politic until there has been an entry or possession
taken "for the purposes of constructing the same." Prior to 1959 this
section of c. 79 provided that the right to damages did not vest until entry
was made but the title was vested in the taking authority from the date
the order was recorded, apparently subject to being divested if no entry
was made in two years. Acts of 1959, c. 626, amended the section to read
as set forth above.
It can well be said that the present statute does not contemplate rental
or use and occupation charges of property taken for highway purposes
prior to construction of the highway. The statute requu'es that the taking
be recorded no earlier than two years from the entr}^, and the entry must
be made for construction; until entry the title is not in the body politic
and thus there would be no legal basis for it to charge the occupants rent
or use and occupation and an entry made for the purpose of obtaining
rental income and not for construction would be illegal. The Accelerated
Highway Program under St. 1956, c. 718, as am_ended by St. 1958, c. 32,
and supplemented by St. 1960, c. 528, does not contain any provisions
which affect this argument. Acts of 1956, c. 718, § 6, reads in its pertinent
parts as follows:
"The department . . . may . . . take by eminent domain under
chapter seventy-nine of the General Laws, or acquire by purchase or other-
wise, such public or private lands, including buildings thereon ... as it
maj' deem necessary for carrying out the provisions of this act. . . . No
person shall be required to vacate such premises or portion thereof taken
by eminent domain under the provisions of this section as used by him as
a dwelling place or place of business at the time an order of taking has been
made until the expiration of at least four months after date of said order
of taking."
The above section merely provides that no eviction shall take place for
four months after the order of taki7ig. Chapter 79, § 3, contemplates that
the order of taking may be made up to two years before construction is to
start, and until entry is made or possession taken "for the purpose of
constructing (the highway)" title remains in the owner. Indeed, the specific
provision that no person is required to vacate for four months, without
reference to charges, is basis for an even stronger argument that for at
least that period no rent can be charged under any circumstances.
General Laws, c. 81, § 7E, as most recently amended in 1957, gives to
the department certain limited rights to lease or rent property taken by it
but sets up conditions which preclude rental charges immediately after the
taking. If the taking is made for the purposes of § 7C of that chapter
(limited access highways) the lease or rental can be made only after the
land has been paid for, and in any event the rental or lease can be made
onl}^ after the property "is no lo7iger necessary for highway purposes"; in
either case, the consent of the Governor and Council is required. It can
well be argued that this specific reference to rental rights excludes the
156 P.D. 12.
right to charge rentals in any situation which does not fall precisely within
this section. '^Exprcssio unius est exclusio aUerms."
On the other hand, if the aforementioned arguments are rejected, it
may be said that upon a taking and entry the title vests in the Common-
wealth and there is no constitutional or other bar to the Commonwealth
making a charge, whether for rent or use and occupation, for the use of
the property until it is actually needed for commencement of construction
on that part of the highway. Such rental would be only incidental to the
public purpose of the taking, namely, highway construction. Papadinis v.
SomcrviUe, 331 j\Iass. 627, 631, 632. Such an argument, however, leaves
almost as many problems as it solves. It does not affect the proposition
that St. 1956, c. 718, § 6, quoted above, probably prohibits the charging
of rent or use and occupation for the first four months. After the four-
month period the question becomes: shall the occupant be treated as a
tenant at sufferance or a tenant at will?
In so far as the owners or occupants at the time of the taking are con-
cerned, the taking itself creates a tenancy at sufferance. The department
is faced with the choice of continuing or terminating the tenancy created.
Whether the occupant is a tenant at sufferance or a tenant at will depends
in a large sense upon the agreement, express or implied, of the parties or
the conduct of the parties. See Benton v. Williams, 202 Mass. 189, and
Leavitt v. Maykel, 210 Mass. 55. The distinction between the two tenancies
is important as the obligations to a tenant at will far exceed those to a
tenant at sufferance.
"A tenant at sufferance has no estate nor title, but only a naked pos-
session, without right and wrongfully, stands in no privity, to the landlord,
at common law is not liable for rent, is not entitled to notice to quit, and
has no action against his landlord or other person entitled to possession,
if himself, his family and goods are ejected without unnecessary force. He
differs from a trespasser or disseisor only in that his entry upon the premises
is not unlawful. . . . He may leave at any time without notice or liability.
No contractual relation (apart from statute) arises out of a possession of
such a character."
Benton v. Williams, 202 Mass. 189, 192.
"A tenant at sufferance is a bare licensee to whom the landlord owes
merely the duty not wantonly nor wilfully to injure him."
Margosian v. Markarian, 288 Mass. 197, 199.
General Laws, c. 186, § 3, makes a tenant at sufferance liable for his use
and occupancy.
However, once the owner and the tenant at sufferance enter into an
agreement to pay a specified rent for a specified period the courts are in-
clined to hold that a tenancy at will is created. In Porter v. Hubbard, 134
INIass. 233, at 238, the court held that while a tenancy at sufferance can be
converted into a tenancy at will only by contract, such a contract may be
inferred from circumstances as well as expressed by formal agreement.
Without going into details as to the duty owed to a tenant at will, it is
sufficient to say that the condemnor will be exposed to liability not contem-
plated by acts authorizing the takings. Renting can be said to be a com-
mercial venture and immunity of the condemnor may not apply. For
example, in St. 1956, c. 718, nowhere is found authorization to rent or
authority to pay any judgment rendered tort liability, etc., as a result of
renting or leasing the premises taken. In this regard it should be noted that
a landlord owes to a tenant at will and those claiming under him a dut}^ to
P.D. 12. 157
keep common stairways, passages, and areas in the same state of repair as
they were at the beginning of the tenancy.
If the former owner becomes a tenant at will and the premises are used
for dwelling purposes, then there is an additional problem. A court may
well decree that since a tenancy at will was created, the condemnor may
not avail itself of c. 79, § 3, to evict the tenant but that c. 239, summary
process, so-called, is applicable. In this event the judge can grant the
tenants a stay of nine months.
There is the additional problem of local tax assessment. Chapter 59,
§ 3A, applies to public real estate used for non-public purposes and directs
that real estate taxes be assessed against the lessee or occupants in pos-
session. In the recent case of Atlantic Refining Company v. Assessors of
Newton, 342 Mass. 200, where the Atlantic Refining Company leased
property from the Commonwealth and operated a restaurant and gas
station (a Route 128 taking) thereon, the court held this section applied
and Atlantic Refining Company was compelled to pay a real estate tax.
In Atlantic Refining Conipany v. Commonwealth, 339 Mass. 12, the Atlantic
Refining Company recovered from the Commonwealth real estate taxes
paid by it on parcels acquired by the Commonwealth in the construction
of a limited access way.
It should also be noted that in a petition for assessment of damages,
there cannot be set off against the petitioner's claim a counterclaim by
the taking authority for the value of the possession and control of the
premises after the taking. In Pegler v. Hyde Park, 176 Mass. 101, at 102,
the court said: "The judge rightly ruled that the respondent coulcl not set
off against the petitioner's claim for damages the value of his occupation
of the property for a time after the taking." See also Edmands v. Boston,
108 Mass. 535; Old Colony Railroads v. Miller, 125 ]Mass. 1; Inibesheid v.
Old Colony Railroad, 171 Mass. 209. Rental or use and occupation income
derived from properties by your department would of course have to be
paid into the general fund of the Commonwealth in accordance with § 1
of Art. 63 of the Constitution and G. L. c. 29, § 2.
In conclusion, it seems to me that in view of the serious doubts that the
Legislature ever contemplated that your department should engage in a
rental program and in view of the myriad of other problems which will
arise should you do so as an "incidental" activity, it would be wise to
obtain clarifying legislation before any of the activities described in j^our
four questions were undertaken.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
A person retired from, the public service is entitled to he paid the compensation
fixed by statute for a day's service in an office to which he is appointed
by the Governor if he waives his pension or retirement allowance for the
day.
March 7, 1962.
Mr. Antonio England, Director, Division of Employment Security.
Dear Sir : — You have recently requested an opinion regarding the
correctness of payments for attendance at meetings of the Advisory Council
of your division to Mrs. Susanne P. Shallna. You state that Mrs. Shallna
158 P.D. 12.
retired, presumably from State employment, on July 10, 1959, and subse-
quently on December 7, 1961, was confirmed as an appointee to the
Advisory Council.
General Laws c. 23, § 9N, relating to the Advisory Council, reads as
follows in its pertinent parts:
"There shall be in the division (of employment security) ... a state
advisory council of six members ... to be appointed by the governor,
with tlie advice and consent of the council. . . . Each of the members of
the council shall receive the sum of twenty-five dollars as compensation for
each day's attendance at meetings of the council; provided, that the total
amount paid hereunder to any such member shall not exceed fifteen
hundred dollars in any period of twelve months. The council shall meet
at least once a month, but not more than sixty times a year."
The aforesaid section also provides that the terms of the appointments
shall be for six years.
General Laws, c. 32, § 91, relates to payment by the Commonwealth to
persons receiving State pensions and in its pertinent parts reads as follows :
"No person while receiving a pension or retirement allowance from the
Commonwealth . . . shall, after the date of his retirement be paid for any
service rendered to the Commonwealth. . . . Notwithstanding the fore-
going provision of this section ... a person who, while receiving such a
pension or retirement allowance, is appointed for a term of years to a
position by the governor with or without the advice and consent of the
council . . . shall be paid the compensation attached to the position to
which he is appointed or elected; provided, that he files with the treasurer
of the governmental unit paying such pension or allowance, a written state-
ment wherein he waives and renounces for himself, his heirs and his legal
representatives, his right to receive the same for the period during which
such compensation is payable."
The above-quoted portion of G. L. c. 32, § 91, makes it quite clear that
a person receiving a pension from the State may be paid compensation for
a position to which he was appointed by the Governor only if he waives
his right to receive his pension "for the period during which such compen-
sation is payable."
The basic question at issue thus seems to be whether Mrs. Shallna must
waive her pension rights for the full term of her appointment to the Ad-
visory Council in order to collect compensation for the days she serves on
the Council.
I find it quite significant that the Legislature has used the phrase "for
the period during which such compensation is payable" in § 91 rather than
a phrase such as "for the term of his appointment" or "so long as he serves
in such position," or the hke. Literally applied to the instant situation of
Mrs. Shallna, since her compensation is on a daily basis, it is my opinion
that she is entitled to collect her full compensation for the days she serves
on the Advisory Council, within the allowable limits of G. L. c. 23, § 9N,
'provided that on each occasion she files a waiver with the treasurer of the
appropriate governmental unit of her pension for the day for which she
is so compensated.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. 159
The Board of Registration of Pharmacists is not required to postpone hoard
action against a pharmacist on trial in court for violations of the harmful
drug laios pending a disposition of the court case.
^Iarch 8, 1962.
Mr. Anthony P. Giuggio, Secretary, Board of Registration in Pharmacy.
Dear Sir: — Your letter of recent date relates to the institution of
proceedings by your board for violations of the harmful drug laws. In it
you request a written opinion relative to clarification of G. L. c. 112, § 27,
"hearing on complaints," and inquire as to whether:
"When a registered pharmacist is on trial in court for violations of the
harmful drug law, is it necessary for the Board of Registration in Pharmacy
to wait for court findings and final disposition of the case by the court
before taking action against such individual. ..."
General Laws c. 112 relates to the registration of certain professions and
occupations. General Laws c. 112, §§ 24 to 36, inclusive, include numerous
statutory provisions relative to the registration of pharmacists. Sections
61 to 65, inclusive, are general provisions relative to the boards of regis-
tration and other boards. Section 61 contains provisions authorizing each
board of registration in the Division of Registration of the Department of
Civil Service and Registration under the circumstances therein set forth
to suspend, revoke or cancel any certificate, registration, license or authority
issued by the board. Section 62 deals with the subject of the conduct of
hearings for persons against whom charges are filed. Section 63 provides
as follows:
"Said board shall not defer action upon an}^ charge before them until the
conviction of the person accused, nor shall the pendency of any charge
before any of said boards act as a continuance or ground for delay in a
criminal action."
Chapter 112, § 27, to which you refer, contains provisions appUcable to
the Board of Registration in Pharmacy and sets forth in some detail the
way and manner in which complaints against pharmacists are initiated,
conducted and disposed of. Among other provisions, it is stated in § 27
that, "Such complaint shall set out the offence alleged and be made within
sixty days after the date of the act complained of, or within skty days after
a conviction by a court of competent jurisdiction." In accordance with
the rules of statutory construction, statutory provisions are to be construed
together as a harmonious whole where it is reasonably possible.
Reading §§63 and 27 together, I answer your question in the negative.
The Board of Registration in Pharmacy is not bound as a matter of law
to postpone its hearings and action until the disposition of court pro-
ceedings against the person complained of. However, it may exercise a
reasonable discretion as to the propriety of proceeding immediately or
awaiting the outcome of the court proceedings.
A word of caution : since the enactment of the State Administrative Pro-
cedure Act (G. L. c. 30A) State boards are urged to proceed with much care
in the initiation, hearing and disposition of charges against those under
160 P.D. 12.
their jurisdiction. Accordingly, in proceeding I recommend that your
board rehgiously comply with the provisions not only of G. L. c. 112, § 27,
but also §§ 61, 62 and 63 and c. 30A, § 13.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Metropolitan District Commission is 7iot required to obtain a license from
the Division of Waterways before cofistructing the dam across the Mystic
River authorized by St. 1957, c. 647.
March 9, 1962.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.
Dear Sir: — You have requested an opinion as to whether your com-
mission is required to obtain a license from the Division of Waterways
prior to proceeding with the construction of the dam across the Mystic
River authorized by St. 1957 c. 647.
Said c. 647 does not contain any provisions specifically requiring that
the commission obtain the approval of, or any license from, the Division
of Waterways.
Section 5 of the act repeals St. 1946, c. 441, and St. 1948, c. 457.
The 1946 statute referred to provided for the preparation of plans for
a dam across the Mystic River by the Emergency Public Works Com-
mission, and for the construction of a dam in accordance with such plans
by the Metropolitan District Commission, the cost thereof to be met from
Federal grants.
The 1948 statute referred to provided for the preparation of plans for a
dam across the Mystic River by the Massachusetts Public Building Com-
mission, and for the construction of a dam in accordance with such plans
bv the Metropolitan District Commission, the cost thereof to be met from
Federal grants. By Item 8602-31 of St. 1948, c. 669, § 2, $5,000 was ap-
propriated, to be expended by the Massachusetts Public Building Com-
mission for the preparation of the plans referred to m St. 1948, c. 457.
Both the 1946 and the 1948 statutes referred to specifically provided
that "Before undertaking any of the work authorized under said section
two and three, the metropolitan district commission shall obtain such
permits and approvals as may be required by law from the United States
war department and the state department of public works." (Emphasis sup-
plied.) See St. 1946, c. 441, § 5; St. 1948, c. 457, § 5.
In an opinion of the Attorney General to the Department of Public
Works, dated May 15, 1925, VII Op. Atty. Gen. 660, holdmg that G. L.
c. 91, § 20, was not applicable to the commission with reference to the
construction by it, under authority of St. 1921, c. 497, of the Cottage Farm
Bridge, the Attorney General in addition to stating various other reasons
for a conclusion that G. L. c. 91, § 20, was there inapplicable to the com-
mission stated, at page 661, "Apart from this, moreover, it seems that
section 20, above quoted, would not be held to apply to the Metropolitan
P.D. 12. 161
District Commission, a public agency, authorized and directed by statute
to do the work in question," citing Attorney General v. City of Cambridge,
119 Mass. 518. Teasdale v. Newell & SnowUng Construction Co., 192
Mass. 440.
The MetropoHtan District Commission has been authorized and directed
by specific legislation to construct the dam in question across the Mystic
River. There is no provision in the authorizing act (St. 1957, c. 647)
requiring the commission to obtain any approval from the State Depart-
ment of Public Works, although a specific provision for such approval was
contained in earlier statutes relating to the construction of the same dam
by the commission, which earlier acts are specifically repealed by the
1957 act.
In these circumstances, it is my opinion that the commission is not re-
quired, before proceeding with the work, to obtain a license from the
Division of Waterways of the State Department of Pubhc Works, in
accordance with G. L. c. 91, § 12A, or any other provision of law.
In your request you refer to and quote St. 1957, c. 647, § 3, which reads
as follows :
"Notwithstanding the provisions of an}'' special or general law to the
contrary, the conmiission, for the purposes of flood control and the regu-
lation of the water level in the ^Mystic and Maiden rivers above said dam,
is hereby authorized to establish and enforce rules and regulations govern-
ing said rivers and the use of the waters thereof and tributary thereto con-
sistent with the powers and duties vested in the commission by said
chapter ninety-two of the General Laws as to the Charles river and the
Charles river basin."
The provisions quoted, while of particular significance in considering the
powers of the commission after the construction of the dam as to licensing
structures in the waters above the dam (see for comparison the opinion of
the Attorney General to the Commissioner of Public Works dated Sep-
tember 10, 1940, Attorney General's Report, 1940, p. 99.), are of lesser
significance in connection with the question j^ou raise, which I have
answered above, but even in this latter connection the provisions quoted
are more consistent wdth my conclusion than the contrary.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The requirement that the Emergency Finance Board approve land takings, and
contracts with the Federal government, by housing authorities under G. L.
c. 121, § 26P{h), places full and final responsibility on the Board.
March 19, 1962.
Emergency Finance Board.
Gentlemen : — You have recently requested an opinion of the scope of
duties and responsibility incumbent upon you as a result of St. 1962, c. 115.
This new act further amends G. L. c. 121, § 26P, by adding a further
proviso at the end of the first sentence of the last paragraph of subsection
(6) of said § 26P, reading as follows :
"and provided, further, that no land shah be taken or acquired under the
provisions of this paragraph and no contract shall be entered into with the
162 P.D. 12.
federal government without first obtaining the approval of the emergency
finance board established under section one of chapter forty-nine of the
acts of nineteen hundred and thirty-three."
It should be noted that in addition to the approval of the Emergency
Finance Board, a housing authority must have the consent of the State
Housing Board and the mayor and the city council or board of selectmen
before it may acquire land and enter into a contract with the appropriate
Federal agency for the purposes set forth in c. 121, § 26P.
The power of approval has been defined Vjy our Supreme Judicial Court
on several occasions. In GaUigan v. Leonard, 204 Mass. 202, at 205 (1910),
in dealing with the requirement of a mayor's approval to certain ordinances,
it was stated :
"The approval or disapproval of measures passed by the city council
implies reflection and study. The collection, classification and investi-
gation of facts may be involved in its intelligent exercise. The consideration
of financial ways and means and the application of sound business judg-
ment to the conflicting demands of private interests and public necessity
may be required. . . .
"The review of measures passed by the city council is a personal trust
reposed in the mayor. ... It demands individual attention and care."
In McLean v. Mayor of Holyoke, 216 Mass. 62 (1913), which concerned
a reciuirement that a city contract have the approval of the mayor, it was
stated :
"This present case does not present a mere ministerial function into the
doing of which no element of sound discretion enters. ... It goes further
and requires the exercise of practical wisdom in the administration of the
affairs of the city. . . . Approval implies direct affirmative sanction."
See also similar definitions in the following cases: Sim'pson v. City of
Marlborough, 236 Mass. 210 (1920); Leroy v. Worcester Street Ry. Co., 287
Mass. 1 (1934); J. S. Rooney, Pet'r., 298 Mass. 430 (1937); Coyne v. Alco-
holic Beverages Control Comm., 312 Mass. 224 (1942); Herman v. Gallagher
Electrical Co., 334 Mass. 652 (1956).
Perhaps the most pertinent decision to the question you pose is Brown v.
Newbwyport, 209 Mass. 259 (1911). It dealt with the validity of a promis-
sory note of the city which was purportedly issued under an ordinance per-
mitting the city to borrow from time to time in anticipation of the taxes of
the current year "with the approval of the Committee on Finance." The
Supreme Judicial Court said at page 266 :
"The finance committee, as its name indicates and the ordinances of the
defendant city provided, was the general legislative guardian of the financial
alTairs of the city. Approval, in this connection, means that the members
of the finance committee, acting upon their official responsibilities and
having in view the public welfare, shall investigate and sanction according
to their own independent judgment, each separate borrowing made under
the order. It implies reflection and sound business discretion as to each
loan proposed. It did not confer a mere ministerial function. ..."
In summation, in my opinion, St. 1962, c. 115, has conferred upon your
board the full and final responsibility for authorizing the execution by a
P.D. 12. 163
housing authority of a land assembly and redevelopment plan or urban
renewal plan. You are obliged to investigate and study the plan and apply
your wisdom and judgment to the matter in all of its aspects, including
financial feasibility, and then to grant or withhold your sanction of the
project.
V^ery truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
The State Board of Retirement can properly postpone action on an application
filed by an employee of the Commonwealth who resigned while under
indictment for alleged offenses connected with his employment.
March 19, 1962.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir: — In your letter of recent date you state that the State Board
of Retirement is in receipt of an application for retirement for reasons of
superannuation by a former employee of the Division of Waterways in the
Department of Public Works. You further state that the application was
filed on December 5, 1961, but does not state the effective date of retire-
ment. You further state that you are aware that the applicant has been
indicted by the Grand Jury on several charges in connection with certain
projects under the supervision of the Division of Waterways. You further
state that you are advised that the applicant submitted a resignation which
has been accepted by the Department of Public Works.
After referring to G. L. c. 32, § 10 (2) and § 15 (3), your board requests
an opinion "as to whether or not the board can approve the application
for the retirement of [the applicant] ..."
I assume from your letter that the appHcant at the time of his resignation
had attained the age of fifty-five years and was a member in good standing
of the State Employees Retirement System.
The law relating to membership in and retirement from the public
retirement systems is largely found in G. L. c. 32. Sections 1 to 32 thereof
apply to the contributory retirement systems whereby the employee
contributes regularly a portion of his compensation towards a retirement
allowance. Generally speaking, with some exceptions, retirement for
superannuation is compulsory at the maximum age for the group to which
the member belongs. Seventy 3/ears is the maximum age for one group,
sixty-five for the other. The sixty-five age group usually consists of mem-
bers whose duties involve hazards, such as firemen and policemen.
Section 5 of c. 32 contains provisions, restrictions and limitations relative
to superannuation retirement. In subdivision (2) , dealing with the amount
of the retirement allowance, is found a chart based largely upon years of
service and amount of contribution. The amount of the contribution by
the employee in turn depends mostly upon the amount of his compensation.
I understand that the applicant at the time of his resignation had been
employed for over a quarter of a century by the Commonwealth. Section 5
provides in subdivision (i)(a) terms and conditions for retirement. It
164 P.D. 12.
provides in part that a member of a retirement system shall "upon his
written application ... be retired for superannuation as of a date which
shall be . . . subsequent to but not more than four months after the filing
of such application." You advise me that there is no effective date of
retirement stated in the application. The date is an integral and important
part of the application. Klapacs v. Contributory Retirement Appeal Board,
340 Mass. 732. However, I assume that the omission may be supplied or
a new application filed as the situation develops.
Section 10 of c. 32 relates to the rights of members of the retirement
systems who have become separated from the public service either volun-
tarily or involuntarily prior to reaching the maximum age for their group.
Subdivision (1) provides that any member who, after having attained age
fifty-five, resigns, or is removed or discharged from his office or position with-
out moral turpitude on his part, shall, upon his written application on a pre-
scribed form filed with the board, receive a superannuation retirement
allowance to become effective as provided in subdivision (3) of § 10. Such
retirement allowance shall be determined and computed in accordance with
the provisions of paragraphs (o) (6) and (c) of subdivision (2) of § 5, and
subject to the limitations set forth in paragraphs (d) and (e), and shall be
based upon the member's age and number of years and full months of
creditable service on the date the retirement allowance becomes effective.
Without at this time attemptmg to construe the provisions of G. L. c. 32,
§ 10, relating to voluntary or involuntary retirement before attainment of
the maximum age and other provisions of law which may apply to the
matter you refer to, it is sufficient in my opinion to refer to G. L. c. 32, § 15,
relating to dereliction of duty by members of retirement systems covered
by c. 32, §§ 1 to 28, inclusive. Section 15 contains three paragraphs pro-
viding, under the circumstances therein set forth, for the forfeiture or
withholding of the retirement allowances.
There appear to be presently pending against the person you refer to
two indictments, one in the Superior Court for the County of Suffolk
against himself and two others reading as follows:
". . . on the first day of January in the year of our Lord one thousand
nine hundred and fiftj^-nine, and on divers other days and times between
that day and the day of the presenting of this indictment, did conspire
together to commit, from time to time and on different occasions as oppor-
tunity therefor should offer and not at times then particularly set and fixed,
the crime of stealing moneys, the property of the Commonwealth of
Massachusetts, a free, sovereign and independent body politic."
and the other indictment in the Superior Court in the County of Barnstable
reading as follows:
"... being an executive officer of the Commonwealth of Massachusetts,
to wit : a resident engineer employed bj^ the Department of PubUc Works,
Division of Waterw^ays, of the Commonwealth of Massachusetts, did cor-
mptly accept a gift or gratuity, under an agreement or with an under-
standing that his opinion or judgment would be given in a particular
manner upon a matter that was then or would be brought before him in
his official capacity."
Naturally, the applicant is presumed to be innocent of the charges made
unless and until he has been found guilty. However, in the light of the
P.D. 12. 165
foregoing, the applicable provisions of law and the unsettled state of
accounts between the applicant and the Commonwealth you may properly
decline at this time to grant the application for retirement unless and until
the applicant has brought himself within the provisions of law governing
the circumstances of this matter.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
Only such ordinances or by-laws imposing requirements as to the installation
of electrical wiring beyond those imposed by the Board of Fire Prevention
Regulations as are not inconsistent with the latter would be valid.
March 21, 1962.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Madam : — In your letter of recent date, relative to the Board of
State Examiners of Electricians, you pose the following questions:
"Can a city enact an ordinance and a town a by-law imposing require-
ments beyond those of the Rules and Regulations of the Board of Fire
Prevention Regulations made in accordance with the provisions of St.
1950, c. 617?"
Your question poses a problem with which this office is not infrequently
confronted. Former Attorney General Paul A. Dever ruled in an opinion
found in Attorney General's Report, 1935, p. 31, that:
"... The long-continued practice of this department and the prece-
dents set by my predecessors in office indicate, what is undoubtedly the
correct rule of law, that it is not . . . the duty of the Attorney General to
attempt to make general interpretations of statutes or of the duties of
officials thereunder, except as such interpretations may be necessary to
guide them in the performance of some immediate duty. ..."
Nevertheless, I feel that it may not be inappropriate to consider the law
relative to the subject matter you refer to. For nearly three-quarters of a
century the General Court, by G. L. c. 166, §§ 30, 31, 32, 33, 34, has
reposed in the hands of the inspectors of wires of the various municipalities
in the Commonwealth, the inspection of the installation and maintenance
of electrical wiring. Section 32 authorizes cities by ordinance and towns
by votes or by by-laws to appoint inspectors of wires. Such inspectors
shall supervise every wire over or under streets or buildings in their city
or town and every wire within a building designed to carry an electric light,
heat or power current. The above sections, except for perfecting amend-
ments, remain intact and are presently the law of the Commonwealth.
Acts of 1950, c. 617, inserted a new § 3L in G. L. c. 143. The new § 3L
authorizes the Board of Fire Prevention Regulations to make and promul-
gate and alter, amend and repeal rules and regulations relative to the instal-
166 P.D. 12.
latioii, repair and maintenance of electrical wiring and electrical fixtures
used for light, heat and power purposes in buildings and structures subject
to the provisions of sections three to sixty, inclusive of c. 143. The fourth
paragraph of § 3L provides that no person shall install for hire any electrical
wiring or fixtures subject to the section without first, or within five days
after commencing the work, giving notice to the inspector of wires ap-
pointed pursuant to the provisions of § 32 of c. 166. Any person failing to
give such notice shall be punished by a fine not exceeding twenty dollars.
Section 2 of c. 617 provides that upon the filing with the State Secretary
of the rules and regulations referred to in § 3L of c. 143, all by-laws of
towns and ordinances of cities relating to the installation, repair and main-
tenance of electrical wiring and electrical fixtures used for light, heat and
power purposes in buildings and structures subject to the provisions of
§§ three to sixty, inclusive, of c. 143 shall be annulled. Regulations have
been deposited by the Board of Fire Prevention Regulations with the
Secretary of State since the enactment of c. 617.
By the provisions of St. 1961, c. 531, the General Court inserted a new
§ 32A in c. 13 of the General Laws creating a Board of Electricians' Appeals.
Acts of 1961, c. 531, also provided for appeals to the Superior Court by
persons aggrieved by any order, requirement or direction of an inspector
of wires and also for an appeal by any such aggrieved person by a decision
or order by the Board of Electricians' Appeals.
From the pattern of the legislation to which I have referred, it would
seem that the General Court in 1950, by the enactment of c. 617, intended
to retain the ultimate control of the inspection and maintenance of electri-
cal fixtures and wiring in the Commonwealth through the rules and regu-
lations of the Board of Fire Prevention Regulations. At the same time,
however, the primary control through the various municipal inspectors of
wires in the cities and towns of the Commonwealth has and still remains
in them by virtue of the provisions of §§30 to 34, inclusive, of c. 166.
Section 32 specifically provides in so many words that the inspector of
wires "shall see that all laws and regulations relative to wires are strictly
enforced. ..." By the same section the municipalities are authorized to
"recover in contract from the owner of any such wire so removed the
expense which it has incurred for the removal thereof."
While the matter may not be fully free from doubt, I am not persuaded
that the General Court has totally and completely deprived all of the
municipalities of the Commonv/ealth from enacting local legislation in aid
of but not interfering in any degree with the laws of the Commonwealth
or any lawful regulations properly made. In the case of CommonwenUh v.
Baronas, 285 Mass. 321, 323, the Supreme Court said that the mere exist-
ence of statutory provisions for some matters within the purview of local
legislation will not render the ordinance or by-law invalid as repugnant to
law. See Brown v. Carlisle, 336 Mass. 147, 150. In this case the Supreme
Court, in holding to be valid a local by-law prohibiting hunting under
certain circumstances, in response to the argument that numerous hunting
laws were in effect in this Commonwealth, said :
"The enumeration of these statutes demonstrates that the State has
not excluded the type of legislation here undertaken by the defendant
tovvii. There is no inconsistency between the statutes and the by-law. . . ."
P.D. 12. 167
In the light of the foregoing, I must respectfully decline to answer the
question propounded categorieall3^ If a given piece of local legislation
interferes with or is inconsistent with the laws of the Commonwealth or
any rules and regulations properly made thereunder, the local legislation
to that extent, in my opinion, would be invalid. On the other hand, local
legislation not inconsistent nor repugnant, but sim.ply aiding in the accom-
plishment of the objectives of the legislation and in complete harmony
therewith may, under given circumstances, be proper and valid.
Very truly yours,
Edward J. McCormack, Jr., Attorneij General,
By Fred W. Fisher,
Assistant Attorney General.
The Board of Registration of Hairdressers may not by rule prohibit the jur-
nishing of free transportation to customers of hairdressing shops.
IVIarch 21, 1962.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Madam : — You have recently requested my opinion on behalf of
the Board of Registration of Hairdressers whether ''as a service to patrons,
can (hairdresser) shops provide free transportation in a private car?"
You enclosed a copy of the rules promulgated by the Board of Registra-
tion of Hairdressers and I note that the following rules by their terms would
prohibit the provision of free transportation :
"Rule 45. All Ucensees under this Act, in advertising, shall not use the
word 'free' or any other word or words or phrases of similar import or of a
character tending to deceive or mislead the pubhc or in the nature of 'bait'
advertising.
"Rule 46. There shall be no offer of any premium or gift in conjunction
with the practice of hairdressing, or the sale of any material which is an
accessory to such practice.
"Rule 51. . . . No person, including shop, school, hairdresser, operator
or manicurist, shall advertise any guarantee, gift promise of a gift or
reward for the purpose of inducing hairdressing or manicuring patronage."
I must, however, call your attention to prior opinions of this office to the
effect that the Board of Registration of Hairdressers is prohibited by
statute (G. L. c. 112, § 87CC) from regulating or fixing compensation or
prices or interfering "in any way with the conduct of the business of hair-
dressing or manicuring except so far as is necessary for the protection of
the public health, safety or morals.^' (Emphasis supplied.) Attorney
General's Report, 1942, pp. 94-95; Attorney General's Report, 1936, p. 63.
I agree with these opinions of my predecessors which have held invalid
rules and regulations similar to 45, 46, and 51.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E, Cooke,
Assistant Attorney General.
168 P.D. 12.
The Department of Public Works could issue a perrnit for the removal of, and
sell, the materials comprising a high ridge within a Slate highway layout,
the terms of the sale to comply with the rules under G. L. c. 7, § 22{12) as
to the disposal of certain property of the Commonwealth.
April 5, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir : — You have requested an opinion in regard to the sale by
your department of the material comprising a high ridge within the State
highway layout on the easterly side of Route 3 in Chelmsford near the
relocated River Meadow Brook to the Lowell Industrial Commission. You
have in your request indicated your willingness to permit the remo\^al of
the ridge and desire to sell the material. The Department of Public Works
under G. L. c. 81, § 21, has authority to issue a permit for the removal of
material from a State highway. The desirability of the issuance of such a
permit is an administrative matter for the determination of the department.
Under G. L. c. 7, § 22(12), the Commission on Administration and Fi-
nance has the authority to make rules and regulations governing the
disposal of obsolete, excess and unsuitable supplies, salvage and waste
material and other property.
Under the newly adopted Uniform Commercial Code, G. L. c. 106,
§ 2-107, subsection (2), the sale of the material involved here could be
defined as a sale of goods. The statute applicable prior to the adoption
of the Uniform Commercial Code was G. L. c. 106, § 65. (See Attorney
General's Report, 1953, p. 40.) Under said § 65, a severance before the
sale, or under the contract, was necessary. Under the present statute
G. L. c. 106, § 2-107, subsection (2), a present sale by severance may be
effected by the parties making an identification of the property to be sold.
This section would not apply if any material harm to the realty would be
caused by the severance. If such severance would harm the realty, inas-
much as the severance is to be made by the buyer, subsection (1) of G. L.
c. 106, § 2-107, would be applicable and thereunder such a transaction is
one that affects land and presents all the problems involving a sale of land,
and legislative authority for the sale would be necessary. (See Attorney
General's Report, 1953, p. 40.)
In conclusion, your department has authorit}^ for the issuance of a permit
to remove the material in question from the State highway under G. L.
c. 81, § 21. That section must be strictly complied with, and all the require-
ments thereof relative to the removal of material must be satisfied. The
terms and conditions of the sale are to be determined in accordance with
the rules and regulations under G. L. c. 7, § 22. As stated above, it must
be remembered that in order to properly effect a sale of goods and not of
land, the severance of the property in question must be done without
material harm to the realty.
Very truly j^ours,
Edward J. McCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
P.D. 12. 169
During the period after the declaration of an emergency hij the Governor and
the taking possession of the lines and facilities of the Metropolitan
Transit Authority because of an interruptio7i of public transportation
by a strike, etc., in violation of an injunction, operation is to be for the
account of the Authority and subject to existing applicable legislation.
April 6, 1962.
Hon. Otis M. Whitney, Metropolitan Transit Authority.
Dear Sir: — In your recent letter you state that you are the person
designated by His Excellency the Governor to take possession of and
operate the lines and facilities of the Metropolitan Transit Authority under
the provision of St. 1962, c. 307. In view of that fact you request my
opinion as to the legal status of the Authority and the duties and obligations
of the Authority under c. 307 and the effect that legislation has upon
St. 1947, c. 544, as amended.
Acts of 1947, c. 544, is entitled, "AN ACT PROVIDING FOR THE
CREATION OF THE METROPOLITAN TRANSIT AUTHORITY
AND THE ACQUISITION AND OPERATION BY IT OF THE EN-
TIRE ASSETS, PROPERTY AND FRANCHISES OF THE BOSTON
ELEVATED RAILWAY COMPANY." Chapter 544 contains twenty-
eight sections covering in detail the appointment of the public trustees and
the operation of the Transit Authority and the facilities and assets thereof.
Chapter 544 has been amended somewhat since its enactment. I do not
consider it necessary under the present circumstances to go into the
amendments in detail. Suffice it for the present to state that the affairs
of the Authority shall be managed by a board of trustees appointed by
the Governor with the advice and consent of the Council.
As is well known, the Metropolitan Transit Authority has continued its
operations in full force down to and including March 31, 1962. On that
date St. 1962, c. 307, was enacted by the General Court and approved by
His Excellency the Governor. This legislation became immediately effective.
It is entitled, "AN ACT GRANTING TO THE GOVERNOR CERTAIN
EMERGENCY POWERS RELATIVE TO THE CONTINUED OPER-
ATION OF THE METROPOLITAN TRANSIT AUTHORITY IN
THE EVENT OF TLIE INTERRUPTION OF PUBLIC TRANSPOR-
TATION IN VIOLATION OF AN INJUNCTION."
Section 1 of c. 307 inserts a new § 19A in c. 544 providing in substance
that notwithstanding any contrary provisions of law whenever there
exists a continued interruption, stoppage, or slowdown of transportation
of passengers on any vehicle of the Authority, or a strike causing the same,
and which is in violation of an injunction, a temporary injunction, a
restraining order, or other order of a court of competent jurisdiction and
which threatens the availability of essential services of transportation to
such an extent as to endanger the health, safety or welfare of the com-
munity, the Governor may declare that an emergency exists. I understand
that such a declaration was made. Section 19A further provides that
during such emergency the Governor may take possession of and operate
in whole or in part the lines and facihties of the Authority in order to safe-
guard the public health, safety and welfare. Such power and authority
may be exercised through any department or agency of the Common-
wealth or through any person or persons as may be designated by the
170 P.D. 12.
Governor. Section 1 goes on to state that "such hnes and facihties shall be
operated for the account of the authority.'' The powers granted to the
Governor shall expire forty-five days after the proclamation that a state
of emergency exists. Section 2 states that c. 307 shall take effect upon its
I am advised that the conditions referred to in the new § 19A came to
pass and as I have said the declaration of emergency was made. It remains
therefore to construe the provisions of c. 307 in the light of St. 1947, c. 544.
It is a rule of statutory construction that different statutes dealing with
the same subject matter shall be construed so far as possible so as to form
a harmonious whole. Speaking generally, c. 544 and legislation amendatory
thereof shall be construed as m full force and effect except in so far as
that may be repugnant to the provisions of c. 307. Chapter 307 contains
no repealer provisions whatever. It expires forty-five days after the proc-
lamation of the state of emergency. We will have to assume then that
after the expiration of the period all applicable permanent legislation then
in force shall continue in full force and vigor.
It is to be noted that under c. 307 the "lines and facilities" of the Au-
thority "shall be operated /or the account of the authority." Language such
as this, in my opinion, does not pass title but provides for an involuntary
agent to assume possession for the continued operation of the Authority
for the benefit of the Authority and subject to other existing applicable
legislation. White v. National Bank, 102 U. S. 658.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
Gifts to the Trustees of the Soldiers' Home are made for the use of a State and
are deductible for Federal income tax -purposes.
April 9, 1962.
Mr. John L. Quigley, Commandant, Soldiers' Home, Chelsea 50, Mass.
Dear Sir : — You have recently inquired whether donations received
by the Soldiers' Home are tax deductible for Federal income tax purposes.
The Trustees of the Soldiers' Home are granted the same power as
trustees of State hospitals, G. L. c. 6, § 41. These powers include the
authority to receive gifts of money and real and personal property "in
trust for the Commonwealth" which have been made for the use of the
hospital, G. L. c. 123, § 127.
Within the limits and on the general conditions therein set forth, the
Internal Revenue Code of the United States provides that gifts made for
the use of a State are deductible from mcome, Internal Revenue Code,
sec. 2522.
In my opinion, therefore, gifts received by the Trustees of the Soldiers'
Home are within the definition of tax deductible gifts contained in the
United States Internal Revenue Code.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. 171
Flying the flag of the United Nations on a public building would not constitute
a violation of G. L. c. 264, § 8, penalizing such display of the flag of a
foreign country.
April 10, 1962.
Mr. Charles J. Kulikowski, Clerk, District Court of Hampshire North-
hampton, Mass.
Dear Sir : — You have requested a construction of the provisions of
G. L. c. 264, § 8.
General Laws, c. 264, § 8, provides that "Whoever displays the flag or
emblem of a foreign country upon the outside of a [pubhc building] shall be
punished by a fine of not more than twenty dollars. ..." (Emphasis
supplied.) Then follows an exception which speaks for itself.
The immediate question you pose is whether the display of the flag of
the United Nations on pubhc buildings is a violation of § 8. In other words,
is the flag of the United Nations the flag of a "foreign country" within the
meaning of § 8? In my opinion it is not. I am unaware of any provision
in our statutes relating specifically to the flying of the flag of the United
Nations. The United Nations is an international organization consisting
of the signatory nations to its charter, included among which is the United
States of America. It came into being with respect to the United States
on October 24, 1945. Its prmcipal objectives are the encouragement of
international peace and the development of friendly relations among
nations.
General Laws c. 6, § 12N, requires the Governor to annually issue a
proclamation calling for the observance of October twenty-fourth as United
Nations Day. Exercises appropriate to such day may be observed in the
schools of the Commonwealth from and including the seventh grade up to
and including the last year of high school.
General Laws c. 40, § 5 (46 A), authorizes appropriations for the proper
observance of United Nations Day to an amount not exceeding $500
annually. By the provisions of U.S.C.A., Title 36, § 175 (c), ". . . No
person shall display the flag of the United Nations or any other national or
international flag equal, above, or in a position of superior prominence or
honor to, or in place of, the flag of the United States at any place within
the United States or any Territory or possession thereof: Provided, That
nothing in this section shall make unla\\rful the contmuance of the practice
heretofore followed of displaying the flag of the United Nations in a posi-
tion of superior prominence or honor, and other national flags in positions
of equal prominence or honor, with that of the flag of the United States at
the headquarters of the United Nations." A violation of § 175 (c) would
not constitute an offense against the laws of the Commonwealth. A viola-
tion of § 8 of c. 264 would constitute an offense against the laws of the
Commonwealth. However, it is clear to me that the flag of the United
Nations is not a flag of a "foreign country" within the meaning of § 8. The
United Nations, as I have said, is an international organization dedicated
to wiping out wars between peoples and the encouragement of peace and
good will by the nations and the peoples thereof.
172 P.D. 12.
To answer j^our question, it is my opinion that the flying of the flag of
the United Nations does not constitute an offense under § 8 to which you
have referred.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
The initial and annual renewal certificates of registration granted to an
owner of a motor boat who was born on February 29th, are to expire on
the last day of February of the initial and each subsequent applicable year.
April 13, 1962.
Mr. Wilton Vaugh, Director, Division of Motorboats.
Dear Sir: — In your letter of recent date you state than an applicant
for registration gives February 29 as his birth date and, after calling my
attention to G. L. c. 90B, inserted by St. 1960, c. 275, especially § 3(j),
j'ou pose the following question :
"Does this mean he can have a registration certificate good for three
years because his next birthday is February 29, 1964? Or, does it mean
that he should be limited to a year after March 1, 1963?"
Section 3(a) of c. 90B provides that, subject to the exceptions listed in
§ 2, the owner of any motorboat priricipally used in the Commonwealth
shall file an application for a number with the director on a form approved
by him. The application shall be signed by the owner of the motorboat,
and shall be forwarded to the director together with a fee of five dollars
for an original certificate of number, or a fee of three dollars for the renewal
of such certificate of number.
Subsection (j) of § 3 provides that :
"An original certificate of number initially awarded pursuant to this
chapter shall be valid for a period endiiig one year from the anniversary of
the date of birth of the applicant next succeeding the issuance of such
certificate. Each renewal shall be valid for a period ending one year from
the date of expiration of such certificate so renewed. A certificate of
number issued to other than an individual shall expire one year from the
date of issuance." (Emphasis supplied.)
It is a rule of statutory construction that if reasonably practicable a
statute is to be interpreted in conjunction with other statutes to the end
that there may be a harmonious and consistent body of law and that
statutes alleged to be inconsistent with each other, in whole or in part,
must be so construed as to give reasonable effect to both. Moreover, it is
the duty of a court to construe the various statutory provisions touching
upon a point in issue with due regard to all of them, so as to give a rational
and workable effect to the whole. School Committee of Gloucester v. Glouces-
ter, 324 Mass. 209, 212.
It is obvious from a reading of the provisions to which I have referred
that the General Court intended to require a certificate of number annually
from the director of the Division of Motorboats for substantially the same
reasons that the issuance of certificates of registration of motor vehicles
is requested annually.
P.D. 12. 173
Subsection (j) provides that the initial certificate of number shall be
valid for a period ending one year from the anniversary of the date of birth
of the applicant next succeeding the issuance of such certificate. It further
provides that each renewal shall be valid for a period ending one year from
the expiration of the certificate so renewed.
In my opinion, the provisions you have referred to require that the
certificates of applicants having birthdays on the last day of the month of
February of any given year should be handled on the same basis, whether
the last day of February comes on February 28 or falls upon February 29
in leap year. To hold that the certificates of number of applicants born on
February 29 should run in each case until the following leap year would
completely frustrate the obvious intent of the General Court. Such a
construction is not to be indulged in unless required and I do not feel that
such a construction is required.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
An application filed with the State Racing Commission by the Nantucket
Agricultural Society, Inc., for a license to conduct a racing ineeting in
connection with an exhibition for extension or encouragement of agricul-
ture held not in proper form.
April 17, 1962.
Lawrence J. Lane, Secretary, State Racing Commission.
Dear Sir: — You have recently requested an opinion as to whether or
not an application for a license to conduct a racing meeting in connection
with an exhibition for extension or encouragement of agriculture filed with
your commission by the Nantucket Agricultural Society, Inc., is in proper
form. With your request you sent me a copy of the application and a
copy of a "Memorandum" attached thereto which reads as follows:
"Since no provision has been made by the Legislature for Fairs that
have operated prior to Chapter 128 A of the General Laws of the Common-
Vs^ealth of Massachusetts inserted by St. 1934, c. 374, as amended, the
Nantucket Agricultural Society, Inc. respectfully contends that G. L. c.
128A is not applicable; that in the "APPLICATION FOR LICENSE
TO HOLD OR CONDUCT A RACING MEETING AT REDUCED
LICENSE FEE PROVIDED FOR IN SECTION 4, CHAPTER 128A
OF THE GENERAL LAWS" questions 19, 21, 22, and 23 are not appli-
cable as no other form of application is made available by the State Racing
Commission for a license to conduct a racing meeting in conjunction with
a Fair."
Questions on the application referred to in the "Memorandum" are as
follows :
"19. Has the applicant been licensed during the past five years to con-
duct racing meetings under the reduced license fee as provided by G. L.
c. 128A, § 4?
174 P.D. 12.
"21. Has the Department of Agriculture of the Commonwealth of
Massachusetts granted money for premiums to the applicant during the
past five years?
"22. Has the applicant paid any amount for premiums above the amount
granted by the Department of Agriculture for premiums during the past
five years?
"23. Has the applicant disbursed amounts of money from the earnings
of the applicant in the interest of agriculture during the past five years?"
The Nantucket Agricultural Society, Inc., answered questions 19 and
21, "No* see attached Memorandum." Questions 19 and 21 refer to the
requirements of § 3 of c. 128A which read as follows:
". . . and provided, further, that on an application for a license to
conduct 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
properly qualified and approved by him. ..."
It should be noted that the application in question was not accompanied
by an approval of the "fair" by the Commissioner of Agriculture. Also you
state in your letter that the applicant has never previously operated a
horse or dog racing meeting although I am aware from previous correspond-
ence regarding the applicant that it operated an agricultural fair from
1928 to 1934.
The "Memorandum" of applicant erroneously assumes that the special
requirements set forth in § 3 of G. L. c. 128A concerning racing m.eetings
in connection with county fairs does not apply to fairs which have operated
prior to the adoption of that chapter. A reading of the applicable portion
of § 3 quoted above discloses that mere operation of a fair is not sufficient
and neither the application, your letter, nor any knowledge of my own
discloses that this applicant ever operated a horse or dog racing meeting
in connection with its fairs, whether under c. 128A or otherwise.
Therefore, it is my opinion that the application for a license to conduct
a racing meeting dated March 29, 1962, filed by the Nantucket Agricul-
tural Society, Inc., is not in proper form in accordance with the provisions
of § 3 of G. L. c. 128A. This opinion is wholly consistent with my opinion
dated April 20, 1961, relating to an application by the same applicant
filed last year.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
P.D. 12. 175
Property rights, and rights to fill, of the City of New Bedford, as to certain
lands in the tide waters of the Acushnet River, under statutory grants to
its predecessors in title, St. 1957, c. 762, establishing the Harbor Develop-
ment Commission of the city of New Bedford, and G. L. c. 91, §§ 1, 2
and 11.
April 23, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — I am in receipt of your recent letter in which you ask
certain questions relative to the adoption by the Division of Waterways of
the Department of Public Works of a proposed "project for which petition
was brought by the City of New Bedford, involving construction of certain
facilities in tidewater."
Your first question asks whether "the City of New Bedford as successor
in title to abutting land owners on the Acushnet River owns to the Harbor
or Channel line of said River with a right to fill said land."
Chapter 18 of the Acts of 1806 authorized "owners of lots of land adjoin-
ing on Acushnet River, m the town of New Bedford, in the county of
Bristol, from Clark's Point, so called, to the head of navigation in said
river, to build and extend wharves below low water mark in said river."
Section 1 authorized "said wharves to extend to the channel of said river;
..." Section 2, however, reserved to the General Court the right "to
make such provisions respecting the navigation of said river ... as they
may think the public interest requires."
In construing said St. 1806, c. 18, the court, in Haskell v. New Bedford,
108 Mass. 208, 216, stated that the riparian owner's "title extended, by
virtue of the St. of 1806, c. 18, to the channel of the river." In Hamlin v.
Pairpoint Manufacturing Co., 141 Mass. 51, 57, the court stated that the
act "... operated as a legislative grant to the owners of lots of an interest
in the soil between their lots and the channel of the river . . . The act
certainly gave them a possessory title for the purpose of building wharves
. . ." And in Hastings v. Grimshaio, 153 Mass. 497, the court referrmg to
the right decided in the Hamlin case to have been granted to the riparian
owner by St. 1806, c. 18, said at page 501, "This was an additional right
of property outside of the former land of each of the riparian proprietors,
created by the statute in favor of those who then owned the lots. It was a
title to the adjacent land, and to the water over it, subject to certain rights
in the public."
That such a grant is an exception to the general rule in Massachusetts
is obvious from the cases. Save for statutes such as the 1806 act, proprietors
of adjoining uplands own only the land between high and low water mark
which does not extend more than 100 rods from the high water mark, and
that ownership is with a reservation of certain rights in the public. Colonial
Ordinance 1641-1647; Commonwealth v. Boston Terminal Co., 185 Mass.
281, 283. Beyond this line of private ownership as established by Colonial
Ordinance, "The waters and the land under them . . . are held by the
State, both as owner of the fee and as the responsitory of sovereign power,
with a perfect right of control in the interest of the public." Michaelson v.
Silver Beach Improvement Assoc, Inc., 1961 A.S. 453, 455. That the sover-
eign can, by way of grant, divest itself of its interest by an act of the
Legislature in lands that are below extreme low water mark is not disputed.
Commonwealth v. Boston Terminal Co., 185 Mass. 281, 283-284. This the
sovereign did by St. 1806, c. 18.
176 P.D. 12.
As a successor in title the City of New Bedford has the rights of those
who were the abutting landowners at the time of the enactment of St. 1806,
c. 18, save as the Legislature may have limited or restricted such owners'
rights at a time subsequent to 1806.
As was stated earlier, § 2 of the act reserved to the General Court the
right "to make such provisions respecting the navigation of said river ..."
In 1848 the Legislature established "lines of the channels of the harbors of
New Bedford . . . beyond which no wharf or pier shall liereafter be
extended into and over the tide-water of the Commonwealth." Chapter 269,
§ 1. That act further states in § 7 that "No wharf, pier, building, or in-
cumbrance of any kind, shall hereafter be extended beyond the said lines,
or either of them, into or over the tide-water in said harbors; nor shall
any wharf or pier, which is now erected on the inner side of either of said
lines, be extended further towards the said line than such wharf or pier
now stands, or than the same might have been lawfully enlarged or ex-
tended before the passing of this act, without leave being first obtained
from the legislature."
That such an act is a valid and constitutional limitation or restriction
of an owner's use of his land has been established in this Commonwealth.
This is particularly so where as here, the act which made the grant, itself
reserves this right. See Commonwealth v. Alger, 61 (7 Cush.) 53, 104.
Before the act of 1848, and by virtue of the Act of 1806, such owners could
"erect, continue and maintain wharves . . . (and provide docks extend-
ing) to the channel of said river . . ."as said channel then eixsted, so long
as no obstruction of navigation resulted thereby. The right conferred by
the 1806 act appears to have included the right to fill. See dictum in
Commonwealth v. Boston Terminal Co., 185 Mass. 281, 284. See also
Fitchburg R.R. Co. v. Boston & Maine R.R., 57 (3 Cush.) 58, 87.
I assume that the extent of the contemplated work lies within both the
channel line as it existed in 1806 and that established in 1848. If it does
not involve a seaward extension of any pier or wharf existing on the
effective date of St. 1848, c. 269, clearly the latter statute and the 1806
statute are suflficient authority for the city of New Bedford to undertake
the project without additional permission of the Legislature. If the con-
templated work does involve such a seaward extension, it would appear
that leave of the Legislature would be necessary. The question then pre-
sents itself as to whether that permission has been granted.
As noted above, it was held in Hastings v. Grimshaw, 153 Mass. 497,
501 (1891), decided long after the effective date of St. 1848, c. 269, that
the right granted to the abutting owners by St. 1806, c. 18, was "... a
title to the adjacent land, and to the water over it, subject to certain rights
in the public." (Emphasis supplied.)
Chapter 762 of the Acts of 1957 which established the Harbor Develop-
ment Commission of the city of New Bedford empowered the commission
in § 2 thereof to make all necessary plans, for the development of the New
Bedford Waterfront in certain areas defined in § 3, which areas, I assume,
encompass the area where the proposed work is to be performed. Said
§ 3 specifically authorizes the commission to use "all tidal waters or other
waterfront properties now oivned by the city of New Bedford." (Ernphasis
supplied.) Section 4 thereof authorizes the "constructing, or securhig the
construction or utilization of, public piers and the necessary utilities in
connection therewith, including the planning, design and development of
P.D. 12 177
sites for warehouses and commercial and industrial establishments, as in
the opinion of the commission may be necessary and desirable for such
purposes."
Inasmuch as said St. 1957, c. 762, authorizes the commission to use all
tidal properties owned by the city, and inasmuch as the city of New Bed-
ford is successor in title to riparian owners whose "title" as stated in the
Hastings case, "extended, by virtue of the St. of 1806, c. 18, to the channel
of the river," it appears that should the contemplated work involve a sea-
ward extension, the 1957 act grants to the city of New Bedford, acting
through its Harbor Development Commission, permission to extend sea-
ward as required by St. 1848, c. 269, § 7.
Since 1866, the Legislature has prescribed a series of enactments estab-
lishing control of its tidelands and tidewaters in a Board of Harbor
Commissioners and providing for supervision and licensing of fill and con-
struction in tidewaters. See St. 1866, c. 149; St. 1869, c. 432; St. 1872,
c. 236; St. 1874, c. 284. Many of these provisions are now incorporated in
G. L. c. 91. The Department of Public Works has succeeded to the powers
and duties of the Board of Harbor Commissioners (G. L. c. 91, §§ 1, 2) and
its functions are administered through its Division of Waterways. By
complying with the requirements of c. 91, the city of New Bedford may
itself undertake projects for filling in their tidelands under their grant of
1806 within the limits imposed by the Act of 1848 and under the permission
granted by the Act of 1957.
Your attention is also directed to c. 91, § 11, authorizing the Department
of Public Works to undertake certain projects described therein on a
contributing basis with local communities. In this regard see the opinion
of the Attorney General to the Division of Waterways, dated May 10, 1961.
Your request refers to a case which you state "involved a location in
Fairhaven." This would not be in point because the 1806 statute specifi-
cally applies to land along the Acushnet River located in New Bedford.
In view of the opinion expressed above in answer to your first question,
it becomes apparent that the two remaining questions which you pro-
pounded are inapplicable, as they refer to problems which would arise if
the city did not have rights to fill under the 1806 Act.
Very truly yours,
Edward J, McCormack, Jr., Attorney General.
In the absence of a statute requiring that full time in office hours be devoted to
the duties of his office the Registrar of Motor Vehicles is subject to the
general rule applicable to public officers that the holding of an office fixes
the right to receive the salary thereof.
April 25, 1962.
Calvin P. Bartlett, Esq., Special Senate Committee to Investigate the
Administration of the Registry of Motor Vehicles.
Dear Sir: — In accordance with a vote of the Special Senate Committee
of which you are the counsel directing you to do so, you have requested
the opinion of the Attorney General as to whether or not the position of
Registrar of Motor Vehicles is a full-time job.
178 P.D. 12.
The position of Registrar of Motor Vehicles is established by G. L. c. 16,
§ 5, and the salary for the position is specifically set in said § 5 at $12,500,
and is not fixed in accordance with the provisions of G. L. c. 30, §§ 45 to
50, inclusive. The provision of G. L. c. 30, § 46 (10), that rates of compen-
sation in the salary schedule contained in said § 46 are for work hours as
provided in G. L. c. 149, § 30A, therefore, has no application to the position
of Registrar.
It is clear that the position of Registrar of Motor Vehicles is a public
office. Attorney General v. Drohan, 169 Mass. 534.
Traditionally, except as specific provision has been made by the Legis-
lature to the contrary, the incumbent of a public office has not been
required to conform to regularly scheduled work hours for public employees.
In Eisenstadt v. County of Suffolk, 331 Mass. 570, 574, our Supreme
Judicial Court stated as to the salary fixed for a public office:
''Such salary is a 'fixed annual or periodical payment for services, de-
pending upon the time and not upon the amount of services rendered . . .
[and is] payable in sickness as well as in health.' Benedict v. United States,
176 U. S. 357, 360. Its payment depends upon the holding of the title to the
office rather than upon the amount of labor performed. . . ." (Emphasis
supplied.)
In recent years the Legislature has inserted in various statutory pro-
visions establishing offices or positions, and specifically fixing the salaries
therefor, requirements relating to the time to be devoted by the incumbent
to the duties of the position. In some instances the requirement is that
"full time," in others that the "whole time in business hours," be devoted
to the duties of the office or position.
General Laws c. 16, establishing the Department of Public Works and
setting up various subdivisions including the Registry of Motor Vehicles
therein, contains, in § 4, a specific provision that the commissioner and
associate commissioners of the department shall devote their whole time
in office hours to the work of the department, and in § 5A, a specific pro-
vision requiring that the director of the Division of Waterways in the
department shall devote his entire time to the work of the division.
Except, however, as a specific provision has been made by the Legis-
lature, the general rule as to the right of a public officer to the salary fixed
for his position is that stated above in the quotation from Eisenstadt v.
County of Suffolk, 331 Mass. 570.
I construe the question on which the committee has asked for an opinion,
i.e. whether the position of Registrar of Motor Vehicles is "a full-time job,"
as meaning is the incumbent to be deemed to be subject to a requirement
that he devote his full time in business hours to the duties of his position?
In view of the general rule referred to above and the fact that G. L. c. 16,
§ 5, establishing the position and fixing its salary contains no provision
excepting the office of Registrar of Motor Vehicles from the general rule,
the answer to the committee's question is that no such requirement is
apphcable.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By James J. Kelleher,
Assistant Attorney General.
P.D. 12. 179
Persons employed by the University of Massachusetts on a part-time or inter-
mittent basis, paid from "03" account funds, ^ who operate state-owned
motor vehicles are "employees" icithin the provisions of G. L x. 13, ^ SB,
relative to the defense of actions arising out of such operation.
May 1, 1962.
Mr. Kenneth W. Johnson, Treasurer, University of Massachusetts.
Dear Sir : — You have recently requested an opinion as to whether
students and others employed by the University on a part-time or inter-
mittent basis and whose wages are paid from funds under subsidiary
account -03 "Services — Non-Employees" are within the definition of
"employee" as used in § 3B of G. L. c. 12.
The pertinent part of said § 3B reads as follows:
"Upon the filing with the attorney general of a written request of any
officer or employee of the Commonwealth or of the metropolitan district
commission that the attorney general defend him against an action for
damages for bodily injuries, including death at any time resulting there-
from, or for damage to property, arising out of the operation of a motor or
other vehicle owned by the Commonwealth, including one under the control
of said commission, wherein such officer or employee consents to be bound
by any decision that the attorney general may make in connection with the
trial or settlement of such action, the attorney general shall, if after
investigation it appears to him that such officer or employee was at the
time the cause of action arose acting within the scope of his official duties
or employment, or was especially assigned by his superior to operate such
motor vehicle and certification of such special assignment is made by his
superior and the head of the department or institution to which state-owned
vehicle is assigned, take over the management and defense of such action.
The attorney general may adjust or settle any such action, at any time
before, during or after trial, if he finds after investigation that the plaintiff
is entitled to damages from such officer or employee, and in such case
there shall be paid from the State treasury for settlement in full of such
action from such appropriation as may be made by the general court for
the purposes of this section such sum, not exceeding ten thousand dollars
on account of injury to or death of one person, and not exceeding five
thousand dollars on account of damage to property, as the attorney
general shall determine to be just and reasonable and as the governor and
council shall approve."
In your letter you state :
"These individuals perform services subject to the will and control of
their supervisor, both as to what shall be done and how it shall be done.
We have the right to discharge such individuals and we furnish any tools
required and a place to work. We consider their wages to te taxable and,
therefore, report their earnings for income tax purposes."
In my opinion, individuals, whether students or otherwise, who are
employed by the University on a part-time or intermittent basis and who
in the course of such employment operate motor vehicles are "employees"
180 P.D. 12.
as such term is used in § 3B of G. L. c. 12 and are entitled to the protection
therein, provided all the other conditions of that section are met in any
given instance.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
The New Bedford Institute of Technology Research Foundation has no
authority to borrow money against a contract with the United States for
a study to he made by the Foundation.
May 1, 1962.
Dr. John E. Foster, President, New Bedford Institute of Technology.
Dear Sir : — Your letter of recent date states that the New Bedford
Institute of Technology Research Foundation is about to enter into a
contract with the United States of America for a study of the Massachusetts
flounder and scallop industry. The contract carries a maximum liability
of $90,000.
You further state that it will be necessary for the Foundation to borrow
to the extent of $20,000 to cover the cost of the first quarter. Inasmuch
as the Foundation is to be reimbursed on a quarterly basis, I understand
that your purpose is to assign or pledge the contract as security for the
loan of $20,000. In the light of these facts you request an opinion as to
the legality of borrowing money against the contract under the legislation,
G. L. c. 74, § 46B, by which the Foundation is established.
Much attention has been given in the Constitution of Massachusetts to
the subject of borrowing by the Commonwealth and pledging the credit of
the sovereign. Article LXII has four sections circumscribing the borrowing
of money. Section 3 of Art. LXII specifically provides in some instances
for a two-thirds vote by yeas and nays for loans. Article LXIII contains
careful restrictions controlling the collection of revenue and appropriations
by the Commonwealth. The underlying purpose, it has been said, of this
amendment relating to the budget is to centralize the financial affairs in
the State treasury and place the supervision and control of the expenditure
of State funds in the Legislature through the medium of a budgetary
system. Baker v. Commonwealth, 312 Mass. 490; Opinion of the Justices,
297 Mass. 577.
Without at this time ruling on the exact status of the Research Founda-
tion of the New Bedford Institute of Technology, it is hard to believe that
the fundamental fiscal policies set forth in the Constitution regulating the
affairs of the sovereign should be lightly set aside and overlooked in the
administration of the financial affairs of the various subordinate entities
carrying on for the Commonwealth its various activities.
In my opinion it would require strong, clear and precise language to
construe the authority granted in G. L. c. 74, § 46B, to include the right to
P.D. 12. 181
borrow and pledge or assign the assets of the funds as collateral for a loan
in the manner contemplated. I find no specific language to that effect. If
the Foundation can borrow and pledge its assets as collateral for a com-
paratively small loan, I see no reason why it may not do the same for a
large loan.
Even in private transactions our court has held that individual trustees
having express power to sell the assets of the trust may not mortgage them.
Sanger v. Farnham, 220 Mass. 34. Nor does a trustee ordinarily have the
power to borrow and pledge as security for a loan. Loring v. Brodie, 134
Mass. 453, 459; Tuttle v. First National Bank of Greenfield, 187 Mass. 533.
The rule established by the above cases will be, I believe, more strictly
applied in the case of loans by public entities.
While I have no doubt that the enterprise you refer to would be a useful
and proper one, in the light of the foregoing I am constrained to answer
your query in the negative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Board of Registration of Real Estate Brokers and Salesrnen may suspend
or revoke a license if the licensee has been convicted of criminal offenses
referred to in G. L. c. 112, § 87 AAA.
May 2, 1962.
Mr. John J. Egan, Executive Secretory, Board of Registration of Real Estate
Brokers and Salesmen.
Dear Sir: — You have recently requested an opinion whether or not
your board can suspend or revoke the license of a licensee who has been
found guilty ''of any criminal action."
In my opinion the answer to your question is set forth with precision in
that paragraph of § 87AAA of G. L. c. 112, which reads as follows:
"The board may also suspend, revoke or refuse to renew any license
when it has found that the licensee has been convicted of a criminal offence
by a court of competent jurisdiction of this or any other State which
demonstrates his lack of good moral character to act as a broker or salesman
as the case may be."
Very truly yours,
Edw^ard J. McCormack, Jr., Attorney General,
B}^ Lawrence E. Cooke,
Assistant Attorney General.
182 P.D. 12.
The Department of Public Utilities may exempt the Metropolitan Transit
Authority as a '^public service corporation" from zoning regulations, as
provided in G. L. c. 40 A, § 10, but may not exempt a trucking company
as such a corporation.
May 7, 1962.
Hon. Roy C. Papalia, Chairman, Department of Public Utilities.
Dear Sir : — In your recent letter you refer to a petition of the Metro-
politan Transit Authority for exemption from the operation of zoning
ordinances or by-laws referred to in G. L. c. 40A, § 10.
You request an opinion upon two questions: (1) Whether the Metro-
politan Transit Authority is a "public service corporation" within the
meaning of § 10 which may have the benefit of an exemption by vote of
the Department of Pubhc Utilities; and (2) whether a "trucking company"
which operates under Department of Public Utilities and Interstate Com-
merce Commission regulations may file a petition for exemption from the
operation of the zoning regulations in the town of Norwood.
I answer question (1) as follows: The Metropolitan Transit Authority
is described in St. 1947, c. 544, § 1, as being "... a body politic and
corporate. ..."
In the very recent decision of the Supreme Judicial Court in the case of
Hansen, et als. v. Commonwealth, 1962 Adv. Sheets, page 637, it is described
as a "public body." The court, referring to the opinion in the case of New
York City Transit Authority v. Loos, 2 Misc. 2d (N. Y.) 733, 738, affirmed
in 3 App. Div. 2d (N. Y.) 740 (without opinion), cited with approval the
following language :
"Whatever may be the case elsewhere, and under other conditions, what-
ever may have been the case in other times, here and now, and for this
city, the operation of the rapid transit facilities is a basic governmental
service indispensable to the conduct of all other governmental as well as
private activities necessary for the public welfare."
I answer in the affii'mative question (1).
I answer question (2) as follows, and in doing so I assume that the
"trucking company" you refer to is a corporation: G. L. c. 40A, § 10,
provides in substance that a building or land to be used by a public service
corporation may be exempted from the operation of a zoning ordinance
or by-law if, upon petition by the corporation, the Department of Public
Utilities shall, after public notice and hearing, decide that the building or
land in question is "reasonably necessary for the convenience or welfare of
the public." The issue involved in this question is whether a "trucking
company" is a "pubhc service corporation" within the purview of c. 40A,
§10.
I assume that the trucking corporation you refer to is a carrier of property
by motor vehicle under the jurisdiction of your department by virtue of
the provisions of G. L. c. 159B. I am not aware that the question you pose
has been adjudicated by our court. In an opinion rendered by my pred-
ecessor, Attorney General's Report, 1956, p. 53, it was ruled that the
owner of a single dump truck who was carrying property for hire for the
P.D. 12. 183
Massachusetts Turnpike Authority was not exempted from the require-
ments of G. L. c. 159B by virtue of the provisions of § 13 thereof. However,
the point resolved in the opinion was that the Massachusetts Turnpike
Authority was not a "pohtical subdivision" and the truck owner working
for it was not, therefore, transporting property for a "pohtical subdivision"
of the Commonwealth and so exempt from the provisions of c. 159B.
In the case of Attorney General v. Haverhill Gas Light Company, 215
Mass. 394, the Supreme Court ruled that a corporation which had been
engaged in the business of manufacturing and selling gas for light and heat
might not sell its physical property without special authority from the
Legislature. In its opinion, the court quoted with approval the following
language in an earlier opinion :
" 'The respondent is a corporation, organized to exercise a public
franchise of importance to the community in which it conducts its business.
It is its duty to exercise this franchise for the benefit of the public, with a
reasonable regard for the rights of individuals who desire to be served, and
without discrimination between them. It cannot relieve itself from this duty
so long as it retains its charter . . . Without legislative authority it cannot
sell its property and franchise to another party, in such a way as to take
away its power to perform its public duties. . . .' " (Emphasis supplied.)
The court further stated that "The Legislature clearly has granted no
consent to the transfer but has prohibited it. ..."
In the case of Town of Wenham v. Department of Public Utilities, 333
Mass. 15, which was a petition by way of appeal under G. L. c. 25, § 5,
from an order of the Department of Public Utilities made under G. L. c.
40A, § 10, exempting from the operation of a zoning by-law of the town a
parcel of land in a residence district for the purpose of a gate house to be
erected by the Haverhill Gas Company, the court, m affirming the decision
of the Department, said :
"There can be no doubt that the Haverhill Gas Company is 'a pubhc
service corporation,' and therefore entitled to petition the department for
exemption from the zoning ordinance under c. 40A, § 10, even if it had no
power of eminent domam and had to buy its land as best it could. It was
in substance held to be a public service company in Attorney General v.
Haverhill Gas Light Co., 215 Mass. 394 . . ."
Your letter does not disclose whether the "trucking company" in question
has in its charter any right of eminent domain. I assume that it does not.
It may be doubtful if trucking companies generally do have the right of
eminent domain. It would seem probable that many owners of trucks
coming within the purview of G. L. c. 159B regulating "carriers of property
by motor vehicle" are not incorporated but simply private mdividuals or
perhaps partnerships. I am unaware of any provision of law requiring the
owners of motor trucks under the jurisdiction of c. 159B to obtam a special
act of the General Court in order to effectuate a sale of their assets.
Section 3C of c. 159B would indicate that if the carrier failed to render
services m accordance with its certificate, a forfeiture of its certificate
might be effected.
A reading of the opinions I have referred to and an examination of the
184 P.D. 12.
provisions of c. 159B relative to carriers of property by motor vehicle, of
which I assume the "trucking company" you refer to is one, lead me to the
conclusion that the "trucking company" while it may well be a common
carrier, is not a "public service corporation" within the purview of G. L.
c. 40A, § 10.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
A rule of the Board of Fire Prevention Regulations requiring parapets around
certain inner courts and skylights is valid.
May 15, 1962.
Mr. Samuel Gronich, Chairman, Board of Fire Prevention Regulations,
Department of Public Safety.
Dear Sir: — You have recently requested an opinion regarding the
validity of Rule 18 of your board's rules and regulations, a copy of which
you enclosed, which are captioned:
"The Commonwealth of Massachusetts
Department of Public Safety
Board of Fire Prevention Regulations
Made in accordance with the provisions of Chapter 148, Section 10, G. L.
(Ter. Ed. as amended)
RULES AND REGULATIONS FOR THE PURPOSE OF REMEDY-
ING ANY CONDITION FOUND TO EXIST IN OR ABOUT ANY
BUILDING OR OTHER PREMISES OR ON ANY SHIP OR VESSEL
IN RESPECT TO FIRES, THE PREVENTION OF FIRE AND
FIRE HAZARDS.
FPR-9
OCTOBER 26, 1960"
You state that recently in a district court a complaint based on Rule 18
of said regulations was dismissed on the grounds that this rule was beyond
the power of your board. Specifically you ask:
"1. Is Rule 18 of FPR-9 in compliance with G. L. c. 148, § 28K?
"2. Should the statutory authority cited be § 10 or § 28 or both?"
According to your letter, the argument which persuaded the district
court to dismiss the complaint was that Rule 18 has nothing to do with fire
prevention; it is a rule to protect fire fighters, and your board has no au-
thority to pass such a regulation.
Rule 18 reads as follows:
"Any inner court not protected by a roof which will support a load of
40 lbs. per square foot shall have a substantial parapet or barrier at least
P.D. 12. 185
30 inches high. A skylight shall be constructed to support 40 lbs. per
square foot or shall have a substantial parapet or barrier at least 30 inches
high."
In my opinion, promulgation of said Rule 18 is within the express powers
granted to your board by G. L. c. 148, § 10 and § 28. Said § 10 reads in
part as follows:
"The board of fire prevention regulations shall make, and from time to
time may alter, amend and repeal, rules and regulations relative to fire
prevention which said board is authorized or required under any provision of
this chapter to adopt or make. , . ." (Emphasis suppHed.)
Section 28 sets forth a requirement that your board issue rules and regu-
lations limited to, among other items —
"K. Requiring proper safeguards to be placed and maintained about or
over roof skylights and about outer or inner courts or shafts at the roof
line."
Obviously, Rule 18 is authorized by the specific provisions of § 28K and
I believe that such provision of safeguards for firefighters may certainly be
described as a fire prevention device.
Thus I would answer your first question in the affirmative.
In regard to your second question, I believe that the caption page of
the rules and regulations in question should refer to § 28 of G. L. c. 148,
as well as § 10, although failure to do so does not affect the validity of the
rules and regulations.
Sutherland, Statutory Construction, Vol. 2, sec. 4903. United States v.
McKnight, 253 F(2) 817 (C.A. N. Y., 1958).
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
A high school driver education teacher paid from public funds is not required
to obtain an instructor's permit from the Registrar of Motor Vehicles.
May 24, 1962.
Mr. Clement A. Riley, Registrar of Motor Vehicles.
Dear Sir: — You have recently requested an opinion as to whether a
high school driver education teacher who is paid from the town treasury
for his work is required to obtain from you an instructor's permit under
§ 32G of G. L. c. 90.
You state that a difference of opinion between you and the Commissioner
18G P.D. 12.
of Education exists on this matter arising out of your interpretation of an
opinion of mine contained in a letter to you dated August 25, 1959.
]\ly opinion of August 25, 1959, held that driving instructors operating
within the University Extension program who charged students for instruc-
tion were required to obtain permits under § 32G of G. L. c. 90. I specifi-
cally declined to render any opinion at that time on the then hypothetical
situation where the student paid the fee to the University Extension and
the instructors were compensated by the Commonwealth.
General Laws, c. 90, § 32G, states: "No person shall engage in the busi-
ness ... of giving instruction for hire in driving motor vehicles without
being licensed for such purpose by the registrar." and "No person shall be
employed by a licensee as a driving instructor, nor shall any person give
instructions for hii'e in the operation of motor vehicles unless such person
is the holder of an operator's license and an instructor's certificate issued
by the registrar." It is obvious, therefore, that the statute is directed to
commercial enterprises. Also, it should be noted that as a general rule the
word "person" in a statute is not construed to include the Commonwealth
or a political subdivision thereof. Hansen v. Commonwealth, 1962 A. S.
637, 642.
Therefore, in my opinion, a high school teacher who as part of his duties
for which he is paid by a city or town gives driving instruction and driver
education courses to the students, is not required to be licensed by you
under § 32G of G. L. c. 90.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By LaW'Rence E. Cooke,
Assistant Attorney General.
The Massachusetts Aeronautics Commission is entitled to be furnished with
suitable offices at the Logan Airport without charge by the Massachusetts
Port Authority.
May 29, 1962.
Mr. Crocker Snow, Director, Massachusetts Aeronautics Commission.
Dear Sir: — You have requested an opinion regarding the effect of the
following provision in G. L. c. 6, § 57 :
"The commission shall be provided with suitable offices at the General
Edward Lawrence Logan Airport and elsewhere withm the Commonwealth
as the commission may determine."
Also you ask whether or not your commission should be charged rent
for such office space as may be provided.
In my opinion, the clear wordmg of the above provision is a direction
to any other State authority, commission, or agency having control over
P.D. 12. 187
the Logan Airport to furnish your commission with office space at that
location. In the case of McQuade v. New York Central R.R., 320 Mass. 35,
our Supreme Judicial Court held that a statute which read "Every railroad
corporation shall provide a uniform hat or cap (for certain employees). . ."
required the railroad to furnish such hat or cap without charge. See also
Ware v. Gay, 11 Pick. 106. Therefore, it is also my opinion that the Legis-
lature did not intend that your commission should be charged rent for the
office space supplied you pursuant to G. L. c. 6, § 57.
Since the Massachusetts Port Authority which now has the possession,
title and control over the Logan Airport is a body politic and a public
instrumentality of the Commonwealth, the direction contained in G. L. c. 6,
§ 57, relative to providing your commission office space at Logan Airport
applies to it. G. L. c. 91, app. sections 1-1, 1-2, 1-5.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
The furnishing by the Massachusetts Rehabilitation Commission of rehabili-
tation services to a handicapped person who intends to become a priest
would not be in conflict with any State or Federal constitutional or statu-
tory provisions regarding the separation of Church and State.
June 1, 1962.
Mr. Francis A. Harding, Commissioner of Rehabilitation.
Dear Sir: — You have requested an opinion as to whether or not your
commission may act upon a request for vocational rehabihtatiori services
from a Massachusetts resident whose assumed job objective is in the
Catholic priesthood. Specifically you ask whether "any general provisions
of the law regarding the separation of Church and State" would prevent
the rendering of such services.
The powers and duties of your commission are set forth in G. L. c. 6,
§§ 74-84. Section 78 provides in part:
"The commission shall provide vocational rehabilitation services directly
or through public or private rehabilitation facilities to any handicapped
person (1) who is a resident of the State at the time of filing his apphcation
therefor and whose vocational rehabiUtation the commission, after lull
investigation, determines can be satisfactorily fulfilled. ..."
Section 77 contains the following pertinent definitions:
" 'Disabled person', a person who has a physical or mental condition
which materially limits, contributes to limitmg, or, if not corrected, will
probably result in limiting his activities or functioning;
" 'Handicapped person', a disabled person whose disability constitutes
188 P.D. 12.
a substantial handicap to employment but which is of such a nature that
vocational rehabilitation services may reasonably be expected to render
him ht to engage in a remunerative occupation;
" 'Vocational rehabilitation services,' any goods and services necessary
to render a handicapped person fit to engage in a remunerative occupation
or in the occupation of homemaker ..."
The occupation of a priest (or minister or rabbi, for that matter) is
recognized by the State and Federal governments as a useful, honorable
and remunerative one. General Laws, c. 3, § 14, provides for the establish-
ment of a salary for the chaplain of the Senate and the chaplain of the
House of Representatives; G. L. c. 125, § 13, provides for the employment
of chaplains in correctional institutions; G. L. c. 120, § 3, provides for the
employment of chaplains in the Youth Service Division. It is well known
that chaplains serve in all the military services and in the Congress of the
United States.
Your commission is empowered to administer a general program to aid
handicapped persons. The rendering of such services is similar to the pro-
vision of free transportation and other aids to students attending both
public and parochial schools which has been held not to offend either the
State or Federal Constitutions.
Everson v. Board of Education, 330 U. S. 1.
Attorney General's Report, 1936, p. 40.
Attorney General's Report, 1943, p. 74.
Attorney General's Report, 1951, p. 38.
In all such cases the aid is given or the services rendered to individuals
and not to religious institutions.
Therefore, it is my opinion that there is no conflict between any State
or Federal constitutional or statutory provisions regarding the separation
of Church and State and your commission's extending its services to an
otherwise eligible person who intends to become a priest.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Lawrence E. Cooke,
Assistant Attorney General.
Rental co7itracts by local airport commissions are not subject to approval by
the Massachusetts Aeronautics Commission but construction contracts are
and latter may be disapproved if unfair, discriminatory or illegal pro-
visions are included.
June 4, 1962.
Mr. Crocker Snow, Director, Massachusetts Aeronautics Commission.
Dear Sir: — In your recent letter you call my attention to the provisions
of G. L. c. 90, §§ 51H and 51K, and G. L. c. 6, § 59. You state that a
prospective tenant of the Turners Falls Airport has complained that his
P.D. 12. 189
company is being discriminated against by the Montague Airport Com-
mission in the terms of a proposed lease for hangar construction and operating
right at the airport. You also state that a tenant of the Beverly Airport
has charged that his company, in lease renewal negotiations with the
Beverly Airport Commission, has been offered the alternative of either
accepting unreasonable charges or not having his lease renewed. In the
light of these circumstances you pose the following question :
"If in our judgment either one or both of these complaints is justified,
what action, if any, can we take to have the unreasonableness or discrimi-
nation corrected?"
General Laws c. 6, § 59, deals with the powers and duties of the director.
It provides that:
"The director shall be the executive officer of the commission and, subject
to its supervision and control, shall administer the provisions of sections
thirty-five to fifty-two, inclusive, of chapter ninety and the rules, regula-
tions and orders issued and promulgated thereunder, and all other laws of
the Commonwealth which grant powers to or impose duties upon the
commission. He shall attend all meetings of the commission but shall have
no vote."
General Laws c. 90, § 51H, deals with the subject of charges or rentals
for use of properties, facilities, installations and terms and conditions of
contracts. It provides specifically that:
"An airport commission shall determine the charges or rentals for the
use of any properties, facilities, installations, landing fees, concessions, uses
and services and shall determine the terms and conditions under which con-
tracts may be executed by the commission on behalf of such city or the
town. . . ." (Emphasis supplied.)
General Laws, c. 90, § 51K, deals with the subjects of the receipt of
Federal funds by the I^Iassachusetts Aeronautics Commission, bids for
contract for establishment, construction, enlargement of airports, and
expenditures in anticipation of Federal or State funds. It provides specifi-
cally in the second paragraph thereof the following:
"Every such airport commission may invite bids for any contract in-
volving the acquisition, establishment, construction, enlargernent, protec-
tion, equipment, maintenance or operation of an airport, the site for which
has been approved as provided by section thirty-nine B, and shall submit
every such proposed contract to said Massachusetts aeronautics commission
for approval. After approval has been given, said airport commission may
award such contracts; provided, that the liability incurred shall not exceed
the funds available therefor, including the appropriation voted and the
amount of any gift or bequest, together with the amount or amounts stated
in any existing agreements for the allotment or grant of funds by the
Federal government or Commonwealth, or both."
A reading of §§ 59, 51H and 51K justifies several conclusions. The
director shall be the executive officer of the commission and, subject to its
control, shall administer the provisions of §§ thirty-five to fifty-two, inclusive,
of c. ninety and the rules, regulations and orders issued and promulgated
thereunder, and all other laws of the Commonwealth which grant powers
to or impose duties upon the commission. The director is vested with the
190 P.D. 12.
power to administer the provisions of §§35 to 52, inclusive, two of which
are §§ 51H and 51K.
Section 51H provides that an airport commission shall determine the
charges or rentals for the use of any properties and shall determine the
terms and conditions under which contracts may be executed by the
commission.
The second paragraph of § 51K provides that invitations for bids for
certain contracts must be submitted to the Aeronautics Commission for
approval before the contract is awarded.
Without attempting to adjudicate the two specific matters you refer to,
in my opinion, under the terms of § 59 the director shall administer the
provisions of §§ 51H and 51K as they are written. Section 51H provides
that an airport commission shall determine the charges or rentals of proper-
ties and shall determine the terms and conditions under which contracts
therein referred to may be executed by the commission. I see no reference
to the director nor the Massachusetts Aeronautics Commission in § 51H.
The second paragraph of § 51 K provides that as to any contracts therein
referred to the same must be submitted to the Massachusetts Aeronautics
Commission for approval before they are awarded. As to such, the Massa-
chusetts Aeronautics Commission may reasonably reject or withhold its
approval of any contract referred to in § 51K when it determmes that un-
fair, discriminatory or illegal provisions appear in the contracts submitted
to it for approval. It may be noticed that there is no provision in § 51H
requiring the approval by the Massachusetts Aeronautics Commission of
any of the activities therein referred to.
It is clear, in my opinion, that the rights and duties of the director are
limited by the express provisions of §§ 51H and 5 IK. He is to see that
they are administered as they are written. Except as indicated above, I
have not attempted further to categorically answer your question, leaving
it to further conferences between you and this office covering specific
situations as they arise.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 191
The $1,500,000 appropriated in the 1957 Capital Outlay Appropriation Act,
for the Commonwealth' s share of the cost of the work by Fall River, under
St. 1957, c. 607, to remedy the pollution of the Quequechan River therein,
is to he spent by the city subject to compliance with the conditions contained
in ^2ofc. 607.
June 4, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir: — In your letter of recent date relative to St. 1957, c. 607,
providing for the elimination of pollution in the Quequechan River, you
refer to the last paragraph of § 1 of said chapter. You also refer to Item
8260-74 of St. 1959, c. 604, § 2, and conclude your letter by requesting an
opinion upon the two following queries:
"1. Should the department furnish to the city of Fall River the State's
$1,500,000 to be spent by the city for the work authorized by c. 607 and
under the conditions contamed therein.
"2. If the answer to the above is in the negative does the department,
as the contracting agency, under the authority and provisions of G. L. c. 91,
§ 11, have the authority to expend the $1,500,000 for the type of work
authorized by c. 607 under its own direction and without the conditions
imposed under § 2 of c. 607."
Acts of 1957, c. 607, is entitled, "AN ACT AUTHORIZING THE CITY
OF FALL RIVER TO BORROW MONEY OUTSIDE THE DEBT
LIMIT FOR THE PURPOSE OF REMEDYING THE POLLUTED
CONDITION OF THE QUEQUECHAN RIVER IN THE CITY OF
FALL RIVER" and contains an emergency preamble providing as follows:
"Whereas, The deferred operation of this act would tend to defeat its
purpose, which is to provide without delay for the elimination of pollution
in the Quequechan river m the city of Fall River, therefore it is hereby
declared to be an emergency law, necessary for the immediate preservation
of the public health, safety and convenience."
In general, c. 607 authorizes the city of Fall River to incur indebtedness
in an amount not exceeding three million dollars, to acquire land or interests
therein and structures necessary to remedy the presently polluted condition
in the Quequechan River and for the construction of any project for said
purpose and for the cost of surveys, plans and supervision.
The second paragraph of § 1 of c. 607 provides that:
"Said sum shall be expended in conjunction with any money allotted for
the purpose by the Commonwealth under the provisions of chapter ninety-
one of the General Laws, and any funds allotted for the purpose by the
Federal government."
Section 2 of c. 697 contains various limitations, conditions and restric-
tions upon the disbursement of the funds authorized to be borrowed
under § 1.
Section 3 of c. 607 provides that the act shall take full effect upon its
acceptance by vote of the city council with the approval of the mayor, but
192 P.D. 12.
not otherwise. I assume that, although it is not stated, c. 607 has been
properly accepted and is now in full force and effect.
Chapter 604 of St. 1959 entitled "AN ACT TO PROVIDE FOR A
SPECIAL CAPITAL OUTLAY PROGRAM FOR THE COMMON-
WEALTH," containing an emergency preamble, under the title of "Service
of the Department of Public Works, Division of Waterways," provides in
Item 8260-74 of § 2 "For the Commonwealth's share of the cost of work
authorized by chapter six hundred and seven of the acts of nineteen hundred
and fifty-seven — $1,500,000.00."
It may be borne in mind that under Item 8260-61, $5,500,000 is appropri-
ated for, among other things, improvement, development and maintenance
of rivers, harbors, tidewaters, shores and great ponds within the Common-
wealth ". . . as authorized by section eleven of chapter ninety-one of the
General Laws, to be used in conjunction with any Federal funds made
available for the purpose. ..."
It should be stated that both chapters 607 and 604 contain emergency
preambles and should be construed together to accomplish the purpose of
remedying the polluted dangerous condition of the Quequechan River in
Fall River set forth in c. 607. While it is true that the second paragraph
of § 1 of c. 607 provides that the sum authorized to be borrowed under the
first paragraph of § 1 is to "... be expended in conjunction with any
money allotted for the purpose by the Commonwealth under the provisions
of chapter ninety-one of the General Laws. . . ." In my opinion Item 8260-
74 of St. 1959, c. 604, § 2, enacted more than two years after c. 607, was
intended by the General Court to be an appropriation to effectuate the
purposes of the second paragraph of § 1 of c. 607. It so states that Item
8260-74 is "For the Commonwealth's share of the cost of work authorized
by chapter six hundred and seven of the acts of nineteen hundred and fifty-
seven . . . $1,500,000.00." That this appropriation was not included in
Item 8260-61 of $5,500,000 for general c. 91 purposes does not alter the
conclusion to which I come. It does, however, emphasize and recognize the
great need of segregating a million and a half dollars for the purpose of
eliminating a serious health menace in the city of Fall River.
In my opinion, the answer to your first question is in the affirmative,
every safeguard being employed by your department to insure the strict
compliance by all concerned of the provisions of c. 607. In the light of the
foregoing, no answer to your second question is necessary.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
P.D. 12. 193
The Board of Registration in Veterinary Medicine has no authority to make
ndes and regidations for the taking by registered veterinarians of National
Board examinations under the supervision of the Chairman or Secretary
and to set the fee therefor.
June 13, 1962.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Madam: — In your letter of recent date relative to the Board of
Registration in Veterinary Medicine you state that your board has received
inquiries from veterinarians registered in Massachusetts in regard to the
National Board examinations because at the present time seventy-five
percent of the States are using the National Boards for their examinations.
You state that permitting veterinarians only to take the National Board
portion of the examinations would then make these veterinarians eligible
for reciprocity with other States who give the National Board examinations.
You further state that this board pays a fee of S12.50 per applicant to the
National Board for this service. In the light of these facts you state:
"The Veterinary board wishes to know whether they may make rules
and regulations under c. 112, § 54, whereby:
"1. Any veterinarian already registered to practice veterinary medicine
in Massachusetts may be permitted to take the National Board examina-
tion only^ at an examination given under the supervision of the chairman
or secretary of the board.
"2. May the Board set the fee for this examination?"
General Laws c. 112, §§ 54 to 60, relate to the examinations and regis-
tration of veterinarians by the Board of Registration in Veterinary Medi-
cine. Section 54 provides that:
"The board of registration in veterinary medicine, in sections fifty-five
to sixty, inclusive, called the board, may make by-laws and rules consistent
with law necessary to carry out the provisions of said sections. ..."
Section 55 provides in substance for the filing of applications for regis-
tration as veterinarians. It also provides in some detail for given qualifi-
cations of the applicant which if being present the applicant shall ". . . be
examined, and, if found qualified by the board, shall be registered as a
veterinarian and shall receive a certificate thereof, signed by the chairman
and secretary. . . ." Section 56 in substance provides that examinations
shall be in part in writing, shall be in English, and of a scientific and
practical character. Moreover, the examination shall include the subjects
of anatomy, surgery, physiology, animal parasites, obstetrics, pathology,
bacteriology, diagnosis and practice, therapeutics, pharmacology, veteri-
nary dentistry and other subjects thought proper hy the Board to test the
applicants' fitness to practice vetermary medicine.
I am unaware of any provision in §§ 54 to 60, inclusive, relating to
reciprocal registration. That is, registration m other States of veterinarians
registered in this Cormnon wealth and the registration in this State of
veterinarians registered elsewhere. This omission takes on added signifi-
cance when it is borne in mind that many, if not most, of the Boards of
Registration are specifically authorized to issue reciprocal registrations.
P.D. 12. 194
(G. L. c. 112, § 2, physicians; G. L. c. 112, § 16, chiropodists; G. L. c. 112,
§ 23D, physical therapists; G. L. c. 112, § 24, pharmacists; G. L. c. 112,
§ 48, dentists; G. L. c. 112, § 68, optometrists; G. L. c. 112, § 76, nurses and
practical nurses; G. L. c. 112, § 87Z, hairdressers; G. L. c. 112, § 87WW,
real estate brokers and salesmen; G. L. c. 112, § 87000, electrologists.)
In the light of the foregoing, I am constrained to rule that the Board of
Registration in Veterinary Medicine, under G. L. c. 112, §§ 54 to 60, in-
clusive, as presently written, is given no power to engage in reciprocal
registration. Naturally, the board cannot extend its own jurisdiction by
its own rules and regulations. The fact that, as stated to me in my confer-
ence with you last week, attempts to have corrective legislation passed
dealing with the subject matter we are discussing have failed, leads me to
the conclusion that the omission I have referred to is not by inadvertence.
In view of what I have said, I am compelled to answer your questions in
the negative.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
The Massachusetts Port Authority is to reimburse the Commonwealth for the
proportionate part of the retirement allowances paid by the Commonwealth
to employees of the Authority attributable to their total periods of employ-
ment by the Mystic River Bridge Authority.
June 21, 1962.
Hon. John T. Driscoll, Chairman, State Board of Retirement.
Dear Sir : — In your recent letter you make inquiry relative to reim-
bursement to the Commonwealth by the Massachusetts Port Authority of
the latter's share of retirement allowances to the employees of the Authority,
formerly employees of the Mystic River Bridge Authority.
After referring to St. 1956, c. 465, § 22, you state that the employees of
the Mystic River Bridge Authority were covered under the Federal Old
Age and Survivors' Insurance laws from January 1, 1952, until February
16, 1959, on which latter date you state the Massachusetts Port Authority
assumed control of the Mystic River Bridge. You then state that it seems
that the statute is quite clear that the Massachusetts Port Authority is
financially responsible to the Commonwealth for any retirement allowances
based on service between January 1, 1952, and February 16, 1959. You
request an opinion on this question.
You then refer to St. 1960, c. 525, and state that the question has been
raised as to whether or not the ]\Iassachusetts Port Authority is financially
responsible to the Commonwealth for that portion of a retirement allow-
P.D. 12. 195
ance based on creditable service allowable under the provisions of St. 1960,
c. 525, or whether or not the responsibility of the Port Authority covers
only the creditable service allowed in c. 465.
As you are aware, St. 1956, c. 465, created the Massachusetts Port
Authority and authorized its acquisition of various properties, including
the Mystic River Bridge. Section 22 of that chapter deals with the subject
of the transfer to the Port Authority of employees of the properties acquired
by it, including the ^.lystic River Bridge Authority. The third paragraph,
as you are also aware, provides that:
"Every employee who immediately prior to being transferred to the
Authority by this section is a member of the State retirement system . . .
shall continue to be a member thereof and subject to the laws applicable
thereto. All other employees of the Authority shall be required to become
members of the State retirement system in the same manner and subject
to the same laws, rules and regulations as persons entering the employ of
the Commonwealth. EMPLOYEES OF THE MYSTIC RIVER BRIDGE
AUTHORITY UPON BECOMING MEMBERS OF THE STATE RE-
TIREMENT SYSTEM SHALL BE ALLOWED AS CREDITABLE
PRIOR SERVICE THE PERIOD OF THEIR EMPLOYMENT BY
THE MYSTIC RIVER BRIDGE AUTHORITY UNDER FEDERAL
OLD AGE AND SURVIVORS INSURANCE LAWS. The Authority
shall deduct from the wages of its employees and pay over to the State
retirement board . . . such sums as the Commonwealth . . . would de-
duct and pay over if such person were an employee of the Commonwealth.
. . ." (Emphasis supplied.)
The fourth paragraph provides that:
"THE AUTHORITY SHALL REIMBURSE THE COMMON-
WEALTH . . . FOR ITS PROPORTIONATE SHARE OF ANY
AMOUNTS EXPENDED BY THE COMMONWEALTH . . . UNDER
THE PROVISIONS OF CHAPTER THIRTY-TWO OF THE GEN-
ERAL LAWS FOR RETIREMENT ALLOWANCES TO OR ON AC-
COUNT OF ITS EMPLOYEES." (Emphasis supplied.)
Speaking generally, the rights of employees of the Commonwealth are
set forth in G. L. c. 32. By the terms of St. 1958, c. 599, various provisions
of c. 465 were amended as therein set forth. The fourth paragraph of § 22
of St. 1956, c. 465, relative to reimbursement of the Commonwealth by
the Authority for its proportionate share of amounts expended by the
Commonwealth for retirement allowances to or on account of the employees
of the Authority was retained intact.
On July 6, 1960, His Excellency the Governor approved c. 515 of the
acts of that year. This act is entitled, "AN ACT PROVIDING THAT
CERTAIN EMPLOYEES OF THE MASSACHUSETTS PORT AU-
THORITY BE ALLOWED TO COUNT AS CREDITABLE SERVICE
THE PERIOD OF THEIR EMPLOYMENT BY THE MYSTIC RIVER
BRIDGE AUTHORITY FOR PURPOSES OF RETIREMENT." It has
an emergency preamble readmg as follows :
"Whereas, The deferred operation of this act would tend to defeat its
purpose, w^hich is to provide forthwith that certain employees of the Massa-
chusetts Port Authority be allowed creditable service under the retirement
196 P.D. 12
law for the total period of their prior emploj^ment by the Mystic River
Bridge Authority, therefore it is hereby declared to be an emergency law,
necessary for the immediate preservation of the public convenience."
Section 1 of c. 525 amends the third paragraph of § 22 of c. 465 by striking
out the third sentence and inserting in place thereof the following sentence :
"Employees of the Mystic River Bridge Authority upon becoming
members of the State retirement system shall be allowed as creditable
prior service the total period of their prior employment by the said Au-
thority." (Emphasis supplied.)
Section 2 of c. 525 provides that no person who was an employee of the
Mystic River Bridge Authority on the date of the acquisition of said
Authority by the Massachusetts Port Authority, shall be excluded from
membership in the State Employees Retirement System if he was under
the maximum age for his group on said date.
A reading of the provisions of St. 1956, c. 465, § 22, and St. 1960, c. 525, so
far as they relate to the subject matter you inquire about, leads me to the
conclusion that the former employees of the Mystic River Bridge Authority
now in the employ of the Massachusetts Port Authority who are members
of the State Employees' Retirement System are entitled to be allowed as
creditable prior service the total period of their employment by the Mystic
River Bridge Authority prior to Februar}^ 16, 1959. According to the
express provisions of § 22 of c. 465:
"The Authority" (meaning the Massachusetts Port Authority) "shall
reimburse the Commonwealth . . . for its proportionate share of any
amounts expended by the Commonwealth . . . for retirement allowances
to or on account of its employees. ..."
This provision seems to me to be clear and unambiguous under the
circumstances and should be complied with.
The foregoing subject matter was referred to in Opinion, of the Justices,
334 Mass. 721, where the Honorable Senate propounded a number of
questions relative to the constitutionality of the IMassachusetts Port
Authority legislation. The twentieth question read as follows:
"May the Commonwealth constitutionally undertake to pay retirement
allowances of retired employees of the authority subject to being reim-
bursed by the Authority as provided in Section 22 of the bill?"
The Supreme Court answered the question in the affirmative saying:
"Smce the Authority would be a public corporation, we see no reason
why the Commonwealth cannot undertake these payments which would
be for a public purpose and would be reimbursed to the Commonwealth."
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By Fred W. Fisher,
Assistant Attorney General.
P.D. 12. 197
Changes in design and new designs required by the Metropolitan District
Commission under a contract for highway construction design and to he
paid for under the contract as additional services on a cost-plus basis.
June 21, 1962.
Hon. Jack P. Ricciardi, Commissioner of Public Works.
Dear Sir : — In your recent letter you requested an opinion as to whether
or not your department may enter into an agreement for the inspection of
materials either by a process of selective bidding, so called, or by selection
without bidding and not in violation of G. L. c. 29, § 8A.
Chapter 29, § 8A, provides in part as follows:
"No officer having charge of any office, department or undertaking which
receives a periodic appropriation from the Commonwealth shall award any
contract for the construction, reconstruction, alteration, repair or develop-
ment at public expense of any building, road, bridge or other physical
property if the amount involved therein is one thousand dollars or over,
unless a notice inviting proposals therefor shall have been posted, not less
than one week prior to the time specified in such notice for the opening of
said proposals, in a conspicuous place on or near the premises of such officer,
and shall have remained so posted until the time so specified, and, if the
amount involved therein is in excess of five thousand dollars, unless such
a notice shall also have been published at least once not less than two weeks
prior to the time so specified ..."
You will note that the provisions of this section relate to contracts for
work for the ^'construction, reconstruction, alteration, repair or development
at public expense of any building, road, bridge or other physical property.
..." (Emphasis supplied.) Your letter would indicate to me that the
work of the contractors in this particular instance would only be the
rendering of personal services and therefore would not fall within the
provisions of § 8A.
You therefore could award a contract of this nature by the process of
selective bidding or by the selection without bidding.
Very truly yours,
Edward J. McCormack, Jr., Attorney General,
By John J. Grigalus,
Assistant Attorney General.
198 P.D. 12.
The Competitive Bidding Law is not applicable to a contract by the State De-
partment of Public Works for the inspection of materials.
June 25, 1962.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Commission.
Dear Sir : — You have asked the opinion of this office with regard to
an interpretation of a contract entered into between the MetropoUtan
District Commission and a consultant firm, Highway Engineers, Inc.
You state that in connection with the project (a proposed reconstruction
and widening of the Arborway-Riverway-Jamaicaway, City of Boston),
the consultant had prepared a report setting out three alternate schemes
for handling the problem. The Metropolitan District Commission, by vote
dated September 16, 1959, voted to proceed under scheme three. On
February 24, 1960, the commission and the consultant entered into the
agreement you now inquire about.
According to your letter the consultant had proceeded substantially with
the design of the facility in accordance with the vote and orders of the
commission.
In the latter part of 1960, due to objections and conferences between
the commission and the city of Boston and the town of Brookline, the
commission, in deference to the objections of the town of Brookline,
ordered a change in plans so far as they relate to outbound traffic on the
Brookline side of Leverett and Jamaica Ponds.
You have asked whether or not the new designs and design changes
which will be required in connection with the scheme recently approved
by the town of Brookline can be paid for in accordance with the provision
on page 10 of the contract relating to "termination or discontinuance of
contract" or on page 3 under "Changes and Revisions."
This office is of the opinion that neither reference is controlling but that
in view of the facts as stated in your letter the commission may proceed
under paragraph 6, subdivision B, page 3, which reads as follows:
"Tf, during the performance of the contract, other or additional services
are required, or after plans have been accepted by the COMMISSION,
changes are required other than those necessary to adapt the plans to
conditions encountered during construction, the COMMISSION may order
the CONSULTANT, in writing, to perform such services and the CON-
SULTANT shall receive an added compensation for such additional
services or changes in design of actual out-of-pocket expense and allowance
for principal's and employees' time, plus one hundred per cent (100%).
"In connection with such additional work or change in plans, the CON-
SULTANT agrees to maintain a complete accurate record, in form satis-
factory to the COMMISSION, of all time devoted directly to same by the
P.D. 12. 199
CONSULTANT and his employees, and the COMMONWEALTH
reserves the right to audit the records of the CONSULTANT relating
thereto, but such services as are rendered hereunder shall be subject in all
other respects to the terms of this Contract."
Very truly yours,
Edward J. IMcCormack, Jr., Attorney General,
By William D. Quigley,
Assistant Attorney General.
Determinations of fact, policy and discretion in matters before an administra-
tive hoard are for the hoard, and an opinion of the Attorney General as to
whether the Alcoholic Beverages Control Board should have exercised its
discretion, conformahly to its rules, in granting a rehearing to an appellant
would not he rendered.
June 26, 1962.
Alcoholic Beverages Control Commission.
Gentlemen : — You have advised me that your commission has before
it a matter for rehearing which is before you on Appeal from the action of
the Licensing Board of the city of Boston which refused to grant permission
for transfer of location of a hcense.
It is my understanding that the commission, after the appeal hearing,
decided in favor of approving the local board action in not granting the
transfer.
A request for rehearing has been made under the provisions of Com-
mission Regulation 49 within the current license year, which request was
granted and the hearing reheld.
Under the provisions of G. L. c. 138, § 24, the commission, with the
approval of the Governor and Council, makes regulations not inconsistent
with the provisions of c. 138 for clarifying, carrying out, enforcing and
preventing violation of any and all of the provisions of G. L. c. 138, as
amended.
In accordance with the provisions of § 24, the commission, with the
approval of the Governor and Council, has adopted certain regulations,
among them Regulation 49, which reads as follows:
''When, after hearing and consideration, an issue upon appeal has been
decided there shall be no rehearing of the same issue within the current
200 P.D. 12.
license year, except that upon motion by the aggrieved party accompanied
by his affidavit, filed within seven days from the time said party received
notice of said decision from the commission, said party (1) shall show
prima facie that substantial justice has not been done, or (2) shall set forth
newly discovered evidence, stating in such affidavit sufficient reasons why
such evidence could not have been presented at the hearing. Such evidence
set forth in said affidavit shall be of such a nature as to form a basis, in the
opinion of the commission, for reversal of its judgment or for granting a
rehearing. Upon receipt of said motion and affidavit, the commission
shall, in its discretion, determine whether or not the motion shall be allowed,
and shall notify the aggrieved party of its decision."
It is clear from a reading of this regulation that a rehearing by your
commission under the Liciuor Control Act may be had only on the following
terms :
(1) If the aggrieved person shall show prima facie that substantial
justice has not been done, or
(2) Shall set forth newly discovered evidence, stating in such affidavit
sufficient reasons why such evidence could not have been presented at
the hearing. Such evidence set forth in said affidavit shall be of such a
nature as to form a basis, in the opinion of the commission, for reversal of
its judgment or for granting a rehearing. Upon receipt of said motion and
affidavit, the commission shall, in its discretion, determine whether or not
the motion shall be allowed, and shall notify the aggrieved party of its
decision.
It is not the function of the Attorney General to pass upon questions of
fact, policy or discretion.
All determinations of fact, policy and discretion involved in matters
coming before an administrative board such as the Alcoholic Beverages
Control Commission are properly left to the hearmg tribunal which because
of its experience, technical competence and knowledge of the subject
matter, together with the authority conferred upon it by law, is better
able to determine questions of fact, administrative policy and discretion
brought before it.
Whether an application for a rehearing of a matter decided by the com-
mission should be granted or denied is entirely discretionary with the com-
mission. The discretion to be exercised is that of the commission and not
that of the Attorney General, or any other official or body.
It appears that the commission has already exercised its discretion in
favor of the applicant by granting the application for a rehearing, and has
in fact reheard the matter.
In effect, therefore, the request of the commission is for an expression of
opinion by the Attorney General as to whether if he were making the
decision the commission did on the application for a rehearing he would
have made the same decision. However, as stated above, the question was
P.D. 12. 201
one to be determined by the board in the exercise of a sound discretion
and it is not the function of the Attorney General to pass upon matters
involving the exercise of its discretion by the commission, whether his
opinion is requested before or after the tribunal exercises its discretion.
It should be noted for your information, however, that it is established
law that a decision by an administrative board in the exercise of its dis-
cretion is given great weight, implies the findings of fact necessary to sup-
port it, and that only a showing of clearest abuse of discretion justifies any
interference with a decision of an administrative board granting a rehearmg.
Very truly yours,
Edward J. McCormack, Jr., Attorney General.
INDEX TO OPINIONS
PAGE
Accountants. See Certified Public Accountants, Board of Registration of.
Administrative Boards; determinations of fact, policy and discretion. See
Alcoholic Beverages Control Commission; Attorney General.
Administrative Procedure Act:
Application of, to State agencies and schedule of agencies in their relation
thereto 43
Application of, to regulations as to operation of motor vehicles on grounds
of State hospitals 115
Aeronautics. See Massachusetts Aeronautics Commission.
Age. See Embalming and Funeral Directing, Board of Registration in.
Agricultural Exhibition; racing meeting at. See State Racing Commission;
Fair.
Airports; rental and construction contracts of local airport commissions,
approval of, by Massachusetts Aeronautics Commission .... 188
Alcoholic Beverages Control Commission :
May rehear disapproval of local grant of package store license despite
local board's rescission of its grant 67
Is to make its own determinations of fact, policy and discretion and an
opinion of the Attorney General as to whether it should have exercised its
discretion, conformably to its rules, in granting a rehearing to an appellant,
would not be given 197
Aliens. See Oaths of Allegiance; Teachers.
"Alterations". See Contracts.
Appropriations:
Non-availability of appropriations for State highway construction for a
highway competitive with the extension of the Massachusetts Turnpike 34
Requirement, in appropriation, of Federal matching funds, not satisfied by
funds from private sources 75
Earlier loan appropriations for Metropolitan District Commission could be
used for work at certain zoos, despite later special loan appropriation
including specific amount for work at the zoos 120
Persons paid from "03" account funds as "employees" . . . .179
1959 Capital Outlay Act appropriation for Commonwealth's share of cost
of work under St. 1957 c. 607, to remedy pollution of Quequechan River
in Fall River is to be spent by city 190
P.D. 12. 203
See — as to 1961 Capital Outlay Act — Waterways, Division of.
See also State Finance; State Officers and Employees.
Assignment. See Contracts.
Attorney General:
Determinations of fact, policy and discretion in matters before adminis-
trative boards are for the board and an opinion of the Attorney General
as to whether the Alcoholic Beverages Control Commission should have
exercised its discretion, conformably to its rules, in granting a rehearing
to an appellant, would not be given 197
Autopsy; on body of deceased patient at State hospital, consent of next of kin
required 90
Bidding. See Competitive Bidding.
"Blue Sky Law". See Securities.
Borrowing; by the Commonwealth. See Constitution.
Boston; assessment on, for Metropolitan Sewerage District costs. See Metro-
politan District Commission.
Boston University. See Metropolitan District Commission; Contracts.
Capital Outlay Appropriations Act. See Appropriations; State Finance;
Waterways. Metropolitan District.
Certified Public Accountants, Board of Registration of:
Has authority to initiate suspension or revocation proceedings; may only
register residents 122
Cannot provide by rule for recij^rocity certificates for non-residents . 150
Church and State, separation of; see Rehabilitation.
Cities; application of Sunday laws to New Year's Day does not prohibit meet-
ings thereon for induction of newly elected city officials . . . .111
Civil Defense Act; re-employment of retired person under. See Retirement.
Civil Service:
Commissioner of Public Works is appointing authority of Director of
Division of Waterways 31
Employees of State institutions to be closed must be separated from service,
where appropriation permits operation for only part of fiscal year . . 76
"Code of Ethics".
Provision of, as to disclosure of confidential information is not applicable
to contents of public records 103
Contents of statements disclosing interests in activities regulated by
agencies of, and entities doing business with, Commonwealth . . . 107
Conflict of interest of member of housing authority. See Housing
authorities.
204 P.D. 12.
PAGE
Common carrier, of property by motor vehicles; is not a "public service
corporation" within G. L. c. 40A, § 10, as to exemption from zoning
regulations 181
Conflict of Interest. See "Code of Ethics" of member of housing authority;
see Housing authorities.
Competitive Bidding:
Law requiring, on State contracts for construction, etc., is not applicable
to a contract for inspection of materials 195
See Contracts.
Compulsory Motor Vehicle Insurance. See Insurance.
Constitution :
Borrowing by the Commonwealth, vote required to authorize . . . 123
Receipts from fines for violations of traffic regulations at the University
of Massachusetts must be paid into the State Treasury .... 143
Furnishing of rehabilitation services to a handicapped person intending
to become a priest would not create a Church-State conflict . . 187
See Town meetings. Borrowing; see New Bedford Institute of Technology
Research Foundation.
Contracts :
Assignment of — specifications for Waterways contracts require approval
of Public Works Commission to; performance of work by one other than
person awarded contract can be found to be under an assignment . . 31
For State highway construction — statute as to retaining amounts to
satisfy liens is not applicable to p -ogress payments under a contract
being completed for surety after default; surety acknowledgmg liabiUty
to lienors 35
Roads required, if certain land along Storrow Drive conveyed to Boston
University may, under St. 1961, c. 425, be constructed under agreement
of University to advance cost and contract stipulating contractor is to
look only to funds so supplied for payment 71
For public works — direct payments to sub-contractors, when permitted . 85
For public works — provisions of which may be waived .... 85
Unit price State highway contract, payment for materials in excess of
estimates, as "Alteration" or "Extra Work" 93
State Department of Public Works, not authorized, to furnish chemicals
under agreement to construct well field for city to replace field damaged
by highway construction 97
Negotiations with low bidder on unit price construction contract for reduc-
tion of unbalanced bid on item, where State or Federal funds involved . 98
Design changes required by the Metropolitan District Commission under
a highway construction design contract are to be paid for as additional
work on a cost-plus basis 196
Bidding on Contracts. See Competitive Bidding.
P.D. 12. 205
Corporations; fee for filing certificate of changes in capitalization is to be
computed on net increase 248
Correction, Department of. See Prisoners.
"Cost-plus", as basis for additional works under a highway design contract.
See Metropolitan District Commission; Contracts.
Cream. See Milk.
Dancing. See Holidays.
Dead Bodies; of deceased patients at State institutions, disposition, etc. . 136
Driver Education. See Motor Vehicles.
Drugs. See Pharmacists.
Education, Department of:
Town of residence, and not regional school district, is liable for tuition of
physically handicapped child in hospital in another town . . 151
Transportation of School Children. See Schools.
Electricians, State Examiners of:
Installation of electrical wiring, ordinances and by-laws imposing require-
ments beyond those of Board of Fire Prevention Regulations, valid, if
not inconsistent 165
Embalming and Funeral Directmg, Board of; may accept applications for
examination by persons who are under twenty-one years of age . . 149
Emergency Finance Board :
Scope of duties as to approval of land takings and contracts with Federal
government by housing and redevelopment authorities under G. L.
c. 121, § 26P(b) 161
Eminent Domain:
Limitation of access from public ways imposed by Massachusetts Turnpike
Authority on land acquired by it for turnpike is to be disregarded in
determining value of land for purposes of compensation for a taking of it
for State highway purposes 147
Department of Public Works should obtain clarifying legislation before
engaging in rental program of real estate taken by, until needed for
construction 154
Employment Security Advisory Council:
Person retired from public service appointed to, is entitled to per diem
salary upon waiving right to retirement allowance for the day . . 157
Estimates. See Contracts.
"Extra Work". See Contracts.
Fair; racing meeting at, application of Nantucket Agricultural Society, Inc.,
for license, not in proper form 173
206 P.D. 12.
PAGE
Fall River:
Appropriation in 1959 Capital Outlay Act for Commonwealth's share of
cost of work under St. 1957, c. 607, to remedy pollution of Quequechan
River in Fall River is to be spent by the city 190
February 29th. See Motor boats.
Federal Funds. See Contracts; New Bedford Institute of Technology Re-
search Foundation.
Firearms; license for sale of, required for sale of high powered air rifles . 110
Fire Insurance Companies. See Insurance Companies.
Fire Prevention Regulations, Board of:
Regulations of as to electrical wiring, ordmances and by-laws imposing
requirements beyond, valid if not inconsistent 1G5
Rule of, as to parapets around certain inner courts and skylights, valid . 184
Flag. See United Nations.
Florida, sale of lands in. See Real Estate Brokers and Salesmen.
Football; high school game on Thanksgiving 88
Franklin Park Zoo. See Appropriations.
Frauds, Statute of; sale of materials comprising high ridge within a State
highway layout. See Public Works, Department of; State Highways.
Gas fittings; in State-owned buildings, schools and hospitals are governed by
uniform statewide code of board under St. 1961, c. 737, and inspection
thereof is not within jurisdiction of Board of Examiners of Plumbers . 74
General Fund; investment of. See State Treasurer.
Gifts; to Soldiers' Home, are deductible for Federal income ta.x purposes . 170
Governor:
Non-availability of appropriations for State highway construction for high-
w^ays competitive with the extension of the Massachusetts Turnpike . 34
Interruption of service on Metropolitan Transit Authority because of
strike, etc., in violation of injunction, declaration of emergency, etc. 169
Government Center Commission; compulsory termination of services of
Chairman of, at age 70 65
Hairdressers, Board of Registration of; may not b)^ rule prohibit furnishing
free transportation to customers of shops 167
Highway Fund; investment of. See State Treasurer.
Holidays:
Conduct of sporting events on legal holidays 88
P.D. 12. , 207
PAGE
Licensing of dancing acts on certain holidays by the Commissioner of
Public Safety 89
Application of Sunday laws does not prevent meetings for induction of
newly elected city officials on certain Ill
Hospitals:
Records of defunct private mental institution 84
Records of treatment of patients of; provisions of G. L. c. HI, § 70, as to
copies, not applicable to such records of Soldiers' Home .... 131
Housing Authorities :
Executive Director of local, accepting Retirement Law, over 70, cannot
forego retirement allowance, and re-employment, except on temporary
basis under Civil Defense Act, is prohibited 105
Interest of member constituting violation of G. L. c. 121, § 26 O, or of
Code of Ethics Law 133
Scope of duties of Emergency Finance Board as to approval of land takings
and contracts with Federal government by, under G. L. c. 121, § 26P(b) 161
See Secretarj^ of the Commonwealth.
Hull, sea wall in. See Waterways.
Income Tax, Federal. See Soldiers' Home.
Insurance, Compulsory Motor Vehicle; proceedings for cancellation of,
begun prior to transfer of motor vehicles and attachment of plates to
newly acquired motor vehicle — effect on proceedings of statute as to
operation of, and insurance on, substituted vehicles 132
Insurance Companies; loan by domestic mutual life company to domestic
mutual fire company for purchase of stock of foreign casualty company 37
Internal Revenue Code. See Soldiers' Home.
Jail; credit for period in, awaiting trial, in case of arraignments in separate
counties and later sentences 113
Labor. See Metropolitan Transit Authority.
Lake Boone Commission. See Motor Boats.
Land Damages. See Eminent Domain.
Leap Year. See Motorboats.
Libraries; funds for extension of library service could not be used for direct
payments to local library official for direction of regional service; only
aid to municipahties, and libraries permissible 112
Liens. Under State highway construction contracts. See Contracts.
Life Insiu-ance Companies. See Insurance Companies.
Limitations, special statute for retroactive adjustments in compensation for
State employees with duties of higher grade, general limitation provisions
not applicable 109
208 P.D. 12.
Lowell; water wells. See Contracts; Public Works.
PAGE
Lowell Technological Institute. Employment of non-citizens as teachers,
oaths of allegiance. See Teachers.
Massachusetts Aeronautics Commission :
Is entitled to be furnished offices at Logan Airport with charges by the
Massachusetts Port Authority 186
Is to approve construction contracts of, but not rental contracts, of local
airport commission, and may reject former if unfair, discriminatory or
illegal provisions are included 188
Massachusetts Port Authority:
To furnish office at Logan Airport to Massachusetts Aeronautics Com-
mission without charge 186
Is liable to Commonwealth on account of retirement allowance of em-
ployees attributable to service with Mystic River Bridge Authority . 193
Massachusetts Rehabilitation Commission. See Rehabilitation; Constitution.
Massachusetts Turnpike :
Non-availability of appropriations for State highway construction for a
highway competitive with the extension of the Massachusetts Turnpike 34
See Eminent Domain.
Massachusetts, University of. See University of Massachusetts.
Mental Health, Department of:
Has no responsibility as to medical records of defunct private mental
institutions 84
Commissioner of, authorized to establish regulations for control of motor
vehicles on grounds of State hospitals 115
Psychiatrists to conduct examinations under G. L. c. 123A, § 4 of persons
convicted of certain sex offenses, need not be employees of the Common-
wealth 135
Re-employment by, of retired person, under Civil Defense Act. See
Retirement.
Metropolitan District Commission:
May not change percentage fixed by law of assessment on Boston to be
apportioned over other municipalities of Metropolitan Sewerage District
while Boston sewers remain unconnected with Metropolitan system . 69
Roads required if certain land along Storrow Drive conveyed to Boston
University may, under St. 1961, c. 425, be constructed under agreement
of University to advance cost and contract stipulating contractor is to
look only to funds so supphed for payment 71
Not required to construct other than gravity sewers in Quincy ... 86
Special statutory authority needed to authorize it to enact rules as to tow-
ing motor vehicles from boulevards 142
Is not required to obtain a hcense from the Division of Waterways before
constructing dam across Mystic River authorized by statute . . .160
P.D. 12. 209
PAGE
Changes in design required by, under a highway construction design con-
tract are to be paid for as additional work on a cost-plus basis . . 195
Appropriations for. See Appropriations.
Contracts of, for public works. See Contracts.
Metropolitan Transit Authority:
Operation of, when service interrupted by strike, etc., in violation of injunc-
tion, and declaration of emergency by Governor 169
Is a "public service corporation" within G. L. c. 40A, § 10, as to zoning
regulation exemption 181
See Retirement.
Middlesex Fells Zoo. See Appropriations.
Milk ; statutes do not provide that local licenses be issued only for sale of both
milk and cream rather than either 126
Motor boats :
Director of Division of, may approve onlj'^ municipal by-laws or ordinances
regulating operation of, on local waters; any authority of Lake Boone
Commission to regulate has been superseded 140
Initial and annual certificates of registration of, of owners born on Feb-
ruary 29th, are to expire on last day of Februarj^ in applicable years . 172
Motor vehicles:
"No-fix" notice statute is apphcable to State Police 72
Town by-laws for removal of, interfering with snow removal, statutes
applicable 100
Statute authorizing transferors to attach plates to newly acquired for
limited period and continuing insurance, effect on application for can-
cellation of insurance pending at time of transfer 132
In absence of statute to the contrary, holder of office of Registrar of, is not
required to devote full time in business hours to duties .... 177
Persons entitled to request to be defended in actions arising out of State-
owned 179
High school driver education teacher paid from public funds is not required
to obtain an instructor's permit from the Registrar 185
Towing of; from Metropolitan boulevards. See Metropolitan District
Commission.
Mystic River Bridge Authority; Port Authority is liable to Commonwealth
for portion of retirement allowances of employees attributable to service
with Bridge Authority 193
Mystic River; dam across. See Metropolitan District Commission; Water-
waj^s, Division of.
Nantucket Agricultural Society, Inc. See State Racing Commission; Fair.
New Bedford ; property rights, and rights to fill, of city of, as to certain lands
in the tidewaters of the Acushnet River 175
210 P.D. 12.
PAGE
New Bedford Institute of Technology Research Foundation; not author-
ized to borrow against a contract with the United States for a study to
be made by the Foundation 180
New York, New Haven & Hartford Railroad; tax exemption under St. 1961,
c. 464, conditions for 128
North Reading State Sanatorium. See Civil Service; State Officers and
Employees.
Notes; of Commonwealth. See State Treasurer.
"No-fix" notices for motor vehicle violations. See Motor Vehicles.
Oath. See Public Office.
Oaths of Allegiance; must be taken by non-citizens to be employed in public
service, if not exchange teachers 106
Officers. See Public OflSce; State Officers and Employees; and titles of
particular oflficers.
Overtime. See State Officers and Employees.
Package store. See Alcoholics Beverages Control Commission,
Pharmacists :
Application of statutes for registration, etc., to persons dispensing drugs
in State institutions 95
Board of Registration of, not required to postpone board action against
pharmacist on trial in court for drug violations pending disposition of
case 159
Plumbers, Board of Examiners; does not have jurisdiction of inspection of
gas-fittings in State-owned buildings, schools and hospitals ... 74
Physically Handicapped Child. See Schools.
Port Authority. See Massachusetts Port Authority.
Prisoners; amount of credit for period in jail awaiting trial in arraignments
in separate counties and separate sentences 113
Provincetown ; town wharf. See Waterways.
Public Health. Local licenses for sale of milk. See Milk.
Public Office; person holding, in absence of a statute to contrary, is not re-
quired to devote full time in business house to be entitled to salary . 177
Legality of person appointed in advance of vacancy taking oath before
expiration of term of incumbent, adverted to 78
Public records:
Returns of sales of motor fuels and alcoholic beverages are; disclosure of
contents not prohibited by "Code of Ethics" 103
P.D. 12. 211
PAQIl
Public Safety, Commissioner of:
Licensing of dancing acts on certain holidays 89
Authority to pay for installation charges for teletypewriter equipment . 101
See Firearms; Rifles; State Police.
Public Utilities, Department of:
Metropolitan Transit Authority is, but a trucking company is not, a
"public service corporation" within G. L. c. 40A, §10 .... 181
See Securities.
Public Welfare, Department of; salaried part-time employee of, payment for
services in another department 91
Public Works, State Department of:
Not authorized to furnish chemicals under agreement to construct well
field for city to replace field damaged by highway construction . . 97
Town by-laws as to removal of vehicles interfering with snow plowing . 100
Special statute for retroactive adjustments in compensation for employees
of, with duties of higher grades, general limitation provisions not applicable 109
Should obtain clarifying legislation before engaging in rental program of
real estate taken by eminent domain, until needed for construction . 154
Permit for removal of, and sale of, materials comprising a high ridge within
a State highway layout 168
1959 Capital Outlay Act appropriation for Commonwealth's share of cost
of work under St. 1957 c. 607, to remedy pollution of Quequechan River
in Fall River is to be spent by city 190
Pubhc Works, State Department of:
Contracts of, for inspection of materials, are not subject to Competitive
Bidding Law 195
See also Contracts; Eminent Domain; Waterways.
Quequechan River, work to remedy pollution of. See Fall River.
Quincy. See Metropolitan District Commission.
Racii:ig. See State Racmg Commission.
Railroads; tax exemption under St. 1961, c. 464, conditions for . . . 128
Real Estate Brokers and Salesmen :
Only persons licensed as such, may negotiate certain contracts for sale of
lands 129
Board of Registration of, suspend or revoke license of licensee convicted of
certain criminal offenses . 181
Records. See Public Records; Hospitals; Soldiers' Home.
Redevelopment Authorities. See Secretary of the Commonwealth.
Rehabilitation :
Massachusetts Commission, may aid handicapped person who intends to
become a priest ; no Church-State conflict 187
212 P.D. 12.
PAGE
Rehearing, of matter before administrative board. See Alcoholic Beverages
Control Commission; Attorney General.
Regional Public Library. See Libraries.
Regional schools :
District committee, maj^ handle tuition and transportation matters where
no school committee elected for a member town 124
District not liable for tuition of physically handicapped pupil hi hospital in
town other than that of residence . 151
See Town Meetings.
Registrar of Motor Vehicles. See Motor Vehicles; Public Office; State Offi-
cers and Employees.
Registration, Director of. See titles of boards under jurisdiction of.
Residents. See Certified Public Accountants.
Retirement:
Veteran, actual re-employment of, after military service required for . 32
State Treasurer may not withhold payment of retirement allowance of
State employee appointed to Metropolitan Transit Authority ... 40
Chairman of Board of Trustees of Metropolitan Transit Authority not
eligible for membership in State system 41
The services of a non-member of the State System, who is a State official,
terminate upon his attaining the maximum age 65
State employee resigning and requesting withdrawal of deductions could not
apply for accidental disability retirement 76
System member, over 70, Executive Director of local housing authority,
cannot forego retirement allowance, and re-employment, except on tem-
porary basis under Civil Defense Act, is prohibited 105
A retired person re-employed under the Civil Defense Act, is to be paid
only the difference between his retirement allowance and salary; allow-
ance cannot be waived 40
Person retired from public service appointed to office by Governor may
receive statutory per diem compensation upon waiving right to pension
or retirement allowance for the day 157
State Board of, can properly postpone action on application filed bj' an
employee of the Commonwealth who resigned while under indictment
for alleged offenses connected with his employment 163
Massachusetts Port Authority is liable to Commonwealth for that part of
retirement allowance of Authority employees attributable to periods of
emplo^inent by Mystic River Bridge Authority 193
Rifle; a license, under G. L. c. 140, § 122, is required for the sale of high
powered air rifles HO
Salary. See State Officers and Employees.
Sale; of materials comprising high ridge within a State highway layout. See
Public Works, Department of; State Highways 168
P.D. 12. 213
PAGE
Schools :
Transportation to private school out of town — not required if not being
furnished for public school pupil in same grade 99
School committees should be elected in towns comprising regional school
district 124
Town of residence, and not regional school district, is liable for tuition of
physically handicapped child in hospital in another town . . . 151
Sea wall, Hull. See Waterways.
Secretary of Commonwealth :
Merely files certificate of changes in Redevelopment and Housing Authori-
ties; not concerned with questions as to legaUty of appointments . . 78
Fee for filing certificate of change in capitalization of corporation . . 148
Securities; sale of, regulations as to sale of "Periodic payment plan certifi-
cates" are not applicable to "Face amount plan certificates" . . .117
Sentences. See Prisoners.
Sewers. See Metropolitan District Commission.
Sexually Dangerous Persons. See Mental Health.
Snow; town by-laws for removal of vehicles interfering with plowing of,
statutes applicable 100
Soldiers Home:
Records of treatment of patients, furnishing copies under G. L. c. Ill, § 70 131
Body of deceased patient at, disposition 136
Trustees of, may provide for charges for care in proper cases . . . 137
Gifts to Trustees of, are deductible for Federal income tax purposes . .170
See Autopsy; Pharmacists.
Sporting Events ; conduct on legal holidays 88
Sport Parachuting Commission:
Requirement of appropriation of federal matching funds not satisfied by
private funds 75
State Comptroller. See Appropriations.
State Finance:
A requirement of appropriation of federal matching funds not satisfied by
private funds 75
Borrowing by Commonwealth to purchase tax title notes under St. 1933,
c. 49. Investment of Highway Fund and General Fund moneys in notes
of the Commonwealth for funds to purchase municipal tax title notes 123
Receipts from fines for violations of traffic regulations at the University of
Massachusetts are to be paid into the State Treasury . . . .143
Persons paid from "03" account funds as "employees" .... 179
See Appropriations; Constitution; New Bedford.
Institute of Technology Research Foundation; Waterways, Division of . 180
214 P.D. 12.
PAoa
State Highways:
Permit for removal, and sale, of materials comprising a high ridge within
layout of 168
Renting, lands taken for. See Eminent Domain; Pubhc Works, State
Department of.
Contract for construction. See Contracts.
State Hospitals:
Commissioner of Mental Health authorized to adopt regulations, with
penalties, for controlling motor vehicles on grounds of; enforcement . 115
See Autopsy; Records.
State Officers and Employees:
Employees of institution to be closed having civil service or longevity tenure
must be separated from service, where appropriation permits operation
for only part of fiscal year 76
Receipt by salaried, of compensation for services in another agency for
special services 91
Non-citizens to be employed as, must take oaths of allegiance . . . 106
Special statute for retroactive adjustments in compensation for employees
with duties of higher grades, general limitations provisions not applicable 109
When service is uninterrupted, upon return to a position subject to the
vacation rules, an employee is entitled to vacation credits held at the
time of accepting a position not so subject 153
Person retired from public service appointed to office by Governor may
receive statutory per diem compensation upon waiving right to pension
or retirement allowance for the day 157
State Board of Retirement can postpone action on an application filed by
an employee who resigned while under indictment for alleged offenses
connected with his employment 163
In absence of statute to the contrary, holder of office of Registrar of, is not
required to devote full time in business hours to duties . . . 177
Persons employed at the University of Massachusetts on a part-time, etc.,
basis, paid from "03" funds, are entitled to ask to be defended in actions
arising out of the operation of State-owned motor vehicles . . .179
See Retirement.
State Police; "No-fix" notices for motor vehicle violations are applicable to 72
See Public Safety, Commissioner of.
State Property. See Gas fittings.
State Racing Commission:
Application to, of Nantucket Agricultural Society, Inc. for Kcense for
racing meeting at an agricultural exhibition, not in proper form . .173
State Treasurer:
May invest Highway Fund or General Fund moneys in notes of the Com-
monwealth issued for funds to purchase municipal tax title notes under
St. 1933, c. 49 123
See Retirement.
P.D. 12. 216
PAGE
State Treasury. See State Finance.
Statutes : Application to governmental activities 95
General limitation provisions not applicable under a special statute for
retroactive adjustments in compensation for State employees with duties
in higher grade 109
Construction of penal provision of "Code of Ethics" as to contents of certain
statements to be filed 107
Earlier statute as to by-laws for removal of vehicles interfering with snow
plowing not repealed by later 100
No evidence of intent of Legislature to regulate "Face amount plan^certifi-
cate", as "Periodic payment plan certificates" 117
Certain, as to towing motor vehicles, are not appHcable to Metropolitan
boulevards 142
Storrow Memorial Drive. See Metro poHtan District Conomission; Contracts.
Stream Clearance Projects. See Waterways.
Strike; interruption of service on Metropolitan Transit Authority by, etc., in
violation of injunction; declaration of emergency, etc 169
Sunday. See Cities; Holidays.
Sub-contractors, on public works; direct payment of, when permitted . . 85
Taxation :
Returns of monthly sales of motor fuels and alcoholic beverages are public
records 103
Exemption from, of railroads under St. 1961, c. 464 conditions for . . 128
Teachers; non-citizens to be employed as, in public service, if not exchange
teachers, must take oaths of allegiance 106
Teletypewriter. See Public Safety, Commissioner of.
Thanksgiving. See Holidays.
Tidewaters:
Property rights and rights to fill of the city of New Bedford, as to certain
lands in the tidewaters of the Acushnet River 175
See Waterways, Division of.
Towing, of motor vehicles from MetropoUtan boulevards. See MetropoUtan
District Commission.
Town Meetings; whether, under Constitution, they must be at locations within
towns; validity of statute authorizing holding in regional schools . . 27
Towns ; by-laws as to removal of vehicles interfering with snow plowing . 100
Trucking company. See Common carrier of property by motor vehicle.
United Nations; flying flag of, on public building, not a violation of law
penalizing such display of the flag of a foreign country . . . .171
216 P.D. 12.
PAGE
United States; New Bedford Institute of Technology not authorizeJ to borrow
against a contract with, for a study by the Foundation . . . .180
Unit Price. See Contracts.
University of Massachusetts :
Persons employed at, on part-time, etc., basis, paid from "03" fund, are
entitled to ask to be defended in actions arising out of the operation of
State-owned motor vehicles 179
See State Finance.
Vacation. See State Officers and Employees.
Veteran. See Retirement.
Veterans Day. See Holidays.
Veterinary Medicine, Board of Registration of:
Has no authority to pro\'ide by rule for persons registered to take National
Board examinations, and fee therefor 193
Vocational Rehabilitation. See Rehabilitation; Constitution.
Waiver. See Contracts.
Waterways, Division of:
Appropriation for, fixing local contribution at 50% of cost, could not be used
for Hull sea wall 29
Commissioner of Public Works is appointing authority of Director of 31
Cost of working plans not to be excluded as "preliminary plans", under
Capital Outlay Act of 1961 82
Construction of replacement for private foot bridge in connection with
stream clearance project 92
Availability of appropriations for Capital Outlay Program including
waterway projects, for expenditure, with funds contributed by town,
for repair of town-owned MacMillan Wharf in Pro\'incetown . . . 145
Metropolitan District Commission not required to obtain Ucense from, for
dam across Mystic River authorized by statute 160
Property rights and rights to fill, of city of New Bedford as to certam
lands in tidewaters of Acushnet River 175
1959 Capital Outlay Act appropriation for Commonwealth's share of cost
of work under St. 1957, c. 607, to remedy pollution of Quequechan River
in Fall River is to be spent by city 190
Water well. See Contracts; Public Works.
Zoning Ordinances and by-laws; exemption of "public service corporations"
from, by Department of Public Utilities 181
DEC 2 7 1968
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