(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

ERRATUM 



These reports were erroneously bound with 
the Report for I963 first instead of last. The 
other sreaxs, 19^7-62, are found in the proper 
sequence • 



Public Document No. 12 

Cl)e Commontoealtf) of ^a00aci)u$ett0 



REPORT 



^^.c ATTORNEY GENERAL' 

I , FOB THE 

Year ending June 30, 1963 




Public Document No. 12 



Cbe Commonteealti) of ^assatbnsttts 



REPORT 



w ATTORNEY GENERAL^ 



Year ending June 30, 1963 



.W^^.; 



1 ^U./ /./" 



/ 

PrBLICATION OF THIS DOCUMENT APPROVED BT ALFRED C. HOLLAND, STATE PuRCHASINO AgENT. 

1100-6-64-938379 Estimated cost per copy: $3.08 



^^^#' 






^^- 



c. / 



Cl)e Commontoealti) of qpa$$acf)U0ett0 



Boston, December 4, 1963 
To i/je 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, 

Attorney General 



C!)e Commontoealtf) of Qia00acf)ii0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
EDWARD W. BROOKE 



First Assistant Attorney General 
Edward T. Martin 



Assistant Attorneys General 

Samuel Adams Carter Lee^^ 

George W. Arvanitis Gael Mahony 

James W. Bailey Glendora J. McIlwain 

Aileen H. Belford Paul F. X. Powers 

Paull M. Cushman^ Theodore Regnante, Sr. 
Nelson I. Crowther, Jr.^ Walter J. Skinner 

Jay L. Fialkow John E. Sullivan^ 

Samuel W. Gaffer'* ED^vARD M. Swartz 

Benjamin Gargill Herbert F. Travers. Jr. 

S. Jason Ginsburg^ Herbert E. Tucker, Jr. 

James J. Kelleher David L. Turner 
Lee H. Kozol 

Assistant Attorney General; Director, Division of Public Charities 
Paul B. Sargent 

Assistant Attorneys General assigned to Department of Public Works 

Robert A. Belmonte Foster Herman 

Burton F. Berg Richard A. Hunt^ 

John S. Bottomly Rudolph A. Sacco 

Frank H. Freedman Julian Soshnick^ 

James N. Gabriel Salvatore F. Stramondo^ 

John J. Grigalus Fred D. Vincent, Jr. 

Victor Hatem Henry G. Weaver 

Assistant Attorneys General assigned to Metropolitan District Commission 
Arthur S. Drinkwater^ John Wright 

Robert B. Sheiber^ 

Assistant Attorneys General assigned to Division of Employment Security 
Joseph S. Ayoub Roger H. Woodworth 

Assistant Attorney General assigned to Veterans' Division 
Donald W. Whitehead 

Chief Clerk 
Russell F. Landrigan 

Head Administrative Assistant 
Edward J. White 

1 Appointed, Jan. 28, 1963 6 Appointed, Mar. 27, 1963 

2 Resigned, Feb. 4, 1963 ^ Resigned, Mar. 29, 1963 

3 Appointed, Feb. 12, 1963 8 Appointed, Apr. 1, 1963 

4 Appointed, Mar. 20, 1963 9 Appointed, Apr. 2, 1963 

5 Resigned, Mar. 26, 1963 lo Appointed, May 13, 1963 



P.D. 12 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 

for the Period July 1, 1962-June 30, 1963 



Appropriations 

Attorney General's Salary 

Administration, Personal Services & Expenses 

Veterans' Legal Assistance 

Claims, Damages by State-Owned Cars 

Moral Claims 

Capital Outlay Program, Equipment . 



Total 



$15,000.00 
388,331.00 

16,500.00 
115.000.00 

10,000.00 
900.00 

$545,731.00 



Expenditures 

Attorney General's Salary $15,000.00 

Administration, Personal Services & Expenses 387,908.20 

Veterans' Legal Services 16,495.76 

Claims, Damages by State-Owned Cars 114,996.31 

Moral Claims 10,000.00 

Capital Outlay Program, Equipment 891.30 



Total 



$545,29L57 



Financial statement verified (under requirements of C 7, S 19 GL), November 
14, 1963. 

By JOSEPH T. O'SHEA, 

For the Comptroller 



Approved for publishing. 



JOSEPH ALECKS, 

Comptrolle 



P.D. 12 

C!)e CommonUiealtJ) of ^a0sacibu0ett0 



Department of the Attorney General, 
Boston, December 4, 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, 1963, totaling 26,428, are tabulated as follows: 

Extradition and interstate rendition 121 

Land Court petitions 281 

Land Damage cases arising from the taking of land: 

Department of Public Works 2,498 

Metropolitan District Commission 138 

Civil Defense 1 

Department of Mental Health 1 

Department of Natural Resources 38 

Department of Public Safety 1 

Department of Public Utilities 1 

Government Center Commission 48 

Lowell Technological Institute 1 

Massachusetts Maritime Academy 3 

Massachusetts Turnpike Authority 6 

Salem Teachers College 1 

Southeast Massachusetts Technological Institute 3 

State Reclamation Board 2 

Town of Tewksbury Water Commissioners Board .... 1 

County Commissioners, Worcester 1 

Miscellaneous cases, including suits for the collection of money due the 

Commonwealth 12.711 

Estates involving application of funds given to public charities . . . 1,649 

Settlement cases for support of persons in State institutions . . . 423 

Small claims against the Commonwealth 292 

Workmen's compensation cases, first reports 6,139 

Cases in behalf of Division of Employment Security .... 908 

Cases in behalf of Veterans' Division 1,160 



Introduction 

My first Annual Report as Attorney General of the Commonwealth of 
Massachusetts, as required by General Laws, Chapter 30, Section 32, 
covers only the period between January 16, 1963, the date on which 
I assumed office, and June 30, 1963, the end of the Commonwealth's 
fiscal year. 

The Attorney General is the chief legal officer of Massachusetts. He 
is the primary source of official legal advice. He represents the 
Commonwealth, its 144 state departments, offices, and commissions, 
and their 229 subdivisions, except as otherwise specifically provided 
by statute. 

The Attorney General is, in effect, general counsel to the sta*-*" 



8 P.D. 12 

government in the same manner as an attorney in private practice is 
general counsel to a huge corporation. 

In modern society a high degree of specialization is required to cope 
with the ever-increasing complexity of legal problems which arise from 
the administration of our government and its laws. 

Therefore, after surveying the necessary fiuictions of the Depart- 
ment of the Attorney General, I reorganized the office into the follow- 
ing twelve Divisions: 

Administrative Finance 

Civil Rights Health, Education and Welfare 

Contracts Industrial Accidents 

Criminal Public Charities 

Eminent Domain Torts, Claims and Collections 

Employment Security Veterans 

Each Division has a Chief and one or more Assistant Attorneys 
General and Legal Assistants. Each Chief handles the duties assigned 
to his Division Avith the greatest possible autonomy consistent with 
the nature of the legal work involved. 

The wisdom of clearly delineating areas of responsibility coupled 
with responsible "on the spot" leadership was soon demonstrated. 
Immediate problems of vital concern to state officials arose in con- 
nection with the new Conflict of Interest statute which became effective 
on May 1, 1963; almost 1800 cases in the Eminent Domain Division 
demanded prompt action and fair treatment for our citizens; the 
Criminal Division faced the dual problem of bringing to trial compli- 
cated cases which were on the docket and keeping up with the ever- 
expanding investigative workload; the Collections Division was engulfed 
with the paper work incidental to recovering unprecedented sums of 
money for the Commonwealth; the Administrative Division was con- 
fronted with a surge of requests for legal opinions on varied and 
sophisticated legal problems; in short, the activity and workload of 
every Division was unparalled in the history of the Department. 

Without the clearcut delineation and delegation of authority, a 
bottleneck could have developed at the top of the chain of command 
which could possibly have led to a chaotic situation. With the divi- 
sional arrangement outlined above, the Division Chiefs aided by a 
carefully selected group of dedicated lawyers — men and women — 
whom I sincerely believe to be one of the most able, thor^ /Ji and 
dedicated teams ever to serve the Attorney General of is or any 
other state — have been able to provide the type of serv'cc- that our 
state officers and agencies so desperately needed. 

Over and above the prosecutions, investigations, and trials con- 
ducted by the Department, and because this office commands a most 
advantageous position for studying and assessing the problems which 
confront state government, I have felt a continuing need to suggest 
legislative changes where the need or propriety is suggested by our 
day-to-day experiences. As a result, I have filed with the legislature a 
varied group of bills. (See Exhibit A.) The enactment of this far- 



P.D. 12 9 

reaching legislative progiam would, in my opinion, prove of enormous 
advantage to the citizens of Massachusetts. 

As this report is written it is too early to predict how much of 
the proposed legislative package of thirty-eight bills will be enacted 
into law. The preliminary reception which some of the bills have 
received in the Legislature, particularly those which would require 
application of the open-meeting law and the competitive bidding law 
to public authorities, has already demonstrated the necessity of en- 
listing the support of the general public to insure their passage. Other 
bills are now well on their way to becoming laws of the Commonwealth. 

The underlying thrust of the legislative program has been to em- 
phasize that we are a government of laws and not of men; to change 
the basic scene and not merely punish the characters of the moment; 
and to remove veils of secrecy, to "get everything on top of the table" 
subject to full, open scrutiny. Such statutes assure the public that their 
officials are responsible to the people. 

In conclusion, I am most pleased to report to the people of Massa- 
chusetts that in my opinion we have turned the corner in the fight 
against corruption. With renewed and intensified efforts, with the 
continued support of all good citizens and the help of Almighty God, 
I look forward to the day when the good name of our beloved Com- 
monwealth is restored to the lofty pinnacle to which it is entitled by 
its glorious history of dedication and performance. 



10 P.D. 12 

Exhibit A 

1964 Legislation Proposed by the 
Department ol the Attorney General 

Bill No. Description 

H. 1261 Petition that civil service employees who have been found by 
the courts to have been illegally discharged or suspended 
from their positions be entitled to compensation. 

H. 1262 Petition for legislation to extend the period of time for 
appeals to the Civil Service Commission. 

H. 126 Petition for a legislative amendment to the Constitution 
authorizing the General Court to provide by law for the 
disqualification of a person to hold elected public office be- 
cause of his conviction of a crime involving public office or 
trust. 

H. 1316 Petition for legislation relative to the classification of munici- 
pal employees for the purpose of preventing conflict of in- 
terest under the code of ethics law. 

H. 1505 Petition for penalizing the making of false reports, minutes 
or statements by public officers and employees. 

H. 1507 Petition for legislation to increase the maximum penalty for 
violation of town by-laws. 

H. 1508 Petition for authorizing appeals by the Commonwealth on 
questions of law in certain criminal cases. 

H. 1509 Petition for legislation to provide for the arrest without a 
warrant of violators of certain gaming and gambling laws. 

H. 1510 Petition for legislation relative to the powers and duties of 
police officers in cities and towns. 

H. 1511 Petition for the imposition of criminal penalties for the 
violation of certain zoning by-laws. 

H. 1512 Petition that bribery and certain related acts be adjudged as 
felonies under the act establishing a code of ethics for state, 
county and municipal employees. 

H. 1518 Petition relative to the apportionment of taxes in eminent 
domain proceedings. 

H. 1519 Petition relative to recommendations of the Real Estate Re- 
view Board in the Department of Public Works with reference 
to land taken by said department. 

H. 1520 Petition relative to the measure of damages in eminent domain 
proceedings. 

H. 1521 Petition relative to proceedings for the award and assessment 
of damages in eminent domain takings. 

H. 1522 Petition relative to proceedings for the taking of real estate 
and interests therein by eminent domain. 

H. 1523 Petition relative to interest in eminent domain proceedings. 

H. 1524 Petition for an amendment of the law regulating the issuance 
and contents of search warrants. 



p.D. 12 n 

Bill No. Description 

H. 1525 Petition that provisions be made for the payment of witness 
fees to persons assisting the Attorney General in an investiga- 
tion. 

H. 1539 Petition that expenses of the Attorney General for the de- 
fense against claims for reimbursement under the workmen's 
compensation law be paid out of the special fund in the 
Department of the State Treasurer. 

H. 1540 Petition that expenses of the Attorney General for prosecu- 
tion of claims and defense against claims for reimbursement 
under the workmen's compensation law be paid for out of 
the special fund lor veterans in the Department of the State 
Treasurer. 

H. 1541 Petition relative to reimbursement of insurers under the 
workmen's compensation law out of the special fund for 
veterans in the Department of the State Treasurer. 

S. 391 Petition for legislation relative to the dismissal of public 
employees who refuse to testify concerning their official acts. 

S. 403 Petition for legislation to provide a penalty for the making 
of false reports, minutes or statements by a public officer or 
employee. 

S. 469 Petition that provision be made for public meetings by public 
authorities. 

S. 470 Petition for legislation to extend the provisions pertaining 
to public contracts to public authorities. 

S. 471 Petition lor legislation relative to the filing of official reports 
by public authorities. 

S. 472 Petition for legislation to extend the requirements of competi- 
tive bidding for construction, reconstruction, alteration, re- 
modeling, repair or demolition of public buildings to public 
aiuhorities. 

H. 1640 Petition relative to the filing of official reports by public 
authorities created by the General Court. 

H. 1641 Petition for extending to public authorities the requirements 
of competitive bidding lor construction, reconstruction, altera- 
tion or demolition of public buildings. 

H. 1642 Petition for legislation to provide that certain public atuhori- 
ties be subject to the open meeting law. 

H. 1643 Petition for legislation to provide that certain public authori- 
ties be subject to the law pertaining to public contracts. 

H. 1667 Petition that special town meetings called by justices of the 
peace be conducted as representative town meetings if such 
form of town government is in effect in the particular town. 

H. 1149 Petition relative to regulating the solicitation of charitable 
contributions from the public. 

H, 1150 Petition relative to financial reports filed with the Division of 
Public Charities of the Department of the Attorney General. 



12 P.D. 12 

Bill No. Description 

H. 1151 Petition for legislation to reduce the fee payable by certain 
charitable corporations filing returns with the Secretary of 
the Commonwealth. 

H. 3663 Petition for legislation regulating the operation of dancing 
schools and requiring the registration of the same. 

H. 1508 Petition for legislation to authorize appeals by the Common- 
wealth on questions of law under certain conditions in 
criminal prosecutions. 



P.D. 12 13 



Administrative Division 

The Administrative Division of the Department of the Attorney 
General is responsible for most of the "opinion work" of the office, 
for a substantial amount of civil litigation, and for approval of town 
by-laws. 

Since the members of the Division devote a large amount of time 
to research, the Division has been assigned the additional task of 
formulating answers to a variety of legal problems faced by the office 
which do not necessarily call for the issuance of official opinions. 
The Division also handles a large volume of correspondence with 
private citizens who seek legal advice and counsel on and about the 
problems of state, county and municipal government. Time is also 
devoted to the discussion of legal problems with state officials and 
with private citizens. 

Requests for opinions submitted by constitutional officers and agency 
and department heads must be honored by the rendering of an official 
opinion by the Attorney General. Most of these official opinions are 
drafted by members of the Administrative Division. They are thoroughly 
reviewed by the Attorney General before he approves the text. Should 
a request for an opinion be submitted which relates to a subject 
matter peculiarly within the province of another Division, the request 
is usually referred there so that individuals who are expert in the 
particular area involved may draft a response. Thus, for example, 
certain questions asked by the Department of Public Works are re- 
ferred to the Contracts and Eminent Domain Divisions, requests 
relating to corporate or taxation matters are referred to the Finance 
Division, etc. Eventually, however, drafts of all official opinions are 
approved by the Administrative Division prior to being submitted 
to the Attorney General. Thus, a central clearinghouse for all opinions 
has been established. 

Opinions of the Attorney General are a definitive interpretation 
of the law unless and until they are reviewed and reversed by courts 
of competent jurisdiction. They are relied upon by State officials and 
by the public at large. References to the opinions are included in the 
annotations of the General Laws. The drafting of opinions is, there- 
fore, particularly important. Each must be carefully researched; it 
is the responsibility of the Administrative Division to see to it that 
the draft opinions submitted to the Attorney General contain accurate 
interpretations of the law. But these opinions must also be under- 
standable to the citizen who is not a lawyer since they are written 
for his guidance as well. 

During the first six months of our tenure, the Administrative Divi- 
sion has drafted opinions on a variety of subject matters — many of 
considerable sensitivity. Opinions are based strictly upon the law, 
without regard to political implications. Among the more controversial 
and newsworthy opinions drafted by the Division: responses to ques- 
tions concerning "testimonial dinners," reapportionment of the Massa- 



14 P.D. 12 

chusetts House of Representatives, the suspension of indicted public 
officials. 

Tlie important "testimonial dinner" law (G.L. c. 268, § 9A) forbade 
the sale of tickets to any function held as a "testimonial" to non-elective 
public officials in the service of the Commonwealth or any of its 
political subdivisions. The Opinion stated that the applicability of 
the law to an individual did not depend upon the specific duties of 
the individual, but upon the overall function of the agency for which 
he worked. For example, despite the fact that a clerk within the 
Department of Public Utilities performs only clerical duties, the 
regulatory nature of the Department itself would make this law ap- 
plicable to the clerk. The statute has far-reaching application since 
many of the departments, boards and commissions as well as the 
judicial branch and the Governor's office fall within its ambit. 

The revolutionary decision of the United States Supreme Court 
in Baker v. Carr, in which the Court finally dealt with the legislative 
apportionment question which it had long chosen to avoid, cast sub- 
stantial doubt upon the apportionment of legislative representation in 
Massachusetts. In an opinion drafted by the Administrative Division, 
the Attorney General ruled that the General Court had a clear duty 
to reapportion the House of Representatives in accordance with the 
Constitutional guarantee of equal protection for every voter. Shortly 
thereafter the case of Fishman v. White was brought, as mentioned 
below, and reapportionment was effected by Chapter 666 of the Acts 
of 1963. 

An important question arose relative to rights of appointing authori- 
ties to suspend appointees indicted for misconduct in office. This 
necessitated interpretation of G.L., c. 30, § 59, the so-called "Perry 
Law." The Opinion stated that an official indicted for misconduct 
which occurred prior to the effective date of the "Perry Law" could 
nevertheless still be suspended under its provisions. The Opinion 
did much to clarify the subject of suspension of appointed officials. 
The Administrative Division was also responsible lor rendering responses 
to a variety of other requests, including opinions on the Franklin 
Fair Association charter, the authority of the Massachusetts Art Com- 
mission and Civil Service and Registration matters. 

During the first six months of this administration, 125 formal 
Conflict of Interest Opinions have been issued. Effective May 1, 1963, 
the Conflict of Interest Law (G.L., c. 268A) authorizes State employees 
to seek opinions about their status from the Attorney General. A 
substantial amount of time has been spent in informal conferences 
with Town Counsel and City Solicitors, the officials charged with the 
duty of interpreting the Act for municipal employees. The Act is new 
and complicated, and judicial decisions interpreting it are naturally 
unavailable at this early date. Consequently, the opinions drafted by 
the Administrative Division on Conflict of Interest questions have 
provided an important clarification of the meaning of the statute. 
In addition, these opinions have had the effect of publicizing the 
statute and of making the public generally aware of its provisions. 



P.D. 12 15 

The success of the new law can be measured not by the number of 
criminal prosecutions brought under it, but by the public acceptance of 
its provisions and wholesale honest attempts to comply with the statute. 

The Division handles all civil litigation which affects the Constitu- 
tional officers or that is extraordinary in nature, and is also respon- 
sible for much of the court work involving State agencies and de- 
partments. Among the matters handled in court by members of the 
Division were cases involving the legislative pay-raise and reappor- 
tionment of the House of Representatives. In Molesworth v. White, a 
group of petitioners sought judicial review of the power of the General 
Court to make a salary increase for state legislators effective immediately 
by use oi an emergency preamble. The petitioners contested the validity 
of such action. Handled by members of the Administrative Division, 
the Supreme Judicial Court eventually ruled that the Legislature itself 
is the final judge of the necessity for an emergency provision and that 
its determination could not be reversed in a judicial forum. 

Failure of the Massachusetts House of Representatives to reappor- 
tion itself after Baker v. Carr led to more extraordinary litigation 
for the Division. In Fishman v. White, judicial proceedings were begun 
to enforce a proper apportionment of the Legislature. The Legislature, 
spurred on by the previously discussed opinion of the Attorney Gen- 
eral, the pending litigation, and public opinion, complied with the 
United States Supreme Court mandate and passed a reapportionment 
statute. 

Members of the Division appeal' in court on a variety of cases, 
including matters involving the Registrar of Motor Vehicles, Civil 
Service Commission, the Boards of Registration and many State Depart- 
ments and agencies. 

G.L., c. 40, § 32 requires that town by-laws be approved by the 
Attorney General before they become effective, and this duty is also 
assigned to the Administrative Division. The Town involved must 
submit copies of the by-law passed by its town meeting, together with 
evidence that all procedural requirements have been met; — quorum, 
notice provisions, etc. Action must be taken by the Attorney General 
within ninety days of submission of the by-law to the Department 
or the by-law is deemed to have been approved. Conferences are fre- 
quently held with town officials and interested citizens, and much 
informal advice rendered to the municipalities. The burden on the 
Division in this regard is especially heavy during the spring and summer, 
immediately after the holding of town meetings. 

Civil Rights Division 

Among the most difficult and sensitive problems of law enforcement 
are the clashes between the individual citizen and his government. 

Although working in an area that is undergoing extremely rapid 
change, the Civil Rights Division has sought to be true to the prin- 
ciples of lasting value. In drafting opinions, it has been the policy of 
the Civil Rights Division to be nonpartisan, fair, and legally correct. 



16 P.D. 12 

Such a policy, administered with professional competence is the only 
type that can be acceptable as an Attorney General's course of action. 
Some of the major matters handled by this Division are mentioned 
below. 

In February, 1963, scarcely one month after assuming the respon- 
sibilities of office, the Department was called upon to testify before 
a legislative committee on the proposed extension of the Fair Housing 
Laws. The members of this Division did not merely issue an emotional 
response. They analyzed the bill in its statutory setting, placing the bill 
within the context of a hundred years of legislative history. The 
office found that the law on this subject had grown irrationally in 
many ways, that it operated erratically and in several situations, un- 
evenly. In a nine-page rationale to the Legislature — the only reasoned 
analysis of the bill submitted to that body — the Department sought 
to show that the bill's principal function would be to eliminate existing 
inequities by applying to all similar business transactions the require- 
ments formerly applicable only to some. The bill was enacted into law. 
[Acts of 1963, Ch. 197, § 2] 

In March, 1963, a seller of the book Naked Lunch was indicted by 
a Suffolk County grand jury, upon a presentation by the District 
Attorney, for selling an allegedly obscene book. After considerable 
study, the Attorney General decided that this type of prosecution is 
inconclusive, unfair, and sporadic in operation. The Attorney General 
called together all the District Attorneys and explained to them the 
problems and responsibilities existing in this area. They unanimously 
agreed with his suggestions that enforcement of the obscenity laws 
regarding books would be handled most efficiently and fairly through 
the Attorney General's office, on advice of the Obscene Literature Con- 
trol Commission by civil proceedings against a book, rather than a 
bookseller or librarian. Such proceedings are conclusive throughout 
the Commonwealth. 

This office represents and renders legal advice to the Massachusetts 
Commission against Discrimination, an administrative agency estab- 
lished to enforce our fair practices law. In a case that asserted illegal 
segregation in Boston Public Housing and that had been pending 
before the Commission for a year and a half, the Attorney General 
departed from precedent and entered the stalemated case at the 
pre-trial stage. He sent a representative to Washington to spend a full 
day there discussing the problem with officials. i\nd now a draft agree- 
ment is being prepared by this Department to be used as a basis for 
negotiation. 

Finally, a most recent opinion has stopped the Registry "roadwatch" 
as an invasion of the citizen's privacy. It is our belief that the law 
does not condone such a restriction of a citizen's liberty of motion. 

In drafting opinions, this Division has operated on the theory 
that an advantage to decisions which are dictated by reason rather 
than by political expediency is that they supply the basis for a con- 
tinuing program. 



P.D. 12 17 



Contracts Division 

The Contracts Division examines all state contracts and leases for 
proper legal form and represents the Commonwealth in all civil actions 
brought by or against the State as a result of such contracts. Improved 
and more efficient methods of operation have resulted in substantial 
progress in all aspects of this Division's functions. 

In regard to leases, the Division Chief now attempts to advise the 
various state departments while the contracts are still in the drafting 
stage so that errors are prevented. He watches contractual arrangements 
of agencies more closely than in the past and has considerably tightened 
drafting procedures. This attention to detail has saved much costly 
litigation. 

Contracts for approval come into this Department constalfty, often 
at the rate of twelve a day. These contracts are processed quickly so 
that the Commonwealth's business is unimpeded. Members of the 
Division have attended a host of meetings of various departments in 
connection with contract matters so that personal assistance and guidance 
can be provided. Much legal advice, on matters which do not require 
formal opinions, is furnished by this Division to the state departments 
on contract matters. 

When we assumed office, we initiated a nudti-pronged policy to cope 
with the existing backlog of cases. A policy was set; no cases would 
be settled out-of-court. Now, it is hoped, only companies with valid 
claims will submit cases, for each case will be adjudicated on its merits 
in a court of law. This office has carefully prepared all cases and has 
brought the docket up to date, filing pleadings in all instances. 

Since assuming office, new cases have come in at the rate of about 
ten a month. Most are substantial claims against the Commonwealth, 
involving hundreds of thousands or even millions of dollars. These 
matters have received our prompt attention. All pleadings are in order, 
and every case has been carefully investigated and prepared for trial. 
To maintain current status, we are constantly in court on demurrers 
and lien cases in addition to the voluminous trial work. 

This Division has adhered to its goals of pursuing honest and efficient 
methods, diligent work in the preparation of cases, determination to 
try all claims in court, clearing up a backlog of cases, and improving 
the morale of workers in the field of public construction. 

Criminal Division 

The Attorney General is designated by law as the chief law enforce- 
ment officer of the Commonwealth. As such, he may assume control 
over any criminal matter at any stage of a criminal proceeding any- 
where in this Commonwealth. For the most part, hov»^ever, the At- 
torney General properly leaves routine law enforcement to District 
Attorneys and state and local police, who have the responsibility for 
dealing with crime in their own areas. 



18 P.D. 12 

The Attorney General reserves ultimate authority in all criminal 
prosecutions, however, but assumes active control only in special cir- 
cumstances. The Attorney General initiates criminal prosecutions in 
matters crossing county lines, where the circumstances have state-wide 
significance, or where the government of the Commonwealth is directly 
affected. It is in these latter areas that the Criminal Division of the 
Attorney General's office functions. 

Dedicated to the vigorous and efficient prosecution of crime and 
corruption in the Commonwealth, the Division has investigated and 
prosecuted many cases. 

Boston Under-Common Garage Case — Under the control of an 
Assistant Attorney General and a Special Assistant Attorney General, 
this instance of corruption, graft, and bribery was brought to trial 
in two sfllges. The scrupulously careful preparation and expert organiza- 
tion of a mass of complex material during the first trial in April, 
1963, resulted in the conviction of the three defendants. Prison and 
jail terms totaling five to five and one-half years each were imposed 
for larceny of $450,000 from the Massachusetts Parking Authority. The 
second trial is underway as this is written. 

Contract-Swapping Conspiracy — Shortly after assuming office, members 
of the Criminal Division uncovered a conspiracy involving a state de- 
partment official and a private corporation. In May, 1963, the state official 
and executives of the corporation were found guilty of conspiring to 
swap contracts. 

Raceway Investigation — Hampden County — Voluminous legal re- 
search into and meticulous organization of records relating to all 
phases of racing in Massachusetts, particularly dealing in the stock 
of Hancock Raceway Inc., culminated in the presentation of evidence 
to the Grand Jury. Indictments have been returned against three in- 
dividuals for larceny and accessory before the fact to larceny. 

Building Inspector Cases — Under the previous administration, in- 
dictments were returned against six Boston building inspectors for 
bribery under c. 268, § 8. This year, motions were filed by the de- 
fendants to quash the indictments. This Division has successfully dis- 
posed of these motions and will proceed with the cases. 

The Criminal Division also represents the Commonwealth in ex- 
traordinary writs (writs of error, writs of habeas corpus and mandamus 
actions). These actions involve complex issues of constitutional law 
and statutory interpretation. Their preparation and presentation neces- 
sitates a great volume of legal research in the drafting of pleadings, 
the preparation of briefs, and the subsequent oral argument by staff 
members in the Supreme Judicial Court and the Superior Court Equity 
Session. 

This office has made especially progiessive and significant innovations 
in the field of criminal law. For instance, a Complaint Section has been 
established within the Criminal Division. Any Massachusetts citizen 
now has a forum where, in confidence, he may present complaints 
and/or evidence about violations of Massachusetts law. Although orig- 



P.D. 12 19 

inally conceived as a center where complaints could be processed from 
citizens who felt aggrieved by their treatment from local public officials^ 
this section, in practice, has received information covering a much 
laiger spectrum of impropriety and illegality. Nine hundred seventy- 
seven complaints have been processed during the first six months of 
the Complaint Bureau's operation. Many of these complaints have 
been turned over to local police departments and arrests and prosecu- 
tions have resulted. When necessary, the Bureau advises the complain- 
ant that a problem requires legal assistance from private counsel. In one 
instance, the work of the Bureau saved a man's life. (The receipt of a 
telegram from an individual who was about to commit suicide resulted 
in a prompt call to the local police department which acted to save 
the citizen's life.) 

The indictment, prosecution and imprisonment of men does not, of 
itseli, prevent crime. These measures do have a deterrent effect. Far 
more important, however, is an understanding of the criminal and 
the crime. To increase this understanding a committee was formed 
to study how to devise a meaningful system of crime reporting within 
the Commonwealth. Dr. Sheldon Glueck of Harvard Law School is 
chainnan of the committee whose members include Dr. Donald F. 
Kenefick of the Boston University Law Medicine Reseaich Institute; 
Dr. Sheldon Roen, Psychologist and Director of Research at the South 
Shore Mental Health Center in Quincy; Atty. Thomas Chittenden, 
recently appointed Executive Secretary and Director of Research of the 
Crime Council; and Thomas Regan, from the Plymouth County Dis- 
trict Attorney's office. The Committee plans to draft a reporting system 
which would incorporate all of the social and psychological research 
data about the causes of a crime. Such a system would put a valuable 
tool in the hands of all law enforcement agencies. 

In addition, the Criminal Division has the responsibility of further 
investigating and preparing for presentation to grand juries, cases 
forwarded to the Attorney General by the Massachusetts Crime Com- 
mission. Such investigation, preparation and presentation has resulted 
in the return of six indictments. 

Finally, the Criminal Division is currently preparing a comprehensive 
legislative program based on its experience and intensive study of the 
Massachusetts criminal law. 

Eminent Domain Division 

The Eminent Domain Division is concerned with land-taking: the 
taking of private property for a public purpose. When land is taken 
by eminent domain the citizen is entitled to compensation for the fair 
value of his land. The taking agency and the land-owner seek to reach 
agreement concerning the fair value of the property. When argreement 
is not possible, the owner usually petitions the Superior Courts under 
Chapter 79 of the General Laws to solve the problem. 

Significant progress has been made in two areas by this Division: 
reduction of the backlog of pending cases and institution of administra- 



20 P.D. 12 

tive procedures to prevent such a backlog from ever accumulating 
again. These changes incorporate the philosophy that the individual 
citizen's right to prompt compensation ior damages has priority over 
a public improvement, however meritorious the improvement may be. 

When this administration assumed office on January 16, 1963, 1,614 
land damage cases were pending. About 180 more cases were added by 
June 30, 1963, making a total of 1,794 cases. During my first six 
months in office, this Division disposed of 525 cases, reducing the 
number of claims awaiting settlement to 1,269. The awards made in 
these 525 cases, by settlements or court verdicts, were more than ten 
million dollars less than the damage claims made by the property 
owners. This $10,000,000 and the large amount of interest which would 
have been payable to the petitioners thereon represent a substantial 
saving to the Commonwealth. 

To accomplish such rapid disposition and to continue the accelerated 
disposal of land damage cases, the Eminent Domain Division was 
completely reorganized. A policy that the Commonwealth always be 
completely prepared for trial in every pending case at the earliest 
possible date after filing of the petition was established and rigorously 
maintained. Detailed analysis of and recommendations on, cases are 
now made in advance by specially trained Assistant Attorneys General, 
— experts in their field. 

For the purposes of settlement negotiations and trial the original 
files of the taking agencies were delivered to the Department of the 
Attorney General at my request. When I took office, approximately 
1,000 substantive files were being withheld by taking agencies pending 
their duplication before delivery to the Attorney General. By agree- 
ment of the heads of the agencies involved, primarily the Department 
of Public Works, the copying process was avoided and the original 
documents were delivered. A new File Preparation Section was estab- 
lished within the Division, to review the material submitted by the 
taking agencies in the light of a probable trial. As a result, many 
deficiencies were detected and corrected before trial. 

In addition, a carefully prepared checklist is now used for the 
analysis in detail of all cases. Among other things, this policy has 
resulted in an assignment to each case of a settlement figure based 
on the recommendation of trial counsel, approved or amended by the 
Chief of the Division. 

To accelerate further the disposition of cases these new procedures 
permitted decentralization of the control of cases after approval of 
analysis and establishment of settlement authority. 

In addition special sessions of the Superior Court for land damage 
cases were held in April, 1963, in Bristol, Norfolk and Middlesex 
(Lowell) Counties. In May pre-trial sessions were held for nine 
scheduled special sessions for July, 1963, three each in the Counties of 
Bristol, Essex and Middlesex. 

The cause of the backlog of cases — the taking of private property 
for public purpose without prompt and fair payment therefor — has 
become one of the major concerns of the citizens of the Commonwealth, 



P.D. 12 21 

not only because of the antiquated procedures involved, but also be- 
cause of a failure to review the status of the law for over thirty years. 
I have directed the Eminent Domain Division to thoroughly review 
existing land-taking procedures in the light of existing law and to 
make appropriate recommendations. 

A new section was created within the Division for the implementa- 
tion of a long-range program for the codification of all the highway 
laws of the Commonwealth. 

The need for better and more professional appraisals is being com- 
municated to appraisers by the members of the Division in individual 
contacts, in speeches, and on panel discussions before their professional 
organizations. We are advising the public of its rights both in individual 
cases and by detailed correspondence. We are presently preparing a 
handbook for appraisers in the Department of Public Works to pro- 
vide valuable guidance, in layman's language, on the important legal 
questions which arise in the field. 

ElSrPI.OYMENT Securit'S' 

Prosecution of delinquent employers and fraudulent compensation 
claimants has increased, resulting in significant sums of money being 
paid into the Treasury of the Commonwealth which otherwise would 
not have been recovered. 

At the same time, the Attorney General's Department has followed 
a policy of giving the erring individual, the business, or the corpora- 
tion every opportunity to make payment before prosecution actually 
begins. Usually, four or five letters of warning are sent so that the 
offender is given every possible opportunity — either to make restitution 
or to otherwise explain his side of the case, the prevailing circum- 
stances and conditions. 

Employer corporation problems have increased (that is, instances 
where one person is the principal stockholder and officer of many 
corporations, and taxes are not paid by any of the corporations). We 
have been able to concentrate on this type of case by cross-checking 
the files as to employer and stockholder names. 

Serious problems have arisen because for years employers have had 
a more lax and casual attitude toward paying state taxes than is the 
case with their obligations to the federal government. It is hoped that 
with diligent prosecution of this type of case, employers will take a 
more serious attitude toward state taxes. From January 16, 1963, to 
June 30, 1963, in 97 employer cases, $60,227.69 was collected. In addi- 
tion to this, 167 complaints were brought against 15 employers. The 
defendants in each case were found guilty and an order for restitution 
and jail sentence was generally meted out, and, in some instances, 
severe fines were imposed. 

The intensive efforts of the Employment Security Division have 
brought about two noticeable results: a reduced amount of delinquent 
employers in areas where the Division has prosecuted — employers hav- 
ing been made aware that state taxes must be paid; and secondly. 



22 P.D. 12 

a lower number of fraudulent cases has kept the employment tax rate 
for employers minimal, with 3.7 the maximum tax rate. 

An increase in the prosecution of claimants who illegally collected 
unemployment benefits has had impressive results. From January 16, 
1963 to June 30, 1963, seventeen cases were closed. One hundred seven 
criminal complaints were issued against five employees and $13,231 in 
overpayment benefits owed the Commonwealth was recovered. It should 
also be noted that in cities where there has been a significant increase 
in prosecution, a marked number of claimants have voluntarily re- 
turned the money they owed the State. 

The Commonwealth is reaping the benefits of this new progi-am. 
Increased prosecutions result in more convictions. Substantial sums are 
then collected without investigation and prosecution for there are fewer 
overall violations of law either by delinquent employees or employers. 

Finance Division 

The primary function of the Finance Division is to act as counsel 
for the following State departments: Corporations and Taxation, In- 
surance and Banking. The Division advises the State Treasurer both 
in his capacity as Treasurer and as Chairman of the State Retirement 
Board. The Division assists in the preparation of all formal opinions 
requested by the above-named departments and officers. One of the 
members of this Division sits on the Contributory Retirement Appeal 
Board, as required by statute, and also acts, except in rare instances, 
as counsel to that Board and to the Teachers Retirement Board. 

Cases from the Department of Corporations and Taxation are usually 
handled by this office on the appellate level at the Supreme Judicial 
Court. The Division is involved in income tax and corporate excise 
matters after a decision has been made by the Appellate Tax Board 
and in inheritance tax matters after a decree of the Probate Court 
has been entered. In the period covered by this report, six cases were 
argued before the full bench of the Supreme Judicial Court. As a result 
of the efforts of tliis office in successfully arguing against the sophisticated 
and complex methods of tax avoidance, thousands of dollars due the 
Commonwealth have been collected. Most notable of these was the case 
of Deioey vs. State Tax Commission which decided that the gain on a 
transfer of capital stocks in a merger of two corporations to foreign 
trustees was a taxable transaction to a resident settlor. 

The preparation and writing of briefs for cases such as the above 
consumes a great deal of time of the personnel of this Division. In this 
regard, the legal bureau of the Department of Corporations and Taxa- 
tion has been most cooperative in providing research and trial briefs. 

Administrative decisions of the Commissioner of Insurance receive 
much attention by this Division. These decisions also find their way 
to the Supreme Judicial Court for determination. The residents of the 
Commonwealth have been the prime beneficiaries of the efforts of this 
office in this regard. Examples are Commissioner of Insurance vs. 
Equity General Insurance Company, where the Court held that deposits 



P.D. 12 23 

of the insurance company in the Commonweakh must be held for the 
benefit of Massachusetts creditors before being sent to a receiver in 
another state; Massachusetts Medical Association vs. Commissioner of 
Insurance where a petition for increased rates was denied, saving 
the Commonwealth and state employees approximately $500,000 in 
premiums; Baker vs. The Coynmissioner of Insurance where the sus- 
pension of a broker's license lor alleged improper practices was upheld. 

As to the Board of Bank Incorporation, this Division has been 
successful in argument, upholding the Commissioner's decision with 
respect to the location of new banks or new locations for branches of 
banks already established. City Bank & Trust Co. vs. Commissioner. 

The Treasurer of the Commonwealth, in that capacity, must have 
the approval as to form of all bonds issued by the State. In this six- 
month period, issues totalling se\eral million dollars were so approved, 
thereby permitting the uninterrupted continuation of the business 
of the Commonwealth when it was found necessary to borrow money. 

The Treasurer of the Conmnon wealth, in his capacity as Chairman 
of the State Retirement Board, requires the assistance of this Division 
in rendering opinions as to the method in which the retirement laws 
must be interpreted. These requests are rather frequent and have been 
attended to in a timely manner so as not to jeopardize whatever rights 
the subject of the request may have had. 

As a member of the Contributory Retirement Appeal Board and 
as counsel to it, this Division has expeditiously disposed of those 
appeals coming before the Board and has defended its decisions before 
the Courts. The Board, mainly because of the greater life expectancy 
of most of the retiring claimants, had been faced with an ever-increasing 
number of appeals which resulted in unreasonably long waiting periods. 
Since assuming office, I have initiated a method of operation to reduce 
sharply the backlog of appeals. By setting up "show cause" hearings 
we have assured that appeals are now heard within four months of 
filing as compared to waiting periods of more than a year previously. 
These hearings are directed particularly towards those who, by asking 
for continuances, thwart the orderly procedures intended by the 
statute. 

The Contributory Retirement Appeal Board sits once each week, 
hearing as many as four appeals at each sitting, barring the afore- 
mentioned continuances. About sixty appeals were disposed of in the 
period covered by this report. Probably the most important case handled 
during this time was Smolinski vs. Boston Retirement Board. The 
constitutionality of the "Graham Law" was upheld and those retirees 
who were receiving accidental disability pensions were compelled to 
report annual earnings. 

In addition to the above-mentioned duties, this Division renders 
legal advice and informal opinions daily in a myriad of matters in- 
volving the general area of its assignment. To the extent to which it 
is permitted by statute, the members of the Division answer, in person 
and by letter, the legal questions of hundreds of residents of the 
Commonwealth. 



24 P.D. 12 

Division of Health, Education & Welfare 

I established the Division of Health, Education and Welfare in 
January 1963, to fulfill a definite need. It coordinates the legal affairs 
and problems of the social and welfare agencies of the Commonwealth. 
In the first six months of its existence, the Division has fully demon- 
strated the merit of its creation. 

First, the Division administers an orderly, efficient and complete 
program to assure the proper and intended application of social and 
welfare legislation. Secondly, by having one Division handle all social 
and welfare matters, a uniform and coordinated program of legal assist- 
ance has already been developed for the various departments and 
agencies in all educational, social and welfare programs. And thirdly, 
with one Division responsible for the legal work of these departments 
and agencies, the Department of the Attorney General is now able 
to view these problems in the overall perspective of the entire field 
rather than on a case-by-case basis. Thus we can maintain a complete 
check upon the activities and programs of these agencies and depart- 
ments. 

The administrative functions of the Division have included an im- 
mense volume of title and contract work for the State Housing Board 
and the Department of Education, In its first six months, the Division 
has reviewed all the site acquisition papers and construction agiee- 
ments tor many state-aided housing projects and for the expansion 
of educational facilities at state teachers' colleges and other educational 
institutions. 

Many of the statutes creating our welfare programs are relatively 
new and therefore require interpretation. This Division has spent a 
great amount of time reviewing these new statutes and discussing them 
with the appropriate agencies in an attempt to assist the agencies in 
establishing effective welfare programs. A series of forty-eight cases 
regarding these new laws are now pending in the Superior Court. This 
Division will prepare and try these cases before the Superior Court, and 
if necessary, will argue them before the Supreme Judicial Court of the 
Commonwealth. 

In the field of public health, the Division is confronted by many 
problems arising from inadequacies or ambiguities in the law dealing 
with the licensing and registration of professional people — nurses, 
pharmacists, doctors, laboratory technicians, funeral directors — to cite 
a few. We have made great strides in interpreting these licensing laws, 
and presently are considering possible changes for consideration by 
the Legislature which would tend to clarify these laws once and for all. 

Also in the field of public health, the Division is concerned with the 
use of artificial or substitute food products. A case dealing with the 
manufacture, sale and use of artificial or substitute food products is 
being prepared for argument before the Supreme Judicial Court in the 
fall. 

Under G.L. Ch. 138, commonly known as the Liquor Control Act, 
this Division has represented the Alcoholic Beverages Commission in 



P.D. 12 25 

various matters before our Courts. The most recent litigation involves 
suspensions meted out by the Commission to various retailers for price- 
cutting. We are awaiting a decision by the Court in this matter and, 
in event of an adverse decision, I may well find it necessary to recom- 
mend remedial legislation in an effort to clear up this condition in 
the liquor industry. 

Division of Industrial Accidents 

In accordance with the provisions of G.L. c. 152, § 69A, the De- 
partment of the Attorney General must approve all compensation 
payments made under this Chapter by the Commonwealth, as a self- 
insurer, to state employees who sustain injuries arising out of, and 
in the course of, their employment with the Commonwealth. This 
includes payment of medical and hospital bills arising out of such 
injuries. 

Figures for the period covered by this report (January to July, 1963) 
indicate a marked increase in the number of agreements approved 
for payment of weekly compensation benefits in lost-time disability 
cases. Four hundred and sixty agreements in this category were ap- 
proved. A total of 3,100 first reports of injury were received during the 
same period. 

Payments made by the Commonwealth to injured state employees 
under § 69A for the entire fiscal year 1963 totalled as follows: 

For Compensation $1,116,981.36 

Medical Payments to Doctors 136,848.05* 

Hospital Payments 160,454.22* 

$1,414,283.63 

* (Medical and Hospital Payments in Metropolitan District Commission cases 
not included.) 

Increased expenditures of appropriated funds for this purpose may 
be attributed to a great extent to rising hospital and medical costs 
and more liberal compensation payment schedules under recently 
enacted amendments to Chapter 152. An added factor is the increased 
costs involved in the disposition of older cases which formed a sizeable 
backlog of claims pending hearings before the Industrial Accident 
Board. 

In a cooperative effort to reduce this case backlog, the Industrial 
Accident Board, in 1963, allowed use of the pre-trial procedure in 
Commonwealth cases to expedite the fair handling of claims and 
eliminate further undue delays in hearing contested employee cases. 
As a result, the number of appearances by this office at the Board has 
nearly doubled. From January to June, 1963, over 150 such Board as- 
signrtients were handled. 

The Attorney General, through this Division, also represents the 
Commonwealth as the custodian of the so-called "second injury" funds 



26 P.D. 12 

on petitions by insurers for reimbursements under § 37 A of c. 152 
to be made out of the special fund (Veterans, Industrial Accident Fund) 
established by § 65N of c. 152 and similar petitions by insurers under 
§ 37 to be paid out of the special fund established by § 65 (General 
Industrial Accident Fund). All claims made by the Commonwealth 
under these provisions against insurers and self-insurers are brought 
by this Division. 

At the close of fiscal year 1963, the balance on hand in the Veterans' 
fund was .?3 13,884.00 with |37,8 13.73 collected during the period 
covered by this report. Payments out of this fund totalled $26,841.64. 

The balance on hand at the close of the fiscal year in the General 
Fund was 6,355.00. This office collected .$2,825.00 during the last 
six months of the fiscal period and during the same period disbursed 
•12,794.00. It should be noted that the General Fund has shown a steady 
decline due to diminishing contributions over the past several years, 
from $86,396.00 in 1956 to the present balance. This is explained in 
the fact that insurers are required to pay into this fund only in fatal 
cases where the deceased employee leaves no dependents. This situation 
has become relatively uncommon according to recent experience in 
such fatal cases. The significant difference from the Veterans' fund is 
than, in the latter, statutory provisions require payment by insurers into 
the Fund in all fatal cases. Emergency legislation filed in 1963 to build 
up the General Fund would improve this fund. 

Division of Public Charities 

A comparatively large number of charitable organizations and trusts 
for charitable objects have always existed in Massachusetts. Until re- 
cently the charitable organizations consisted almost entirely of such 
institutions as hospitals, homes for the aged, schools, colleges, and 
other institutions. The trusts, for the most part, resulted from gifts 
by will. 

In the past two decades, however, there have been great increases 
in charitable donations and in the establishment, or augmentation, of 
charitable organizations. This increase is due to the great post-World 
War II prosperity; Federal income tax laws which permit deductions 
from taxable income of gifts to charitable organizations; the Federal 
estate tax laws and the State inheritance tax laws; and the high tax 
rates for persons who have large incomes or who leave large estates. 
A distinct feature of the recent trend has been the establishment by 
individuals and corporations of inter-vivos trusts or corporations, for 
the purpose of holding and expending funds for public charitable 
purposes. These bodies, usually referred to as foundations, are generally 
established under written trust instruments. The trust instruments 
provide, in effect, that any funds held shall be expended for general 
charitable purposes, although some are established as charitable cor- 
porations with similar general purposes. 

Disclosures were made that many of these charitable foundations 



P.D. 12 27 

had been operated so as to make advantages to the donors the deter- 
minatives of the immediate activities of the organization, with the 
intended benefits to charity being postponed for years. As a result, 
the Federal income tax laws were amended to prevent such methods 
of operation, at least without the donations thereto, or the income 
therefrom, being subject to tax, and to require fairly immediate 
application of the income of the foundation for charitable purposes if 
the income of the foundation were to be exempt from tax. Although 
these amendments were enacted some years ago, disclosures resulting 
from recent Congressional investigations would appear to indicate 
that some foundations have evaded the provisions of the amendments 
to some extent and have not been subjected to the tax liability pro- 
vided for such evasion. 

The Federal government faces the problem of imposing tax liability 
on foundations which may be engaged in certain business activities, 
or are not currently expending their income. In addition, the Common- 
wealth has an interest in seeing that the funds of the foundation are 
protected, are not used for the benefit of the donors or others to the 
detriment of the charity, and are not used in violation of the terms 
of the instrument creating the charity. 

As one step in the direction of more effective regulation of public 
charities, Massachusetts enacted legislation in 1954 requiring almost 
all the public charities in the Commonwealth to file annual financial 
reports with the Division of Public Charities. That legislation has been 
amended from time to time to make it more effective. The require- 
ment, and the availability to the public, of these financial reports has 
been a very effective aid in the regulation of public charities in Massa- 
chusetts. The recent amendments together with amendments which will 
be proposed at the next session of the Legislature, will permit both 
closer supervision of public charities and the attainment of greater 
benefits from their operation. 

Most of the more recently created charitable foundations recite 
very broad charitable purposes. However, most of the trusts created 
by will, both in recent and past periods, while motivated by a general 
charitable interest, provide that the funds shall be used for some stated 
charitable purpose in which the donor has an interest. Often, in the 
course of time, or because of changed conditions, the funds cannot be 
applied in just the way the donor desired. In such situations, the law 
is well-established that the courts will not allow the charity to fail 
but will apply the fund under the doctrine of cy pres for some charitable 
object similar to that desired by the donor. Such cases arise periodically 
and-since January 16, 1963, the Division acted to support gifts in 
many cases, such as that of Laban Pratt for hospital purposes in 
Weymouth and that of Catherine Johnson for a home for aged women 
in North Andover. 

Other litigation in which we have been involved: — an appeal re- 
garding the sale of park land in Brighton in which the contentions 
of the Division were upheld by the Supreme Judicial Court; and an 



28 P.D. 12 

appeal relating to the trust under the will of Henry Lawton Blanchard 
for museum purposes in Avon, in which the Supreme Judicial Court 
upheld this administration's disavowal of support of the Probate Court 
order for the removal of the trustees. 

At the inception of this administration it was learned that the prac- 
tice in most Probate Courts was to refuse to allow any petition, or 
account, a citation which had been served on the Attorney General 
until written waiver was filed, no matter what his intest was. 

To lighten the burdens of the Probate Courts, of this office, and of 
the Bar, letters were written to all the Probate Courts stating that, if 
after being served with a copy of the citation in matters of the probate 
of wills, appointment of public administrators and allowance of ac- 
counts, this office did not thereupon enter a written appearance, no 
waiver from the department of the Attorney General should be required 
as a condition precedent to the matter being presented to the court for 
action. This change has reduced the volume of paper work of the Di- 
vision and has effected a desirable uniformity, not previously existing, 
in the proceedings in the various Probate Courts. The Division con- 
tinues to issue waivers, or assents, upon request in those instances in 
which the Attorney General is the only party interested and the issuance 
of the waiver, or assent, obviates the necessity for the issuance of a 
citation. 

In connection with the performance of its responsibility to see that 
money given for charity goes for charity to the greatest extent possible, 
the Division has studied situations of solicitations of funds from the 
public involving possible abuses either in the amount expended for 
the costs of solicitation, or for the costs of administration. We are 
preparing legislation to effectively regulate such abuses, and to assist 
the public in determining which charities deserve its support. 

A large volume of matters with relation to public administrations 
was handled in the period. The high rate of economic activity since 
World War II has also affected this phase of the Division's work. Due 
to the generally increased prosperity, many more persons who die in 
the Commonwealth, without known heirs surviving them, leave estates 
which require that probate proceedings be instituted by a Public 
Administrator. The average value of the estates of such persons is 
much higher now than formerly. 

Torts, Claims and Collections Division 

The Torts, Claims and Collections Division represents Common- 
wealth employees in tort actions (civil wrongs) brought against them. 
The Division determines the merits of each case and determines what 
is a reasonable amount for the damages involved. 

G.L. c. 12, § 3B provides that the Attorney General shall defend 
state employees who operate state-owned vehicles in the course of their 
employment. The Attorney General may settle claims against such 
employees for not more than .'ji;iO,00() in case of injury to or death of 
one person, and for not more than $5,000 for property damage. 



P.D. 12 29 

A thorough investigation of the problems in the area of motor 
vehicle torts led this office to establish new and more efficient methods 
of operation. The division has developed a list of qualified appraisers 
in every city and town to assess the damage to motor vehicles. A list 
of approved examining physicians has also been compiled. When a 
claim is received, if there is damage of more than $100 to a motor 
vehicle, the damages are now appraised by an independent investigator. 
In all personal injury claims, a medical examiner is now appointed 
to submit a detailed report. This program eliminates fraudulent and 
exaggerated claims for damages. We are now utilizing such pre-trial 
procedures — motions to dismiss, interrogatories, etc., — to assist the 
Commonwealth in the proper defense of these suits. 

All cases are now carefully and exhavistively prepared. The result: 
since this administration took office there have been no large verdicts 
against the Commonwealth. 

The results of our new policy are evident. Costs to the taxpayers 
have been lowered. In six short months, the average motor tort settle- 
ment has been cut from $407.00 per claim to $235.00 per claim. We 
have already disposed of 176 motor tort cases, avoiding unreasonable 
delays in the trials of claimants. All cases in which the Commonwealth 
was clearly liable have been settled within two months of the accident. 
And all settlements have been promptly processed for payment. Cor- 
respondence is now being answered on a current basis. 

We have inaugurated the practice of handling claims of less than 
$100 in the Small Claims Court. This saves the payment of sheriff 
fees, results in more efficient disposition of cases and further eliminates 
delay in trials of claimants. 

This division also handles moral claims and defective highway cases. 
Moral claims (damages occurring in circumstances that impose a 
moral, though not legal, liability upon the Commonwealth, such as 
injuries caused by deers crossing the road) have accounted for 61 cases, 
which have been settled for an average amount of $105.00 per case. 
There have been five cases arising from damages caused by state highway 
defects and the average settlement per case in these instances is $624.00. 

The Torts, Claims and Collections Division also represents all state 
departments in civil actions to recover money due the Commonwealth 
for damages to state property, for care of patients in state institutions, 
or for other obligations owed to the various departments. 

In regard to claims and collections, we have consulted with numer- 
ous department representatives concerning pending claims and referrals 
which had been made to this Division. In order to avoid unnecessary 
work and expedite claims we have requested — and been furnished — 
more detailed, specific information in regard to pending cases. A com- 
prehensive system of filing has been initiated. We have compiled de- 
tailed docket files which record the action taken in every case. We have 
also succeeded in bringing the correspondence in this field up-to-date. 

By developing a systematic program we made the following collec- 
tions in 229 cases from January 16, 1963 to June 30, 1963: 



mount Collected 


No. of C 


$62,214.47 


62 


33,999.08 


111 


2,354.23 


12 


31,447.05 


33 


385.00 


5 


185.00 


2 


45.00 


1 


27.00 


1 


40.00 


1 


50.00 


1 



30 P.D. 12 

Department 

Department of Mental Health 
Department of Public Works 
Metropolitan District Commission 
Department of Public Health 
Department of Education 
Department of Natural Resources 
University of Massachusetts 
Department of Labor and Industry 
Department of Public Safety 
Civil Defense Agency 

In nearly every instance, more was collected from January 16, 1963 
to June 30, 1963 than from July 1, 1962 to January^ 15, 1963. 

The total amount collected for the Commonwealth in the first six 
months of this Administration was $130,746.83. This sum, collected 
in only a six months period, is more than was collected in each full 
fiscal year from June 30, 1958 to June 30, 1962. 

Veterans' Division 

The Veterans Division advises veterans of their rights and duties 
under Massachusetts and Federal law. It furnishes legal assistance to 
veterans and their dependents, and guides them in the securing of 
all the special services available to them. 

The Division receives many inquires from veterans and from their 
dependents, especially in regard to their tax status. 

To answer and advise these veterans, the Division has held num- 
erous conferences with other state agencies and with local tax officials. 
We have received excellent cooperation from the Commissioner of 
Veterans' Services and from his entire staff. 

Springfield and Worcester Offices 

We have continued the sound practice of maintaining offices in the 
cities of Springfield and Worcester so that the hundreds of thousands 
of Massachusetts residents in the western counties of the Commonwealth 
would have easy access to the services of the department of the Attorney 
General. 

Assistant Attorneys General Frank Freedman of Springfield and 
Rudolph Sacco of Pittsfield, together with Legal Assistant Santo J. 
Ciccia of Springfield, staff the Springfield office. 

Assistant Attorney General Burton F. Berg of Worcester and Legal 
Assistant Russell F. Bath, Jr. of North Grafton, staff the Worcester 
office. 

They have been assisted in the preparation and trial of land damage 
cases and on other special legal problems by Special Assistant Attorneys 
General who have been appointed from time to time as needed. 

It is my earnest belief that the department of the Attorney General 
should — in fact as well as in name — function as "the people's" attorney. 



P.D. 12 31 

The citizens of our western counties should be able — conveniently 
— to bring questions and problems to our attention. The Springfield 
and Worcester offices fulfill an important and valuable role in this 
regard. 

Conclusion 

We have been in office for less than six months. But I am proud 
of the record which the members of the staff have already compiled. 
Our achievements have been possible because dedicated attorneys 
have devoted long hours of hard work to your legal affairs. These men 
and women have truly been public servants. I am most grateful for 
the service rendered the citizens of the Commonwealth by this out- 
standing and talented staff. 

Respectfully submitted, 

EDWARD W. BROOKE, 

Attorney General 



32 P.D. 12 

Places in which renting of rooms for lodging is solicited from the public, 
regardless of the number of guests, are places of public accom?noda- 
tion within the Anti-Discrimination Law. 

July 3. 1962. 

Mrs. Mildred H. Mahoney, Chairman, Massachusetts Commission 

Against Discrimination. 

Dear Madam:— In your recent letter you propose, for public in- 
formation purposes, the following formulation concerning houses rent- 
ing to less than five people in respect to the public accommodation law: 

"In regard to the renting of rooms if the place in which the room or 
rooms are located is open to the public and accepts or solicits the 
patronage of the general public for housing, lodging, board, rest or 
recreation, such a place irrespective of whether it is licensed or un- 
licensed and irrespective of the number of guests whether they are 
permanent or transient is covered by the law of public accommoda- 
tions." 

Section 92A of G.L. c. 272, specifically reads that: 

"A place of public accommodation . . . shall be deemed to include 
any place, whether licensed or unlicensed, which is open to and accepts 
or solicits the patronage of the general public and, without limiting 
the generality of this definition, whether or not it be (1) an inn, tavern, 
hotel, shelter, roadhouse, motel, trailer camp or resort for transient or 
permanent guests or patrons seeking housing or lodging, food, drink, 
entertainment, health, recreation or rest. . . ." 

The definition of "family" set out in paragraph 11 of § 1 of c. 151B, 
defining the term "multiple dwelling" for purposes of determining 
jurisdiction within the meaning of the Massachusetts Fair Housing 
Practices statute, helps to determine only whether or not the dwelling 
in question is occupied as a residence by three or more families, living 
together independently of each other. It does not limit nor conflict 
with the broad definition of a public accommodation as set out in 
§ 92A of c. 272. 

In view of the foregoing, I am satisfied that the formulation which 
you propose constitutes a correct statement of the law. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 

An owner of land posting it against hunti?ig thereon may not be paid 
for damages caused by deer or moose even if he is willing to give 
permissioji to hunt to persons who ask. 

July 5, 1962. 

Hon. Charles H. AV. Foster, Commissioner, Department of Natural 

Resources. 

Dear Sir: — In your letter of recent date relative to the provisions of 
G.L. c. 131, § 83, you state that: 

"This office has received a claim for damage together with a statement 
'Hunting on this farm is allowed to any or all persons who so ask. 



P.D. 12 33 

There are "No Trespassing" signs on die property but written per- 
mission is given to all who ask to hunt or fish.' " 

You then solicit our opinion as to your authority to pay this claim 
for damage in view of the fact that the land has been posted with 
"No Trespassing" signs. 

Section 83 deals with the subject of compensation for damages caused 
by deer or moose and the method of claiming and obtaining compensa- 
tion from the Commonwealth for such. The last sentence of the second 
paragraph of § 83 reads as follows: 

"No compensation for damage shall be paid under this section to any 
owner or lessee of land if such owner or lessee has, within one year 
prior to the damage claim, posted said land, other than an orchard 
or that portion of the land immediately surrounding his house, barn 
or other outbuildings, to prevent the hunting of deer." 

In the light of our conversation clarifying your letter, I understand 
that the owner of the land in question has lawfully posted it within 
the meaning of the sentence above quoted but has indicated a willing- 
ness to give written permission to all requesting such to hunt or fish 
on his land. In my opinion the claimant you refer to is not entitled to 
compensation if he has "posted" his land as provided in § 83. The 
"posting" is an assertion of his right to exclude the public at large 
from his property. The fact that the owner orally does give permission 
to those requesting such does not alter the situation. He has reserved 
his rights and must be bound by the statute. 

As stated by former Attorney General Paul A. Dever in his opinion 
dated January 10, 1938 (Attorney General's Report (1938), p. 31): 

"The owner of land has the exclusive right to take wild game upon 
his own land, in accordance with such regulations as the State may 
prescribe as to the times and manner in which game may be captured 
and killed. His ownership of the land gives him an interest in the game 
that may be located thereon, and a right to capture the same superior 
to those of the stranger. . . . 

"No one, without the consent of the owner, may enter upon his 
premises for the purpose of hunting thereon. A hunting license is no 
justification for a trespass upon realty, and the right of the owner to 
the exclusive use of his land cannot be invaded by the holder of such 
a license. . . . 

"In this Commonwealth the owner may protect his property against 
trespassing hunters by merely posting his land. . . ." 

In the light of the foregoing, I answer your query in the negative. 

Very truly yours, 
Edw^ard J. McCoRMACK, Jr., Attorney General, 
By Fred W. Fisher, Assistant Attorney General. 



34 P.D. 12 

Expenditures may be made by the Metropolitan District Commission 
from the apropriation by St. 1962, c. 549, for an athletic plan in 
Medford if the city agrees to pay the Commission the damages later 
paid it for the taking of the municipal stadium by the Common- 
ivealth. 

July 10, 1962. 

Hon. Robert F. Mlrphv, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — You have requested my opinion on certain questions 
relative to the expenditure of funds under the authority of St. 1962, 
c. 549. Said Act which has an Emergency Preamble, reads as follows: 

"SECTION 1. The metropolitan district commission is hereby 
authorized and directed to construct an athletic plant in the city of 
Medford on land to be acquired by said commission and may expend 
for such purpose a sum not to exceed five hundred thousand dollars. 

"SECTION 2. For the purpose set forth in section one the sum of 
five hundred thousand dollars is hereby transferred from funds made 
available by item 9027-01 of section two of chapter five hundred and 
seventeen of the acts of nineteen hundred and sixty-one, provided, 
however, that the city of Medford shall make available to the metro- 
politan district commission any funds received by it from the com- 
monwealth for the taking by emJnent domain of Gillis Stadium in 
said city." 

You inform me that the commission was notified on June 15, 1962, 
in a letter from the Comptroller's Bureau, of the authorization and 
allocation of the funds provided for in the act, and that it was stated 
in the letter that: 

"The funds received from the City of Medford are not available for 
expenditure. No allotments from 9027-05 will be made until these funds 
are received by the Commonwealth." 

You further inform me that the City of Medford has not received 
any payment by the Commonwealth in settlement of its claim for 
the taking of the Gillis Stadium, that it may be months or years before 
a settlement is made and that construction cannot begin if funds are 
not allotted from item 9027-05. 

I assume that item 9027-01 was intended to be referred to in the 
letter to you from the Comptroller's Bureau and in that part of your 
letter to me quoted above, or that a new account number has been 
designated by the Comptroller for this project. 

The questions you propose ask, in effect, whether it is a condition 
precedent to the award of a contract for, and expenditures for, the 
construction work authorized and directed by St. 1962, c. 549, that the 
City of Medford have received some payment from the Commonwealth 
in settlement of its claim for the taking of its stadiiun and have paid 
the amount received over to the commission. 

In my opinion the intention of the Legislature in enacting the pro- 
vision referred to was to require that any funds paid by the Common- 
wealth in settlement of the city's claim for damages for the taking of 
its stadium should be made available to the commission when they 



P.D. 12 35 

are actually paid to the city by the Commonwealth, but that it was 
not the intention of the Legislature that the actual settlement of the 
claim and the payment of the amount received to the commission 
should be a condition precedent to the doing of the work or paying 
therefor. 

In accordance with that view, it will be sufficient to authorize con- 
struction if the commission obtains from the city a formal written agree- 
ment that, as contemplated in chapter 549, any amount to be paid by 
the Commonwealth for the taking of the stadium shall be paid to the 
Metropolitan District Commission, a duly executed duplicate of the 
original is delivered to the State Department of Public Works and a 
copy is furnished to the Comptroller, together with a statement that 
an executed original has been delivered to the State Department of 
Public Works. 

Very truly yours, 

Ed'ward J. IMcCoRMACK, Jr., Attorney General 



No compensation may be paid a provisional slate employee whose period 
of service expires prior to June 30, on account of vacation credits 
which would have accrued to him if he had served until that date. 

July 18, 1962. 
Hon. Patrick A. Tompkins, Commissioner, Department of Public 

Welfare. 

Dear Sir: — In your letter of recent date relative to the provisional 
employees in your department, you state that your department, being 
authorized by the Commission on Administration and Finance to 
employ through June 30, 1962 a number of junior clerks and typists, 
thereafter requested the Division of Civil Service to approve on a 
provisional basis, there then being no civil service register, the appoint- 
ment of specified individuals to these positions; the Director of Civil 
Service approved the provisional appointments as designated by your 
department until April 28, 1962, but later on May 18, 1962, notified 
your department it would approve of their further provisional appoint- 
ment from such date only through June 8, 1962, forwarding your 
department thereupon a then available list of civil service candidates 
from which to select such employees as were willing to accept these 
positions. 

Your department finding it to be successful in filling a number of 
the positions above referred to from such civil service certification on 
June 1. 1962 notified the employees who had been provisionally em- 
ployed in these jobs that due to certification of others from the civil 
service register, their services would be terminated at the close of busi- 
ness, Friday, June 8, 1962, this being the date to which civil service 
approval was extended as above indicated. 

You further state that during the fiscal year, July 1, 1961 to July I, 
1962^. these provisional employees were rendering service in the process 
of earning vacation rights which under the rules of the State Division 
of Personnel and Standardization were not creditable to their vacation 
account for use until the succeeding fiscal year commencing July 1, 1962. 



36 P.D. 12 

Moreover, by reason of the ioregoing your department terminated the 
service ol these provisional incumbents and paid them no compensation 
tor the vacation credits for their work during the fiscal year 1961-1962 
relying upon an opinion of this office rendered June 23, 1952 interpret- 
ing G.L. c. 29, § 31 A. 

In the light of the foregoing, you ask our advice as to whether pay- 
ments for vacation credits to such provisional employees whose employ- 
ment was terminated on June 8, 1962 were properly denied. 

At the outset, it is provided by G.L. c. 31, § 15, that the Director 
of Civil Service may authorize provisional appointments pending the 
establishment of an eligible list and fix the tenure of such appointments. 
This, I understand from your letter, took place. The employment of 
the provisional employees you have referred to therefore ended on 
June 8, 1962. 

General Laws, c. 29, § 31 A, contains various provisions for the [)ay- 
ment of accumulated vacation allowances. Subsection (a) provides for 
payment of accumulated vacation allowances in cases of the death of 
state employees, which provides no solution for your problem. Sub- 
section (b) provides for accumulated vacation allowances for State 
employees ". . . whose services terminated by dismissal, through no 
fault or delinquency of their own, or by retirement, . . . ." The em- 
ployees you refer to I assume were not retired and in my opinion were 
not employees ". . . whose services terminated by dismissal, through 
no fault or delinquency of their own. . . ." Such employees, in my 
opinion, were not dismissed and therefore subsection (b) does not solve 
the problem. 

As was stated in the informal opinion dated June 23, 1962: 

"If an employee's service terminated because his position was abolished 
or because fewer employees were needed, that w^ould constitute a 
dismissal. On the other hand, if an employee were engaged for a certain 
period of time, it could not reasonably be said, when his term of service 
ended, that he was dismissed. His service was terminated by virtue of 
the terms of his employment and not by any action of his employer 
in declaring his service at an end. The latter but not the former nould 
constitute a dismissal." 

Subsection (c) of section 31 A provides that: 

"Employees who are eligible for vacation under the rules of said 
director and whose services were terminated for reasons other than those 
defined in paragraphs (a) or (b) shall be paid an amount equal to the 
vacation allowance credited but not granted to them as of the final 
date of the next preceding vacation year; provided, that no monetary 
or other allowance has already been made therefor." 

LV-2 of the Rules and Regulations of the Director of Personnel and 
Standardization, authorized by § 28 of c. 7 of the General Laws, effective 
June 26, I960, provides as follows: 

"Vacation leave earned during any vacation year shall be credited 
on June 30th and shall be available during the next vacation vear. 
However, in the case of any temporary employee whose services terminate 
on June 30th, he shall be credited with earned vacation in accordance 
witii these rules and he shall be paid therefor forthwith." 



P.D. 12 37 

Provisional employees are temporary employees. The provisional em- 
ployees you refer to were not in service on June 30th. Rule LV-2, 
therefore, gives us no help. 

In conclusion, I am of the opinion that your action in declining to 
award compensation for vacation credits to the provisional employees 
you refer to was proper. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, Assistant Attorney General. 



A license, approved by the Commissioner of Public Safety, is required 
for showing motion pictures on Sunday, and such a requirement 
is valid. 

July 23, 1962. 

Hon. Frank S. Giles, Commissioner of Public Safety. 

Dear Sir: — This will acknowledge your letter of recent date directing 
the attention of the Attorney General to St. 1962, c. 616, § 4. Your 
letter appears to ask for a ruling only as to whether the licensing of 
motion pictures on Sundays by the 7nayor or selectmen would be con- 
stitutional in view of the Brattle Films and Times Films decisions. 

I answer this question in the affirmative. Immediately following the 
Brattle and Times decisions, c. 742 of St. 1955 was enacted which 
". . . made clear that, notwithstanding the Brattle and Times Films 
decisions, local Sunday licenses must still be procured by motion pic- 
ture exhibitors." See Attorney General's Report, 1955, pages 35, 36. 

It must be noted historically that prior to the enactment of the present 
law there was contained in § 4 of c. 136 the provision that both the 
issuing of entertainment licenses by the mayor and the approval 
thereof by the Commissioner of Public Safety were to be tested by the 
standard that the entertainment be "in keeping with the character of 
th day," etc. The 1955 amendment did not strike out this provision; 
rather, it exempted, to a limited extent, motion pictures, television, 
and radio from its operation. As to these categories of entertainment, 
c. 742 specifically continues the licensing requirement by the mayor 
but freed from the test of being "in keeping with the character of the 
day," etc.; and completely does away with the requirement of approval 
by the Commissioner regardless of any test. See Mosey Cafe, Inc. v. 
Mayor of Boston, 338 Mass. 207, 210. Although the facts of the Mosey 
case dealt only with television and radio (and juke boxes) in cafes, its 
interpretation of c. 742 is equally applicable to motion pictures. 

Since the Mosey decision clearly validates licensing by the mayor 
of television and radio, and by implication, motion pictures, so long 
as the character-of-the-day test is removed, I am of the opinion that 
approval by the Commissioner of Public Safety would similarly have 
been valid if freed from that test. 

Ncn\4iere in St. 1962, c. 616, § 4 is this test to be found. Keeping 
in mind the several duties and functions of the Department of Public 
Safety with respect, for example, to fire prevention, boiler inspections, 
building inspections, elevator regulations, to name but a few, it is 



38 P.D. 12 

my opinion that the requirement of approval by the Commissioner of 
Public Safety provides an additional safeguard in "the preservation of 
public order at public entertainments." Section 4 does not authorize 
or empower censorship or prior restraint in the areas of free speech 
or press. See Mosey Cafe, Inc. v. Licensing Board for Boston, 338 Mass. 
199, 204-205; Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 212. 
Accordingly, I would advise that not only is a license from the mayor 
or selectmen required to show motion pictures on Sunday, but that 
your department must approve the application for such a license, not 
for the purpose of censorship of content but for the preservation of 
public order. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Eugene G. Panarese, 

Assistant Attorney General. 

No payments into the Higliway Fund on account of occupancy of space 
in the Public Works Buildijig by the Divisions of Waterways, 
Beaches and Motor Boats is required under St. 1931, c. 122. 

July 25, 1962. 

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

Dear Sir: — You have recently requested of me an opinion as to 
whether c. 122 of St. 1931 requires the Divisions of Waterways, Beaches, 
and Motor Boats to pay rent lor the space they occupy at 100 Nashua 
Street, Boston. 

You state that 100 Nashua Street was built under the authority of 
said c. 122. Section 6 of said chapter provides: 

"All the space suitable for office purposes and not used for the activi- 
ties of the department of public works in any building constructed or 
acquired hereunder for its use shall be assigned for the use of other 
state departments. There shall annually be paid from the general 
revenue into the Highway Fund a sum equal to the amount which 
would have been received if the space so assigned to other state depart- 
ments had been leased at fair market rates for equivalent spaces in 
privately owned buildings. . . ." 

It is to be noted that the Divisions of Waterways, Beaches, and 
Motorboats are all divisions within the Department of Public Works. 

Waterways, G.L. c. 16, § 5 A 

Beaches, St. 1958, c. 640 

Motorboats, G.L. c. 16, § § 12 and 5 

It is, therefore, my opinion that the activities of all these divisions 
are "activities of the department of public works" and § 6 of c. 122 of 
St. 1931 does not require rental payment by those divisions or any 
diversion of funds from general revenue into the Highway Fund. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By LA^VRENCE E. Cooke, 

Assistant Attorney General. 



P.D. 12 39 

The statute invalidating provisions of insurance policies and health fund 
agreements excluding payments for care in a soldiers home is ap- 
plicable to an out of state organization with members in Massa- 
chusetts. 

July 26, 1962. 

Mr. John L. Quigley, Commandant, Soldiers' Home, Chelsea 50, Mass. 

Dear Sir: — In your recent letter in which you enclose a copy of 
a letter from Irving J. Miller, Secretary-Treasurer, you state that the 
Health Benefit Plan of the National Postal Union has questioned the 
application of G.L. c. 175, § 22 to its plan. The provision of § 22 
which is involved was added by amendment on May 2, 1960 and pro- 
vided as follows: 

"No policy of insurance issued by a company under the authority 
of section twenty-four, one hundred and eight and one hundred and 
ten, and no contract or agreement entered into by the trustee of any 
trust fund authorized by chapter one hundred and fifty-one D, shall 
contain a provision excluding liability on the part of the insurance 
company or health and welfare fund for hospital, medical or surgical 
expenses if the insured is hospitalized or receives medical or surgical 
treatment in a soldiers' home established by the commonwealth. Any 
such provision shall be void." 

It would appear from your letter that the National Postal Union 
Plan has more than twenty-five members in our Commonwealth and 
thus is covered by c. 151 D, referred to in § 22. If this is so, it is my 
opinion that G.L. c. 175, § 22 is fully applicable to the National Postal 
Union Plan and the fact that the main office of the Plan is outside the 
Commonwealth is not significant. It has long been recognized that a 
state may regulate the type of insurance policy, or the like, sold to its 
citizens. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 

The 1946 lease of Hoosac Pier to the Boston and Maine Railroad ex- 
pired in 1961, and the lessee is not liable outside the lease. Limita- 
tions as to the original leasing are not applicable in the negotiation 
of a new lease by the Massachusetts Port AutJiority. 

Aug. 1, 1962. 
Mr. Emphraim A. Brest, Chairman Massachusetts Port Authority. 

Dear Sir: — Reference is made to your recent letters and to the 
various facts therein set forth relating to a lease originally executed 
between the Commonwealth and the Boston and Maine Railroad for 
occupancy of the Hoosac Pier. 

You call attention to the fact that the lease was originally executed 
on April 17, 1947, for a five-year period commencing on completion 
of construction of the pier. The lessee railroad was given an option to 



40 P.D. 12 

renew for three additional five-year periods. The first five-year term 
appears to have expired in March of 1956. At that time a second five- 
year term was commenced expiring in March of 1961. You state that 
the lessee has declined to renew the lease on expiration of this second 
five-year term. 

You note that the lease was executed under the authority of St. 1945, 
c. 619. Section 10 of that act contains the following limitation: 

". . . . provided, that no construction, to be paid from the proceeds 
of the bond issue hereby authorized, shall be done unless the Authority 
shall have first executed a written contract, approved by the governor, 
with a responsible party providing for the lease of said property, the 
minimum requirements of which shall be a rate sufficient to amortize 
sixty per cent of the actual cost to the commonwealth of the facilities 
included in the lease, over a period not exceeding twenty years, whicli 
contract may provide that at the expiration of the term of the lease 
it may, at the option of the lessee, be renewed for a further period of 
twenty years; and provided, further, that no expenditure of commit- 
ment from the proceeds of said bond issue in excess of five million 
dollars shall be made without further authorization by the general court 
therefor." 

You ask whether the lease expired on March 31, 1961, or whether 
it continues for a full period of twenty years by virtue of the aforesaid 
statutory provision. As stated in your letter, the pier matter has already 
been the subject of two written communications from this office. The 
first was an opinion rendered on February 21, 1946, before the lease 
was executed; the second was a letter dated March 21, 1961. Both of 
these communications are to the effect that the lease in question need 
not be for a term of twenty years but may be for a lesser period pro- 
vided that the rent is at an annual rate sufficient to amortize 60% of 
the cost over a twenty-year period. From the figures supplied in your 
letter, there is no doubt that the annual rate, if continued for twenty- 
years, would have been sufficient to amortize 60% of the cost. 

Under the circumstances, it appears that the terms of the lease con- 
form, at least technically, with the requirements of the statutory 
language. It would have been more prudent and more in accord with 
the spirit of the statute to have made the lease run for twenty years 
rather than providing for a five-year initial term with options to renew 
for three additional five-year periods; but this was a policy determina- 
tion made by the appropriate authorities in the light of circumstances 
then existing and predicated upon a formal opinion of the then At- 
torney General. Answering your first question in the light of these 
circumstances, it apjiears that the lease expired by its own terms in 
March of 1961. It does not continue for a period of twenty years from 
the commencement of the term. 

Your second question is as follows: 

"If the lease did expire on March 31, 1961, and the Boston & Maine 
Railroad did not exercise its option for two further periods of five 
years each (total ten years) is the authority bound to follow the limita- 
tions of St. 1945, c. 619, § 10, and recover from the Boston & Maine 
Railroad a now otitstanding 30% of construction cost as defined, or 
may it, notwithstanding the statute requirements for 60% recovery, 
now negotiate a lease on other terms which it may deem desirable?" 



P.D. 12 41 

From the information supplied by you it appears that there is no 
direct obligation on the part of the Boston & Maine Railroad to pay 
construction costs. Its obligation is to pay rent under the lease. Since 
the lease has expired by its own terms without fault on the part of the 
railroad, the obligation of the railroad ceases. 

In negotiating any new lease, your authority should strive to obtain 
a rental at least equal to that prescribed in the statute. It is noted, 
however, the statutory limitation, by its terms, applies to a contract 
to be executed before commencement of construction of the pier facilities. 
If a sufficiently broad contract was not then executed on behalf of 
the Commonwealth to provide for a full twenty-year lease at the re- 
quired rate, your Authority may find that, in the light of present 
circumstances, it cannot now find a lessee willing to pay rent at the 
rate set forth in the statute. In this event, your authority would not 
be required to keep the pier vacant until the required rent could be 
obtained. Rather, it would be under an obligation to negotiate a lease 
or other arrangement which would be in the best interests of the Com- 
monwealth and the authority bondholders. 

Very truly yours, 

Edavard J. McCoRMACK, Jr., Attovyiey General 

Provisional employees are entitled to reinstatement benefits for public 
employees serving in the armed forces. Public employees in armed 
forces reserves may not be paid for absence for a two months 
orientatioji course, and may be paid for the annual tour of duty 
only if actually employed on the date the tour begins. 

Aug. 1. 1962. 
Hon. Patrick A. Tompkins, Coynmissioner of Public Welfare. 

Dear Sir: — You have recently requested of me an opinion regarding 
an employee in your department caused by certain military service that 
he is called upon to perform. You state that the employee was appointed 
on December 17, 1961 provisionally and is without civil service status, 
since there was no civil service register from which a selection could be 
made. You further state that your department received copies of a 
certain order and memorandum which may be summarized as follows: 
The order was issued to the employee by the Adjutant General of the 
Massachusetts Army Reserve National Guard, 101st Artillery and re- 
quires the employee to report to Fort Sill, Oklahoma for the purpose 
of pursuing a field artillery officer's orientation course from June 9, 
1962 to on or about August 9, 1962, and specifies that the authority 
for these orders is to be found in 32 U.S.C. 505. Such service is ap- 
parently treated as U.S. military service by the federal government. 
See 40 Comp. Gen. 31 (I960). The memorandum consists of a training 
memorandum issued by the Adjutant of the First Howitzer Battalion, 
101st Artillery Army National Guard, and indicates that the annual 
duty tour of the members of this battalion will take place at Camp 
Drum, New York from the 17th of August to the first of September, 1962. 

Specifically, you ask four questions which are as follows: 

"1. Is the employee entitled to a leave of absence from June 9, 1962 
to September 1, 1962, or any portion thereof? 



42 P.D. 12 

2. If the employee is entitled to a leave of absence, for how long 
may such leave continue, having in mind the employee is without any 
permanent status in this department? 

3. Is the employee entitled to continuation of all or any portion of 
his regular State compensation during any period for which he is 
properly entitled to an approved leave of absence? 

4. If he is entitled to continuation of regular State compensation 
during any such period, for what period is he so entitled?" 

Chapter 708 of St. 1941, dealing with public employees in the military 
or naval services of the United States, was extended in 1960 through 
July 1, 1962 and the General Court within the last weeks of June 
further extended the operation of this statute from July 1, 1962 to 
July 1, 1964. 

Section 1 of said statute provides that a public employee who ter- 
minates his service for the purpose of serving in the military forces of 
the United States is deemed to be on leave of absence "provided that 
in case he was appointed for a fixed term the term has not expired; 
and provided further that if so required by the appointing authority 
he files the certificate of a registered physician that he is not disabled 
or incapacitated for performing the duties of the office or position." 
Theretore, if the employee was appointed for a specific period of time, 
he would be entitled under this statute to apply for reinstatement 
after the termination of his military service, but before the expiration 
of the term for which he was appointed, I believe this answers questions 
numbered 1 and 2 in your letter. 

In reference to the question of compensation, we must refer to 
G.L. c. 33 and the applicable provisions thereof. Section 59 of said 
chapter provides for a continuance of public salary for a person in the 
armed forces of the CommonioeaWi serving for certain purposes. One of 
those purposes is for the annual training period and, therefore, it would 
appear clear that the employee would be entitled to his public salary 
during the period of time that he actually serves with his Natioanl 
Guard unit in accordance with the training memorandum above re- 
ferred to. Said § 59, however, makes no provision for payment to public 
employees during the period of time that they are engaged in the type 
of military service described by the order to the employee relating to 
the field artillery officer's orientation course and, therefore, in my 
opinion, he is not entitled to collect his salary from the Commonwealth 
during the period of June 9, 1962 to August 9, 1962. 

I would further interpret § 59 to require that the employee actually 
be in the service of the Commonwealth at the time that he leaves for 
his annual training period with the National Guard to entitle him 
to collect his public salary. Therefore, unless the employee returned 
to the service of the Commonwealth after completion of his tour at 
Fort Sill, in my opinion, § 59 would not permit him to collect his 
public salary during his annual tour of duty at Camp Drum. I believe 
that tlie above has answered the questions 3 and 4 in your letter. 

Very truly yours, 

Edward |. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

^ Assistant Attorney General. 



P.D. 12 43 

Itein of General Appropriation Act for 1963 applicable to State Police 
providing for larger amount, and more permanent employees, than 
in 1962 item, prevails over reference in item of Supplementary 
Appropriation Act for 1963 as to State Police to number of perma- 
nent positiojis fixed in 1962 item. 

Aug. 7, 1962. 
Hon. Joseph Alecks, Comptroller. 

Dear Sir: — In your letter ot recent date relative to the appropriation 
for the Division of State Police in the Department of Public Safety — 
you state that in House No. 3700, the Report of the Ways and Means 
Committee on the budget recommendations for the fiscal year 1963, 
the following item was shown: 

"2926-01 For the service of the division, including not 
more than six hundred and fifty permanent 
positions .15,198,200" 

You further state the appropriation bill passed by the Legislature 
after amendment of the above item authorized an increase in the num- 
ber ot positions from 650 to 700 permanent positions. Chapter 591, 
which was based on House Number 3700, contains the following item: 

"2926-01 For the service of the division, including not 

more than seven hundred permanent positions $5,538,170" 

You further state that in the supplementary appropriation bill, c. 791 
of St. 1962, additional funds were provided for the Division of State 
Police in the amount of $33,439., the item therefor reading as follows: 

"2926-01 For the service of the division, including not 
more than six hundred and fifty permanent 
positions ........ $33,439." 

In the light of these circumstances you pose the following question: 

"Is the Division of State Police limited to 650 permanent positions 
or is the intent, as shown by the regular appropriation bill, c. 591, 
to be in effect, namely 700 permanent positions?" 

The answer to your question requires a construction of the appropria- 
tion bill (c. 591) and the supplementary appropriation bill (c. 791). 

You will notice c. 791 is entitled "AN ACT IN ADDITION TO 
THE GENERAL APPROPRIATION ACT MAKING APPROPRIA- 
TIONS TO SUPPLEMENT CERTAIN ITEMS CONTAINED 
THEREIN, AND FOR CERTAIN NEW ACTIVITIES AND PROJ- 
ECTS." (Emphasis supplied) Section 1 provides ". . . for supplement- 
ing certain items in the general appropriation act . . . the sums set 
forth in section two, for the several purposes and subject to the con- 
ditions specified therein . . ." and appropriating the sum of $33,439. 
subject to the provisions of law regulating the disbursement of public 
funds and the conditions pertaining to appropriations in c. 591. Said 
sums "so appropriated to be in addition to any amounts at present 
availajble for the pvirposes." 

The answer to your question requires a construction of the statutory 
provisions you have referred to. This in turn requires the application 
of certain rules of statutory construction laid down by the Supreme 



44 P.D. 12 

Judicial Court. To be sure, reason and common sense are not to be 
abandoned in the interpretative process. It is the duty of the courts 
to discover the real meaning contained in the words in the statute, 
to elucidate the signification ot those words and to correlate the several 
parts of a complicated enactment so as to give a rational and workable 
effect to the whole so far as practical. 

Moreover, all parts of a statute shall be construed as consistent with 
each other so as to form a harmonious enactment effectual to accomplish 
its manifest purpose. Selectmen of Tops field, et ah. v. State Racing 
Commission, 324 Mass. 309, 313. 

A reading of the report and legislation referred to in your letter 
indicates to me a clear intent on the part ot the General Court to 
increase the Division of State Police in the Department of Public 
Safety by the addition of a substantial number of men. The Report 
of the Ways and Means Committee recommended an appropriation 
of about five million two hundred thousand dollars for not more than 
650 permanent positions. Chapter 591, the appropriation bill, pre- 
sumably after careful thought provides over five million five hundred 
thousand dollars for the service of the Division including not more 
than 700 permanent positions. I find nothing in the supplementary 
appropriation bill, c. 791, to indicate an intent on the part of the 
General Court to cut the increased force. On the contrary, after the 
General Court had appropriated nearly five million and one half dollars 
to provide for the Division of State Police, including not more than 700 
permanent positions, it provided in the supplementary appropriation 
bill, c. 791, a further sum for the same service of $33,439. I am of the 
opinion that the appropriation bill, c. 591, by appropriating $5,538,170. 
for the service of the Division of State Police, including not more than 
700 permanent positions, the General Court meant what it said. It 
contemplated a substantial increase in the Division to enable its De- 
partment to fulfill its public responsibilities. The appropriation of 
over three hundred thousand dollars more than recommended in the 
report of the Ways and Means Committee resolves any doubt about 
the legislative intent. 

Moreover, a reading of § 1 of c. 791 indicates to me that the addi- 
tional appropriation for the Division of State Police found in c. 791 
was to supplement the appropriation already made of $5,538,170. for 
the service of the enlarged Division including not more than 700 per- 
manent positions. The reference in the supplementary appropriation 
bill to the former Division including not more than 650 positions must, 
in my opinion, give way to the provisions in the original appropriation 
bill enlarging the Division to not more than 700 permanent positions. 
A rational construction of House 3700, c. 591 and c. 791 inevitably 
leads one to that conclusion. 

In the light of the foregoing, it is my opinion from the references 
you have given me that the Division of State Police is limited to not 
more than 700 permanent positions. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, Assistant Attorney General. 



P.D. 12 45 

The provision prohibiting the use of the words "certified public ac- 
countant" by a corporation is not applicable to their inclusion in 
the name of a non-profit membership corporation for social and 
cultural purposes. 

Aug. 8, 1962. 

Hon. Guy J. Rizzotto, Commissioner of Corporations and Taxation. 

Dear Sir: — In your letter of July 30, 1962 you state that a group 
of persons desire to be incorporated under G.L. c. 180, using the name 
"Massachusetts Association of Attorney-Certified Public Accountants, 
Inc.," and that the purpose of this organization is "to promote the 
social and cultural interests of its members, rather than the carrying 
out of any business activities." 

In connection therewith you enclose the following documents which 
I return herewith as follows: 

1. Articles of Organization of the Massachusetts Association of At- 
torney-Certified Public Accountants, Inc. 

2. Agreement of Association. 

3. Records of two meetings of the incorporators. 

4. Copy of the By-laws. 

5. Waiver of notice of first meeting and minutes of the first meeting 
of the directors. 

6. Check for twenty-five dollars (,'$25.00) to cover the filing fee. 

You cpiote G.L. c. 112, § 87E, and have asked the opinion of this 
office with regard to the following questions: 

"1. With reference to a corporation, does the above section intend 
that the prohibition of the use of the words 'certified public accountant' 
apply only to the organization of a business corporation? 

"2. Would the words 'and no corporation shall use the words' 
"certified public accountant" restrict or prevent me from approving the 
Articles of Organization of the said Massachusetts Association of At- 
torney-Certified Public Accountants, Inc. which seeks to be incorporated 
under c. 180 which concerns charitable and other non-profit corpora- 
tions? 

"3. Does the prohibition contained in c. 112, § 87E, apply to all 
kinds of corporations regardless of the nature of its activities?" 

The Legislature for over sixty years has concerned itself with the 
practice of certain professions. As time went on a specialty practice, as 
opposed to general practice, evolved. Further legislation, more specific 
legislation, was enacted to regulate the practice of these professions, 
thereby raising professional standards where same have been lowered, 
reducing commercialism and generally restricting the activities of those 
holding themselves out as being capable of performing certain services 
for remuneration. These regulatory pieces of legislation have all been 
couched in G.L. c. 112. With regard to accounting, such regulations 
assure the public that persons practicing public accounting as experts, 
certified as such, have met the standards of qualification and tests fixed 
by the law. 

It is important to note that c. 112, throughout, pertains to those 
activities from which certain remuneration will be obtained for services 



46 P.D. 12 

rendered, and not to the activities of an organization such as has ap- 
pHed for a charter under c. 180. 

In answering your question it is necessary to consider not only the 
ambiguity in, but also the history of, the pertinent legislation. A statute 
is to be construed so as to make it an effectual piece of legislation in 
harmony with common sense and sound reason. The apparent limita- 
tion of the use of the words "certified public accountants" in c. 112, 
§ 87E, applies only to those corporations which are engaged in the 
practice of accounting. Any abuses which it sought to correct pertained 
only to corporations actually engaged in the profession of the practice 
of accounting. 

The statutes are to be interpreted, not alone according to their simple, 
literal or strict verbal meaning, but in connection with their develop- 
ment and their progression through the legislative body, taking into 
consideration, in addition, the history of the times, contemporary cus- 
toms and conditions. 

For these reasons, it is the opinion of this office that the use of the 
words "certified public accountant" as there used in c. 112, § 87E, 
applies only to business corporations, and in light of this answer, it is 
unnecessary to consider questions 2 and 3, except to say that both are 
answered in the negative. 

V^ery truly yours, 

Edward |. McCormack, Jr., Attory-iey General, 

By Herbert E. Tucker, Jr., 

Assistant Attorney General. 



One who has not attained her majority is a "child of school age" xvithin 
the provisions as to the education of emotionally disturbed children. 

Aug. 9, 1962. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — In your letter of recent date, you pose certain questions 
relative to a young lady, about nineteen years old at the present time, 
who attended public schools in Newton until November, 1960, at which 
time she was enrolled in Grade XII. It would appear from one of the 
enclosiu-es accompanying your letter that the young lady in question is 
emotionally disturbed and cannot be properly instructed in the regular 
public school programs of the Commonwealth. Request is therefore 
made that she be sent to the Hampshire Country School, East Rindge, 
New Hampshire. In the light of the foregoing you pose the following 
questions: 

1. Can this young lady be categorized as a "child of school age"? 

2. At what point does the Commonwealth's responsibility for said 
child cease? 

As you are aware, § 46H of G.L., c. 71, inserted by c. 750 of the Acts 
of I960, makes special provisions for education of "a child of school 
age . . . who is so emotionally disturbed as to make attendance at a 
public school not feasible." Classes where there are five or more "emo- 



P.D. 12 47 

tionally disturbed children" are provided for. Another provision is 
made "where there is a child of school age . . . emotionally disturbed." 

Section 46 I of c. 71, also inserted by c. 750, authorizes the Department 
ol Education, upon request of the parents or guardians and with the 
approval of the Governor, to send "such emotionally disturbed children 
as it considers proper subjects for education to any school, hospital, 
sanatorium or like institution, within or without the commonwealth, 
affording remedial treatment for emotionally disturbed children for 
terms not exceeding twelve years, under regulations prescribed by the 
departments of education and mental health. The department may, 
upon like request and with like approval, continue for longer terms 
the education of any children therein who are meritorious pupils recom- 
mended by the principal or other chief administrative officer of such 
school, hospital, sanatorium or like institution." 

The second paragraph of § 46 I provides that the expenses of the 
instruction and support of such children shall be paid by the Common- 
wealth, with a claim for reimbursement by the department in whole 
or in part. 

You are, of course, familiar with the constitutional principles and 
statutory provisions of the right to education, and the duty of the 
Commonwealth to provide it. Section 46 I, as inserted by c. 750, appears 
to be very specific. It authorizes (the word "may" is significant), on 
the request of the parents and with the approval of the Governor, to 
send such emotionally disturbed children as it considers proper subjects 
for education to schools, sanatoriums or like institutions, within or 
without the Commonwealth, affording remedial treatment for emo- 
tionally disturbed children, under regulations prescribed by the Depart- 
ments of Education and Mental Health. Your department is further 
authorized, upon like request and like approval, to continue for longer 
terms such education of meritorious pupils recommended by the in- 
stitution. 

From the foregoing you will observe that a liberal discretion covering 
almost every phase of this highly sensitive subject is vested in the De- 
partment of Education, and to a certain extent in the Governor and 
the Department of Mental Health. In my opinion, the answer to your 
first question is in the affirmative. See Needham v. Wellesley, 139 Mass. 
372, at p. 375, where the court interpreted the words "scholars of legal 
age" to mean "all scholars who were of the age which entitled them to 
attend school, and for whom the town was compelled to keep its 
schools open." Be that as it may, § 46 I, as presently written, in my 
opinion, provides a wide discretion over the pupils which may need 
special treatment as therein provided. 

Answ'ering your second question, it is my opinion that a "child" 
ceases to be a "child" when it attains majority. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, Assistant Attorney General. 



48 P.D. 12 

Application of provision of St. 1962, c. 683 (Appropriations for County 
Maintenance) as to allowances for expenses for mid-day meals. 

Aug. 9, 1962. 
Hon. Guy J. Rizzotto, Commissioner of Corporations a?id Taxation. 
Dear Sir: — This acknowledges your letter of recent date, written 
at the request of the Director of the Bureau of Accounts, asking for 
a formal opinion of my interpretation of the provisions of the first 
paragraph of § 3 of c. 683 of St. 1962. 

This paragraph reads as follows : 

"No expense incurred for mid-day meals by county officers and em- 
ployees, other than those who receive as part of their compensation a 
non-cash allowance in the form of full or complete boarding and 
housing, and those county officers and employees who are stationed 
beyond commuting distance from their homes for a period of more 
than twenty-four hours, shall be allowed by any county; provided, that 
officers or employees who have charge of juries or who have the care 
and custody of prisoners, insane persons or other persons placed in 
their charge by a court or under legal proceedings tor transfer to or 
from court to an institution or from institution to institution and 
persons certified by a district attorney as engaged in investigation shall 
be reimbursed for the expense for mid-day meals when necessarily en- 
gaged on such duty; and provided, further, that county officers and 
employees in attendance at meetings and conferences called by or for 
any group or class on a statewide basis shall be so reimbursed, but not 
more than two may attend." 

In your letter you state that: 

"A question has been raised with the Director of Accounts as to 
whether or not the restrictions contained in this paragraph have anA' 
bearing on expenses incurred by county officers and employees who 
attend a conference or other type meeting which would cause them to 
be away from their homes for a period of more than twenty-fotu" hours." 

After stating that there have been occasions when some of the county 
agencies have sent as many as twenty (20) staff members to conferences 
at the University of Massachusetts you state that these conferences 
would require the absence of such staff members from their homes and 
regular business locations for periods of more than twenty-four hours. 

You now pose the following question: 

"Do the words 'but not more than two may attend', as used at the 
end of the foregoing quoted paragraph, apply to the attendance at 
meetings and conferences where expenses for only mid-day meals for 
county officials and employees are involved, or do they apply to at- 
tendance at meetings and conferences of county officials and employees 
for a period of more than twenty-four hours at a location beyond 
commuting distance from their homes. You will note that there is no 
reference to the distance from the place of their regular employment 
or base of operations." 

Your second question calls attention to the fact that the three elected 
County Commissioners and the Sheriff may attend a meeting of the 



P.D. 12 49 

County Commissioners and Sheriffs Association. You further state tiiat 
in addition, there is the Massachusetts Association of County Officials 
to which all elected county commissioners are eligible for membership. 
In the light of the foregoing you ask: 

"Do the words 'but not more than two may attend' restrict the Di- 
rector of Accounts, in his approval of expense vouchers of the county 
commissioners to a limit of two such officials when more than two 
officials attend such a meeting." 

It will be seen from an examination of G.L. c. 30, § 25 relating to 
expenses of state officers that the General Court is quite familiar with 
traveling and living expenses. Section 25 refers to ". . . any expenses 
in the nature of traveling or living expenses. . . ." Also references are 
made to ". . . actual reasonable expenses incurred in the performance 
of such duties. . . ." See G.L. c. 40, § 5 (34) authorizing appropriations 
"for the necessary expenses of municipal officers and employees of any 
particular department incurred outside the commonwealth . . ." and 
"Such expenses may also be incurred anywhere within the common- 
wealth. . . ." 

I observe also that in G.L. c. 34, § 8 relative to the expenses of the 
county commissioners, a provision is made as follows: 

"An itemized statement of the actual and proper cost to the com- 
missioners for transportation and other necessary expenses incurred in 
the performance of their official duties shall, on the first day of each 
month, be certified by them to the director of accounts, who shall audit 
and if correct certify it to the county treasurer who shall reimburse 
them." 

Moreover, it appears in G.L. c. 35, § 8 that: 

"The county treasurer shall be paid his actual and proper traveling 
expenses incurred in the transaction of county business. An itemized 
statement thereof shall, on the first day of each month, be certified 
to the commissioners, by whom it shall be audited and approved." 

In passing, I see no express provision in the paragraph you refer 
to repealing the provisions which I have before mentioned. In view 
of the foregoing, it may be pointed out that § 3 appears to refer purely 
and simply to reimbursement for expenses incurred for mid-day meals. 
Section 3 must be construed as it is written. In general it provides that 
no expense for mid-day meals by county officers and employees other 
than those who received them as part of a non-cash allowance for 
boarding and housing included in their compensation and mid-day 
meals of county officers and employees stationed beyond commuting 
distance from their homes for a period of more than twenty-four hours; 
provided that officers or employees having charge of juries or the care 
and custody of prisoners, insane persons and other persons in their cus- 
tody under orders and persons certified by a district attorney as engaged 
in investigation shall be reimbursed for expenses of mid-day meals 
when engaged on such duty; and provided further that county officers 
and employees in attendance at meetings and conferences called by or 
for any groups or class on a statewide basis shall he so reimbursed, but 
not more than two may attend. Since you do not advise me of the 
various groupings or classifications of the numerous county officers and 



50 P.D. 12 

employees, I think my opinion may be more useful if I construe 
the paragraph in § 3 generally as I see it instead of categorically answer- 
ing \our questions. 

As I have aheady stated, G.L. c. 34, § 8, relative to the payment 
of the actual and proper cost to the county commissioners for trans- 
portation and other necessary expenses, remains vmtouched. General 
Laws, c. 35, § 8, to which I have also adverted, relative to traveling 
expenses of the county treasurer, remains untouched. Traveling ex- 
penses of the district attorneys are referred to in G.L. c. 12, § § 23 and 
24. See also IV Op. Atty. Gen. 302. 

As I have previously stated, § 3 prohibits the reimbursement of 
expenses for mid-day meals except to those who receive them as part 
of their compensation and those who are stationed beyond commuting 
distance from their homes for a period of more than twenty-four hours. 
In passing, I am aware, as are you, that no distance is referred to in 
connection with the use of the word "commuting." "Commuting" has 
been defined as "to travel daily to one's work." The word "stationed" 
has been defined as "to appoint or assign to a post, place, office or the 
like." 

The proviso in the middle of the first paragraph of § 3 excepts from 
the prohibition against reimbursement for mid-day meals certain officers 
and employees having charge of juries or other persons imder orders 
and expressly provides for reimbursement for mid-day meals of such 
persons when necessarily engaged on duty. The last proviso refers to, 
I assume, a totally different subject, namely, reimbursement for mid-day 
meals to certain county officers and employees at meetings and con- 
ferences and places a limitation of two upon any group or class. 

These observations read together with the sections I have referred to 
and any administrative practices of which I am not advised relative 
to the subject matters you refer to I think will provide answers to 
your questions. The clause ". . . but not more than two. . . ." of any 
group or class seems to be clear and unambiguous. 

Very truly yours, 
ED^VARD J. McCoRMACK, Jr., Attorney General, 
By Frkd W. Fisher, Assistant Attorney General. 



One is not over 50 years of age until Jiis 51st birthday under a pro- 
vision permitting qualified persons not over said age to be appointed 
teachers in vocational schools. 

Aug. 15, 1962. 

Mr. John F. Wostrel, Senior Supervisor, Licensed Schools, Division 
of Vocational Education. 

Dear Sir: — Your letter of recent date requests an opinion from this 
office of the words "Any person who is not over fifty years of age. . . ." 
as they appear in G.L. c. 74, § 24A. 

Section 24A was inserted in the General Laws by the provisions of 
c. 497 of St. 1947. It then read as follows: 



P.D. 12. 51 

"Any veteran, as defined in section twenty-one of chapter thirty-one, 
who is not over fifty years of age and is otherwise quahfied, shall be 
eligible for appointment as a teacher in state aided approved voca- 
tional schools." 

By the provisions of c. 154 of St. 1958, § 24 A was amended by strik- 
ing out the reference to veterans and now reads as follows: 

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

Curiously enough, provisions such as you inquire about do not often 
come before the courts for interpretations. I am unaware of any de- 
cision of such a clause by our Supreme Court. Decisions on this subject 
outside of the Commonwealth are meager and conflicting. 

Provisions such as you refer to have been interpreted in two ways. 
The first being that a person is "over fifty years of age" when in truth 
and in fact he has lived over fifty years. A second interpretation has 
been that by the use of this clause it was intended to mean that the 
person referred to was to be considered fifty years of age until he 
became fifty-one. I incline to the latter construction. That is, that the 
words "any person who is not over fifty years of age" should be con- 
strued to mean any person who has not attained the age of fifty-one. 
I do not believe the General Court intended to prohibit the appoint- 
ment under § 24 A of persons in their fiftieth year. Apparently it felt 
called upon to place an age limit on appointments of the teachers of 
state aided approved vocational schools. 

As you know, the laws relating to vocational education are to be 
found in G.L. c. 74. The primary purpose of vocational schools is to 
fit pupils for profitable employment in agriculture, industry, textiles, 
etc. Reason and practicalities require a liberal construction of the 
provisions to which you refer. My opinion has already been stated. 

Ver)' truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, Assistant Attorney General. 



Amount sufficient to satisfy all duly filed liens must be retained from 
final and semi-final estimates payable to general contractor on pub- 
lic works and public buildings until the liens are discharged or 
it is no longer possible to begiyi, or to intervene in, proceedings to 
enforce them. 

Aug. 29, 1962. 

Mr. Oliver H. Viehl, Supervisor of Fiscal Management, Department of 
Public Works. 

Dear Sir: — In your recent letter you have requested an opinion from 
this ogice concerning your department's responsibility to withhold from 
the payment against a semi-final estimate, sums sufficient to satisfy 
the outstanding liens filed against the general contractor under the 
provisions of G.L. c. 149, § 29. Attached to your request is a letter in 



52 P.D. 12. 

behalf ol the general contractor making claim to lull payment against 
the semi-final estimate notwithstanding the existence of liens listed 
therein lor two reasons: 

1. "retainage held by the Commonwealth is no longer security for 
claimants who must now look only to the statutory bond for security," 
and 

2. "all claims (except two) filed against the contract in question" 
were filed more than a year ago and are now barred by the one year 
statute of limitations made applicable to this type of action by G.L. 
c. 149, § 29." 

In answer to your first question, it is true that the retainage held 
by the department no longer constitutes part of the security required 
by G.L. c. 149, § 29 ior the benefit of suppliers of labor and materials, 
but it does not follow that the department is no longer required to 
withhold the retainage from the general contractor. 

General Laws c. 30, § 39G, provides: 

"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 thirty-nine or thiry-nine A of this chapter or 
section twenty-nine of chapter one hundred and forty-nine, and may 
also . . ." 

The same deductions are required to be made from payments against 
semi-final estimates (G.L. c. 30, § 39G). The length of time for which 
the Department must withhold such deduction brings us to the general 
contractor's second argument. 

In answer to your second question, the fact that some of the listed 
claims were filed more than a year ago is not sufficient reason for the 
department to release funds retained from the general contractor in 
consequence of such claim. 

General Laws c. 149, § 29 provides two means by which a supplier 
of labor or materials may perfect his rights against the bonding com- 
p;!ny. He may bring a petition within one year after the filing of his 
claim or he may intervene in an existing petition. He is not required 
to intervene within one vear from the date of filing his claim. {Water 
Works Supply Corp. v. Call ill, 344 Mass. 442.) 

It cannot be determined from your request or the attached material 
\v'hether the listed claims were "duly" filed or filed within ninety days 
after each claimant ceased to perform labor or fmnish materials. How- 
ever, the department must retain from the payment of the semi-final 
estimate a sum sufficient to cover the amount of all duly filed claims 
until there is no possibility of any claimant bringing a petition to en- 
force his claim or intervening in an existing petition. Since the time 
has not elapsed for some of the claimants to institute proceedings to 
enforce their liens, the department must withhold from any payment 
against the semi-final estimate a sum sufficient to satisfy all claims dulv 
filed. 

In response to your request for an opinion dated July 10, 1961, and 
concerning the same contract, this office indicated that your department 
had no obligation to deduct amounts sufficient to satisfy the existing 
liens from payments against semi-monthly estimates. It should be noted 



P.D. 12. 53 

that that opinion apphed to payments against periodic estimates only, 
and, as was pointed out therein, has no application to a payment 
against a semi-final or final estimate. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By William D. Quigley, 

Assistant Attorney General. 

The question of the acceptance by the voters of Lawrence of St. 1960, 
c. 330, as to a regional school district for vocational education may 
be placed on the ballot for tlie 1962 State election. 

Aug. 31, 1962. 

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

Dear Sir: — Your letter ol recent date relative to the request of the 
City Clerk ot the City of Lawrence to include on the ballot at the 
State election the question of acceptance of c. 330 of the St. 1960 by 
the City of Lawrence is at hand and contents noted. 

Chapter 330 of St. 1960 is entitled, "AN ACT AUTHORIZING THE 
FORMATION OF A REGIONAL SCHOOL DISTRICT FOR VOCA- 
TIONAL EDUCATION BY THE TOWNS OF METHUEN, AN- 
DOVER AND NORTH ANDOVER AND THE CITY OF LAW- 
RENCE." It contains seventeen sections providing in detail for the 
establishment, operation and control of a regional school district as set 
forth in the title. Section 5 of c. 330 provides that: 

"Upon receipt by the city council of Lawrence of a recommendation 
that a regional school district be established, and of a proposed agree- 
ment therefor submitted in accordance with the provisions of sections 
one to three, inclusive, of this act, said council shall direct the city 
clerk to cause the question of accepting the provisions of this act 
to be placed on the ballot to be used at the next state election or at 
the regular city election to be held in the year nineteen hundred and 
sixty-one, whichever occurs first, in substantially the form hereinafter 
set forth; and upon receipt by the selectmen of each of said towns of a 
recommendation that a regional school district be established and of a 
proposed agreement therefor submitted in accordance with the pro- 
visions of sections one to three of this act, said selectmen shall cause 
to be presented for determination by vote, with printed ballots at an 
annual or a special town meeting called for the purpose the question 
of accepting the provisions of this act, which question shall be in sub- 
stantially the following form: — 'Shall the city (town) accept the pro- 
visions of an act passed by the General Court in the year nineteen 
hundred and sixty, providing for the establishment of a regional school 
district by the city of Lawrence, and the towns of (such towns as may 
be recommended under section three of this act) and the construction, 
maintenance, and operation of a regional school by the said district 
in accordance with the provisions of a proposed agreement filed with 
the city council of said city and the selectmen of said towns?' If a 
majority of the voters in said city, present and voting, and a majority 
of the voters present and voting on said question in at least two of 



54 P.D. 12. 

said towns shall vote in the affirmative, this act shall become fully 
effective, and the proposed regional school district, comprising said 
city and the towns which accepted this act as herein provided, shall 
be deemed to be established forthwith in accordance with the tenns 
of the agreement so adopted." 

I assume that for one reason or another the acceptance of c. 330 
was not placed upon the ballot used by the voters of the City of 
Lawrence at the State election in 1960 or at the regular City election 
in the year 1961. I am obliged to assume from the language of § 5 
that the State election in November of 1960 preceded the regular City 
election held in the year 1961. 

In the light of the foregoing, you request an opinion "as to whether, 
under the phraseology of the act, I have the right to place the question, 
as submitted by the City Clerk of Lawrence, on the state election ballot 
in 1962 for vote by the electorate of that city, or whether the phrase 
'the next state election' meant only the state election held in the vear 
1960." 

The question you pose requires a determination from the provisions 
of § 5 of the intent of the General Court. "The aim of all interpreta- 
tion is to give effect to the dominating idea of the instrument. State- 
ments . . . must be given effect in consonance with the end they are 
designed to accomplish." Lamson v. Secretary of the Commonwealth, 
341 Mass. 264, 270. 

The dominating purpose of c. 330, as disclosed by the seventeen 
sections comprising it, is to enable the towns of Methuen, Andover 
and North Andover and the City of Lawrence to organize a regional 
school district for the convenience and education of the young people 
of the municipalities referred to therein. 

The General Court apparently recognized the need for expediting 
the submission of the question af acceptance of the legislation by pro- 
viding that upon compliance with the provisions of § 5, the city 
council of Lawrence "shall direct the city clerk to cause the question 
of accepting the provisions of this act to be placed on the ballot to 
be used at the next state election or at the regular city election to be 
held in the year nineteen hundred and sixty-one, whichever occurs 
first, in substantially the form hereinafter set forth. . . ." While the 
language of § 5 is somewhat peremptory I cannot attribute from 
it an intention on the part of the General Court to thwart its own 
jnnpose to expedite the regional school district by destroying the 
possibility of the project because for one reason or another a com- 
paratively slight delay on the part of the City of Lawrence has taken 
place. I observe that no time limit is placed upon the towns to be 
included in the regional school district for voting on acceptances. 
Section .5 simply states that the ". . . selectmen shall cause to be 
presented for determination by vote, with printed ballots at an annual 
or a special town meeting. . . ." (Emphasis supplied.) 

There seems to be no reason to construe § 5 in such a way as to 
foreclose action by the towns by a slight delay on the part of the City 
of La^vrence and to give the towns imlimited time in which to act 
themselves. 

In the case of the City of Boston v. Barry, 315 Mass. 572, in ruling 
that a statute imperative in phrase was merely directory, the Court, 



P.D. 12. 55 

in over-ruling its then comparatively recent decision in the case of 
Boston V. Cable, 306 Mass. 124, said at page 578: "The rigidity of the 
Cable case ill comports with the liberal trend of statutes and decisions 
that began with St. 1915, c. 237." On page 578 the Court has collected 
together innumerable decisions supporting the view which I take of 
this matter. In the case of Lamson v. Secretary of the Commonwealth, 
341 Mass. 264, the Supreme Court rules peremptory provisions of the 
Constitution relative to legislative reapportionments to be valid despite 
the failure to act within the period specifically provided by the Legis- 
lature. 

Assuming the prior provisions of § 5 have taken place and the City 
Clerk of Lawrence has properly submitted the question of acceptance 
to you for action, it is my opinion that you have the right to place 
the question on the State election ballot in 1962 for vote by the elec- 
torate of that city. 

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



The per diem rate for payment to rest homes is not applicable to limit 
the amount of assistance to blind persons in rest homes which must 
be paid directly to them. 

Sept. 4, 1962. 

Mr. John F. Mungovan, Director, Division of the Blind, Department of 

Education. 

Dear Sir: — In your recent letter you ask whether an opinion could 
be given as to whether the provisions of G.L. c. 7, § 30L, as contained 
in St. 1961, c. 545, limit payments made by the division directly to 
blind persons who are being cared for in rest homes. 

The provisions referred to specifically control only the per diem 
rate, "to . . . rest homes. . .". (Emphasis supplied). In view of that 
specific provision, it is my opinion that the provision of the section 
does not apply to limit payments made by the Division of the Blind 
directly to recipients of assistance, even in those instances where the 
recipient elected to be cared for either temporarily or for an extended 
period in a rest home of his or her choice. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 

Medical students may serve as private duty nurses luithout being licensed 
by the Board of Registration in Nursing. 

Sept. 5, 1962. 
Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam: — You have recently requested an opinion relative to 
the statute governing the practice of nursing as it refers to private duty 
nurses. 



56 P.D. 12. 

The question has arisen as to whether medical students, who have 
completed the third year of medical school and who are endorsed by 
the dean of the inedical school, may serve as private duty nurses without 
being licensed by the board as such. The assignment of these medical 
students as private duty nurses is made by a hospital, and is made only 
after depletion of the list of registered private duty nurses maintained 
by the hospital. 

Under the provisions of G.L. c. 112, persons engaged in professional 
nursing or practical nursing must be registered with the board. How- 
ever, § SOB of c. 112 provides that, "Neither 'professional nursing' nor 
'practical nursing' shall mean or be construed to prevent ... (2) the 
performance of any nursing service in an emergency ... or (6) the 
performance of services by . . . medical students which are commonly 
recognized to be functions of their respective callings." 

Medical students are assigned to hospital service as part of their 
educational program. Any patient service provided by them may be 
interpreted as an activity concomitant with the learning experiences 
selected for them. It would appear, therefore, that medical students, 
acting as private duty nurses, could be performing the duties for which 
they have been prepared and are carrying out the functions of their 
calling. 

In any event, it would seem that these medical students come within 
exception (2) of § SOB. Before they are assigned as private duty nurses, 
the list of registered nurses maintained by the hospital is first exhausted. 
In other words, medical students are assigned to private duty nursing 
only when there is no registered nurse available. In such a case an 
emergency exists since we must assume the health of the patient re- 
quires that there be a professional nurse in attendance and there is 
none to be had. For a medical student to serve as a private duty nurse 
in such a situation would seem to be within exception (2) of § SOB, 
and, in my opinion, no license by the Board is required in such a case. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



Highway bond issue funds may not constitutionally be used to pay the 
cost of a study of amounts charged the Metropolitan District Com- 
mission for street lighting to determine whether amounts charged 
included sum for depreciation of property owned by the Common- 
xvealth. 

Sept. 24, 1962. 

Hon. John F. Haggerty, Acting Commissioner, Metropolitan District 
Commission. 
Dear Sir: — In your letter of recent date relative to the firm of James 
S. Minges and Associates regarding a review of the commission's posi- 
tion with respect to street lighting, plant depreciation, equipment and 
rates, you state that the commission has installed many poles and 



P.D. 12. 57 

conduits for the highway hgliting system over a period of years; further, 
that the cost of these installations is estimated at between two and 
three million dollars. After indicating that the filed rates of the utility 
companies may include a depreciation charge upon property of the 
Commonwealth, you aver that it is felt by your commission that it 
may have been overcharged during the years. The purpose of the study 
referred to in your letter is twofold: 

"1. Determine if there has been an overcharge and take necessary 
steps to obtain reimbiusement. 

"2. Determine the advisability of disposing of lighting equipment 
and allowing utility companies to take over present equipment (for an 
agreed price) and to install and maintain lighting equipment in the 
futuie." 

Moreover, it may appear that the estimates of possible overcharges 
over a five-year period have been as high as .'$200,000 and that your 
commission feels an annual expenditure of over §700,000 for electricity 
warrants the study referred to in your letter. Moreover, while an esti- 
mated cost of the study might be $50,000, the Legislature has appro- 
priated .'$10,000, which appears to be insufficient. In conclusion, you 
request an opinion as to whether, under the above circumstances, un- 
encumbered balances of existing highway bond issues may be utilized 
to meet the expense of the proposed study contract to which you refer. 

Section 4 of Art. LXII of the Amendments to the Constitution pro- 
vides that: 

"Borrowed money shall not be expended for any other purpose than 
that for which it was borrowed or for the reduction or discharge of 
the principal of the loan." 

General Laws, c. 29, § 56 also relates to the disposition of unexpended 
proceeds from the sales of bonds. 

It is a well-recognized principle of sound finance that capital, and 
especially borrowed capital, should not be used for current expenses. 
The Constitutional Amendment above referred to adopts this principle. 
It limits the purposes for which borrowed money may be used. Such 
money may not be used save for the purpose for which it was borrowed 
or to repay the loan. V Op. Atty. Gen. 491, 492. 

1 am not informed as to the specific statutes comprising the high- 
way bond legislation to which you refer. Presumably, they relate to 
the construction of Metropolitan highway projects. The purpose now 
in mind is, I gather, to use not exceeding .'$50,000 from the balances 
of the highway construction bond issues to pay for a consultant study 
of the amounts claimed by the utility companies and paid by the 
commission for electricity, particularly with a view to determine 
whether or not charges against the Commonwealth were based, in part 
at least, upon items for depreciation of poles, conduits and incidental 
equipment which in fact belong to the commission. 

Under the circumstances set forth in your letter, I am of the opinion, 
without knowledge of the language of the legislation to which you 
refer^ that the balances of the bond issues for construction of the 
commission highways or highway projects may not be utilized for the 
purposes set forth in your letter. The proposed contract is to determine 



58 P.D. 12. 

whether utility companies have included in their charges against the 
commission depreciation upon property which belongs to the Common- 
wealth and if so to investigate the wisdom of obtaining reimbursement 
of any overcharges and also to consider the advisability of disposing 
of the lighting equipment of the utility companies. 

In passing, I bear in mind the fact that the General Court appro- 
priated under Item 2931-77 in § 2 of c. 791 of St. 1962 for the 
investigation and study of the matters in question the sum of $10,000. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 



Increases in costs from overruns in unit price items and a negotiated 
price for an alteration are properly included in determining whether 
the Article of the Standard Specifications applying to federally 
aided highway projects ivhich requires renegotiation when altera- 
tions increase cost of the work by more than 25%, was applicable; 
but renegotiation would not necessarily result in additional com- 
pensation. 

Sept. 26, 1962. 

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

Dear Sir: — You have asked the opinion of this office with regard 
to a federally-aided highway construction project completed in the 
Town of Chelmsford by the firm of Wes-Julian Construction Company. 

The main thrust of your letter seems to be the question as to value 
of the contract increasing beyond the twenty-five per cent figure within 
the purview of Art. 22 of the department's Standard Specifications. 

On the basis of your letter and the accompanying data this office 
is of the opinion that Art. 22 applies and your office and the contractor 
should proceed to renegotiate the eight items mentioned in the Wes- 
Julian letter of November 1, 1961. It does not necessarily follow, how- 
ever, that renegotiation will lead to additional compensation on any or 
all of the items mentioned. 

Very truly yours, 

Edward J. McCormack, Jr., Attoryiey General, 

By William D. Quigley, 

Assistant Attorney General. 



A non-citizen, who complies with the laxo of the CommonwenWi in all 
other respects, who takes the loyalty oath required by G.L. c. 264, 
s. 14, may be employed by the Commornuealth and paid from state 
appropriations. 

Sept. 28, 1962. 

Mr. Martin J. L\don, President, Lowell Technological Institute. 

Dear Sir: — In your letter of recent date relative to appointments, 
you pose the following question: 



P.D. 12. 59 

"Can a non-citizen, who might be willing to sign the teacher's oath 
or public employees' oath or both, be employed by the Commonwealth 
and paid from State appropriations?" 

Under the provisions of G.L., c. 71, § 30 A, as was stated to you 
in the letter from this office dated November 14, 1961, every citizen 
of the United States entering service, on or after October 1, 1935, as 
professor, instructor or teacher at any college, university, teachers' 
college, or public or private school in the commonwealth shall, before 
entering upon the discharge of his duties, take and subscribe to, before 
an officer authorized by law to administer oaths and affirmations, the 
oath set forth in § 30A. That section further provides that no professor, 
instructor or teacher who is a citizen of the United States shall be 
permitted to enter upon his duties within the Commonwealth unless 
and until such oath or affirmation shall have been so subscribed. 
Moreover, a penalty is provided for a violation of the oath. You will 
note that this section applies to the citizens. 

General Laws, c. 264, § 14 requires that every person entering the 
employ ol the commonwealth or any political subdivision thereof, 
before entering upon the discharge of his duties, shall take and sub- 
scribe to, under the pains and penalty of perjury, the oath or affirma- 
tion set forth in § 14. 

If the non-citizen you refer to has in all other respects complied 
with the laws of the Commonwealth and complies with the provisions 
of G.L. c. 264, § 14, I see no reason why he may not be employed 
by the Commonwealth and paid by state appropriations. 

Yen' tridy yours, 

Edward J. McCormack, Jr., Attorney General, 

Bv Fred W. Fisher, Assistant Attorney General. 



The Board of Examiners under G.L. c. 143, s. 71A, have authority to 
license persons only as elevator constrxictor, maintenance man and 
repairmaji. 

Oct. 1, 1962. 

Hon. Frank S. Giles, Commissioner Department of Public Safety. 

Dear Sir: — You have requested of me an opinion as to whether 
The Board of Examiners provided for by G.L. c. 143, § 71 A has the 
authority to issue limited and/or restricted licenses as follows: 

"Can the Board issue a license as a maintenance man only? 

"Can the Board issue a license as a repairman only? 

"Can the Board issue a license as a maintenance man and repairman? 

"Can the Board limit a license to a particular type of elevator? 

"Can the Board restrict a license for work on an elevator or a group 
of elevators located in a particular building?" 
r 

Arf examination of § § 71 A through 7 ID of c. 143 of the General 
Laws leads me to the conclusion that only one type of regular license 
was authorized by the Legislature. Wherever the license or the work 



60 P.D. 12. 

permitted by the license is described the same words are used and they 
are set forth conjunctively and not in the alternative. 

Section 71 A: 

". . . The Chairman shall be a . . . licensed elevator constructor, 
maintenance man and repairman. . . ." (Emphasis supplied.) 

Section 7 IB: 

"No person shall work as an elevator constructor, maintenance man 
and repairman in the construction, maintenance or repair of elevators 
unless he holds a license therefor. . . ." (Emphasis supplied.) 

Section 71C: 

". . . if found by the board to be qualified, the applicant shall be 
granted a license as an elevator constructor, maintenance man and 
repairman." (Emphasis supplied.) 

Section 71D: 

"Whoever works as a constructor, maintenance man and repairman 
in the construction, maintenance or repair of elevators without a li- 
cense . . . shall be punished. . . ." (Emphasis supplied.) 

It is to be noted that § 7 IB provides that any person who has 
worked lor more than five years prior to a specified date in 1945 "as 
an elevator constructor, maintenance man or repairman" requires no 
license and § 71C provides that one must have worked for at least 
two years "as an elevator constructor, maintenance man or repairman" 
to be eligible to apply for a license. Also the original form of §§ 71 A 
through D, before amendment by c. 637 of St. 1957, referred in all 
instances to "constructor, maintenance man or repairman." It would 
therefore seem that the conjunctive word "and" has been deliberately 
and carefully used in describing the license which the Board may issue 
as distinguished from the disjunctive word "or." Thus, in my opinion 
the answers to your first three questions are in the negative: the 
elevator Board of Examiners cannot split the skills of constructor, re- 
pairman, and maintenance man for the purpose of issuing licenses 
under § 71B. 

The answer to your last two questions must, in my opinion, also 
be in the negative with respect to the regidar license. Subsection (2) of 
§ 71C provides that if the Commissioner finds "that an emergency exists 
in the commonwealth due to disaster or an act of God and that the 
number of persons in the Commonwealth holding licenses granted by 
the board is insufficient to cope with the emergency" then the board 
may issue temporary licenses to certain non-residents "for such par- 
ticular elevators or geographical areas" as may be designated. It is an 
accepted principle of statutory interpretation that where a matter is 
affirmatively set forth in one part of a statute, its omission in another 
part is intentional. Thus the failure to specifically authorize regular 
licenses limited to certain elevators indicates that the board has no 
authority to issue such licenses except under the special circumstances 
described in § 71C(2). 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



P.D. 12. 61 

The DeparUnent of Public Safety is limited to a minimum charge of 
$50 for an annual license for Sunday entertainment, including such 
a license for motion picture houses. 

Oct. 3, 1962. 

Hon, Frank S. Giles, Commissioner of Public Safety. 

Dear Sir: — In your recent letter you ask for "a decision relative to 
whether or not all licenses on an annual basis and particularly motion 
picture houses, fall within the exception of musical entertainment 
provided by mechanical or electrical means." You explain in your letter 
that your practice prior to the enactment of St. 1962, c. 616 was to 
approve annual licenses for $50.00 only for certain categories of enter- 
tainment whereas in all other areas $2.00 weekly licenses were approved. 

Your obvious concern is whether, under c. 616, your department is 
authorized to charge $2.00 weekly for the approval of licenses thus 
totaling $104.00 over the course of a year, or whether it is limited to 
a maximum charge over the course of a year of $50.00. 

The old Lord's day law (c. 130, § 4, as amended through 1961) 
which authorized the granting of an annual license for "musical enter- 
tainment provided by mechanical or electrical means", as well as for 
certain other categories, is not to be confused with the new legislation 
embodied in § 4 of c. 616 of St. 1962. Under the old Lord's day law 
an annual license could be granted only for certain specified categories 
of entertainment; in all other categories, only a weekly license could 
be granted by the local authorities and approved by the Commissioner 
of Public Safety. In this latter instance, obviously, more revenue could 
be obtained by your department. 

However, I am not aware of any provision in c. 616, and more par- 
ticularly in § 4 thereof, which provides for an "exception of musical 
entertainment provided by mechanical or electrical means." 

The present law, with an exception not here material, places all 
categories on the same footing. In both acts, the old and the new, the 
function of the department, is the approval of either a weekly license 
or an annual license granted by the local authorities. And in both acts, 
the old and the new, this application for approval is to be accompanied 
by a fee of $2.00 for a weekly license or S50.00 for an annual license 
granted by local authorities. The language adopted in both acts as they 
relate to the charging of fees is strikingly similar; the only difference, 
as already pointed out, is that the former applied to certain specified 
categories whereas the latter applies to all categories equally. 

Your attention is respectfully called to my letter to you under date 
of July 23, 1962, to the effect that the area of your approval is con- 
fined to the realm of "the preservation of public order at public enter- 
tainment." 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Eugene G. Panarese, 

y. Assistant Attorney General. 



62 P.D. 12. 

A railroad lohicJi discharged employees in 1961 without cojnpliance with 
the provisions of St. 1961 , c. 464, was not entitled to an exemption 
from real estate taxes there under the Act for 1962. 

Oct. 4, 1962. 

Hon. Roy C. Papalia, Chairman, Department of Public Utilities. 

Dear Sir: — Your letter of recent date relers to the tax relief problem 
of the New York, New Haven and Hartford Railroad Company. You 
mention our letter to you dated December 26, 1961 in which we ex- 
pressed the opinion that the New York, New Haven and Hartford 
Railroad was not eligible to receive relief in the year 1961 under the 
provisions of St. 1961, c. 464. You state that the question has arisen 
again in respect to the year 1962. Noting that it appears that between 
July 1, 1961 and December 31, 1961 the Railroad discharged employees 
without complying with the provisions of § 12D of c. 464 of St. 1961, 
you request our opinion "as to whether having so discharged employees 
in 1961 the Railroad is eligible to receive tax relief under the pro- 
visions of that Act for the year 1962." 

Chapter 464 of St. 1961 is entitled, "AN ACT PROVIDING TAX 
RELIEF FOR CERTAIN RAILROADS DOING BUSINESS IN THE 
COMMONWEALTH AND MEETING CERTAIN ESTABLISHED 
STANDARDS OF SERVICE." Under c. 464, a railroad claiming an 
exemption under its provisions, must file an application with the 
Department of Public Utilities on or before July 1st of the year of 
which such exemption is claimed together with other supporting instru- 
ments and data as provided in § 2. Section 2 further provides that if 
the Department determines that any real estate of the railroad qualifies 
for an exemption from taxation under c. 464, it shall not later than 
October 1st in such year certify to the municipal assessors that the 
railroad corporation is entitled to the exemption referred to in the 
certificate. 

Section 12D of c. 464 provides as follows: 

"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 provided 
by this act." 

I understand from your letter that the railroad in question has 
violated the provisions of § 12D by discharging employees without 
complying with the provisions of § 12D and that such violation is still 
continuing. By the express terms of § 12D "any railroad corporation 
violating the provisions of this section shall forfeit the tax exemption 
provided by this act." 

In the light of the circumstances, I answer your question in the 
negative. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Fred W. Fisher, Assistant Attorney General. 



P.D. ]2. 63 

A life revocation of the license to operate motor vehicles of a person 
receiving a subsequent conviction of the offense of operating a 
motor vehicle under the influence of intoxicating liquor is required 
if his action in comtnitting the subsequent offense caused an acci- 
dent resulting in the death of another. 

Oct. 4, 1962. 

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

Dear Sir: — You have requested of me an opinion regarding the 
correct interpretation of the last phrase of G.L. c. 90, § 24, subdivision 
(1), paragraph (c). Your letter makes reference to a specific case file 
and I have therefore assumed that your request has reference to a 
matter presently under consideration by you. 

General Laws, c. 90, § 24 (1) (a) and (b) provides that the Registrar 
shall revoke the driving license of any person convicted by a court of 
operating a motor vehicle while under the influence of intoxicating 
liquor. The pertinent portion of § 24 (1) (c) reads as follows: 

". . . but notwithstanding the foregoing no new license shall be is- 
sued by the registrar to any person convicted of a violation of paragraph 
(1) (a) of this section until ten years after the date of conviction in 
case the registrar determines upon investigation and after hearing that 
the action of the person so convicted in committing such offence caused 
an accident resulting in the death of another, nor at any time after a 
subsequent conviction of such an offence, whenever committed, in case 
the registrar determines in the manner aforesaid that the action of such 
person, in committing the offence of ruJiich he xvas so subsequeyitly con- 
victed, caused an accident resulting in the death of another." (Emphasis 
supplied.) 

In my opinion, the underlined words "such offence", "such an of- 
fence", and "the offence" all refer back to the phrase "violation of 
paragraph (I) (a)" which, in turn, refers to operating a motor vehicle 
under the influence of liquor. It therefore follows that if a person is 
convicted of driving under the influence of liquor which does not cause 
a death and then is subsequently convicted of driving under the in- 
fluence of liquor and on such subsequent occasion a death is caused, life 
revocation of this person's driving license is mandatory. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 

Only State taxes found to be assessed illegally or in error may be abated 
by the State Tax Commission under G.L. c. 58, s. 27. 

Oct. 18, 1962. 

State Tax Commission, Department of Corporations and Taxation. 

Gentlemen: — You have requested of me an opinion respecting the 
scope of authority of your commission to abate taxes under G.L. c. 58, 
§ 27. Specifically you ask the following questions: 



64 P.D. 12. 

"1. Is the Commission authorized to abate, under G.L. c. 58, § 27, 
as amended, a corporation excise even though it determines that such 
excise would not have been abated if the taxpayer had filed an applica- 
tion for abatement under G.L. c. 63, § 51? 

"2. Is the Commission authorized, under G.L. c. 58, § 27, as amended, 
to grant special relief beyond the statutory requirements of G.L. c. 63, 
§ § 30 to 51, inclusive, as amended, in cases where it finds that equity 
and hardship justify such relief? 

"3. Is the Commission authorized to determine under G.L. c. 58, 
§ 27, as amended, that the excises assessed are 'excessive or unwarranted' 
if it finds that the excises, although proper under the provisions of 
§§ 30 to 51, inclusive, are inequitable, unreasonable or unconscionable 
in amount with respect to the taxpayer-applicants?" 

ihe abatement provision relating to corporate excise taxes in G.L., 
c. 63 is found in § 51. Upon the filing of an application for abatement 
as therein provided the Commission is authorized to abate the tax 
in whole or in part accordingly if it finds that "the tax is excessive in 
amount or that the corporation assessed is not subject thereto." Re- 
fusal to abate under this section may be appealed as provided in § 71 
of said chapter. It should be noted that, as the section presently stands, 
an abatement application thereunder may be filed within three years 
from the last day for filing a return or two years after a notice of 
assessment has been sent. 

General Laws c. 58, § 27, in its pertinent parts, reads as follows: 

"If it shall appear that an income tax, a legacy and succession tax, 
or a tax or excise upon a corporation, foreign or domestic, or an excise 
upon the sale of gasoline or special fuels, or an excise on alcoholic 
beverages or alcohol, or an excise upon charges for meals was in whole 
or in part illegally assessed or levied, or was excessive or unwarranted, 
the commission may issue a certificate that the party aggrieved by 
such tax or excise is entitled to an abatement, stating the amount 
thereof. If the tax or excise has been paid, the state treasurer shall pay 
the amount thus certified in such manner and with or without interest 
as the certificate shall provide, without any appropriation therefor by 
the general court. No certificate for the abatement of any tax or excise 
shall be issued under this section unless application therefor is made 
to the commission within two years after the date of the bill for said 
tax or excise, or for an amount exceeding the sum which in equity and 
good conscience ought to be abated under all the circumstances of the 
case. In issuing certificates hereunder, the commission may, if it deems 
it expedient, equalize the burden of repayment by providing in the 
certificate for postponement of payment, or for payment by instalments. 
The decision of the commission shall be final. . . . This section shall 
be in addition to and not in modification of any other remedies." 

My analysis of the language of this section is that the first sentence 
spells out the abatement power of the commission and limits it to 
taxes "illegally assessed or levied, or excessive or unwarranted." I 
cannot find in this language any broader power than is granted under 
G.L. c. 63, § 51. The third sentence would appear to grant the com- 
mission a wide discretion in regard to the ainoimt which it may abate 
and I find it significant that this discretion is phrased in the negative. 



P.D. 12. 65 

"No certificate . . . shall be issued . . . for an amount exceeding the 
sum which in equity and good conscience ought to be abated under 
all the circumstances of the case." In my opinion this sentence cannot 
be construed to giant the commission an omnibus equitable power to 
abate taxes; rather, it permits the commission to limit the amount 
it is otherwise authorized to abate. 

The history of G.L. c. 58, § 27, starts with V Op. Atty. Gen., opinion 
dated January 15, 1919. It was then recommended that a simple abate- 
ment and refund method be authorized to take care of those cases 
where the Tax Commissioner agreed that a corporation tax had been 
"illegally or erroneously" assessed. Chapter 146 of St. 1919 established 
such a procedure for a tax "illegally exacted." In January of 1922, 
the Attorney General ruled that this statute afforded no relief to a 
taxpayer whose return was erroneously completed since, on the face 
of the return, the assessment was correct. VI Op. Atty. Gen., 386. 
Also on January 18, 1922 the Attorney General's Report contained a 
section which read in part as follows: 

"Cases sometimes arise where through a mistake of an individual 
or corporation in the preparation of a tax return or through a mistake 
of the Department of Corporations and Taxation in computing the 
amount of the tax, a larger inheritance, corporation or income tax 
is assessed than the tax which ought to be paid. At the present time 
it is doubtful whether an error in preparing the return can be corrected 
even within the six months now allowed for recovery of taxes illegally 
assessed. It frequently happens, however, that the error in the return 
or in the assessment is not discovered until after six months have 
expired . . . 

"1 recommend that the Commissioner of Corporations and Taxation 
be authorized with the approval of the Attorney General to abate and 
repay any inheritance, corporation or income tax which, in their 
discretion, ought in equity and good conscience to be abated and 
repaid provided that such tax might have been abated if the taxpayer 
had seasonably applied for an abatement and provided that application 
for abatement be made within two years of the payment of the tax. 

It is to be noted that for the first time in this report the language 
"equity and good conscience" appears but it is also clear that legal 
grounds for abatement should also be required. Thereafter, the present 
language of s. 27 was added by c. 382 of the Acts of 1922. 

Until 1957, the time allowed for applying for relief under G.L. c. 58, 
s. 27 exceeded the regular time for filing abatement applications under 
G.L. c. 63, s. 51. This is no longer so since s. 27 relief is limited to 
applications filed within two years after the date of a tax bill and 
s. 51 relief may now be had upon applications filed within three 
years after the date for filing a return or two years from the date of 
an assessment. 

Thus, although amendment of the regular abatement process has 
rendered s. 27 of questionable service, if indeed it is not surplusage, I 
do not believe that the original power granted the Commission under 
s. 27 has been thereby enlarged. 

The Supreme Judicial Court has dealt specifically with G.L. c. 58, 
s. 27 on three occasions and I do not find in these decisions any support 
for the theory that said section grants the Commission general equitable 



66 P.D- 12. 

powers to relieve taxpayers from "inequitable, unreasonable, or un- 
conscionable" taxes if the same have been legally levied in compliance 
with the applicable provisions of the General Laws . 

"By the enactment of G.L. c. 58, s. 27 . . . the obvious purpose of 
the Legislature was to relieve from the consequences of taxes or excises 
in whole or in part illegally assessed or paid." 

Attleboro Trust Co. v. Couiinissioner of Corporations and Taxation, 
257 Mass. 43, 52. 

"Apparently the mischief intended to be remedied /by G.L. c. 58, 
s. 27/ was the inability of the taxpayer to recover taxes paid by mistake 
or to get relief against an illegal assessment after the six months period 
even though the Commissioner and the Attorney General should be 
of opinion that there ought to be repayment or other relief." (Emphasis 
supplied.) 

Boston Safe Deposit and Trust Co. v. Commissioner of Corporations 
and Taxation, 273 Mass. 212, 214. 

"It has been said, however, in substance, that c. 58, s. 27 was enacted 
to afford a simple means for abatement and refund in cases where 
error or illegality is conceded and not to compel the commissioner to 
act against his own honest opinion." 

Chilton Club v. Commonxcealth, .823 Mass. 543, 548. 

Indeed it should be noted that if section 27 were construed to grant 
the Commission an equitable power to abate taxes, with no measurable 
standard by which to apply it, the section would be subject to attack 
on constitutional grounds. See Article 10, Declaration of Rights, Con- 
stitution of the Commonwealth. Opinion of the Justices, 332 Mass. 769. 
Beltigole v. Assessors of Springfield, 1961 Adv. Sh. 1299. 

Therefore, in conclusion, I would answer all three of your questions 
in the negative. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



P.D. 12. 67 

Absentee ballots may be mailed to the voter's home address. Retired 
public employees may be employed as polling officers. 

Oct. 19, 1962. 

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

Dear Sir: — You have requested an opinion of this office concerning 
absentee ballots and the effect of St. 1962, c. 743, on election officers. 

Your first question is whether or not the registrars or election com- 
missioners should mail an absentee ballot to a voter's home address 
where the application indicates that the voter's eligibility for such a 
ballot is not based on physical disability. 

General Laws, c. 54, § 86 provides that a voter who is absent during 
the polling hours from the city or town where he is registered by reason 
of employment "or for any other reason" may vote by absentee ballot. 

Section 87 of said chapter provides for the form of application to 
be used and the affidavits to be printed on the ballot envelope. As 
you have noted in your letter, the application does not require an 
affirmative declaration of eligibility based upon intended absence from 
the city or town involved and contains a blank space to be filled in 
by the voter with the address he chooses to which the ballot should be 
mailed. I find no reason why this address may not be the voter's home 
address. If in fact, the ballot is marked and mailed by the voter in 
another city or town and the statutory affidavit is ]:)roperly executed 
then it complies with all the provisions of G.L. c. 54, §§86 through 98, 
and where the registrars or commissioners have been asked to mail 
the ballot in the first instance would seem to be immaterial. 

Your second question is whether § 91 of G.L. c. 32 still permits 
retired public employees to work as polling officers in view of St. 1962, 
c. 743. The answer to this question is affirmative. The said c. 743 repeals 
§ 9 of c. 639 St. 1950 which permitted reemployment of retired em- 
ployees with the approval of the Civil Service director or the appoint- 
ing officer or board. Such repeal, however, leaves G.L. c. 32, § 91 
unimpaired and that section specifically provides that retired employees 
may be paid for work as election officers at polling places at primaries 
or elections. 

Your third question regarding registrars of voters is more properly 
addressed to the town counsel and city solicitors in each instance. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



The Commonwealth is subject to liability to the city of Boston for 
charges imposed for the use of common sewers. 

Oct. 19, 1962. 

Mr. Raymond I. Rigney, Budget Commissioner. 

Dear Sir: — Your letter of recent date relative to a construction of 
G.L. c. 83, § 16 and its application to the Commonwealth is at hand 
and contents noted. After setting forth § 16, you state that the city of 



68 P.D. 12. 

Boston has submitted charges to the Commonwealth and its agencies 
for the use of common sewers, and you inquire whether the Comptroller 
must approve and the State Treasurer pay such charges. 
Prior to 1961, G.L. c. 83, § 16 read as follows: 

"The aldermen of any city except Boston or the sewer commissioners, 
selectmen or road commissioners of a town, may from time to time 
establish just and equitable annual charges for the use of common 
sewers, which shall be paid by every person who enters his particular 
sewer therein. The money so received may be applied to the payment 
of the cost of maintenance and repairs of such sewers or of any debt 
contracted for sewer purposes." 

By the provisions of St. 1961, c. 311, approved March 30, 1961, and 
effective ninety (90) days thereafter, the words "except Boston" after 
the word "city" in line 1 were stricken out. The effect of c. 311, there- 
fore, was to enable the city of Boston to obtain the rights and benefits 
of § 16 which had not been the case previously. 

I am reliably informed that the Commonwealth has heretofore paid 
sewerage charges under the provisions of § 16 to municipalities for 
the use of their sewers. The usual rule of law applicable to the con- 
struction of statutes is as stated in the opinion of the Supreme Judicial 
Court dated April 20, 1962 in the case of Hansen et ah. v. Common- 
wealth, reading as follows: 

". . . it is a widely accepted rule of statutory construction that general 
words in a statute such as 'persons' will not ordinarily be construed to 
include the State or political subdivisions thereof." 

Section 16 refers to annual charges that shall be paid by every 
"person who enters his particular sewer therein." Ordinarily this lan- 
guage would, in my opinion, be inappropriate to justify sewer charges 
under § 16 against the Commonwealth. However, in view of the fact 
that the General Court by the enactment of c. 311 of St. 1961 has 
opened the gate to the city of Boston to establish and demand just and 
equitable charges for the use of its sewers and in view of the further 
fact that the Commonwealth has been paying sewer charges under § 16 
to municipalities of the Commonwealth, I see no reason for the Com- 
monwealth to discriminate against the city of Boston and deny to it 
the same rights under § 16 as it accords to other municipalities in the 
state. 

I therefore answer your question in the affirmative. 

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



P.D. 12. 69 

It is for the Board of Certified Public Accountants to determine 
whether an applicant is a "resident" of the Commonwealth; "resi- 
dence" in applicable statute does not Jiecessarily mean domicile. 

Oct. 22, 1962. 
Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam:— You have requested an opinion for the Board of 
Registration of Certified Public Accountants regarding the present 
domicile of a certain individual applicant. You forwarded to me at 
the same time certain correspondence relating to this problem. 

The statute under which your problem arises is § 87B of G.L. c. 112, 
which reads as follows: 

"The 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, shall investigate his character and fitness, 
and shall require the payment of a fee of forty dollars. The fee for 
re-examination shall be fixed under regulations made by the board." 

First, 1 call to your attention that the Legislature has placed upon 
the Board of Registration of Certified Public Accountants the responsi- 
bility for making the factual decisions regarding any applicant's quali- 
fications. Section 87C reads: 

"Any applicant whom the board deems to have the necessary quali- 
fications and professional ability shall be registered as a public accountant 
by the board and shall receive a certificate thereof signed by the chair- 
man and secretary of the board." 

Therefore, it would be quite improper for me to make any factual 
decision regarding the applicant's qualifications and the board must 
make the ultimate decision as to whether this individual is "resident 
in the Commonwealth." It does seem to me, however, from your request 
and the conesjjondence enclosed, that an interpretation of "resident 
in the Commonwealth" would be helpful to the board in making their 
ultimate decision. 

The words "residence", "reside" and "resident" do not necessarily 
refer to domicil. Frequently when such words are used in statutes 
regulating matters entrusted to the Probate Courts they do import 
domicil; otherwise, however, they are terms of flexible meaning. Krakow 
V. Department of Public Welfare, 326 Mass. 452, 454. In the case of 
Marlborough v. Lynn, 275 Mass. 394, 397 the Supreme Judicial Court 
said: 

"One may have a residence in a place for reasons of performing the 
duties of an office . . . and yet have his home or domicil in a different 
place." 

The word "residence" has been defined to mean "a personal presence 
at some place of abode with no present intention of definite and early 
removal and with a purpose to remain for an undetermined period not 
infrequently but not necessarily combined with an intent to stay per- 
manently." (Emphasis supplied.) Jenkins v. North Shore Dye House, 
Inc., 277 Mass. 440, 444; Cambridge v. Springfield, 303 Mass. 63, 67. 

Therefore, it may be said that "residence" is distinguished from 



70 P.D. 12. 

"domicil" in the sense that a permanent intent to remain is not re- 
quired. 1 am making no determination of whether or not applicant 
is in fact "resident in the Commonwealth", for the reasons stated above, 
but would advise you that in the statute involved residence does not 
necessarily mean domicil. 

Very truly yours, 

Ed\vard J. McCoRMACK, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



A person holding only a journeyman electrician's liceyise may make a 
contract to install wiring and may hire an apprentice or helper. 
A person not having a master electrician's license may hire journey- 
man electricians or apprentices only on a regular (indefinite term) 
basis. 

Oct. 22, 1962. 

Mrs. Helen C. Sulmvan, Director of Registration. 

Dear Madam: — You have recently requested of me an opinion re- 
garding the effect of c. 582 of St. 1962 amending §§ 1 and 8 of G.L. c. 141. 
Specihcally you have asked the following questions: 

"1. Can a journeyman make a contract to install wiring without a 
master's license? 

"2. Can a journeyman hire an apprentice or a helper? 

"3. Can a journeyman work for an owner for a short period of time 
— regularly employed for hire or as a journeyman contractor? 

"4. Can an owner hire a helper to help a journeyman if not regularly 
employed?" 

Chapter 682 of St. 1962 amended § 1 of G.L., c. 141, to read as follows: 

"No person, firm or corporation shall enter into, engage in, or work 
at the business of installing wires, conduits, apparatus, fixtures or other 
appliances for carrying or using electricity for light, heat or power 
purposes, unless such person, firm or corporation shall have received 
a license and a certificate therefor, issued by the state Examiners of 
electricians and in accordance with the provisions hereinafter set forth. 

"The words 'master electrician' as used in this chapter shall mean a 
person, ftrm or corporation having a regular place of business, who, by 
the employment of journeymen, learners or apprentices, performs the 
work of installing wires, conduits, apparatus, fixtures and other appli- 
ances used for light, heat or power purposes; provided, that no journey- 
man electrician in his employ sJiall have more than one learner or 
apprentice under his supervision: and provided, further, that not more 
than one such learner or apprentice he employed for each journeyman 
electrician. 

"The words 'journeyman electrician' as used in this chapter shall 
mean a person [qualified to do] any M^ork of installing wires, conduits, 
apparatus, fixtures and other appliances for hire." 



P.D. 12. 71 

The underlined words added to the section and the bracketed words were 
substituted for the word "doing." 

Section 8 was amended to read as follows: 

"Electricians regularly employed by persons, firms or corporations 
other than holders of 'Certificate A', may install such electrical wiring, 
conduits and appliances or make such repairs as may be required only 
on the premises and property of such persons, firms or corporations; 
provided that such electricians hold journeymen's licenses, and have 
otherwise complied with this chapter. Any such person, firm or corpora- 
tion may employ learners or apprentices to work with and under the 
direct personal supervision of electricians referred to in this paragraph 
in said installation and repair work, provided that no such journeyman 
electrician shall have more than one learner or apprentice working with 
him and under his supervision as aforesaid: but not more than one 
such learner or apprentice shall he so employed for each journeyman 
electrician. 

"Electricians employed by theatrical companies may install temporary 
wiring and appliances required for the purpose of the engagement of 
any such company, subject to the supervision of a person licensed 
under this chapter." 

The underlined words were added to the section and the following 
sentence which appeared at the beginning of former § 8 w^as deleted: 

"This chapter shall not forbid the employment by holders of 'Certifi- 
cate A' or of 'Certificate B' of learners or apprentices working with and 
under the direct personal supervision of licensed journeymen electricians; 
provided, that no such journeyman electrician shall have more than one 
learner or apprentice working with him and under his supervision as 
aforesaid; but not more than one such learner or apprentice shall be so 
employed for each licensed journeyman electrician." 

A "Certificate A" license is a master electrician's license the holding 
of which, per § 3(1) of c. 141, "shall not entitle the holder individually 
to engage in or perform the actual work of installing electric wires, 
conduits, and appliances . . . but shall entitle him to conduct business 
as a master electrician." A "Certificate B", per § 3 (2), authorizes the 
holder to engage in the occupation of a journeyman electrician. Sec- 
tion 1 of chapter 141 defines "master electrician" as one who "by the 
employment of journeymen, performs the work of installing wires, 
etc."; "iourneyman electrician" is a person "doing any work of installing 
wires, etc." 

Questions 1 and 2 in your letter are substantially the same as those 
which were answered in an opinion of the Attorney General dated 
October 6, 1915 concerning an earlier version of G.L. c. 141. IV Op. 
Atty. Gen. 496. As to cjuestion No. 1, that opinion read: 

"A provision that a man licensed and certified to be competent to do 
the work in cpiestion could not lawfully do such work unless he was 
also licensed to employ others to do it, or without letting his services 
out to a licensed master electrician, Avould be such a limitation upon 
what have generally been recognized as fundamental rights of a citizen 
of this Commonwealth and Country that it should not be read into 
a statute unless clearly called for. The present statute instead of con- 



72 P.D. 12. 

tainiiig such clear language, seems rather to countenance the opposite 
view. . . ." 

I find no change in the statute in this regard and answer question No. 
1 affirmatively. 

The above relerred to earlier opinion also held that a journeyman 
could employ learners or apprentices but relied chiefly on the quoted 
sentence in § 8 which was deleted by c. 582 of St. 1962. Since it is 
presumed that journeymen have employed learners or apprentices since 
1916, 1 would expect a clear and categorical direction by the Legisla- 
ture to deprive the journeymen of this long-standing right. I do not 
find such an intention merely from the deletion of the quoted sentence. 
Indeed, the title of c. 582 of St. 1962, "AN ACT PROVIDING 
FOR THE EMPLOYMENT OF LEARNERS OR APPRENTICES TO 
WORK WITH AND UNDER THE SUPERVISION OF JOURNEY- 
MEN ELECTRICIANS", gives no hint of such an intention but seems 
rather to imply the opposite. Therefore, I follow the earlier opinion 
above referred to and also answer question No. 2 in the affirmative. 

Questions 3 and 4 seem to raise the question as to whether a person 
not a holder of an "A" Certificate can employ journeymen or appren- 
tices on an irregular or short term basis. The answer to this question 
is clearly given by the statute itself in the negative. Only "Certificate 
A" holders or persons employing on a regular (indefinite term) basis 
can employ journeymen or apprentices, subject to the conditions and 
limitations set forth. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



Persons who are over age 70 and are not members of the Retirement Sys- 
tem may seix/e as members of the Apprenticeship Council and the 
Council on Employment of the Aging, appointed by the Commis- 
sioner of Labor and Industries. 

Oct. 23, 1962. 

Hon. John A. Callahan, Commissioner of Labor and Industries. 

Dear Sir: — In our letter of recent date you state that there are two 
persons in the service of your department who are more than seventy 
years of age; one being a member of the Apprenticeship Council, 
appointed by the Commissioner of Labor and Industries under G.L. c. 
23, § HE, who receives a compensation of $15 per meeting, plus trans- 
portation and other necessary expenses, if any; and the other being a 
member of the Council on the Employment of the Aging, also appointed 
by the Commissioner, under G.L. c. 23, § IIM, who also receives travel- 
ing and other necessary expenses, but no compensation. 

In the light of these facts you request my opinion on the question of 
whether: 

". . . the employment of these individuals in their present positions 
is prohibited by chapter 32, section 3 (2) (f), or any other provision of 
the General Laws." 



P.D. 12. 73 

I am unaware of any provision of law limiting the activities in behalf 
of the Commonwealth to which you refer to persons under seventy years 
of age. 

General Laws, chapter 32 carefully defines "employee", "member" and 
"regular compensation". Section 3 of chapter 32 is devoted to descrip- 
tions of "membership" in retirement systems. In the light of the defi- 
nitions above referred to, it is my opinion that neither G.L. c. 32, § 
3 (2) (e) nor (f) nor §5(1) (a) nor § 20 (5)(e) applies to the two persons 
you refer to in your letter under the circumstances already stated unless 
either or both are presently members of the State Employees' Retire- 
ment System. 

I answer your question, therefore, in the negative. 

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



Periodic absences for inspection trips by the licensed engineer required 
to be in charge of a steam boiler in excess of 150 horsepower are 
not permissible under G.L. c. 146, § 46. 

Oct. 26, 1962. 

Hon. Frank S. Giles, Commissioner of Public Safety. 

Dear Sir: — You have recently requested of me an opinion regarding 
the interpretation of G.L. c. 146, § 46. Specifically, you ask: 

"Has a duly licensed engineer, in accordance with G.L. c. 146, § 46, 
the right to leave steam engines which are in excess of one hundred and 
fifty horsepower for fifteen minutes every two hours while on duty and 
said steam engines are in operation, to make inspection trips through 
cold storage and ice making rooms, to check areas where anhydrous 
ammonia-NHg is used as a refrigerant and to check and log ambient 
temperatures and leave said steam engines attended by an oiler who is 
not duly licensed, in accordance with Section 49 of the General Laws." 

General Laws, c. 146, §46 has been in our statutes in basically the 
same form since 1895. The obvious purpose of the legislation is the 
protection of the public by providing that those who have charge of 
such boilers shall possess the skill necessary for their safe operation. As 
it presently stands this section in its pertinent parts, reads as follows: 

"No person shall have charge of or operate a steam boiler or engine 
or its appurtenances . . . unless he holds a license as hereinafter pro- 
vided. The owner or user of a steam boiler . . . shall not operate or 
cause to be operated a steam boiler or engine or its appurtenances for 
a period of more than one week, unless the person in charge of and 
operating it is duly licensed; provided, that in manufacturing plants 
an unlicensed person may operate, under a licensed person on duty, a 
simple non-condensing engine of not more than one hundred and fifty 
horse power, and in any plant one unlicensed person may be employed 
under the personal direction of each licensed person in the plant to 
operate the appurtenances of a boiler or engine." (Emphasis supplied) 



74 p.D. 12. 

It should be noted that the statute requires operation ol a boiler or 
engine with more than 150 h.p. to be by a licensed person. Neither ot 
the last two exceptions affect this requirement; the first applies to 
engines under 150 h.p. and the second applies only to "appurtenances." 
In an earlier opinion of an Attorney General it was said that the stokers 
who shoveled coal under the boiler did not require licenses. In that 
opinion, the word "operate" was defined as "the directing or super- 
intending of the work of the boiler" as distinguished from the work of 
"mere laborers, who have no responsibility or authority in the matter." 
I op. Atty. Gen. 485. I do not believe however that that opinion is 
authority for the proposition that the constant attention of a licensed 
person is not required. 

The statute does permit an owner or user to operate a steam boiler 
for up to one week without a licensed person "in charge and operating." 
Another Attorney General said of this provision: 

"It is obvious that this provision was intended for emergencies, so 
that a person in the exercise of good faith, and in an unavoidable 
emergeyicy, might be allowed one week in which to provide himself with 
a licensed person within the requirements of the law." (emphasis sup- 
plied) III Op. Atty. Gen. 524. 

This seems to me to be the sensible interpretation of §46 and §47 
(prima facie violation of 46 if engine found without duly licensed per- 
son on two occasions, the second after a lapse of one week from the 
first); and it does not appear that the situation referred to in your letter 
is an "emergency" situation but rather a regular pattern of activity. 

In view of the fact that this statute concerns the protection of the 
public from instruments that are highly dangerous if improperly oper- 
ated or neglected, I am inclined to follow the literal wording of the 
statute as enacted by the Legislature and, theretore, answer your ques- 
tion in the negative. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General 

By Lawrence E. Cooke, 

Assistant Attorney General 



The Governor can appoint a person over age 70 who is retired from the 
service of the Commonwealth to a full or unexpired term as a state 
department head and, if the appointee xoaives his retirement bene- 
fits he may be paid the compensation attached to the position. 

Oct. 26, 1962. 
His Excellency John A. Volpe, Governor of the Commonivealth. 
Dear Sir: — You have requested an opinion on the following question: 

"1. Can the Governor appoint, under §91 of c. 32 or some other 
section, a person over seventy, who was retired from State service, to a 
full or unexpired term as a department head?" 

General Laws c. 32, §91, so far as here material, provides that "No 
person while receiving a pension or retirement allowance from the 



P.D. 12. 75 

commonwealth . . . shall, after the date of his retirement be paid for 
any service rendered to the commonwealth. . . ." with certain exceptions 
not applicable here. The section then provides that: 

". . . Notwithstanding the foregoing provisions of this section or simi- 
lar provisions of any special law, 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 treas- 
urer of the governmental unit paying such pension or allowance, a 
written statement 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." 

General Laws, c. 32, § 3, subdivision (2) paragraph (e) reads as 
follows: 

"No member, except as otherwise provided for in subdivision (I) 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." 

It is to be noted that G.L. c. 32, § 3 (2) (e) is a prohibition, with 
exceptions, of remaining in service, while G.L. c. 32, § 91 is a prohibi- 
tion, with exceptions, of the payment of retired persons for services 
rendered. 

General Laws, c. 32, § 91 does not in terms prohibit the appointment 
of a retired person. It merely prohibits any payment for service roi- 
dered by a retired person with the specific exceptions stated. 

I assume that your question is not merely whether the Governor can 
appoint a retired person over seventy but is also whether an appointee 
can be paid the salary for the position to which he is appointed. 

In answer to your question as so construed, I advise you that under 
the provisions above quoted, the Governor can appoint a person over 
seventy who is retired from the State service to a full or unexpired 
term of years as a department head and that if the appointee files the 
waiver of his right to receive a pension or retirement allowance as 
referred to in § 91, he can be paid the compensation attached to the 
position. 

You stated in your request that your particular interest is in the 
reappointment of the incumbent Commissioner of Mental Health and 
I inform you that the opinion stated is applicable to permit his appoint- 
ment for the six-year term under G.L. c. 19, § 2, which began after the 
expiration of the previous term under that section on October 19, 1962. 

Very truly yours, 

Edward J. McCormack, Jr., Attornev General 



76 P.D. 12. 

Tlie Board of Regional Community Colleges may not, because of the 
provisions in St. 1962, c. 591 § 6A, {the General Appropriations 
Act) hire as professional personnel at a rate above the rninimiun 
a person already in the service of the Commonwealth. 

Nov. 1, 1962. 

Mr. Kermit C. Morrissey, Chairman, Board of Kegio7ial Community 

Colleges. 

Dear Sir: — You have requested an opinion on behalf of the Massa- 
chusetts Board of Community Colleges as to the legality of the action 
of the board in fixing the salary of its appointee as Executive Director 
at a salary rate above the minimum of the salary range for the job 
group to which that position is allocated. 

You state that the Division of Personnel and Standardization has 
denied the right of the board to take the action it did, citing the 
provision of the first paragraph of § 6A of c. 591 of St. 1962 (The Gen- 
eral Appropriation Act) as authority for its position. 

The hrst paragraph of St. 1962, c. 591, § 6A reads as follows: 

"Notwithstanding the provisions of paragraphs (5) and (5A) of section 
forty-six of chapter thirty of the General Laws, the director of the di- 
vision of personnel and standardization shall not approve the recruit- 
ment of any person at a rate above the minimum of the grade if such 
proposed employee has been in the service of the commonwealth within 
a twelve-month period prior to the date of the proposed recruitment." 

It is to be noted that the paragraph quoted refers only to paragraphs 
(5) and (5 A) of G.L, c. 30, § 46. It makes no reference whatsoever, not 
even of a general nature, to other provisions of law which might permit 
an appointing authority to fix a salary at a rate above the minimum of 
a salary range for a particular job group. 

As regards the Massachusetts Board of Regional Community Colleges, 
it is pro\'ided generally in G.L. c. 15, § 27, so far as here material, that 
". . . the board . . . may employ and fix the duties of such other persons 
and expend such funds as are necessary to carry out the functions of 
the board within the limits of the amounts appropriated therefor." It 
is also provided in the same section that: 

". . . The board shall have complete authority with respect to the 
election or appointment of officers and professional staff . . . including 
the assignment of their respective ranks and duties within quotas and 
titles established in the appropriation act by the general court. For the 
purposes of this section, professional staff shall include all persons em- 
ployed for actual instruction of students and corresponding positions 
in the fields of experiment, extension, law enforcement and related 
activities. 

"The board may hire such professional personnel at a rate above the 
minimum and within the grade to which the position is allocated upon 
determmation by the board that the person to be employed has served 
satisfactorily in a comparable position for a period of time equivalent 
to the period required by the general salary schedule had such service 
I)een entirely in the service of the commonwealth." 

In an opinion to the Commissioner of Administration under date of 
January 21, 1960 (Attorney General's Report, 1960, p. 78), it was noted 



P.D. 12. 77 

that a provision contained in G.L. c. 30, § 46 (5A), similar in all respects 
to that in the last full paragraph quoted above from G.L. c. 15, § 27, 
excluded persons who were already in the service of the Commonwealth 
from the operation of the provision. 

Assuming, therefore, that the Executive Director of the Board is on 
its professional staff so that the provision of G.L. c. 15, § 27 as to 
hiring above the minimum referred to would be applicable, it would 
not, as stated in the earlier opinion, be applicable to permit the hiring 
of a person already in the service of the Commonwealth at a rate above 
that to which he would otherwise be entitled. 

The result is that while the Division of Personnel and Standardiza- 
tion may, in view of the fact that St. 1962, c. 591, § 6A, refers only, and 
specifically, to G.L. c. 30, § 46 (5) and (5A), and does not refer to G.L. 
c. 27, § 15, have been in error in citing said section 6A as authority for 
its position, the position it took is correct in view of the provisions of 
the fifth paragraph of G.L. c. 15, § 27 quoted above, and the construc- 
tion in the opinion cited of the comparable provision of G.L. c. 30, 
§ 46 (5A) if your appointee was already in the service of the Common- 
wealth. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 



There is no appeal frotn a revocation by the Registrar of Motor Vehicles 
in cases where the revocation is required by statute. 

Nov. 2, 1962. 
Hon. Clement A. Riley, Registrar of Motor Vehicles. 

Dear Sir: — I have received from you the following request for an 
opinion: 

"General Laws, c. 90, § 28 provides that any person aggrieved by a 
rule or decision of the Registrar may appeal to the Board of Appeal on 
Motor Vehicle Liability Policies and Bonds. 

"In such cases whicli are mandatory suspensions or revocations of 
licenses and registrations, such as conviction of driving under the influ- 
ence of intoxicating liquor or cancellation of compulsory insurance 
policies for non-payment of premiums, I would appreciate your opinion 
as to whedier the Registrar shall stay his action because of such an 
appeal." 

The power of the board of appeal on motor vehicle liability policies 
and bonds from the rulings or decisions of the Registrar is entirely 
statutory. It is plain that this power is confined to consideration upon 
proper appeal, of rulings and decisions of the registrar only in cases 
where the registrar may exercise his discretion. No appeal may be made 
in cases where the Registrar has no discretion as to his action. See VII 
Op. Atty. Gen., 513. 

Since the Registrar has no discretion as to his action in the situations 
covered by your questions, no appeal shall operate to stay the revocation 
of the license. See also, G.L. c. 90, § 24, (1) (b), which provides that: 



78 P.D. 12- 

"A conviction of a violation of the preceding paragraph of this section 
shall be reported forthwith by the court or magistrate to the registrar, 
who shall revoke immediately the license of the person so convicted, 
and no appeal, motion for new trial or exceptions shall operate to stay 
the revocation of the license." 

Also, in the case of a cancellation by the insurer for non payment of 
premiums, the Registrar has no discretion as he is precluded by statute 
from permitting uninsured motor vehicles to be operated. See G.L. c. 
90, § 34J, which provides: 

"Whoever operates or permits to be operated a motor vehicle which 
is subject to the provisions of section one A during such time as the 
motor vehicle liability policy or bond or deposit required by the pro- 
visions of this chapter has not been provided and maintained in accord- 
ance therewith shall be punished by a fine of not less than one hundred 
nor more than five hundred dollars or by imprisonment for not more 
than one year." 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General 
By James W. Bailey, Assistant Attorney General 



Members of the Government Center Commission are entitled to he paid 
their expenses for travel to and from their homes if their duties do 
not require regular attendance at their office. 

Nov. 8, 1962 

Mr. Joseph Alecks, State Comptroller. 

Dear Sir: — You have requested an opinion on a question relating to 
the payment of expenses incurred by a member of the Government 
Center Commission for travel to and from his home and the commis- 
sion's office. 

An opinion was given to the commission on the subject on August 14, 
1961. In that opinion it was stated as follows: 

"By the express terms of section 25, State officers receiving a salary 
who are provided with offices by the Commonwealth and whose duties 
require regular attendance at such offices shall not be allowed or paid by 
the Commonwealth any expenses in the nature of traveling or living 
exjjenses. Such officers whose duty requires them to travel elsewhere 
than to and from the office provided for them by the Commonwealth 
shall be allowed their actual reasonable expenses incurred in the per- 
formance of such duty. I am not informed as to whether the duties of 
the member of the Commission you refer to require regular attendance 
at the office of the Commission. If so, the statute does not authorize 
reimbursement. If not, the travel expenses may be reimbursed." 

You stated that after the opinion given was rendered you ". . . received 
a letter from the Government Center Commission in which they stated 
the following: 'Please be advised that members of the Government Cen- 
ter Commission are not required to attend meetings on a regular basis.' " 

You then stated: 



P.D. 12. 79 

"G.L. Chapter 30, Section 25, which was referred to in your opinion 
reads in part as follows: ". . . and those whose duties do not require 
daily attendance and who receive compensation by the day. . . ." 

"The members of this Commission receive an annual salary. Accord- 
ingly, your opinion is respectfully requested on the following question: 

"Are members of the Government Center Commission who are not 
required to attend meetings on a regular basis and receive an annual 
salary entitled to travel expenses from their home to the office?" 

You further state that you do not believe the question is answered by 
the opinion referred to. 

The Government Center Commission was established by St. I960, 
c. 635, to construct a state office and other buildings. The Act provided 
that the commission shall be provided with quarters in the State House 
or elsewhere. The three members have control of the expenditure of 
$60,500,000. The Chairman receives a salarv' of $7,500, and the other 
members salaries of |5,000, annually. 

General Laws, chapter 30, section 25 reads as follows: 

"State officers, and members of departments receiving a salary or its 
equivalent, who are provided with offices by the commonwealth and 
whose duties require regular attendance at such offices, shall not be 
allowed or paid by the commonwealth any expenses in the nature of 
traveling or living expenses. Such officers or members of departments 
whose duties require them to travel elsewhere than to and from the 
offices provided for them by the commonwealth, and unpaid state offi- 
cers or members of departments, and those whose duties do not require 
daily attendance and who receive compensation by the day, shall be 
allowed their actual reasonable expenses incurred in the performance 
of such duties, if such expenses are authorized by law to be paid by the 
commonwealth. Bills for such expenses shall be itemized and the dates 
when, and the purposes for which, such expenses were incurred shall be 
stated before their allowance by the comptroller." 

The members of the Government Center Commission are salaried 
officials and are provided with offices by the Commonwealth. If their 
duties require regular attendance at their office they are within the 
prohibition of reimbursement for the travel expenses referred to. If 
their duties do not require such attendance they would not be within 
the prohibition, even though they are paid salaries and are not paid 
by the day. 

The test, therefore, as regards the officers in question is, do their duties 
require regular attendance at the office of the Commission. Whether the 
duties require such regular attendance is a question of fact to be deter- 
mined upon a consideration of all the applicable circumstances. It is 
not the function of this office to make determinations of questions of 
fact, we rule only on questions of law. 

The fact that members of the commission are not required to attend 
meetings on a regular basis is one of the circumstances to be considered. 
Another is the fact that despite the wide scope of the projects committed 
to the commission, the large sums authorized to be expended, and the 
heavy obligations imposed on the members, annual salaries of only 
$7,500 for the chairman and $5,000 for each of the other members were 
provided. The latter fact suggests strongly that the Legislature did not 



80 P.D. 12. 

contemplate daily attendance and it is not a necessary conclusion that 
the proper performance of their duties, important as they are, would 
require the regular attendance of the members at their offices within 
the meaning of the provision in G.L. c. 30, § 25, that salaried officials 
whose duties require such regular attendance shall not be reimbursed 
for the expenses in question. The circumstance that if the provision 
referred to were to be applicable, the burden of travel expenses would 
militate against the acceptance of an appointment to the commission by 
qualified persons in sections of the Commonwealth located at any sub- 
stantial distance from Boston would also be a factor in the determina- 
tion of the applicability of the provision. 

Very truly yours, 

Edv/ard J. McCoRMACK, Jr., Attorney General 



The State Secretary has no investigatory powers as to statements of 
receipts and disbursements filed loith him by candidates or political 
committees. 

Nov. 13, 1962. 

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

Dear Sir: — In your recent letter you requested my opinion relative 
to the effect of the provisions of G.L. c. 55, § 23. Your letter poses the 
following question: 

"In the light of the provision in G.L. c 55, § 23, that '. . . if it appears 
to the state secretary that any such statement filed with him does not 
conform to law . . .', does the duty of the secretary include investigatory 
powers as to the declarations made in the statement of contributions 
and expenses filed by a candidate or a political committee, or are his 
duties limited to obvious flaws in the face of the instrument, such as 
lack of signature, lack of addresses of contributors, lack of itemization, 
etc." 

Section 23 of c. 55 states in part that: 

"The state secretary shall inspect all statements of candidates filed 
with him . . . within thirty days and all other statements within sixty 
days, after the election to which they relate, and if upon examination 
of the official ballot it appears that any person has failed to file a state- 
ment as required by law, or if it appears to the state secretary that any 
such statement filed with him does not conform to law . . . the state 
secretary . . . shall in writing notify the delinquent person." 

Section 24 of c. 55 states as follows: 

"Upon failure to file a statement within ten days after receiving 
notice under section twenty-three, or if any statement filed after receiv- 
ing such notice discloses any violation of any provision of this chapter, 
the state secretary or the city or town clerk, as the case may be, shall 
notify the attorney general thereof and shall furnish him with copies 
of all papers relating thereto, and the attorney general, within two 
months thereafter, shall examine every such case, and, if satisfied that 



P.D. 12. 81 

there is cause, he shall in the name of the commonwealth institute 
appropriate civil proceedings or refer the case to the proper district 
attorney for such action as may be appropriate in the criminal courts." 

It is my opinion that the duties which aie laid upon the Secretary of 
State are ministerial and not investigatory in character. These duties 
are not intended to extend to matters other than those appearing upon 
the face of the statements filed by a candidate for elective office or his 
political committee. A determination of the veracity of a report filed 
by a candidate or committee is not a determination that the Secretary 
of State, by the very nature of his ministerial duties, is authorized or 
qualified to make. 

It is apparent, however, that if the Secretary of State should feel that 
any reports filed are unusual or possibly inaccurate in any respect, he 
has the additional duty to call the circumstances to the attention of the 
office of the Attorney General in order that a complete and thorough 
investigation may be made. 

In accordance with the above cited statutory provisions, it is the duty 
of the Secretary of State to inspect all statements filed with him, and if 
it should appear that the statements filed do not conform to the law, it 
is incumbent upon him to notify the persons responsibile for their filing of 
the delinquency and the respects in which the statements should be 
amended to so conform. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By Richard M. Dray, 

Assistant Attorney General 



While it is a matter for administrative regulatioji as to its propriety, no 
conflict of interest is created under any existing statute where the 
medical consultant of the Massachusetts Rehabilitation Commis- 
sion acts as referring doctor and then performs rehabilitative 
surgery for which he is paid by the Commonwealth. 

Nov. 14, 1962. 
Mr. Francis A. Harding, Commissioner of Rehabilitation 

Dear Sir: — You have requested my opinion as to whether there is 
any conflict of interest under any statute of the Commonwealth arising 
from the fact that the chief medical consultant for the Massachusetts 
Rehabilitation Commission acts as a referring doctor, and then performs 
rehabilitation surgical services on said patients for which he is paid by 
the commission. 

It is my opinion that the situation described does not come within 
the purview of any existing statute of the Commonwealth and is rather 
a matter for administrative regulations as to its propriety in the context 
of the agency's operations. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 



82 P.D. 12. 

The Records Conservation Board is not subject to the provisions of the 
Adviinistrativc Procedure Act. 

Nov. 14, 1962. 

Mr. I. Albert Matkov, Chairman Records Conservation Board. 

Dear Sir: — In a recent letter you have requested an opinion on the 
following question: 

"Is the Records Conservation Board an 'Agency' that falls within the 
scope of Chapter 30 A of the General Laws of Massachusetts?" 

The Records Conservation Board was created by c. 427 of Acts of 
1962. Under § 2 of that act, the board is enabled to dispose of public 
records of the Commonwealth as defined therein. Section 2 further reads, 
"Until such action shall have been taken all public records shall remain 
the property of the commonwealth." The board is further required by 
this section to publish notice of its intention to dispose of records and 
is privileged, on fulfillment of certain conditions, to hold a public 
hearing to persons interested on ten days' notice. The proceeds of the 
sales are payable to the Commonwealth. 

General Laws, c. 30A, known as the State Administrative Procedine 
Act, in paragraph 2 of § 1 defines "agency" as including: 

". . . any department, board, commission, division or aiuhority of the 
state government, or sub-division 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 education; the parole board; the division of indus- 
trial accidents of the department of labor and industries; and the 
division of child guardianship of the department of public welfare." 

If not wholly and expressly excluded from the operation of the act 
by virtue of paragraph 2, § 1, an agency is within its coverage only if 
"authorized by law to make regulations or to conduct adjudicatory 
proceedings." Both of these terms are defined in the act. "Regulation" is 
defined in paragraph 5 of § 1 to include: 

". . . the whole or any part of every rule, regulation, standard or 
other requirement of general application and future effect 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 (b) regulations concerning only the internal management or 
discipline of the adopting agency or any other agency, and not directly 
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) regula- 
tions concerning the operation and management of state penal, correc- 
tional, welfare, educational, public health and mental health institu- 
tions and soldiers' homes, or the development and management of 
property of the commonwealth or of the agency; or (d) 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 pro- 
ceedings." 



P.D. 12. 85 

"Adjudicatory proceeding" is defined in paragraph 1 ol § 1 to mean: 

"... a proceeding before an agency in which the legal rights, duties 
or privileges of specifically named persons are required by constitu- 
tional right or by any provisions 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) pro- 
ceedings solely to determine whether the agency shall institute or recom- 
mend institution of proceedings in a court; or (b) 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 commonwealth; or (d) proceedings to classify or 
reclassify, or to allocate or reallocate appointive offices and positions in 
the government of the commonwealth." 

Thus it will be seen that the Records Conservation Board is not 
numbered among the agencies which are wholly and expressly excluded 
from the operation of the act. 

However, it does not appear that the board is an agency "authorized 
by law to make regulations." The power of the board to require all 
departments of the Commonwealth to report on the records that they 
hold and to set standards for their management and preservation and 
establish schedules for their destruction, even if construed as the author- 
ity to issue regulations, would, nevertheless, fall within the exception 
set out in clause (b) of paragraph 5, § 1, because it does not concern 
the public as distinguished from the state government. The power over 
records seems clearly to be a "development and management of prop- 
erty of the commonwealth" within the meaning of clause (c), para- 
graph 5, § 1. 

Nor is the board authorized "to conduct adjudicatory proceedings." 
The public hearing which the board is privileged to hold would not 
seem to be an adjudication of "legal rights, duties, or privileges of 
specifically named persons" which "are required by constitutional right 
or by any provision of the General Laws" within the meaning of 
paragiaph 1, § 1. 

In view of the foregoing, the answer to your question must be in the 
negative. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 
By Gerald A. Berlin, 

Assistant Attorney General. 

A Chapter 90 road project contract between a toxon and a corporation 
which was the loiu bidder, an officer and supervisor of work for 
which is a selectman of the contracting toxvn, would be in viola- 
tion of the provisions of the conflict of interest statutes. 

Nov. 14, 1962. 
Hon. George C. Toumpouras. Acting Commissioner of Public Works. 
Dear Sir: — You have requested my opinion as to the applicability of 
G.L. c. 268A to the situation which has arisen in relation to the award- 
ing of a contract to Ernest W. Briggs Inc. for work on Marion-Point 
Road in Marion, Massachusetts. 



84 P.D. 12. 

Chapter 268 A, Avhich was enacted as Chapter 610 of St. 1961, states in 
§ 3 the following rule: "Rule with respect to conflicts of interest. 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 conflict with the proper discharge of his duties in the 
public interest." 

In addition, this chapter establishes certain standards of conduct for 
officers and employees. 

It is my opinion that the dual position of Mr. E. A. Briggs as Select- 
man of the Town of Marion, and as officer and supervisor of work for 
Ernest W. Briggs Inc., brings him within the purview of this statute. 

I wish to point out, however, that c. 779 of St. 1962, which will take 
effect on May 1, 1963, supplants in its entirety c. 610 of St. 1961 and 
establishes criminal penalties for violation of its provisions. 

Under the provisions of this statute, participation in a contract simi- 
lar to that in question and made after May 1, would be illegal and 
would make the officer or employee subject to criminal action, as well 
as constituting grounds for recision of the contract. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 



Attorneys employed by the Labor Relations Commission who are per- 
mitted to engage iri such private practice during normal working 
hours as does not conflict with their duties are subject only to 
those provisions of the Conflict of Interest Law applicable to a 
"Special state employee." 

. Nov. 19, 1962. 

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

Dear Sir: — You have requested my opinion as to the applicability 
of c. 779 of St. 1962 to two attorneys who are attached to the legal 
staff of the Massachusetts Labor Relations Commission. 

Chapter 779 of St. 1962, which will become effective on May 1, 1963, 
regulates the activities of state, county, and municipal employees and 
establishes a code of ethics for said employees. The applicability of 
certain sections of this act to a given individual is determined in part 
according to the definitions contained in § 1. Your request relates 
specifically to whether an attorney appointed under c. 23, § 9P, as 
amended, is to be classified as a special state employee. Section 1 (o) of 
c. 779 defines a "special state employee" as a state employee: 

"(I) Who is performing services or holding an office, position, em- 
ployment or membership for which no compensation is provided, or 
(2) Who is not an elected official and 

(a) occupies a position which, by its classification in the state agency 
involved or by the terms of the contract or conditions of employment, 
permits personal or private employment during normal working hours, 
or 

(b) in fact does not earn compensation as a state employee for an 
aggregate of more than eight hundred hours during the preceeding 



P.D. 12. 85 

three hundred and sixty-five days. For this purpose compensation by 
the day shall be considered as equivalent to compensation for seven 
hours a day. A special state employee shall be in such status on days 
for which he is not compensated as well as on days on which he earns 
compensation." 

You have stated that one of the conditions of employment of the 
attorneys of the Massachusetts Labor Relations Commission is: 

"That they be permitted to engage in the private practice of the law 
and to engage in such personal and private employment connected 
therewith during normal working hours as does not conflict with or 
interfere with their duties as Attorneys for the Commission." 

It is my opinion that an attorney appointed under the terms you 
have outlined meets the requirements of c. 779, § 1 (o) (2) (a) and is 
therefore considered a "Special State Employee" for the purpose of said 
c. 779. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 



The Department of Education may reimburse a toivn only for such 
transportation furnished to pupils in private schools as is required 
to be furnislied by a toxcn, and if a town does not furnish trans- 
portation to public schools outside the town there can be no reim- 
burseyneyit for any transportation fxirnished pupils attending private 
schools outside the town. No opinion expressed as to whether a 
town could furnish transportation regardless of reimbursement. 

Nov. 23, 1962. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have recently requested an opinion concerning the 
rights and obligation? of your department and the cities and towns 
respecting transportation of private school students. 

The first situation you pose is where a town has its own public high 
school and transports no public students to public high schools outside 
the town. In such an instance, in my opinion, your department is not 
authorized to reimburse the town for transportation of private high 
school students to a school outside the town. See my opinion to you 
dated November 2, 1961 construing Quinn v. School Committee of 
Plymouth, 332 Mass. 410. 

The second situation you pose is wdiere a town transports no public 
school students outside the town but proposes to provide private school 
students with transportation to the boundary of the town, leaving them 
to make their own arrangements to complete the trip to an out-of-town 
private school. In my opinion you are correct in your position that your 
department would not be authorized to reimburse the town for such 
transportation costs. Both G.L. c. 76, § 1 and G.L. c. 71, § 7 A refer to 
transportation "to and from" a school and nowhere else. 

The third situation you pose is where a town transports no public 
high school students outside the town but proposes to transport private 
high school students to the public high school in the town, along with 



86 P.D. 12. 

the public students, leaving the private students to make their own 
arrangements lo complete their trip to an out-of-town private high 
school. Ihe pertment portion of §1 of G.L. c. 76 reads: 

"Pupils who, in the fulfillment of the compulsory attendance require- 
ments of this section, attend private schools . . . shall be entitled to the 
same rights and privileges as to transportation to and from school as are 
provided by law for pupils of public schools and shall not be denied 
sucJi transportation because their attendance is in a school which is con- 
ducted under religious auspices or includes religious instruction in its 
curriculum." 

The pertinent portion of § 7A of G.L. c. 71 reads: 

"The state treasurer shall . . . pay to the several towns . . . the sums 
required as reimbursement for expenses ... by any town for the trans- 
portation of pupils once daily to and from any school within the town, 
or in another town, in excess of . . ." 

General Laws, c. 40, § 4 reads in part: 

"A town may make contracts for the exercise of its corporate powers 
including the following purposes . . . For the furnishing of transporta- 
tion of school children. . . ." 

General Laws, c. 40, § 5 reads in part as follows: 

"A town may . . . appropriate money for the exercise of any of its 
corporate powers, including the following purposes ... (2) . . . for 
conveying pupils to and from the public schools, or if it maintains no 
high school or public school of corresponding grade, but affords high 
school instruction by sending pupils to other towns, for the necessary 
transportation expenses of such pupils, the same to be expended by the 
school committee in its discretion." 

Although literally read the above sections do not exclude transporta- 
tion of private school students to a public school, in my opinion, the 
Legislature did not contemplate that if transportation for private school 
students was supplied, it would be supplied for trips other than to the 
private school attended by the students so transported. I would, there- 
fore, say that in the third situation you pose your department would 
not be authorized to approve reimbursement for the reason that the 
town is not authorized to supply the type of transportation described. 

This opinion is founded upon the premise that your department is 
reqiiiretl to reimburse for transportation exjjenses for private school 
students only if such expenses are required to be made by the town. In 
my opinion this conclusion is required by proviso (b) of § 7A of G.L. 
c. 71 which limits reimbursement for transportation of private school 
students to the amount of reimbursement, per pupil, in the town for 
public school student transportation; this proviso in the light of Quinn 
v. School Committee of Plymouth, supra, rules out private school trans- 
portation reimbursement unless it is matching public school transporta- 
tion. 

You will note that I have restricted my opinion to the issue of 
reimbursement in each of the above situations. I purposely expressed no 
opinion on whether or not a town may, at its own expense and without 



P.D. 12. 87 

right of reimbursement from your department, provide transportation 
to private school students in the first situation. This is a question on 
which town counsel more appropriately rules and, since reimbursement 
is not at issue, is of no concern to you. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By Lawrence E. Cooke, 

Assistant Attorney General 



Funds made available wider St. 1962, c. 782 (Accelerated Highway Pro- 
gram), may be used for traffic safety devices although there is 7io 
federal participation in costs; and funds made available to cities 
and toivns under the act may be used only for the construction of 
ways in accordance loith specifications approved by the Depart- 
ment of Public Works under G.L. c. 44, s. 7 (5). 

Nov. 26, 1962. 
Hon. Jack P. Ricciardi, Commissioner of Public Works. 

Dear Sir: — You have requested an opinion on various questions 
relating to expenditures under St. 1962, c. 782, "AN ACT RELATIVE 
TO THE ACCELERATED HIGHWAY PROGRAM." 

Your first question is: 

"Because of the language of the second paragraph of § 1 of c. 782 
and after comparison with the provisions of c. 32 of St. 1958 the follow- 
ing question has come up within the department. 

"May this department use funds provided in c. 782, St. 1962, for the 
installation of safety devices, including traffic control signals, at loca- 
tions where there is no federal participation in payment of costs?" 

The first paragraph of § 1 of St. 1962, c. 782, includes among the 
objects for which the funds authorized by the act may be expended, 
"traffic safety devices on state highways, parkways and on roads con- 
structed under the provisions of section thirty-four of chapter ninety 
of the General Laws. . . ." Although both St. 1962, c. 782, and St. 1958, 
c. 32, make provision for the receipt of any federal funds available for 
projects uncler the acts neither act makes the availability of federal 
funds a condition precedent to the expending of any of the funds 
authorized on a particular project. I therefore answer your first ques- 
tion in the affirmative. 

Your second question is: 

"Under the provisions of § 4 of c. 782, St. 1962, municipalities may 
use allotted money for construction of local streets or roadways. 

" (a) Would roadways constructed by municipalities have to meet the 
requirements of Department Standards under the provisions of c. 18, 
St. 1957? 

" (b) Could municipalities use allotted funds for the construction of 
roadways of a type suitable for traffic yet not in full compliance with 
c. 90 standards?" 



88 P.D. 12. 

Acts of 1962, c. 782, § 4 provides for the apportionment of $10,000,000 
of the $110,000,000 authorized to be expended under § 1 to cities and 
towns, and reads, in part, as follows: 

"The sums received by each city and town hereunder shall be used 
only for the purposes for which said city or town may borrow money 
within its debt limit under clause (5) of section seven of chapter forty- 
four of the General Laws: provided, however, that such sums shall not 
be available for the construction, surfacing or resurfacing of off-street 
parking areas." 

General Laws, c. 44, § 7, clause (5) reads as follows: 

"For the original construction of public ways or the extension or 
widening thereof, including land damages and the cost of pavement and 
sidewalks laid at the time of said construction, or for the construction 
of stone, block, brick, cement concrete, bituminous concrete, bituminous 
macadam or other permanent pavement of similar lasting character, or 
for the original construction and surfacing or the resurfacing with such 
pavement of municipally owned and operated off-street parking areas, 
under specifications approved by the department of public works, ten 
years." 

Acts of 1957, c. 18, amended St. 1956, c. 718, § 5A, by striking out 
the last paragraph and inserting the following paragraph in place 
thereof: 

"Said sums received by each city or town hereunder shall, in the 
year of receipt, be included by the assessors thereof as an estimated 
receipt and deducted from the amount required to be raised by taxa- 
tion to meet appropriation made in that year for highway purposes but 
shall be used only for the purposes for which said city or town may 
borrow money within its debt limit under clause (5) of section seven 
of chapter forty-four of the General Laws, or for the construction of 
town highways of a type equal to that currently used by said town 
under section thirty-four of chapter ninety of the General Laws, as 
approved by the department, or for the erection or maintenance of 
traffic lights; provided, however, that such sums shall not be available 
for the construction, surfacing or resurfacing of off-street parking areas. 
Said sums may be expended by a city or town for the purposes afore- 
said in addition to federal funds, if any, allocated to such city or town 
and available for such expenditure." 

The second paragraph of § 1 of St. 1962, c. 782, provides that: 

"Funds authorized in this section shall, except as otherwise specifically 
provided in this act, be available subject to the same conditions and 
for the same purposes as funds authorized in chapter seven hundred 
and eighteen of the acts of nineteen hundred and fifty-six, chapter 
thirty-two of the acts of nineteen hundred and fifty-eight, chapter five 
hundred and twenty-eight of the acts of nineteen hundred and sixty, 
and chapter five hundred and ninety of the acts of nineteen hundred 
and sixty-one as amended." 

Under the provisions of the second paragraph of § 1 of St. 1962, c. 
782, quoted above, the expenditure of funds authorized thereunder is 
not subject to the same conditions and purposes as funds authorized 



P.D. 12. 89 

under St. 1956, c. 718, § 5 A, as amended, when a provision of said c. 
782 specifically provides otherwise. The provision of St. 1962, c. 782, 
§ 4, quoted above, is such a specific provision and in accordance there- 
with funds allotted to cities and towns thereunder can be used only 
for the purposes stated in said § 4. 

I advise you, therefore, in answer to your second question that funds 
allotted to cities and towns under St. 1962, c. 782, § 4, may be used 
only for the purposes specified in G.L. c. 44, § 7 (5), under specifications 
approved by your department, except that they may not be used for 
off-street parking area purposes. 

Your third question reads as follows: 

"There seems to be conflict between the provisions of § 1, paragraph 
2, § 4, paragiaph 2, of c. 782, St. 1962, and the provisions of c. 18 of 
St. 1957. 

"Specifically, could the funds allotted to cities and towns under the 
provisions of c. 782, St. 1962, be used by the municipalities for the 
installation or modernization of traffic control signals?" 

In accordance with my answer to your second question, I advise you 
in answer to your third question that funds apportioned to cities and 
towns under St. 1962, c. 782, § 4 may be used only for the construction 
of public ways under specifications approved by your department as 
provided in G.L. c. 44, § 7, clause (5). 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By James J. Kelleher, 

Assistant Attorney General 



A corporation, association or partnership is required to furnish a bond 
in order to be licensed as a real estate broker. 

Nov. 27, 1962. 

Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam: —You have requested an opinion as to whether or not 
a corporation, association or partnership is required to post a bond in 
order to obtain a real estate broker's license. 

Section 87UU of G.L. c. 112, in its pertinent parts provides as follows: 

"An application for a broker's license by a corporation, society asso- 
ciation or partnership shall designate at least one of its officers or part- 
ners as its representative for the purpose of obtaining its said license, 
and each such officer or partner so designated shall apply to the board 
for a broker's license in his own name at the same time unless he is 
already a licensed broker. 

"No broker's license shall be issued to a corporation, society, associa- 
tion or partnership unless an officer or partner so designated has been 
issued a broker's license as an individual. When the officer or partner 
so designated has been issued a broker's license as an individual and the 
corporation, society, association or partnership has complied with all 
pertinent requirements for the issuance of a broker's license to it, the 
board shall, without charge, issue to it a broker's license which shall 



90 P.D. 12. 

also bear the name of each designated officer or partner to whom a 
broker's license as an individual has been issued, and each such desig- 
nated officer or partner shall be entitled to perform all the acts of a 
broker as agent or officer of such corporation, society, association or 
partnership, but shall not so act on his own behalf so long as he con- 
tinues to be a designated officer or partner, unless the written consent 
thereto of such corporation, society, association or partnership is filed 
with the board. The license of a corporation, society, association or 
partnership shall cease unless at least one such designated officer or 
partner, as the case may be, is a licensed broker. . . , Upon the death 
or disability of a sole designated officer or partner, who has been 
licensed, or upon the severance of his connection with the corporation, 
society, association or the surviving partner or partners or successor 
partnership of the licensed partnership, if any, acting by another officer 
or partner, as the case may be, may continue to transact business and 
to exercise all rights of a broker subject to such regulations as may be 
made by the board, for a period not to exceed one year from such death, 
disability or severance as if its license were in full force and effect, 
subject to the suspension or revocation of a license; provided, that it 
shall proceed with due diligence to qualify for the issuance of a new 
license; and, provided, further, that the corporation, society, association 
or the surviving partner or partners or successor partnership, as the 
case may be, shall maintain in effect during said period a bond as 
prescribed in section eighty-seven TT as if a broker's license had been 
issued and was in effect for such period." 

One of the requirements for the issuance of a broker's license is the 
posting of a bond as set forth in § 87TT as follows: 

"No broker's license shall be issued or renewed imtil the applicant 
gives to the board a bond in the form approved by said board in the 
sum of one thousand dollars, executed by the applicant and by a surety 
company authorized to do business within the commonwealth, or by 
the applicant and by two good and sufficient sureties approved by the 
board. Said bond shall be payable to the commonwealth, for the benefit 
of any person aggrieved, and shall be conditioned upon the faithful 
accounting by the broker for all funds entrusted to him in his capacity 
as such." 

The question you pose is essentially whether the bond requirement 
for a broker is a "pertinent" requirement for a partnership or corporate 
broker since the powers of a corporate broker's license must be exer- 
cised, under ordinary circumstances, only by an individually licensed 
broker who has personally posted a bond. In my opinion, however, 
there is a need for the corporate or partnership bond to protect the 
public in the extraordinary circumstance v/here the designated indi- 
vidually licensed officer or partner, or officers or partners, die, become 
disabled, or sever their connections with the partnership or corporation 
and the corporation or partnership continues to carry on a broker's busi- 
ness, as authorized in accordance with § 87UU. In such an event the 
statute requires the corporation or successor partners or partnership to 
"maintain in effect" the bond described in § 87TT; the word "main- 
tain" is frequently used as a synonym for "continue" and seems to be 
so used in this case. A bond would also serve to protect the public 



P.D. 12. 91 

where an unauthorized person without a broker's license acts for the 
corporate or association broker. 

Thus, in my opinion, a separate corporate or partnership bond is 
also required by the statute for the practical reason of avoiding a hiatus 
should the individual broker's bond not be available and for the further 
reason that the literal v/ording of the statute seems to contemplate 
such a requirement. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By Lawrence E. Cooke, 

Assistant Attorney General 

Funds appropriated for the Board of Regional Connnunity Colleges may 
be used to acquire land and buildings from the city of Worcester 
either by purchase or lease, for the establishment of a community 
college. 

Nov. 29, 1962. 

Mr. Donald W. Cadigan, Executive Director, Board of Regional 
Commujiity Colleges. 

Dear Sir: — You have requested an opinion as to whether your board 
may use the funds appropriated for the board by St. 1962, §§ 649 and 
705, to either purchase or lease land and buildings from the City of 
Worcester for the establishment of a community college. 

Chapter 605 oL St. 1958, which established your board, reads in part 
as follows: 

"The board shall have the power to construct, lease, or othenuise 
provide any facilities required for these colleges, including the right to 
take land lor such purposes by eminent donain under the provisions 
of chapter seventy-nine. The board may also enter into agreements for 
the use of local facilities with a local school committee or other local 
authority. . . ." (Emphasis supplied) 

Chapter 649 of St. 1962, entitled "AN ACT TO PROVIDE FOR A 
SPECIAL CAPITAL OUTLAY PROGRAM FOR THE COMMON- 
WEALTH", contains an item in § 2 thereof for your board as follows: 

"8363-13 For establishing regional community colleges in the Boston, 
Greenfield, Springfield and Worcester areas, as authorized by chapter 
six hundred and five of the acts of nineteen hundred and fifty-eight, 
including the preparation of educational plans therefor, the selection 
of locations, the initial cost of agreements, if any, with local communities 
and including necessary supplies, furnishings and equipment to begin 
operation of any such community college; to be expended with any 
federal or other funds available for the purpose; to be in addition to 
the amount appropriated in item 8262-15 of section two of chapter five 
hundred and forty-four of the acts of nineteen hundred and sixty-one 
as amended . . . $255,000" 

The regular Capital Outlay Program provided for by c. 705 of 
St. 1962 contains a similarly worded item, 8063-20, appropriating an 
additional $150,000 for the same purposes. 

In my opinion, the words "construct, lease, or otherwise provide" in 



92 P.D. 12. 

c. 605 of St. 1958 include the power to acquire by purchase the fee in 
any land and buildings required for community college facilities. 

I would, therefore, say that your board may use the monies appro- 
priated under the two capita! outlay bills cited for either the lease or 
purchase of land and buildings from the City of Worcester. It should 
be noted that any lease must comply with the provisions of G.L. c. 8, 
§ 10 A, as most recently amended by c. 290 of St. 1962, and should 
otherwise provide for the protection of the interests of the Common- 
wealth. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney Gejieral 
By Lawrence E. Cooke, 

Assistant Attorney General 



Forced circulation heaters are classified as steam boilers. 

Dec. 14, 1962. 
Hon. Frank S. Giles, Commissioner of Public Safety 

Dear Sir: —You have recently requested an opinion "concerning the 
classification of forced circulation heaters such as the Clayton Steam 
Generators as manufactured by the Clayton Manufacturing Company." 

I assume from this request that you wish a ruling on whether or not 
G.L. c. 146, concerning steam boilers, is applicable to Clayton Steam 
Generators. 

Nowhere in the General Laws or regulations issued by the Board 
of Boiler Rules do I find a definition of a steam boiler; however. Part 

II of the regulations of said Board incorporates Section I of the Boiler 
Construction Code of the American Society of Mechanical Engineers 
and in the preamble thereof certain definitions are found as follows. 

"A pressure vessel in which steam is generated by the application of 
heat resulting from the combustion of fuel . . . shall be classed as a fired 
steam boiler. 

"Unfired pressure vessels in which steam is generated shall be classed 
as unfired steam boilers with the following exceptions: . . . [exceptions 
not applicable] 

"The material for forced-circulation boilers and boilers with no fixed 
steam and water line shall conform to the requirements of the Code. 

According to the literature supplied me it appears that the Clayton 
Steam Generator is a combination super water heater and unfired 
pressure vessel. Water is heated in coils to steam temperature under 
pressure: when the superheated water reaches the unfired pressure 
vessel there occurs a drop in pressure and steam is created. 

Thus it is seen that an integral part of the Clayton Steam Generator 
is an unfired pressure vessel in which steam is generated. Such a device 
is classed by the A.S.M.E. Code as an unfired steam boiler. In my 
opinion, G.L., c. 146 is applicable to Clayton Steam Generators. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By Lawrence E. Cooke, 

Assistant Attorney General 



P.D. 12. 93 

The Adjutant General may order a brigadier-general to active duty in 
the division headquarters of a federally recognized infantry division. 

Dec. 28, 1962. 
Major General Thomas J. Donnelly^ Adjutant General. 

Dear Sir: — You have requested my opinion as to whether a brigadier 
general can serve on active duty under the provisions of G.L. c. 33, § 
18(a). 

The provision referred to reads as follows: 

"The adjutant general, upon recommendation of the commanding 
officer of a federally recognized infantry division may order to active 
duty three officers to serve in the division headquarters. When so ordered 
to duty, such officers shall perform such duties appropriate to their posi- 
tions as may be assigned by the commanding officer and shall receive 
the same pay as an officer of the regular service of corresponding grade 
with corresponding length of service but not exceeding the pay of a 
colonel, lieutenant colonel and major, respectively. To be eligible for 
duty as aforesaid, such officers shall have federal recognition for both 
their grade and position." 

In my opinion it cannot be said that the provisions quoted recjuire 
that the officers recommended and ordered to duty shall hold the ranks 
of colonel, lieutenant colonel, or major respectively. The provision that 
the officers ordered to duty ". . . shall receive the same pay as an officer 
of the regular service of corresponding grade with corresponding length 
of service but not exceeding the pay of a colonel, lieutenant colonel 
and major, respectively" (emphasis supplied) is a very strong indication 
to the contrary lor it anticipates the situation you j^resent, i.e., an 
officer of higher grade than any of the three ranks stated being assigned 
to duty under the section, and in lieu of a prohibition ol such an 
assignment, which if the Legislature so intended could easily have been 
provided, the Legislature adopted the alternative restriction that in such 
an event the amount of pay for the officer of higher grade cannot exceed 
that of the lower grades referred to. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General 

By James J. Kelleher, 

Assistant Attorney General 

The Director of Hospital Costs ayid Finances is required to set rates 
for nursing and convalescent homes at least as often as annually, 
after hearing, and on the basis of the evidence presented at the 
hearing. 

Dec. 28, 1962. 
Mr. Theodore W. Fabisak, Director, Bureau of Hospital Costs and 

Finances. 
Dear Sir: — You have requested an opinion on certain matters relat- 
ing to your duties in connection with the requirement of G.L. c. 7, 
§ 30L, that you ". . . shall, after hearing, determine at least as often as 
annually, the per diem rate or rates to ht paid to nursing or convales- 
cent homes as defined in (G.L. c. Ill, § 71) . . . by the various depart- 



94 P.D. 12. 

ments, boards or commissions of the commonwealth or by the various 
subdivisions of the commonwealth receiving reimbursement therefor, 
in while or in part, from the commonwealth. . . ." You have stated that 
the rates presently in effect were promulgated in December of 1961 
and were effective January 1, 1962 for the calendar year 1962. 

You state that as required by G.L. c. 7, § SOL, you held a hearing on 
December 11, 1962, and in accordance with the provisions of said section 
that your determination shall be deemed to be a "regulation" as defined 
in the Administrative Procedure Act (G.L. c. 30A), complied with the 
requirements as to serving notice of the hearing prescribed by G.L. c. 
30A, § 2, including publishing notice in ten newspapers in the Com- 
monwealth. The hearing was concluded on said December 11th, and 
the matter taken under advisement. 

On December 14, 1962, you state, you received a letter from the 
Special Commission to Study Convalescent or Nursing Homes asking 
you to appear before said Commission on December 20, 1962 at 11 A.M. 
In accordance with said letter, you appeared before the Special Com- 
mission on the requested date. At the conclusion of said hearing, you 
were asked to meet with said Commission on December 27, 1962 so that 
the Commission covdd make available to you some data that they have 
that might have a bearing on the setting of rates. You were also asked 
to defer the setting of the rates for 1963 until after you met with the 
Commission. 

Your questions are as follows: 

"1. Do the provisions of G.L., c. 7, § 30L, as amended, require me to 
set the rates for 1963, prior to January 1, 1963? 

"2. Is the word 'shall', as appearing in the first line of section 30L, 
mandatory, when considered with the words 'at least as often as annual- 
ly' contained in the second line of said section 30L? 

"3. Am I committed under the law to receive or accept evidence of 
any kind effecting the setting of rates for 1963 after the close of the 
public hearing of December 11, 1962 and during a period that I have 
the need of promulgation of the rates for 1963 under consideration and 
advisement? 

"4. Am I at liberty to discuss with the Special Commission on Decem- 
ber 27, 1962 the various factors which I take into consideration under 
the law, in the setting of rates, at a time while I still have under con- 
sideration the promulgation of rates for 1963, the public hearing for 
the setting of said rates having been commenced and closed on Decem- 
ber 11, 1962?" 

1. The plain language of G.L. c. 7, § 30L, that you "shall, ... at 
least as often as annually . . ." determine the rates, in view of the fact 
that the current and only prior determination of rates was for the 
calendar year 1962, requires an affirmative answer to your first question. 

2. While under some circumstances the word "shall" as used in a 
statute is capable of being construed as directory rather than manda- 
tory, "shall" in its ordinary sense is mandatory, and only unusual cir- 
cumstances permit construing it otherwise. The subject matter in ques- 
tion and the context in which the word "shall" in the provision under 
examination is used not only do not permit construing the provision as 
other than mandatory but demonstrate that the duty prescribed was to 
be mandatory. The answer to your second question is, therefore, also 
in the affirmative. 



P.D. 12. 95 

3. and 4. The basic considerations involved in the determination of 
your third and fourth questions are those stated by our Supreme 
Judicial Court in the case of American Employers' Insurance Company 
V. Commissioner of Insurance, 298 Mass. 161. In that case the Court set 
aside rates which were required to be fixed after a public hearing 
because the Commissioner of Insinance had based his decision in part 
upon matters which were not presented at the hearing before him. 

Chief Justice Rugg, speaking for the Court, said at pages 167, 168: 

"The duty imposed upon the respondent carried with it fundamental 
procedural requirements. As was held in Morgan v. United States, 298 
U.S. 468, 480, 'There must be a full hearing. There must be evidence 
adequate to support pertinent and necessary findings of fact. Nothing 
can be treated as evidence which is not introduced as such. . . . The 
"hearing" is designed to afford the safeguard that the one who decides 
shall be bound in good conscience to consider the evidence, to be guided 
by that alone, and to reach his conclusion uninfluenced by extraneous 
co7isideratio7is which in other fields might have play in determining 
purely executive action.' The "hearing" is the hearing of evidence and 
argument.' " (Emphasis supplied) 

It is clear from the foregoing that the answer to your third question 
is that in making the determination under G.L. c. 7, § SOL, which, as 
stated, you must make by January 1, 1963, and, therefore, a period so 
limited as not to permit another public hearing, your decision can be 
based only on the record of the hearing of December 11, 1962, and you 
cannot receive, accept or consider any other evidence of any kind. 

The answer to your fourth question is that in any discussion you 
might have with the Special Commission there should be a complete 
avoidance not only by you but by the members, or representatives, of 
the Special Commission, of any reference whatsoever of your considera- 
tion of the rates for the setting of which the December hearing was 
held. Such a course of conduct is clearly required of you under the 
language of Chief Justice Rugg quoted above, and is required of the 
commission and its representatives by that language and by the funda- 
mental principle of constitutional law proscribing the exercise of execu- 
tive powers by the legislative department, a limitation, which as stated 
in the Opinion of the Justices to the Senate, 300 Mass. 605 at 622: 
". . . though sometimes difficult of application, must be scrupulously 
observed." 

I would suggest that since the language of G.L. c. 7, § SOL, that you 
shall determine a rate "at least as often as annually" clearly implies 
that you can act oftener than once a year, that it would be advisable 
that any discussions between you and the commission be postponed 
imtil after you have made your determination. If, after any discussions 
you might have, it is deemed proper to do so, another public hearing 
could be scheduled at which the commission could present any evidence 
it thought pertinent. To that end, your determination currently under 
consideration could be made for the period beginning January 1, 1963, 
and for the calendar year thereafter unless sooner changed as a result 
of proceedings under G.L. c. 7, § SOL. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General 
By Frank E. Riley, Jr., 

Assistant Attorney General 



96 P.D. 12. 

A certification as to the results of a recount by the Governor alone is 
not in conformance with law and does not supersede an earlier 
certification by the Governor and the Council. 

Dec. 31, 1962. 

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

Dear Sir: — You have requested an opinion as to your duties with 
respect to two documents filed with you as regards the examination of 
the recount of votes in certain legislative contests. 

At our request you have furnished us with copies of the two docu- 
ments in question and also of copies of documents of a similar nature 
filed with you as to recounts at prior elections. 

The document first filed with you, dated December 20, 1962, filed on 
December 25, 1962, is a certification by the Governor and Council in 
conformance with the requirements of G.L. c. 54, §§ 115, 116 and 117. 
This document has a heading showing that it emanated from the 
"Executive Department, Council Chamber", and after a tabulation of 
the votes in a senatorial and nine representative districts, with nota- 
tions that protests had been filed as to three of the representative 
districts, closes as follows: 

"In Council December 20, 1962 the foregoing findings are this day 
adopted with the exception of the following protests: 

a. Thomas J. Clancy, Fifth Bristol District 

b. John P. O'Brien, Ninth Hampden District 

c. John C. O'Donnell, Second Hampshire District. 

John A. Volpe, Governor 

Harry J. El am. Executive Secretary 

It appears from the copies of certificates filed with you as to the 
examination of legislative recounts in prior years that the certificate 
referred to above is similar in form to the type of certificate used back 
at least as far as 1940, and to one bearing the present Governor's signa- 
ture and that of the Executive Secretary, filed on April 27, 1962, as 
regards a showing that the certificates emanated from the Governor 
and Council and were adopted by votes in Council over the signatures 
of the Governor and the Executive Secretary. 

The second of the two documents filed with you, also dated Decem- 
ber 20, 1962, but filed with you on December 28, 1962, is a statement 
signed by the Governor alone, relating only to the recounts in four of 
the representative districts referred to in the first document, and pur- 
porting to certify that the Governor and at least five councillors made 
certain examinations, tabulations and determinations as to those dis- 
tricts. 

Your questions are as follows: 

"1. Your opinion is therefore sought as to what the proper disposition 
of the second certification should be, if it is valid. 

"2. If said second certification is valid, does it supersede the certifica- 
tion filed on December 25?" 

The first certificate filed with you manifests the formal, joint action 
to be taken by the Governor and Council contemplated by G.L. c. 54, 
§ 115 and expressly states, over the signatures of the Governor and the 



P.D. 12. 97 

Executive Secretary, findings of the Governor and Council "In Council", 
with specific exceptions as stated. 

It is our firm conclusion that the second document filed with you is, 
as a matter of law and also of historical precedent, clearly not a valid 
certification Avithin the contemplation of the applicable constitutional 
and statutory provisions, and we advise you, therefore, that it does not 
supersede the certification filed on December 25, 1962, and has no effect 
on that certification. 

As was stated in Scullin v. Cities Service Oil Co., 304 Mass. 75, at 
page 78: 

"The Constitution itself . . . discloses the intent that the Council shall 
act in a formal manner upon matters coming before it, and that an 
official record of such acts shall be kept." 

In Carhone, Inc. v. Kelley, 289 Mass. 602, at page 605, it was stated: 
"It is a general rule that where a public board is required to act 
through votes at meetings and to keep records of its acts, the record 
duly kept cannot be varied or added to by other evidence." 

We further advise you as respects your inquiry as to the proper 
disposition of the second document, that its only status is that of a 
communication to you, which having been addressed and delivered to 
you, you may properly retain in your files but upon which you may not 
base any official action. 

The second document is merely a statement of the Governor alone 
inconsistent with the first document which is the certification of the 
Governor and Council, In Council, and the latter is the only certifica- 
tion properly before you and is the only certification which you can 
lay before the Senate and House of Representatives under G.L. c. 54, 
§ 117. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General 

By James J. Kelleher, 

Assistant Attorney General 



Title to the land conveyed under St. 1954, c. 416, by the Commissioner 
of Mental Health to the Boston Police Post, 1018, Veterans of 
Foreign Wars, loill be free froin any restriction, and in the event 
of foreclosure of any mortgage will not revert to the Coynmon- 
wealth, if a clubhouse is erected thereon prior to January 1, 1964. 

Jan. 3, 1963. 

Mr. Joseph P. Gentile, 2nd Asst. Com'r., Department of Mental Health. 

Dear Sir: — This will acknowledge your letter of recent date request- 
ing an opinion regarding the interpretation of c. 416 of St. 1954, 
as amended by c. 317 of St. 1958. 

In your letter you state that on y\ugust 27, 1954, the Department of 
Mental Health, under the provisions of the above cited chapters, con- 
veyed a triangular parcel of land to the Boston Police Post 1018 Veterans 
of Foreign Wars of the United States, Inc., bounded as follows: 



98 P.D. 12. 

"Southerly by the line of American Legion Highway; 
"\V'esterly by the line of Morton Street; and 
"Northerly by the line of Canterbury Street." 

In your letter you further state: 

"This land lias been under the jurisdiction of this Department since 
1908 when it was acquired by the Commonwealth of Massachusetts 
(being the premises described in deed recorded with Suffolk Deeds, 
Book 3326, page 581) under Chapter 613 of the Acts of 1908 and Chap- 
ter 535 of the Acts of 1909. 

"Boston Police Post 1018 Veterans of Foreign Wars of the United States, 
Inc. has notified this Department that construction of a clubhouse 
has started on the above described land." 

In your letter you request my opinion on the following matters: 

"First: After constiuction of this clubhouse in the event of fore- 
closure or. the above described land by the mortgagee, would the land 
and clubhouse revert back to the Department of Mental Health and 
so to the Commonwealth of Massachusetts? 

"Second: In the event the answer to number one is in the negative, 
would the future use of said land and clubhouse be restricted to be 
used as a recreational or educational center?" 

Chapter 416 of St. 1954 authorized the Commissioner of Mental 
Health in and on behalf of the Commonwealth to convey to the Boston 
Police Post 1018 Veterans of Foreign Wars of the United States, Inc. 
for a nominal consideration all right, title and interest of the Common- 
wealth in the parcel of land described in your letter, said conveyance 
to be subject to the approval of the Governor and Council. This act 
further provides that "In the event that a structure such as a club house 
to be used as a recreational or educational center, is not constructed on 
said land by the grantee on or before the first day of January, nine- 
teen hundred and fifty-nine, then title to all of said land shall revert 
to and be vested in the commonwealth." Chapter 416 was subsequently 
amended by Chapter 317 of the Acts of 1958. This act extended the 
construction date from January 1, 1959, to January 1, 1964. 

The condition imposed by said legislation is that a building such as 
recreational or educational center must be constructed by January 1, 
1964. It is my interpretation that when said buildings or structure is 
constructed prior to January 1, 1964, then all right, title and interest 
will vest absolutely in the Boston Police Post 1018 Veterans of Foreign 
Wars of the United States, Inc., and in no event, by foreclosure or 
otherwise, will title revert back to the Department of Mental Health 
and so to the Commonwealth of Massachusetts. Accordingly, the answer 
to your first question is in the negative. 

With respect to question 2, it is my opinion that, under the provisions 
of the enabling act whereby this property was conveyed on August 27, 
1954 by the Commissioner of Mental Health to the Boston Police Post 
1018 Veterans of Foreign Wars of the United States, Inc., the only 
qualification was that the condition specifically set forth in the legislation 
be met. The legislation contains no language warranting the imposi- 



P.D. 12. 99 

tion of any further restriction. See Battelle v. NY, NH & H RR., 211 
Mass. 442. Accordingly, the answer to your second is also in the negative. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Richard M. Dr.\y, 

Assistant Attorney General. 



The Veterinary Medicine Approving Authority is legally constituted and 
veterinary schools must be approved by it; the approving authority 
may not be delegated. 

Jan. 4, 1963. 
Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam:— You have requested an opinion regarding whether 
the Veterinary Medicine Approving Authority consisting of the secre- 
tary of the Board of Registration in Veterinary Medicine and the di- 
rector of the Division of Livestock Disease Control is "legal"; also 
whether said approving authority may accept the list of schools approved 
by the American Veterinary Medicine Association "in lieu of approval." 

General Laws c. 112, § 515, created an approving authority to approve 
schools of veterinary medicine. By said section, the approving authority 
consists of only two persons, the secretary of the Board of Registration 
in Veterinary Medicine and the director of the Division of Livestock 
Disease Control. As established by this section, I deem the approving 
authority legally constituted. 

In response to the second question I would state that the approving 
authority cannot delegate its power to approve to any other group or 
person. Undoubtedly, the authority may, in reaching its decision, con- 
sider the presence or absence of a school from an approved list of a 
professional veterinary association along with other factors. It would 
be improper, however, for the approving authority to accept the judg- 
ment of another person or group as a substitute for its own judgment. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General, 

By Lawrence E. Cooke, 

Assistant Attorney General. 



\ySt. 1962, c. 798, permitting the suspension of a person in the service of 
the Commoniuealth who is under indictment for misconduct in his 
office or employment is not applicable to a person xoho was indicted 
prior to its effective date. 

Jan. 11, 1963. 

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

Dear Sir: — You have requested an opinion as to the applicability 
of St. 1962, c. 798, to permit the suspension of a person who was 
indicted prior to the effective date of that act and against whom 
criminal proceedings are now pending. 

The act referred to permits an appointing authority, by a written 



J 



100 P.D. 12. 

notice, to automatically suspend a person from the service of the 
Commonwealth during any period the person is under indictment for 
"misconduct in his office or employment. . . ." The suspension is to be 
terminated and the accused entitled to compensation and credit for his 
service after the notice only if the criminal proceedings against him 
are terminated without a finding or verdict oi guilty. 

The implication from the provisions last referred to is that if there 
is a finding or verdict of guilty that the accused, in addition to other 
punishment for the offense, forfeits any compensation or service credit 
for the period from the giving of the notice until conviction and, since 
the suspension is to terminate only if there is no conviction, that the 
conviction is to effect a forfeiture of the position of the accused. 

The purpose of the statute would, therefore, appear to be to provide 
additional punishment for a person in the service of the Commonwealth 
convicted upon an indictment for a crime involving misconduct in his 
office or employment. 

The fact that the additional punishment is conditional upon con- 
viction and in the event of acquittal the person is to be entitled to be 
compensated for the period of this suspension and be restored to his 
position is not material in the consideration of the determination of 
the statute as being penal or not for the imposition of a criminal 
penalty is always conditional upon conviction. 

The question of the application of the statute to offenses committed 
prior to its effective date requires, therefore, reference to the consti- 
tutional principles as to the validity of statutes increasing the penalties 
lor offenses committed prior to their effective dates. 

Under established principles of constitutional law, while the Legis- 
lature can constitutionally increase the punishment to be inflicted for 
an offense committed after the effective date of the act providing for 
the increase, it cannot constiutionally provide a greater penalty for an 
offense than that which was in effect at the time the offense was com- 
mitted. 

As staled in Hall's "General Principles of Criminal Law" 2nd ed. 
1960, at page 59, ". . . there has probably been no more widely held 
value-judgment in the entire history of human thought than the con- 
demnation of retroactive penal law. In the United States the guaranty 
was regarded as of such importance by the Fathers of the Constitution 
that it was stipulated in the original draft well in advance of the 
adoption of the Bill of Rights." 

United States Constitution Art. I, § 9, cl. 3, and § 10, cl. 1, and 
Massachusetts Constitution Part I, Art. XXIV, expressly prohibit the 
enactment of ex post facto laws. 

In Ex Parte Garland, 4 Wallace (U.S.) 333, in speaking of an act 
of Congress requiring an oath by persons seeking admission as attorneys 
of the Supreme Court of the United States to the effect, in substance, 
that they had never taken any part against the United States in the 
service of the Confederacy, the Court said, at page 377: 

"In the exclusion which the statute adjudges it imposes a punish- 
ment for some of the acts specified which were not punishable at the 
time they were committed; and for other of the acts it adds a new 
punishment to that before prescribed, and it is thus brought within the 
further inhibition of the Constitution against the passage of an ex post 
facto law." 



P.D. 12. 101- 

In the case of Lenibersky v. Parole Board of the Department of 
Correction, 332 Mass. 290, at page 293, the Court said: 

"It is well settled, of course, that one cannot be convicted and sen- 
tenced for doing an act which was not a crime when it was performed 
but was condemned by some subsequent statute. Neither can he be 
subjected to a pejialty more severe than tJtat in force when the act was 
performed. Neither can he be convicted in accordance with a subsequent 
statute which changes the rules of evidence to detriment or which 
alters his situation to his detriment. Ciwinrings v. State, 4 Wall. 277. 
Kring V. Missouri, 107 U.S. 221. Duncan x.^ Missouri, 152 U.S. 377. 
Commo7iwcalth v. McDonough, 13 Allen, 581. Murphy v. Coynmon- 
weaWi, 172 Mass. 264." (Emphasis supplied.) 

In the case oi Murphy v. Commonwealth, 172 Mass. 264, cited by 
the Court in the Lembersky case, after pointing out that a statute as 
to sentences of criminal defendants effective after the date of the 
commission of the offense of which the petitioner was convicted would, 
since it would deprive him of certain credits for good behavior pro- 
vided under the law in effect at the time when the offense was com- 
mitted and thus increase the penalty for his offense, be inoperative 
and void as an ex post facto law, said at page 277: 

". . . by construing it, as we think properly may be done pursuant 
to the general rule that statutes are to be construed prospectively, to 
apply to offenses committed after it took effect, this difficulty will be 
avoided." (Emphasis supplied.) 

Under an application of the general rule referred to in the Murphy 
case, the j^rovisions of St. 1962, c. 798 would be construed to apply 
only to offenses committed after it took effect. 

See also Commonwealth v. Homer, 153 Mass. 343. 

Such a construction would be in accord with the established rule that 
a construction of a statute which will eliminate any question of un- 
constitutionality in whole or in part is to be preferred. 

See Demetropolos v. Commonwealtfi, 342 Mass. 658, 660, 661. 

The fact that the Legislature expressly provided that the statute in 
question, which was approved on July 27, 1962, should not take effect 
until January 1, 1963, indicates that the Legislature intended that 
it should apply only to offenses committed after said effective date, for 
there would have been little purpose in so expressly postponing the 
effective date of the statute until said January 1, 1963, and, therefore, 
beyond the date ninety days after its approval upon which, in accordance 
with the provisions of the Constitution of the Commonwealth, it would 
otherwise have taken effect if, when effective, the act was to apply 
to offenses committed before it took effect. 

In view of the considerations stated, it is our opinion that the statute 
is not to be construed as being applicable to a person who is under 
indictment for an offense which was committed prior to its effective date. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General, 

By James J. Kelleher, 

Assistant Attorney General. 



102 P.D. 12. 

The Massachusetts Turnpike Authority is authorized, if it is desirable 
to do so and it may be done at a location which will not adversely 
affect the public, which are questions of fact, to place fill in a 
portion of the Charles River Basin xvithout the approval of Metro- 
politan District Commission. 

Jan. 11, 1963. 
Hon. VV^iLLiAiM F. Callahan, Chairnum, Massachusetts Turnpike 

Authority. 

Dear Sir: — In your recent letter you called to my attention certain 
matters relating to the present construction of the extension of the 
Massachusetts Turnpike. 

You point out that construction of the extension in the vicinity of 
Boston University Bridge, requires the relocation of present Soldier's 
Field Road. As I understand tlie situation, such relocation contemplates 
the placing of fill along the Boston bank of the Charles River for a 
distance of approximately 2,500 feet. Since the fill would be placed 
beyond the U.S. Pier and Bulkhead Line established at that location, 
a permit for placing such fdl must first be obtained from the U.S. 
Government, acting through the Corps of Engineers of the U.S. Army. 

Your j>recise question is whether an additional permit is also re- 
quired from the Metropolitan District Commission in view of the 
control exercised by that commission over the Charles River Basin 
under the applicable provisions of G.L. c. 92. 

An examination of legislation applicable to the Charles River Basin 
indicates that the dam at the mouth of the Charles River was erected 
under the provisions of c. 465 of St. 1903 with the approval of 
the Federal Government and in accordance with the conditions pre- 
scribed by the Secretary of War (see c. 107 of the Resolves of 1904). 
Subject to such rights as may have been retained by the Federal Govern- 
ment, the control of the Basin has thereafter been exercisd by the 
Commonwealth, acting first through its Metropolitan Parks Commission 
and more recently through its Metropolitan District Commission (see 
c. 92, §§ 38, 69, et seq.). 

The authority granted to the Metropolitan District Commission 
is predicated on legislative enactments of the General Court of the 
Commonwealth which, from time to time, may be amended, superseded, 
or repealed by subsequent legislation. 

The construction of the extension of the Massachusetts Turnpike 
into downtown Boston is being carried out under a special grant of 
authority from the General Court embodied in c. 354 of St. 1952, as 
amended from time to time. This special enactment does not repeal 
the general power of control of the Metropolitan District Commission 
over the Charles River Basin, but it purports to provide some limitation 
on that power in so far as it relates to the single project of constructing 
the Turnpike within the general area prescribed by the act, and Vv^ithin 
the particular area selected by the Turnpike Authority and approved 
by the Massachusetts Department of Public Works. 

The Turnpike Authority, by § 3 of c. 354 of St. 1952, has been con- 
stituted a public instrumentality and is deemed to be performing an 
essential governmental function. Except as provided in that Act or by 
possible luture legislation, it is not subject to the supervision or regula- 
tion of any other department, commission, board, bureau, or agency 
of the Commonwealth. By § 7, the Commonwealth has consented to 



P.D. 12. 103 

the use, for Turnpike purposes, of all lands owned by it, including 
lands lying under water. By § 21 oi that act, all other general or 
special laws, or parts thereof, inconsistent therewith are declared to be 
inapplicable. 

An examination of the aforesaid c. 354 indicates that the Turnpike 
Authority I'ifiust obtain certain approvals from the Department of Public 
Works which you state have been obtained. Subsecjuent legislation has 
made your Authority subject to audit by the State Auditor (c. 733 
of St. 1962) and subject to the State Labor Relations Commission (c. 
760 of St. 1962). There appears to have been enacted no legislation 
subjecting it to supervision or control by the Metropolitan District 
Commission. 

I have also been informed by the Metropolitan District Commission 
that it has instituted court proceedings against your Authority on the 
ground that some of the provisions of its enabling legislation may be 
unconstitutional. I express no opinion on this question. Until the 
Courts have ruled otherwise, it is presumed that an enactment of the 
General Court is constitutional. 

In view of the foregoing, it is my opinion that your Authority is not 
required to obtain a permit from the Metropolitan District Commxis- 
sion before placing fill in a portion of the Charles River Basin. As 
stated above, it is required to obtain specified approvals from the 
Department of Public Works and is required to obtain a permit from 
the appropriate Federal authorities because of the U.S. Pier and Bulk- 
head Line. 

It is, of course, fundamental that your Authority, in performing 
the governmental function of constructing the Turnpike extension 
duly delegated to it by the General Court, must itself exercise care, 
discretion, and prudence particularly in areas where the rights of the 
general public are involved. 

The Attorney General may give opinions on questions of hnv properly 
presented to him. It is not his function to make decisions of fact. 
The foregoing opinion relates to the legal right of your Authority to 
place fill as described. It does not constitute a determination as to 
whether the placing of such fill is desirable or not. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney General. 

While lands in tidewaters are held subject to the public rights, the 
Commonzoealth would be entitled under its participation agree- 
ment loith the Federal government for the construction of a hurri- 
cane barrier in Neio Bedford harbor to reimbursement of any 
amount it is compelled to pay persons from whom rights in land 
below high loater mark are taken by eminent domain. 

Jan. ]], 1963. 

Mr. Clarence I. Sterling, Jr., Director and CJiief Engineer, Water 

Resources Commission. 

Dear Sir: — You have requested an opinion on behalf of the Water 

Resources Commission as to the liability of the Commonwealth for 

the taking by eminent domain of flats in tidewater below high water 



104 P.D. 12. 

mark, under the provisions of St. 1962, c. 565, relating to the construc- 
tion of a hurricane protection barrier in New Bedford Harbor, and 
as to the right of the Commonwealth under the participation agreement 
with the United States for credit for costs incurred by it in acquiring 
such flats. 

It appears that some of the lands required for the construction of 
tJie barrier lie between high and low water marks, that others lie 
below low water mark and that some of the latter lands are in the 
area described in St. 1945, c. 597, which authorized the Department 
of Public Works to sell and convey to a corporation the fee to the 
area described, all of which was below low water mark. 

You state that the Federal authorities have taken the position that 
there is no private ownership below high water mark and, therefore, 
under the provision of the participation agreement that the cost of 
acquiring lands required shall be credited to the Commonwealth 
no credit can be given for the cost of acquiring interests in lands below 
high Tvater mark. 

While the position taken by the Federal authorities is correct for 
almost all the states of the United States, it is not correct as respects 
Massachusetts. 

In Massachusetts, under the colonial ordinance of 1641-1647, which 
is treated as settling the common law of this Commonwealth, private 
ownership along the tidewaters was extended to "low water mark 
where the sea doth not ebb above one hundred rods, and not more 
wheresoever it ebbs further," subject to the public rights of navigation, 
fishing and fowling. The waters and the land under them beyond the 
line of private ownership are held by the State, both as the owner 
of the fee and as the repository of sovereign power, with a perfect 
right of control in the interest of the public. 

Michaehon v. Silver Beach Improvement Association, Inc., 342 Mass. 
251, 253 (1961). 

Home for Aged Women v. Connnonwealth, 202 Mass. 422, 427. 

The Commonwealth has the power to grant a title to land below 
the line of private ownership and to license building on, or filling of, 
such lands. 

Richard T. Green Co. v. City of Chelsea, 149 F.2d 927, (C.C.A.l) 1945. 
c.d. 326 U.S. 741. 

Bradford v. McQiiesten, 182 Mass. 80. 

Since 1865, hov/ever, as a result of the enactment of an earlier form 
of the provisions still in effect and now contained in G.L. c. 91, § 15, 
every grant of authority by the Commonwealth, whether so stated in 
the act or license granting it or not, to build on or fill lands below 
high water mark expires within five years except so far as it has been 
acted upon and thereafter the license remains revocable at the discretion 
of the General Court as to the work done thereunder. 

Commissioner of Public Works v. Cities Service Oil Company, 308 
Mass. 349, 363, 364. 

It is to be noted that St. 1945, c. 597, authorizing the conveyance of 
lands of the Commonwealth below low water mark in New Bedford 
Harbor, in § 2, specifically contemplates that the lands conveyed can 
be filled only if a license is issued by the Department of Public Works 
and that there is nothing in the act making the provisions of G.L. 
c. 91, § 15, referred to, inapplicable to such licenses. 

In Joly v. Salem, 276 Mass. 297, it was held that the owner of land 



P.D. 12. 105 

in tidewaters taken by eminent domain was not entitled to recover 
anything for an enhanced value to the flats caused by any illegal filling 
and that the test was the fair market value of the fiats at the time of 
the taking considering the uses to which they could be put. 

The answers to your specific questions are that in Massachusetts 
owners of land on the shore of the sea have title, subject to the public 
rights of navigation, fishing and fowling, to low water mark or where 
the tide ebbs more than that distance to one hundred rods from high 
water mark, that private interests in the public lands below the line 
of private ownership can be created by grants authorized by the Legis- 
lature, and that the owners of interests in lands in tidewaters between 
high water mark and low water mark, or having grants from the 
Commonwealth of interests in public lands in tidewaters, which are 
taken by eminent domain by the Commonwealth have a right to 
recover damages for the loss sustained by them, and the Commonwealth 
is entitled under the participation agreement with the United States 
for the costs incurred by it for acquiring the private interests in any 
lands below high water mark needed for the construction of the huni- 
cane protection barrier in New Bedford Harbor under St. 1962, c. 565. 

It should be pointed out. hovv-evcr, that the value to a private owner 
of interests in lands in tidewaters is greatly reduced by reason of the 
subordination of the private rights to the public rights and the need for, 
and the revocability imder G.L. c. 91, § 15, of licenses for the erection 
of structures in, or the filling of, such lands. 

Very truly yours, 

Edward J. McCormack, Jr., Attorney Gejieral, 

By James J. Keli.eher, 

Assistant Attorney General. 

Dividends received by the Group Insurance Commission, including those 
received on account of optional insurance, are required to be used 
to pay current administrative costs of the Commission. 

Jan. 14, 1963. 

Hon. Joseph Alecks, State Comptroller. 

Dear Sir: — In your letter of August 21, 1962 you state that certain 
dividends, listed below, were deposited with the State Treasm-er by 
the Group Insurance Commission and credited to the Group Insurance 
Trust Fund established by St. 1961, c. 572. The dividends are as follows: 

Applicable to 
Date Amount Calendar Year On Account of 

4/5/62 $200,000.00 1961 Optional Life Insurance Policies of Employ- 

ees. The premiums on this insurance were 
paid in their entirety by employees. This 
type of insurance began January 1, 1961. 
6/29/62 $ 20,370.90 1961 Life Insurance Policies of Employees. One- 

half of the premiums on this insurance were 
paid by the Employees. 
6/29/62 $ 6,294.46 1956 Blue Cross-Blue Shield. Policies of Employ- 

7,079.35 1957 ees. One-half of the premiums on this In- 

71,373.70 1959 surance was paid by the Employees. 

98,913.44 1960 



106 P.D. 12. 

You also state that the Comptroller's Bureau has denied a request 
by the Group Insurance Commission to transfer the administrative 
costs tor the calendar year 1961, in the amount ot $182,380.31, from 
the Group Insurance Trust Fund to the General Fund of the Common- 
wealth. In the request of June 13, 1962 of the Group Insurance Com- 
mission for permission to transfer, the Group Insurance Commission 
lumped the dividend of April 5, 1962 and the dividend of ,1^20,370.90 
which the Commission anticipated, and deducted administrative costs 
of $182,380.31. You state that of this sum, $18,743.67 had already been 
recovered but not all the participating Funds had been charged with 
their share of administrative costs and that you believe that it is a 
completely unreasonable interpretation of the intent contained in c. 
572 of St. 1961 to require that the optional insurance dividend bear 
the major portion of the administrative costs for calendar 1961 in the 
amount of $182,380.31. 

You asked the opinion of this office as to the following questions: 

"1. Is any portion of the administrative costs of the calendar year 
1961 deductible from the dividend received on account of optional 
insurance? 

"2. Under said chapter 572 does 'other funds' include all participat- 
ing state operating. Metropolitan District Commission and Trust Funds, 
other than the General Fund, in the Group Insurance plan, and are 
they chargeable with their pro rata share of administrative costs as an 
offset against any dividends distributable to them? 

"3. Is any portion of a dividend derived from Optional Insurance, 
the premium cost of which is borne entirely by employees, distributable 
to federal or other funds? ^ 

"4. May the administrative costs of the calendar year 1961 be offset 
against the dividends of the calendar years 1956, 1957, 1959 and 1960? 

"5. Is it the intent of said chapter 572 that the apportionment of a 
dividend received be on the basis of the relationship of the dividend to 
premium paid to the specific carrier from whom the dividend was re- 
ceived? 

"6. Is the language in said item 0448-01 to be construed as requir- 
ing the Comptroller to transfer $182,380.31 from the Group Insurance 
Trust Fund to the General Fund, notwithstanding the provisions of said 
chapter 572?" 

Chapter 32A, § 9, (as amended by St. 1961, c. 572, § 1). the first 
paragraph thereof, states in part "The commission shall compute 
the pro rata administrative cost by determining the total administrative 
cost to the commonwealth of the entire insurance program authorized 
by this chapter which is applicable to the period for which the divi- 
dend. . . .". "Total administrative cost" includes the cost of the optional 
insurance program authorized under c. 32A, § lOA. In addition, said 
§ 9 requires the entire annual administrative expenses of the group 
insurance program of the commonwealth to be deducted from the 
dividends prior to the allocation of any balance of such dividends for 
the benefit of insured state employees. Accordingly, dividends re- 
ceived from the optional insurance program must be applied to reduc- 
tion of annual administrative costs and I must answer your first question 
in the affirmative. 



P.D. 12. 107 

In your second question, you ask whether the words "other funds" 
contained in c. 572 include all participating state operating, Metro- 
politan District Commission and Trust Funds, other than the General 
Fund, in the group insurance plan, and you further ask whether they 
are chargeable with their pro rata share of administrative costs as an 
offset against dividends. I assume that you refer to the ". . . other 
funds contributed in place of the commonwealth's gross share of the 
premium cost." 

Chapter 32A, § 9, the fourth paragraph thereof, provides that "when- 
ever the pro rata share of the dividend allocable to the common- 
wealth's net share of the premium paid is in excess of the total adminis- 
trative cost . . . such sum shall, upon authorization by the commission, 
be paid by the state treasurer into the General Fund. . . .". The afore- 
mentioned provisions clearly state that only those funds contributed in 
place of the Commonwealth's premium, share as individual funds in 
the dividend and administrative cost allocations. 

The 1962 Appropriations Act. St. 1962, c. 591, item 0448-02, provides 
in part that the group insurance commission ". . . shall notify the 
comptroller of the amounts to be transferred, after similar determina- 
tion, from the several state or other lunds, . . . ." Such a computation 
is distinct from that portion which is allocable to the federal or other 
Fund contributed in place of the Commonwealth's share of the premium 
cost. 

Further, said item 0448-02 provides in part that ". . . the group 
insurance commission shall charge the division of employment security 
and other departments, authorities and divisions which have federal or 
other funds allocated to them for this purpose for that portion of the 
cost of the program as it determines should be borne by such funds. . . ." 

The aforementioned provisions state that only those federal or other 
funds which have been made available for this purpose shall be specifi- 
cally charged with their pro rata share of the administrative cost. The 
answer to yoiu- section question is therefore in the negative. 

With reference to your third question, c. 32A, § 9, makes no distinc- 
tion as to the source of dividends. Under the said statute, they are 
lumped together for purposes of dividend distribution and for reim- 
bursement to the commonwealth of the entire cost of operating the 
group insurance program. The dividend residting from the optional 
insurance program must be utilized for purposes of dividend distribu- 
tion. Accordingly, the answer to your third question is in the affirmative. 

The group insurance commission trust fund was created by § 1 
of c. 572, St. 1961. Said section provides that "Any dividend . . . 
accepted by the commission . . . shall be deposited by the commission 
with the state treasurer and shall be maintained in a separate fund to 
be known as the group insurance commission trust fund." 

In your fourth question, you ask whether the administrative costs 
of the calendar year 1961 can be offset against dividends of the calendar 
years 1956, 1957, 1959, 1960. I assume that your inquiry is directed to 
whether or not dividends, applicable to prior years, which are re- 
ceived by the group insurance commission subsequent to the enact- 
ment of c. 572 of St. 1961, can be used to defray the administrative 
cost for the calendar year 1961. Since such dividends must be deposited 
in the group insurance commission trust fund, it is apparent that it was 
the intention of the General Court that such dividends be used to pay 



108 P.D. 12. 

current administrative costs. The answer to your lourth question is in 
the affirmative. 

With reference to your filth question, there is no intention expressed 
or implied in § 9 of c. 32A which would require or permit any compu- 
tations to be made on the basis of premiums paid to or dividends re- 
ceived from any particular insurance carrier. As previously stated, § 9 
makes no distinction as to the source of dividends, either as to type 
of insurance coverage or particular carrier. The answer to your fifth 
question is in the negative. 

In your sixth question, you ask in substance whether the following 
language of item 0448-01 of c. 791 of St. 1962, enacted July 27, 1962, 
is consistent with the provisions of c. 572 of St. 1961. 

Item 0448-01 provides in part, as follows: 

"In accordance with the provisions of section nine of chapter thirty- 
two A of the General Laws, the comptroller shall transfer from account 
number 6904-69, Group Insurance Trust Fund, to the General Fund 
the sum of one hundred and eighty-two thousand three hundred and 
eighty dollars and thirty-one cents, determined by the commission to 
be the administrative cost for the calendar year nineteen hundred and 
sixty-one." 

The Supplementary Appropriation Act, of which item 0448-01 is a 
part, was enacted subsequent to c. 572 of St. 1961, and constitutes an 
express legislative mandate to the state comptroller to make the transfer 
directed by its provisions and is not only consistent with but is in 
furtherance of the legislative requirements expressed in c. 572. In 
answer to your sixth question, I must rule that the provisions of item 
0448-01 require you to make the stated transfer. 

I trust that the foregoing sufficiently answers your questions. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General, 
By Leo Sontag, Assistant Attorney General. 



Under the cost plus provision of a State highioay design engineering 
contract, a small engineering partnership was entitled, in addition 
to alloioance for overJiead, principal's time and profit, to payment 
for the value of drafting, etc., work, not of an engineering nature, 
done by one of the partners in preparing ordered revisions of plans. 

Jan. 15, 1963. 

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

Dear Sir: — In your letter of May 7, 1962, you have asked the opinion 
of this office with regard to the status of A. L. Delaney & Associates 
under contract No. 7669 awarded by your commission. 

After a review of the facts set out in your comprehensive letter and 
the standard specifications, this office is of the opinion that the A. L. 
Delaney & Associates are entitled to additional compensation and the 
thoughts expressed in the second last paragraph of your letter are in 
accordance with our conclusion. 



P.D. 12. 109 

It is therefore our conclusion that the partners of the Delaney Com- 
pany can be paid legally as employees under the terms of contract 
No. 7669. 

Very truly yours, 
Edward J. McCormack, Jr., Attorney General, 

By William D. Quigley, 

Assistant Attorney General. 



The approval by the State Racing Commission of an application by a 
licensee to relinquish three of the days for ivhich it was licensed 
constituted a modification of the license and the license fees for 
the three days could be refunded. 

Jan. 15, 1963. 

State Racing Corn mission. 

Gentlemen: —In your letter of May 25, 1960, you asked the advice 
of this office as to the following situation. You state that on January 
5, i960, the Eastern Racing Association, Inc. filed an application with 
the commission for a license to conduct a running horse racing meeting 
for the year 1960 and accompanied its application with a certified check 
in the amount of $3600 as payment for the first week's license fee; a 
daily license fee having been set by the Commission as $600 per day. 

You further state that the Commission, on January 29, 1960, voted 
to grant a license to Eastern to conduct a running horse racing meet- 
ing from April 18, 1960, to July 2, 1960, both dates inclusive; and 
that the Commission, on March 17, 1960, issued the certificate of license, 
following formal vote of the Commission. 

You further state that on March 24, 1960, a communication was re- 
ceived from Eastern advising that in the best interests of racing and in 
order to eliminate conflicts in racing dates with other New England 
tracks, Eastern had agreed to relinquish the first three days of its meet 
in conjunction with similar action by other tracks, upon the agreement 
of Lincoln Downs in Rhode Island to close its track on April 20, 1960. 
You state that Eastern requested approval of the commission to re- 
linquish the April 18, 19, and 20th dates. 

You further inform this office that at a meeting of the commission 
on March 31, 1960, the commission voted to take the following action: 

"To approve the request of the Eastern Racing Association, Inc. to 
relinquish racing on April 18th, 19th and 20th, 1960 on the license 
granted to this Association on January 29th, 1960. This action of the 
commission is taken in the best interest of racing; to promote harmony 
among the New England running horse racing tracks; and to protect 
and safeguard the revenue to the Commonwealth from this running 
horse racing meeting." 

You state that no new license certificate was issued to Eastern and 
subsequently a request was received from Eastern asking for refund 
of the license fees paid for said dates in the amount of $1800. 

You ask whether or not the commission can approve the return 
of said license fees for the three dates on which Eastern did not operate. 



110 P.D. 12. 

From the above facts, it is apparent that the commission voted to 
grant a license lor 66 days commencing April 18, 1960, and in fact 
issued said license on March 17, 1960, prior to April 18, 1960, the date 
on which the license of Eastern became efEective. 

Although no new license was in fact issued to Eastern following the 
vote of the commission approving the request of Eastern to relinquish 
racing on the three requested dates, it is the opinion of this office 
that said action of the commission amoimted to a modification or 
amendment of the license issued to Eastern by eliminating the requested 
dates. The commission, having authority by law to issue the license, 
possessed authority to modify or amend it, at least prior to the effective 
date of said license. Perhaps it would have been better practice, ad- 
ministratively, following the vote of the commission, to have recalled 
the license of Eastern and to have issued a new license eliminating the 
requested dates. 

In your letter you make reference to the provisions contained in the 
second paragiaph of G.L. c. 128A, § 4. In the opinion of this office, 
said provisions are not applicable to the factual situation concerning 
which you seek advice. By its terms, § 4 does not apply to the facts in 
the instant case, where Eastern, prior to the effective date of its license, 
for good and sufficient reason, subsequently approved by the commission, 
voluntarily requested permission to relinquish certain dates, and where 
its request was formally approved by vote of the commission. Said 
action by the commission amounted to a modification or amendment 
of the license prior to its effective date. 

On the facts, the commission can properly approve the return of the 
license fees requested in the amount of $1800 and request the State 
Treasurer to pay such amount to Eastern as licensee. 

\'^ery truly yours, 

Edward J. McCormack, Jr., Attorney General, 

By Leo Sontag, Assistant Attorney General. 



Ucalion of G.L. c. 268, s. 9A., to "Testimonial dinners." 

Jan. 24, 1963. 

Attorney General Edward \\^ Brooke today issued the following 
opinion: 

Many inquiries as to the application of Chapter 268, section 9A 
have been prompted by recent opinions of this office that the new 
statute which prohibits selling tickets for testimonial dinners cannot 
be construed as being applicable only to dinners at which a gift is made 
to the person for whom the dinner is given. 

Questions have been asked as to the application of the new law to 
dinners honoring persons in a wide variety of public offices and em- 
ployments. 

Among these inquiries are questions as to the application of the 
new law to judges, clerks of courts and other persons serving in the 
judicial branch. Inquiries have also been made as to the application 
of the law to dinners for persons serving in several types of positions 
in various offices of the executive branch, including those of the 



P.D. 12. Ill 

Governor and the Department of Corporations and Taxation. Further 
inquiry has been made with reference to persons retiring from, but 
at the time of the dinner still employed in, an office or position. 

The statute imposes prohibitions on the sale of the tickets. It refers 
not only to testimonial dinners and functions, but prohibits "any 
affair," by whatever name it is called, which has a purpose "similar to 
that of a testimonial dinner or function." 

Under the statute, testimonial dinners cannot be held for three broad 
categories of non-elective personnel, as follows: 

Persons in the service of the Commonwealth or any of its political 
subdivisions in 

1. a law enforcement body or agency; 

2. a regulatory body or agency; 

3. an investigatory body or agency. 

In the general sense of the words, persons in the judicial branch are 
engaged in the enforcement of the law. Law enforcement is more than 
executive action relating to police matters. To enforce is to put into 
effect and execution. The courts are the final stage in the application 
and execution of the laws. 

Our General Laws are replete with provisions expressly stating that 
particular courts shall "enforce" certain statutes. (See e.g., G.L. c. 40A, 
§ 22, giving the Superior Court jurisdiction "to enforce" zoning laws, 
ordinances "and by-laws; G.L. c. 68, § 16, providing that the Supreme 
Judicial and Superior Courts shall enforce the section which relates 
to the collection of funds for charitable purposes on ways; G.L. c. 90, 
§ 28, Supreme Judicial or Superior Courts may "enforce" certain orders, 
etc., as to motor vehicles; G.L. c. 130, § 26, Supreme Judicial and 
Superior Court "to enforce" statutes against pollution of coastal waters; 
G.L. c. 143, § 57, Supreme Judicial and Superior Courts "to enforce" 
building laws and regulations.) 

It is my opinion here that the new law has two main objectives. 
One is to remove persons in the public service in any of the described 
categories in the statute from any suspicion of being influenced in any 
way because of the sponsorship, purchase of tickets, attendance or non- 
attendance at such affairs. The other is to relieve the public from the 
actual and implied pressures to purchase dinner tickets imposed know- 
ingly or unknowingly by the honored guest or persons sponsoring such 
affairs. 

These objectives are as desirable with respect to persons in the judicial 
branch as with respect to those in other branches of the government. 

It is my considered opinion that an office or employment in the 
judicial branch is an office or employment in the law enforcement agency 
of the Commonwealth within the meaning of the language of G.L. c. 
268, § 9A (St. 1962, c. 633.) 

It is my further opinion that under said statute the functions of the 
agency determine whether a testimonial dinner for a person employed 
in the agency is subject to its provisions. The fact that the person may 
perform duties in the agency not directly concerned with the functions 
of the agency placing it in any of the categories described, is of no 
consequence. 

As regards offices in the executive branch, the Governor, as head of 
the State, has the overall responsibility for executing and enforcing 



112 P.D. 12. 

the laws, and most ol the departments, offices, boards and commissions 
of the State and its political subdivisions are, to a greater or lesser 
extent, involved in tlie enforcement of the laws. For example, the De- 
partment of Corporations and Taxation clearly enforces the laws relat- 
ing to taxation. 

It is my opinion, therefore, that the new law is applicable to a dinner 
for any person employed in the Governor's office, in the Department 
of Corporations and Taxation, or in any other agency of the Comm.on- 
wealth or any of its political subdivisions having functions in the cate- 
gories described. 

It is further my opinion that the new statute is applicable for the 
full period of the service of any person concerned and until the service 
is actually terminated, and the fact that the service is in prospect of 
termination by retirement or otherwise does not alter the situation. 

The passage of Chaper 268, section 9A represents bold and forceful 
action on the part of the Legislature. Such action will be of great 
assistance in the restoration of public confidence in government. 



Action to l.'e taken by the Alcoholic Beverages Control Commission 
to validate minimum consumer retail prices. The Commission 
zuould he warranted in finding that an emergency existed justify- 
ing establishing a price schedule pending such action. 

Feb. 1, 1963. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have requested my opinion in regard to legal 
procedures to be followed bv your commission to validate minimum 
consumer resale liquor prices. 

I note that the Supreme Judicial Court, in Kneeland Liquor, Inc. v. 
Alcoholic Beverages Control Commission, 345 Mass. 228, found that 
your agency is subject to the provisions of the Administrative Proce- 
dure Act, G.L. c. .30 A, § 1 (2), and that your schedules of minimum 
prices are invalid unless preceded by notice and a public hearing. 

In view of the holding of the Court, it is my opinion that the 
commission must begin at once to comply with all the requirements 
of both c. 138 and c. 30 A. The next filing dates for the submission 
to your commission of minimum price schedules extend from March 
1, to March 10, and cover the selling period of May 1 to June 30. 

As soon in March as the schedule has been filed, the commission 
must give notice of a public hearing, at least twenty-one days prior 
to such hearing (c. 30A, § 2 (1)). And within thirty days after March 
10, the commission must decide that the schedule of prices is not "ex- 
cessive, inadequate or unfairly discriminatory," if the schedide is to 
become effective on May 1. 

The Court has lield that your approval of minimum prices constitutes 
the making of a regidation. You are therefore subject to the require- 
ment of c. 138, § 71, which makes vour regulation ineffective until 
approved by the Governor and Council. 

The time limits imposed by c. 30A will permit only about three 
weeks for the Governor and Council to act before the intended effective 



P.D. 12. 113 

date of the commission's regulation. If the commission concludes that 
a longer period of time is needed for the several stages of approval 
required for a valid minimum price schedule, then its only remaining 
recourse is to the Legislature. 

It is my opinion that the above procedures will satisfy the require- 
ments of c. 138 and c. 30 A and I recommend that they be followed 
faithfully for the bimonthly periods set forth in c. 138, § 25C (d). 

You also request my opinion as to an emergency regulation to validate 
minimum consumer prices betAveen this date and May 1. 

In view of the drastic prohibition against the sale of any brand of 
alcoholic beverages unless a schedule of minimum prices is "then in 
effect," c. 138, § 25C (a), it appears imperative that some valid price 
schedule be approved forthwith, and be permitted to remain in force 
until a new price schedule shall become effective on May I, 1963 in 
accordance with the requirements of c. 30A. 

Exemption from the notice and public hearing requirements of c. 30A 
is permitted in emergency situations by c. 30A, § 2 (3). Under this 
provision, your commission can find that "immediate adoption . . . 
of a regulation is necessary for the preservation of the public health, 
safety or general welfare, and that observance of the requirements of 
notice and public hearing would be contrary to the public interest. . . ." 

In addition to such findings, the Commission must supply a "brief 
statement of the reasons for its finding" and it must file the regulation, 
the findings and the reasons with the Secretary of State, c. 30 A, § 2 (3). 
Under the provisions of the same subsection, an emergency provision 
can remain in effect for three months. This period is adequate to cover 
the time between February 1 and May 1, 1963. 

The commission, in my opinion, has adequate grounds for finding 
that an emergency exists at the present time, particularly in the light 
of the language of the Supreme Judicial Court in Kneeland Liquor, 
Inc. V. Alcoholic Beverages Control Commission, 345 Mass. 228 at 233: 

"We are of the opinion that the approval of the schedules by the 
commission is a regulation, and does fall within c. 30A. The public 
welfare is involved . . . The establishment of retail prices for customers 
of retail stores is an exercise of the police power in order to promote 
temperance, to stabilize the business, to avoid price wars, to instill ob- 
servance of the law, and to protect the public." 

The Supreme Judicial Court in this decision has suj)plied the com- 
mission with several possible reasons to justify an emergency regulation. 
If the commission, in the light of the prevailing facts, finds that any 
of these possible reasons apply at the present time, it should cite them 
in the "finding and . , . brief statement of the reasons" which must be 
filed with the'Secretary of State, c. 30 A, § 2 (3). 

I trust that the foregoing answers the questions raised in your letter 
of January 30. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



114 P.D. 12. 

The approval of the Governor and Council is not required for the 
deposit of public moneys by the State Treasurer in co-operative 
banks or federal savings and loan associations. 

Feb. 26, 1963. 

Hon. John T. Driscoll, Treasurer and Receiver General. 

Dear Sir: — You have directed my attention to the provisions of 
G.L. c. 29, § 34A, as to deposits by the State Treasurer of public funds 
in certain co-operative banks, and investments by him of such funds in 
federal savings and loan associations. 

You state that your office is of the opinion that the deposits and 
investments authorized under the section require the approval of the 
Governor and Council; you request an opinion on the question. 

General Laws c. 29, § 34A, as amended, reads as follows: 

"The state treasurer may deposit any portion of the public moneys 
in his possession and funds over which the commonwealth has exclu- 
sive control in co-operative banks lawfully doing business in the com- 
monwealth for one year or more, subject, however, to the limitations 
set forth in section sixteen of chapter one hundred and seventy and may 
invest such public moneys and such funds in shares of federal savings 
and loan associations lawfully doing business in the commonwealth 
for one year or more, but the amount invested in any one federal 
savings and loan association shall not at any time exceed the sum of 
ten thousand dollars." 

You refer to the fact that G.L. c. 29, § 34, regulating the deposit 
of public moneys by the State Treasurer in national and certain other 
banks, requires that the banks designated by the State Treasurer be 
approved by the Governor and Council at least once in each three 
months; you also point out that G.L. c. 29, § 38 provides that funds 
of the Commonwealth shall be invested by the State Treasurer, with the 
approval of the Governor and Council, in certain ways. 

It is to be noted, however, that G.L. c. 29, § 34A does not incorporate 
any proviso for approval by the Governor and Council for deposits in 
co-operative banks in the one case, or for investments in shares of 
federal savings and loan associations in the other. 

It must be assumed that in enacting G.L. c. 29, § 34A, the Legislature 
was cognizant of the provisions as to Governor and Council approval 
in G.L. c. 29, § § 34 and 38. By failing to include similar requirements 
in G.L. c. 29, § 34y\, the Legislature evidenced its intent that approval 
by the Governor and Council was not required as to deposits by the 
State Treasurer in co-operative banks, or investments in federal savings 
and loan associations. • 

Accordingly, it is my opinion that the State Treasurer is authorized 
by G.L. c. 29, § 34A, to deposit public moneys in his possession and 
funds over which the Commonwealth has exclusive control in co-opera- 
tive banks, and to invest such moneys and funds in shares of federal 
savings and loan associations, subject to the limitations set forth in the 
section, and that the approval of the Governor and Council is not re- 
quired for such deposits or investments. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12. 115 

The charter of the Franklin Fair Association, Inc., may be revoked 
by the State Secretary for its failure to file reports. 

Feb. 27, 1963. 
Hon. Kevin H. White, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion concerning your power to 
revoke the charter of FrankHn Fair Association, Inc. for failure to file 
reports as required by G.L. c. 180, § 26A. You have stated that this 
corporation failed to file said reports as required, from 1955 through 
1962. Your letter further states that on June 20, 1962, you gave the 
statutory ninety-day notice of your intention to revoke the charter. 

It would appear that as oL September 20, 1962, you were clearly 
entitled to revoke the charter of said corporation. 

Your letter further indicates that on January 14, 1963, the corpora- 
tion purported to file reports lor the preceding years which are dated 
as of those years on forms which could not have existed on said dates. 
These forms were obviously backdated although subscribed to under 
the penalties of perjury. It is doubtful, however, that this constitutes 
a material defect sufficient in law to justify revocation of the charter 
of said corporation. 

It is my opinion that these reports are defective for another reason 
apparent on their face not stated in your letter. The reports for the 
years 1955, 1956, 1957 and 1958 are signed by William A. Murray 
as attorney for Joseph G. DePascpiale, who is described as the treasurer 
of the corporation. The statute requires that this report be signed 
and sworn to by the treasurer in person. It is therefore obvious that 
this execution is defective on its face. 

Furthermore, records on file in the Department of Vital Statistics 
section of your office in Vol. 73, p. 50, reflect that Joseph G. DePasquale 
died on March 31, 1959. It is my opinion that no power of attorney 
will survive the death of the principal. Although the before-mentioned 
fact does not appear on the face of the document, it nevertheless is a 
material fact in the consideration of this question. 

There are two other facts not contained in your letter which I found 
it necessary to consider in order to give a legally sufficient answer to 
your question. 

The first is that the reports were accepted and filed by you and the 
fee paid, presimiably after examination and approval by you as re- 
quired by G.L. c. 180, § 26 A. The second is that on January 15, 1963, 
the day following said filing, you issued a certificate that said corpora- 
tion was duly organized and existing. 

While the issue is not entirely free from doubt, in reliance and in 
affirmance of an opinion of the Attorney General dated November 24, 
1926, VIII Op. Atty. Gen. 178, I advise you that these actions by you 
do not constitute an election or waiver which would terminate your 
authority to revoke the corporation charter of said corporation as pro- 
vided in G.L. c. 180, § 26A. 

It is also my opinion that since a corporation whose charter is re- 
voked is still subject to the provisions of G.L. c. 155, §§ 51-53, no 
rights of individuals will be materially affected by your revocation of 
this charter. 



116 P.D. 12. 

I am of the opinion, therefore, that revocation of the charter of 
Franklin Fair Association, Inc., is within your power as Secretary of 
the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The ownership of n pharmacy is not a prerequisite to appointment to 
the Board of Pharmacy. 

March 1, 1963. 

Mr. Louis }. Rossetti, Secretary, Board of Registration in Pharmacy. 
Dear Sir: — You have requested a written opinion as to whether or 
not a "non pharmacy owner" can be legally appointed as a member 
of the Board of Registration in Pharmacy, under G.L. c. 13, § 22 
which reads as follows: 

"There shall be a board of registration in pharmacy, in the three 
following sections called the board, consisting of five persons, residents 
of the commonwealth, who shall be skilled pharmacists, and shall have 
had ten consecutive years of practical experience in the compounding 
and dispensing of physicians' prescriptions, and shall actually be en- 
gaged in the drug business. Not more than one member shall have 
any financial interest in the sale of drugs, medicines and chemicals and 
the compounding and dispensing of physicians' prescriptions in the same 
councillor district. One member shall annually in November be ap- 
pointed by the governor, with the advice and consent of the council, for 
five years from December first following." 

"Drug business" is defined as follows in G.L. c. 112, § 37: 

" 'Drug Business', as used in the two following sections, shall mean 
the sale, or the keeping or exposing for sale of drugs, medicines, chem- 
icals or poisons, except as otherwise provided in section thirty-five, also 
the sale or the keeping or exposing for sale of opium, morphine, heroin, 
codeine or other narcotics, or any salt or compound thereof, or any 
preparation containing the same, or cocaine, alpha or beta eucaine, or 
any synthetic substitute therefor, or any salt or compound thereof, or 
any preparation containing the same, and the said term shall also mean 
Lhe compounding and dispensing of physicians' prescriptions." 

Use of the word "owner" in turn raises questions. In addition to 
"proprietor" does the term "owner" include a partner or a corporate 
stockholder and, if so, is there any minimum requirement as to such 
partnership interest or stockownership? 

It would seem that if the Legislature had intended to impart the 
suggested restrictive meaning to the words "actually be engaged in", it 
would have taken the additional step of adding "as proprietor, as part- 
ner, as majority stockholder" or whatever terms they felt apt to reflect 
the need for a proprietary interest. 

On the other hand, our Supreme Judicial Court has stated (260 Mass. 
300, at page 302) "The phrase 'engage in the business' means at least 
tliat the business shall be carried on as a regular occupation or constant 



P.D. 12. 117 

employment as distinguished from a single isolated act." (Emphasis 
supplied.) In the same vein I think that we would agree that a lawyer 
working for a salary in a private law firm would be actually engaged in 
the practice of law. 

Support for the view that the Legislature intended that one could 
actually be engaged in the drug business without necessarily having a 
financial interest therein can be seen in G.L. c. 112, § 24 which provides 
that "A person who desires to do business as a pharmacist" shall meet 
certain qualifications, none of which refers to a financial interest in the 
business; in G.L. c. 112 § 39 which provides that registration of a cor- 
poration for the transaction of the retail drug business is conditioned 
upon the management of such store being in the hands of a registered 
pharmacist; and in the definition of "drug business" in G.L. c. 112 § 37 
in which there is no suggestion of a required financial interest in order 
to perform the function set out therein. 

It is accordingly my opinion that ownership of a pharmacy is not 
a prerequisite to appointment to the Board of Registration in Pharmacy 
under G.L. c. 13, § 22. 

Very truly yours, 

Edward \V. Brooke, Attorney General. 



A finding of "not guilty" after the withdraiual of a plea of guilty makes 
the provision for the mandatory revocation of a license to operate 
motor vehicles after a conviction for operating under the influence, 
inapplicable. 

March 6, 1963. 

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

Dear Sir: — In your letter of recent date you have asked my opinion 
as to whether or not you are bound by the mandatory provisions of 
G.L. c. 90, § 24, par. 1 (c) to withhold the motor vehicle operatij^£___ 
license of an individual named therein. 

As stated in your letter, the facts are that on August 24, 1962, this 
individual pleaded "guilty" to a charge of driving a motor vehicle 
while under the influence of intoxicating liquor and was fined .$75. in 
a district court. On December 6, 1962, the case was re-opened by order 
of the court. The defendant was permitted to change his plea to "not 
guilty" and after trial was found "not guilty." His fine was remitted. 

Without passing on the propriety of the court's action in re-opening 
the case (compare Districty Attorney for the Northern District v. 
Superior Court, 342 Mass. li9), it is enough to say that the subsequent 
judgment of acquittal is the final determination of the case and may 
not now be collaterally attacked by an administrative agency. 

It is my opinion, therefore, that while you have authority to withhold 
this individual's license for a period of a year in your discretion, you 
are not bound by the mandatory provisions of G.L. c. 90, § 24, par. 1 (c). 

Very truly yours, 

Edward W, Brooke, Attorney General. 



118 P.D. 12. 

The statutory provisions applicable to settlement of eminent domain 
damage claims in excess of ^2,500 and of the Revieio Board figure, 
require that action he brought and that a judge of the Superior 
Court hold a hearing, examine the facts and approve the settlement. 

March 7, 1963. 

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

Dear Sir: — In your letter of March 5, 1963, you have requested my 
opinion as to the appropriate procedures for settling cases arising 
from land takings made pursuant to c. 556 ol St. 1952, c. 403 of 
St. 1954, and c. 718 of St. 1956. 

Settlement procedures in all such cases are governed by identical 
language in § 6 of each of the three statutes referred to in your letter, 
which provides in part as follows: 

"No payment in excess of twenty-five hundred dollars by way of 
purchase of real estate or any interest therein shall be made, and no 
settlement in excess of twenty-five hundred dollars shall be made out 
of court for damages recoverable under chapter seventy-nine of the 
General Laws in excess ol the amount recommended by said real estate 
review board." 

The limitations imposed by this provision are confined to settlements 
which exceed $2,500. and also exceed the amount recommended by 
the real estate review board. Unless the settlement exceeds both of 
these limits, § 6 has no application. Thus a settlement not in excess 
of the stated limits may be freely made by the Department of Public 
Works at any time before suit is commenced, G.L. c. 79, § 39, and 
by the Attorney General thereafter. VI Op. Atty. Gen. 169. 

Where the amount of the settlement exceeds the stated limits, how- 
ever, § 6 imposes two restrictions: (1) no settlement may be made 
before suit is commenced, and (2) no settlement may be made out of 
court thereafter. Out of court means "not in or before the court." 
Ballentine, LAW DICTIONARY WITH PRONUNCIATIONS, SUP- 
PLEMENT, (1954), p. 168. It is synonymous with "extrajudicial." 
People V. McWilliams, 4 p. 2d 601, 603 (Dist. Ct. of Appeal Cal. 1931). 
A settlement out of court is one "arranged to take place between the 
parties or their counsel privately and without being referred to the 
judge or court for authorization or approval." BLACK, LAW DIC- 
TIONARY (4th ed. 1951) p. 1254. Thus, the authority of the Attorney 
General at the negotiation stage of these cases extends only to agreeing 
on a settlement figure to be suggested in the court. Actual settlement 
does not take place unless and until payment of the amount agreed 
upon has been approved by the Superior Court. 

The appropriate procedure for obtaining such a court approval is 
the so-called pro forma hearing. Under this procedure, the Attorney 
General, or a duly authorized member of his staff, appears in open 
court, discloses the facts of the case and recommends the settlement 
figure to the court. Counsel for the petitioner then presents his case 
in the same manner. The court, after making such further inquiries 
as it deems necessary, either approves the proposed settlement and 
orders payment, or disapproves it. A settlement effected by this pro- 
cedure is not an "out of court" settlement, since it takes place in open 



P.D. 12. 119 

court and not "between the parties or their counsel privately," and 
since it is not consummated "without being referred to the judge 
or court for authorization or approval." BLACK, LAW^ DICTIONARY 
(4th ed. 1951) p. 1254. 

The procedural requirements of the pro forma hearing are further 
developed in that portion of § 6 which immediately follows the pro- 
vision quoted above: 

"No settlement in excess of twenty-five hundred dollars and in excess 
of the recommendation of the real estate review board shall be made 
by agreement of the parties during or after trial except with the written 
approval of the court; provided, that settlements in excess of the 
recommendation of the board may be made without such approval if 
the settlement does not exceed the amount of any verdict or finding 
which may have been rendered, together with interest and costs." 

Thus, all settlements over the stated limits and not subject to the 
proviso at the end, must not only be made i?i court, but must have 
the written approval of the court. From a procedural standpoint, the 
use of the word "approval" is significant. Approval is defined in Simp- 
son V. Marlborough, 236 Mass. 210, 214: 

". . . the application of sound judgment to a proposition emanating 
from another source and submitted for investigation. It requires the 
exercise of faculties of criticism and discrimination. It denotes positive 
sanction. It does not mean original and inventive construction in the 
first instance. On the other hand, it is not a mere perfunctory act. It 
imposes no mean responsibility. It carries power and duty of an effective 
nature." 

Accordingly, if a judge in a pro forma hearing entertains doubts about 
any matter bearing on the propriety of the settlement proposed, he 
has a duty to avail himself of his full judicial powers to investigate and 
resolve it. While the exercise of such judicial initiative will ordinarily 
be vmnecessary where the proposed settlement is equitable and is 
proprly presented, the court should nonetheless be prepared to cross- 
examine witnesses called by the parties, and to call witnesses or order 
production of docinnents on its own motion, where the circumstances 
warrant such independent action. Nothing short of this, in my opinion, 
will satisfy the statutory requirements. 

The fact that such approval be by "the court" imposes another pro- 
cedural requirement on pro forma hearings. The word court is used 
with various meanings in Massachusetts statutes: sometimes it refers 
to the building or room in which judicial proceedings take place; 
sometimes, to an entire judicial institution (such as the Superior 
Court); sometimes, even to a quasi-judicial or non-judicial institution 
(such as the General Court). However, there is one striking uniformity 
in the Massachusetts statutes: whenever reference is made to the powers 
and duties of judge and jury, the term court invariably denotes the 
judge — not the jmy, not the judge and/or jury, but the judge alone. 
Indeed, the word judge is almost never found in the statutes. Examples 
of this consistent usage appear in G.L. c. 79, § 22; G.L. 231, §§ 60, 77 
and 81; G.L. c. 234, §§ 25, 26A, 26B, 28, 33, 34, 35 and 36. There 
appears no reason to suppose any deviation from this usage in the 
statutes under consideration. It is therefore my opinion that a pro 



120 P.D. 12. 

forma proceeding must in all cases be heard and determined by a 
judge sitting without jury. 

In view oi these statutory requirements, the choice of the term 
pTO forma to describe the judicial proceeding customarily used in 
settling highway land-taking cases is unfortunate, in that it is a 
misnomer. Pro jorma means "lor the sake of form." WEBSTER, THIRD 
INTERNATIONAL DICTIONARY (1961) p. 1812. A more appro- 
priate name would be prohare pacto ("to approve a settlement"). Far 
from being a mere formality, the approval of such a settlement should 
amount to a trial on the merits. This does not mean that it need be 
an adversary proceeding. "In order to constitute a trial there need not 
be present an active controversy in the sense that it is indispensable 
that it must involve direct and cross-examination." Chaffee v. Ruhr, 
181 Misc. 64, 68, 40 N.Y.S. 2d 484, 488 (Supr. Ct. 1943); 88 C.J.S. 22 
(1955). What it does mean is "the examination before a competent 
tribunal, according to the laws of the land, of the facts put in issue 
in a cause, for the purpose of determining such issue." Marsch v. 
Southern New England R.R., 235 Mass. 304, 307. "The facts put in 
issue" in a pro forma proceeding, as in any other trial, include all 
factual issues raised by the pleadings. Cf. Churchill v. Richer, 109 Mass. 
209, 211. "Examination" of these facts means such investigation and 
deliberation as are necessary to approve or disapprove the proposed 
settlement. The only "competent tribunal" in this context, as previously 
explained, is a judge of the Superior Court. 

The fact that an actual trial of proposed settlements is contemplated 
is borne out by the reference in the last quoted provision to settle- 
ments "during or after trial," and the omission of the word before. 
This omission cannot be construed as forbidding agreements to settle 
which are reached before trial; the Attorney General has full power 
to settle cases except to the extent that his power is expressly limited. 
VI Op. Atty. Gen. 169. Nor can this omission be taken to mean that 
a settlement commenced before trial may be consummated without 
"the written approval of the court," for that wotdd be an "out of court" 
settlement. The reason for the omission of any reference to settlements 
before trial, in my opinion, is that a properly conducted approval 
proceeding itself constitutes a trial, and "a settlement before trial" 
would therefore be a contradiction in terms. 

I therefore advise you as follows with regard to settlement procedures 
in cases arising under c. 556 of St. 1952, c. 403 of St. 1954, and c. 718 
of St. 1956: (1) settlements in such cases for an amount not in excess 
of the statutory limits may be freely made; (2) settlements in excess 
of these limits m.ay not be made without the written approval of the 
court; (3) such approval must be obtained from a judge of the Superior 
Court sitting without jury; (4) such approval may not be properly 
granted imtil the judge has been satisfied, either through representations 
of counsel or (where necessary) through the exercise of his full investiga- 
tive powers, that the suggested settlement is a fair and lawful one; 
(5) the proceeding wherein such approval is sought should be referred 
to as a probare pacto hearing. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12. 121 

A license to the Franklin Fair Association, Inc., to conduct a race 
meeting, became nullity when the charter of the association was 
revoked. It would be appropriate for the State Racing Commission 
to seek consent decrees in court proceedings relating to certain 
racing dates, in circumstances stated. 

March II, 1963. 
State Racing Commission. 

Gentlemen: — In your letter of recent date you state that your com- 
mission voted to refer to me for a formal opinion four numbered ques- 
tions. 

The first question is as follows: 

"Is the action of the Secretary of State in revoking the charter of the 
Franklin Fair Association, Inc. sufficient grounds for this commission 
to revoke the license of Franklin Fair Association, Inc. to conduct a 
running horse racing meeting at Berkshire Downs, Hancock, Berkshire 
County, as voted bv the commission at the meeting held on Wednesday, 
January 30th, 1963?" 

It is my opinion that the revocation of the charter of the Franklin 
Fair Association, Inc. by the Secretary of State on March 2, 1963, ter- 
minated the existence of that corporation except as provided in G.L. 
c. 155, § 51. This section provides that the corporation shall continue 
as a body corporate for three years after the revocation of the charter 
"for the purpose of prosecuting and defending suits by or against it 
and of enabling it gradually to settle and close its affairs, to dispose 
of and convey its property and to divide its capital stock, but not for 
the purpose of continuing the business for which it was established. . . ." 
Under this section the corporation would not continue in existence 
for the purpose of conducting a fair at Berkshire Downs in July of 
1963 and therefore would not have the right to exercise the license 
to conduct a running horse racing meeting voted by your commission 
on January 30, 1963. G.L. c. 128 A, § 3. The existence of the licensee 
having been terminated by the action of the Secretary of State, the 
license must now be considered a nullity, without independent life. 
No formal act of revocation, therefore, is required by your commission. 
It would be appropriate for you to notify the Franklin Fair Association, 
Inc., that their license is now a nullity, and demand of them the 
return of any license, certificate or other documents of similar nature 
or legal effect which relate to your vote of January 30, 1963. 

Your second and third questions relate to the necessity and manner 
of holding a hearing in the event of revocation of the racing license. 
In view of rav opinion that no revocation is required, it does not become 
necessary to ansv/er the second and third questions. 

Your fourth question is as follows: 

"Would you advise the commission to seek a Consent Decree in the 
Petition for Review now pending in the matter of Shaker Com^nunity, 
Inc. V. State Racing Commission, No. 20351, as it relates to Berkshire 
Coimty Fair Association, Inc., and in the matter of two petitions now 
pending in the matter of Shaker Community, Inc. v. State Racing 
Commission, Nos. 20350 and 20352, as they relate to Hancock Race- 
way, Inc. said Consent Decree to provide for remanding said matter 
to the commission for further proceedings?" 

If you determine that facts which have come to your attention make 



122 P.D. 12. 

it necessary or desirable for you to conduct further hearings or investi- 
gation concerning the granting of racing dates to Berkshire County 
Fair Association, Inc. and Hancock Raceway, Inc., the seeking of 
Consent Decrees in the proceedings referred to for the purpose of 
having the matters remanded to the commission would be an appro- 
priate procedure, provided that the consent of all of the parties to these 
cases can be obtained. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

A salary rate in excess of the minimum for a grade, may not be ap- 
proved for a person recruited for a position in the sei~uice of the 
CommoTixuealth who has been in that service within a tiuelve-month 
period prior to the date of the proposed recruitment. 

March 14, 1963. 
Hon. William A. Waldron, Commissioner of Administration. 

Dear Sir: — In your recent letter you have requested my opinion 
relative to the approval by the Director of Personnel and Standardization 
of the maximum salary rate for Walter F. Costello in the position of 
Supervisor of Workmen's Compensation Agents. You have informed me 
that your commission has approved the establishment of the position 
as well as the payment of the maximum salary grade. 

The specific question raised is whether or not the Director of Person- 
nel and Standardization may lawfully approve payment to Mr. Costello 
of the maximum salary for the position, in view of the prohibition set 
forth in St. 1962, c. 591, § 6A. 

The first paragraph of St. 1962, c. 591, § 6 A reads as follows: 

"Notwithstanding the provisions of paragraphs (5) and (5A) of 
section forty-six of chapter thirty of the General Laws, the director 
of the division of personnel and standardization shall not approve 
the recruitment of any person at a rate above the minimum of the 
grade if such proposed employee has been in the service of the common- 
wealth within a twelve-m.onth period prior to the date of the proposed 
recruitment." 

Your letter states that Mr. Costello clearly has been in the service of 
the Commonwealth within a twelve-month period prior to the date 
of his recruitment to the position of Supervisor of Workmen's Compen- 
sation Agents. 

Inasmuch as the first paragraph of § 6A quoted above specifically 
prohibits the payment of maximimi salary to an employee who has 
been in the service of the Commonwealth within a twelve-month 
period prior to recruitment, and this paragraph specifically excludes 
the provisions of paragraphs (5) and (5A) of § 46 of c. 30 of the 
General Laws, and Mr. Costello was in the service of the Commonwealth 
at the date of recruitment, it is my opinion that the Director of 
Personnel and Standardization may not lawfully pay Walter F. Costello 
the maximum salary grade for this recruitment position. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12. 123 

Manufacturers ayid wholesalers of alcoJiolic beverages may authorize 
others to compile, publish and mail their filed price schedules to 
each retailer as required by law. 

March 14, 1963. 

Mr. William H. Hearn, Executive Secretary, Alcoholic Beverages 
Control Commission. 

Dear Sir: —You have called my attention to § 25C of c. 138 of the 
General Laws, which imposes upon "each manufacturer and wholesaler" 
of alcoholic beverages the duty of filing, compiling, publishing and 
mailing his price schedules. 

The pertinent sub-section of § 25C, namely sub-section (e), reads 
as follows: ". . . ^nd shall, as soon as practicable after the tenth day 
of the month in w^hich such schedules are filed, compile, publish and 
mail to each retailer authorized to sell alcoholic beverages for off- 
premises consumption a list, to be designated 'minimum consumer 
resale price list.' " 

You advise me that since 1952 "members of the commission have 
been of the opinion that a common utilization by the filers of the 
facilities of a trade publication" for the above purposes "would be 
in substantial compliance with the requirements contained in the 
statute." 

You have submitted to this office a publication entitled: MASSA- 
CHUSETTS MINIMUM CONSUMER RESALE PRICE LIST, March 
and April 1963, Prices, No. 63 for tlie period March 1st to April 30th, 
and you have asked for my opinion as to whether this system of com- 
piling, publishing and mailing the minimum consumer resale price 
list is in conformity with legal requirements. 

I have reviewed the statute in question, and particularly sub-section 
(e), and note that the only duty clearly imposed upon the commission 
is to make available each schedule, or a composite thereof, for inspec- 
tion by licensees and by the public. 

The duty of compiling, publishing and mailing to each retailer is 
imposed upon "each manufacturer and wholesaler" who has filed a 
schedule with your commission. Whether the manufacturers and whole- 
salers who have filed schedules can then transfer the duties of compiling, 
publishing and mailing to a duly authorized agent is the heart of your 
question, specifically whether they can transfer these duties to a trade 
publication. 

The requirements imposed upon the manufacturers and wholesalers 
appear to be ministerial in character. Surely the Legislature in adopting 
this statute was primarily concerned that the approved schedules reach 
the retail outlets, and that they be available there for the use of retail 
personnel and the consuming public. The requirements are not of 
such a nature that they can be performed only by the named principals; 
in fact, they can be performed better in all probability by businesses 
engaged in printing and direct mailing activities. Therefore, in my 
opinion, the statute imposes no bar to these duties being performed on 
behalf of manufacturers and wholesalers by a properly authorized agent 
or agents. 

Counsel for the trade publication now being used by the industry 
has suggested that the statute can be complied with in the following 
manner: 



124 P.D. 12. 

1.) A filer can delegate to the trade publication through a Power 
of Attorney his functions under the statute. 

2.) The trade publication can accept in writing the duties imposed by 
the Power of Attorney. 

3.) An officer of the corporation issuing the trade publication can 
execute an affidavit swearing that he has carried out the requirements 
of G.L. c. 138, § 25C (e), and can file said affidavit with your com- 
mission. 

4.) The trade publication can send written notice to each filer, with 
a copy of the minimum consum.er resale price list as compiled, stating 
that the publishing and mailing requirement has been complied with. 

5.) Each filer, after reviewing the scheduled list as compiled and 
published, can send a letter to the trade publication ratifying, approving 
and confirming the compilation, publishing and mailing of each specific 
publication as released. 

It is my opinion that the procedures outlined alcove would be in 
substantial compliance with the statute in question. Manufacturers and 
wholesalers are free to select some other method of complying with their 
statutory duties, but if they choose the method described above, the 
commission can find properly that the purposes of the statute are being 
satisfied. 

Very truly yours, 

Edward W. Brooke, Attorney Genern!. 

The General Court is under a duty to reapportion the House of Rep- 
resentatives. 

March 17, 196.8. 

Hon. Paul D. Reed, Jr., House of Representatives. 

Dear Sir: — In your recent letter you asked my opinion relative to 
the present apportionment of the Massachusetts House of Representa- 
tives as apportioned under Art. XXI (as amended) of the Amendments 
to the Constitution of the Commonwealth as set forth in G.L. c. 57, § 4. 

To clarify the situation a short review of the facts will prove lielpful. 

Article XXI (as amended) of the Amendments to the Constitution of 
the Commonwealth of Massachusetts provides that a special enumera- 
tion shall be taken every ten years, starting with the year 1935, to 
ascertain the number of legally qualified voters. After this census is 
taken, the constitution directs that a realignment of the House shall 
become effective within four years. The last reapportionment was by 
statute in 1947 (G.L. c. 57, § 4), in accordance with the special enumera- 
tion of 1945. 

Since 1947 there has been no new realignment of the House. There 
w^is a special enumeration in accordance with the constitution in 1955. 
Article XXI (as amended) of the Amendments to the Constitution of 
the Commonwealth provides: 

"The house of representatives shall consist of two hundred and forty 
meinbers, which shall be apportioned by the general court, at its first 
regular session after tlic return of each special enumeration, to the 
several counties of the commonwealth, equally, as nearly as may be, 
according to their relative numbers of legal voters, as ascertained by 
said sjjecial enumeration. . . ." 



P.D. 12. 125 

According to law, the number of representatives allotted to each 
county is established by the population of that county, but each county 
shall have at least one representative. For this reason, the County of 
Dukes County and the County of Nantucket each have one representa- 
tive. 

The constitutional mandate embodied in this amendment is clear 
and concise. It is my opinion that the Legislature in its first session 
after the special enumeration in 1955 had the duty of reapportioning 
the House of Representatives. This duty should have been fulfilled by 
1957. 

It is my opinion that the clear purpose and design of Art. XXI (as 
amended) of the Amendments to the Constitution of the Common- 
wealth is to preserve voter equality at the polls. 

Further guarantees of equality of the ballot are found in the Declara- 
tion of Rights of the Constitution of the Commonwealth: 

"Article I. All men are born free and equal, and have certain natural, 
essential, and unalienable rights; among which may be reckoned the 
right of enjoying and defending their lives and liberties; that of ac- 
quiring, possessing, and protecting property; in fine, that of seeking 
and obtaining their safety and happiness." 

"Article IV. The people of this commonwealth have the sole and 
exclusive right of governing themselves, as a free, sovereign, and inde- 
pendent state; and do, and forever hereafter shall, exercise and enjoy 
every power, jurisdiction, and right, which is not, or may not here- 
after, be by them expressly delegated to the United States of America 
in Congress assembled." 

"Article VII. Government is instituted for the common good; for the 
protection, safety, prosperity and happiness of the people; and not for 
the profit, honor, or private interest of any one man, family, or class 
of men: Therefore, the people alone have an incontestable, unalienable, 
and indefeasible right to institute government; and to reform, alter, 
or totally change the same, Avhen their protection, safety, prosperity 
and happiness require it." 

"Article IX. All elections ought to be free; and all the inhabitants of 
this Commonwealth, having such qualifications as they shall establish 
by their frame of government, have an equal right to elect officers, 
and to be elected, for public employment." 

Under the Massachusetts Declaration of Rights, it cannot be denied 
that the right to vote is an inherent right of a citizen of this Common- 
wealth, and each citizen must have the privilege to equally exercise 
that right. Where changes in population have caused a ballot in one 
county being weighted more than another, the citizen is not being 
accorded the protection to which he is entitled under law. 

The Massachusetts Constitution guarantees to the citizen that his 
vote shall be weighted equally. Our Supreme Judicial Court has spoken 
on this responsibility placed on the Legislature to protect this guarantee. 
The Court states in Lamson v. Secretary of the Comynomvealth , 341 
Mass. 264, at 270: 

"This object belies a construction which woidd permit a single 
session of the General Court by its inaction to end the right of the 



126 P.D. 12. 

people to any reapportionment iollowing a special enimieration. The 
Constitution does not contemplate that the Legislature, by failing to act 
M^hen it should, can impose on the people for ten years an apportion- 
ment which changes in population have made unequal and hence con- 
stitutionally inappropriate." 

The Legislature and courts are duty bound to enforce and preserve 
the rights of a citizen under the United States Constitution. One of 
these rights is embodied in the Fourteenth Amendment. This right is 
to equal protection of the laws — both State and Federal. 

In the recent case of Baker v. Carr, 369 U.S. 186 (1962), the Court 
held that the Federal District Courts had jurisdiction to determine 
whether under the Fourteenth Amendment equal protection of the 
laws had been denied to citizens where a state legislature had failed to 
reapportion itself. 

This recent case has generated reapportionment activity in some 
thirty jurisdictions throughout the United States. As a result of the 
Federal government stepping into this field, these legislatures have 
been galvanized into action. These legislatures would have been better 
advised to reapportion themselves before a decision of a Federal court 
established their duty to do so. It would seem that reapportionment 
should properly be handled by a state itself rather than by a Federal 
directive. 

As previously stated Article XXI (as amended) of the Amendments 
to the Constitution of the Commonwealth, guarantees to the voter 
equality of the ballot and directs the Legislature to protect this 
guarantee by timely and proper apportionment. This right is reinforced 
by other provisions of the Commonwealth's Constitution. 

As decided in the case of Baker v. Carr, the Fourteenth Amendment 
to the United States Constitiuion provides a Federal guarantee to the 
voter. This decision secines to the voter the right of equal protection 
of the laws which is manifested by a ballot of like weight with his 
fellow citizens. 

It is. therefore, my opinion that the General Court after 1955 had 
a clearly defined duty to reapportion the House of Representatives in 
accordance with the specific mandate of the Fourteenth Amendment 
to the United States Constitution, the Twenty-first Amendment to the 
Massachusetts Constitution, as well as the Declaration of Rights set forth 
therein. This duty still remains to be discharged. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

A proposed amendment to G.L. c. 136, s. 25C (d), to dispense with the 
necessity for a hearing prior to the approval of miriimmn consumer 
prices for alroJiolic beverages should be redrafted in any event; 
view expressed that the proposal xvonld not be in public interest. 

March 20, 1963. 

Mr. William Hearn, Secretary , Alcoholic Beverages Control Commission. 

Dear Sir: — The matter of your proposed amendment to the Liquor 

Control Act which would abolish the requirement for public hearings 

has been the subject of thorough discussion by Assistant Attorney Gen- 



P.D. 12. 127 

eral Harold Putnam, Chief of the Consumer Council Division of this 
office, and me. 

Your memorandum setting forth new language designed to exempt 
the commission from the requirement that it hold public hearings be- 
fore approving minimum consumer prices raises many questions of 
serious import to the liquor industry and, more importantly, to the 
public at large. 

The amendment you have submitted appears to be a redraft of the 
final sentence of c. 138, § 25C (d) of the General Laws, as follows: 

"No such filing, however, shall take effect unless within thirty days 
thereafter the Commission shall take action to approve such prices as 
not being excessive, inadequate or unfairly discriminatory, and the 
provisions of no other section of this chapter or of any section of 
chapter 30A of the General Laws, shall apply to this action." 

I understand that the purpose of this proposal is to exempt the 
commission from the notice and public hearing requirements of the 
Administrative Procedure Act, c. 30A, and of the Liquor Control Act, 
c. 138. This purpose can be accomplished by similar but simpler lan- 
guage, as follows: 

"No such filing, however, shall take effect unless within thirty 
days thereafter the commission shall have approved such prices as not 
being excessive, inadequate or unfairly discriminatory, and the notice 
and hearing requirements of this chapter and of chapter 30A shall not 
apply to said approval." 

I realize that you have limited your question to me to the correct- 
ness of the language embodied in your proposal. But 1 cannot advise 
your commission wisely without commenting upon the probable effect of 
this legislative amendment upon the liquor industry and upon the 
public. The abolition of public hearings may seem to the commission 
and to the industry at the moment the simplest way of meeting the 
problem raised by the decision of the Supreme Judicial Court in 
Kneeland Liquor, Inc. v. Alcoholic Beverages Control Commission, 
345 Mass. 228. But meeting this problem by abolition of the public's 
right to hearings may undermine public confidence in the existing 
price-setting system, may expose the commission to successful legal 
challenges of its price schedides, and may lead eventually to destruction 
of the price-setting system which the industry eagerly supports. 

The industry, of course, can take any position it wishes in regard 
to public hearings before your commission. And the Legislature, of 
course, can uphold or discontinue the public hearing requirement. But 
I question the advisability of your commission supporting the abolition 
of public hearings. 

Section 25C of the Liquor Control Act does not set forth clearly 
a requirement that your approval of minimum prices follow notice 
and public hearing. But the Supreme Judicial Court in Bond Liquor 
Store, Inc. v. Alcoholic Beverages Control Commission, 336 Mass. 70, 
at p. 75, seems to imply that your "required regulation" of the liquor 
traffic necessarily involves "notice and hearing." 

The Court has held frequently that price-fixing is an extreme form 
of the exercise of the police power of the state. As such, it should 
be surrounded most carefully with proper safeguards, and notice and 



128 P.D. 12. 

public hearing are among the two most important safeguards available. 

Our Court in the future may well take the position that the com- 
mission is not in a position to know whether prices are "excessive, 
inadequate or imiairly discriminatory" vmless it has held a public 
hearing, and solicited the views of members of the public who might 
have useful information to contribute. 

The Administrative Procedure Act was adopted by the General Court 
to impose upon all administrative agencies uniform notice and public 
hearing requirements. The Legislature appears to have believed that 
these requirements are necessary to protect the public interest. If the 
Legislature is now to exempt one agency from these requirements, it 
may take the position that it is setting a precedent which will expose 
it to similar requests from other agencies. 

I take notice of the facts that many package store dealers are feeling 
the serious effects of monopolistic trends and price-cutting practices 
within the industry in this state, and that the public is concerned over 
prices higher than in some other states along the Atlantic seaboard. 
But the cure does not seem to lie in the abolition of public hearings. 

Where liquor is being sold at prices less than your published schedules, 
our law is being violated, and your comm.ission has the power to take 
action, including the suspension of such a dealer's license. 

Where Massachusetts prices are higher than those being charged in 
New York, Florida or other states, without good reason, your com- 
mission has the power to order a satisfactory price adjustment or bar 
the distribution of the over-priced liquor. 

Such pricing problems are apt to be with us for some time. In my 
opinion, they can be solved more speedily if the liquor dealers and 
the public exercise their present right to testify at public hearings. 
I do not believe it would be in the public interest if this right is 
denied to them. 

I respectfully recommend that the commission take no position on 
pending legislation to change its powers, but make a sincere effort 
to make the present laws, as further defined by the Supreme Judicial 
Court, work effectively in the public interest. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



It /> not constitutionally permissible to propose an initiative amend- 
ment to the Constitution of the Commonwealth to abolish the 
Governor's Council. 

March 21, 1963. 
Hon. Philip A. Graham, Senator. 

Dear Sir: — In your recent letter you have asked my opinion relative 
to whether it is constitutionnlly permissible to petition for an initiative 
amendment to the Constitution to abolish the Governor's Council. 

Under the Massachusetts Constitution the responsibilitv of choosing 
the judiciary is shared by the Governor and his Council. The Governor 
must nominate and appoint the judges. A nomination, however, will 
not become effective unless the Council gives its assent. 
Mass. Const. Pt. 2nd, c. II, 8 1, Art. IX: 



P.D. 12. 129 

"All judicial officers, the solicitor-general, coroners, shall be nominated 
and appointed by the governor, by and with the advice and consent 
of the council; and every such nomination shall be made by the 
governor, and made at least seven days prior to such appointment." 

Under the provision of the Constitution the functions of the Gover- 
nor's Council must necessarily relate to the appointment of judges. 

An initiative petition dealing with this subject matter is prohibited 
by the provisions of: 

Mass. Const. Amend. Art. XLVIII, Pt. II., § 2: 

"No measure that relates to . . . the appointment, qualification, 
tenure, removal, recall or compensation of judges . . . shall be proposed 
by an initiative petition. . . ." 

It is, therefore, my opinion that the Massachusetts Constitution pro- 
hibits the use of an initiative amendment to abolish the Governor's 
Council. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Comptroller is required to make the transfer, from the Group 
Insurance Trust Fund to the General Fund, directed in item 0448-01 
of St. 1962, c. 791. 

April 2, 1963. 
Hon. Joseph Alecks, State Comptroller. 

Dear Sir: — Your recent letter requested clarification of portions of 
an opinion dated January 14, 1963, furnished to you by my predecessor 
in office, relative to ultimate disposition, pursuant to c. 572 of St. 1961, 
of certain dividends received and accepted by the Group Insurance 
Commission. 

It is my judgment that the opinion to which you refer clearly inter- 
prets the relevant law; no useful purpose would be served by attempting 
to re-write the opinion. 

Without enumerating all facets of the questions raised by you, it 
appears that the entire matter turns principally on whether or not 
the Comptroller is required as a matter of law to make the transfer 
stipulated by Item 0448-01 of c. 791 of St. 1962, the relevant part of 
which reads as follows: 

"In accordance with the provisions of section nine of chapter thirty- 
two A of the General Laws, the comptroller shall transfer from account 
number 6904-69, Group Insurance Trust Fimd, to the General Fund 
the sum of one hundred and eighty-two thousand three hundred and 
eighty dollars and thirty-one cents, determined by the commission to 
be the administrative cost for the calendar year nineteen hundred and 
sixty-one." 

The answer to such question is clearly "yes." Chapter 572 of St. 1961 
specifically directs the Group Insurance Commission to make all neces- 
sary calculations and to direct the disposition of any (emphasis 
supplied) dividends received; nowhere therein does it place upon the 



130 P.D. 12. 

Comptroller any responsibility or direction to participate or to concur 
in the interpretation of the Commission's duties. 

The Group Insurance Commission has the duty under said c. 572 
of St. 1961 to make the calculations and direct the disposition of divi- 
dends received; it ajjpears that the Group Insurance Commission under- 
stands its duties under said c. 572 of St. 1961; it has made the necessary 
calculations in the light of such duty; and it has directed you to make 
the above-mentioned transfer of .'$182,380.31 to the General Fund. 

It is therefore my opinion that effecting the above-mentioned trans- 
fer as diiccted by the Group Insurance Commission will constitute an 
effective discharge of your duties under applicable law. 

If, as you indicate, you are not in sympathy with the disposition of 
dividends prescribed by the Legislature, you are of course aware that 
any changes therein which you deem desirable can be sought through 
normal legislative channels. 

I appreciate your bringing this matter to my attention and hope that 
the foregoing discussion has helped to clarify your responsibilities in 
this matter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



An agreement by the State Department of Public Works to construct 
bnilclings, in lieu of the payment of money damages to an owner 
xvhose land was acquired by eminent domain for state highway 
purposes would exceed the authority granted to the department. 

April 23, 1963. 
Hon. Jack P. Ricciardi, Commissioner of Public Works. 

Dear Sir: — On March 26, 1963, Acting Commissioner Toumpouras 
informed me that the reconstruction of a portion of State Highway 28 
by the Department of Public Works involves a portion of land leased 
by the Commonwealth to the United States of America for Otis Air 
Force Base. He stated that there are several structures on this land 
which are the property of the United States of America. He expressed 
the opinion that an agreement to replace existing buildings by new 
construction would be in the best interest of all concerned. He re- 
quested my opinion as to the authority of the Department of Public 
Works to carry out such construction outside the limits of the State 
highway for the benefit of the United States of America. 

It is my opinion that construction of new buildings to replace exist- 
ing structures, not the property of the Commonwealth, cannot be 
undertaken by the Department of Public Works in connection with 
the construction or reconstruction of State highways without specific 
legislative authorization by the General Court. 

Chapter 81 of the General Laws of the Commonwealth defines the 
authority of the Department of Public Works in connection with state 
highway Programs. Section 7 of c. 81 states: 

"When injury has been caused to the real estate of any person by 
the laying out or the alteration of a state highway, he may recover 
compensation therefor from the commonwealth under chapter seventy- 
nine. ..." 



P.D. 12. 131 

Chapter 79 of the General Laws of the Commonwealth considers 
damages only in terms of money damages. Reconstruction or replace- 
ment activities are not within its concept of damages. Chapter 79, 
§ 13, which deals with the problems arising from buildings found on 
land taken does not in its provisions envision anything except money 
awards for damages. 

The following cases are of value when considering the authority of 
the Department of Public Works where no specific legislation has been 
enacted authorizing an activity. 

In the case of Boston, Wor. & N.Y. St. Ry. v. Commonwealth, 301 
Mass. 283, the Supreme Judicial Court held that the Department of 
Public Works, in laying out and constructing a state highway with 
Federal aid, had no power to contract with a street railway company 
to pay to it money of the Commonwealth in return for the company's 
abandonment of its location within the proposed highway. The Court 
stated at p. 284: 

"Stripped of incidentals and accessories, the contract is, in essence, 
one by which the Commonwealth by payment of a large sum of money 
buys out the petitioner's rights in its street locations. The department 
of public works had no authority to bind the Commonwealth by a 
contract of this kind. . . ." 

At pp. 286 and 287 the Court said: 

"The intent to grant such powers is not to be lightly inferred. Some 
clear indication of legislative purpose should be found. 

"We do not find in the statutes any grant of such power. The de- 
partment of public works may lay out State highways and, with the 
approval of the Governor and Council, make contracts for their con- 
struction. . . . The detailed enumeration and careful limitation of the 
powers granted suggest that no additional powers were intended. . . ." 

In the case of George A. Fuller Co. v. Commonwealth, 303 Mass. 
216 (1939), the Supreme Judicial Court held that the Department of 
Public Works had no authority to bind the Commonwealth by a con- 
tract to pay money in compromise of a disputed claim for alleged 
breach by the Commonwealth of a contract made through that Depart- 
ment for the construction of a State Highway. The Court stated at 
p. 222: 

"Its (the Department of Public Works) duties are defined generally 
in G.L. (Ter. Ed.) c. 81 relating to State highways, which empowers 
the department to make various contracts necessarily incident to the 
construction, repair and maintenance of certain highways . . . subject 
to the approval of the Governor and Council, and also to acquire land 
for highway purposes by purchase, gift, or the right of eminent domain, 
in some instances, subject to the approval of the Governor and Coun- 
cil. . . ." 

At pp. 223 and 224 the Court stated: 

"An agreement of compromise, which by its terms seeks in part to 
bind the Commonwealth to pay damages for an alleged breach of 
contract by the department, is not an essential duty, the absence of 
which would inconvenience the functioning of the department in the 



132 P.D. 12. 

perlormance of other duties with which it is invested by statute. Such 
an agreement in a limited sense is ancillary and related to the original 
construction contract, but in its primary and ultimate effect, if en- 
forceable, would serve the purpose of creating a new and independent 
obligation binding upon the Connnonwealth, irrespective of the terms 
of the original contract. . . . This authority . . . is not lightly to be 
inferred. . . . We are not impressed by the argument . . . that by the 
exercise of such authority the Commonwealth, through the department, 
may, to its advantage, settle large claims for small amounts. If there 
is such advantage, we think it is outweighed by the dangers involved 
in the exercise of the power, and unless the power is either expressly 
given or required by necessary implication, it ought not to be found." 
(Em]:)hasis supplied.) 

The reasoning of the Fuller case is applicable here. The Denariment 
of Public Works, in entering into an agreement with the United States 
of America for erection of any buildings, would expose the Common- 
wealth to liability for faulty construction of those structures et cetera. 
That authority should not be inferred. It must be clearly authorized. 

There is no clear authorization in existing statutes for the Depart- 
ment of Public Works to enter into an agreement to construct buiklings 
outside of the State highway program in lieu of money damages. Case 
law indicates a strict interpretation by the Court of the authority that 
has been granted to the Department of Public Works. 

It is my opinion that the agreement proposed in Mr. Toumpouras' 
letter of March 26, 1963 would exceed the authority granted to the 
Department of Public Works by present Massachusetts law. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A justice of a District Court may accumulate unused vacation leave 
to a total of ninety days in any consecutive three year period. 

April 23, 1963. 

Hon. Kenneth L. Nash, Chairman, Administrative Committee of the 
District Courts. 

Dear Sir: — You have asked for an interpretation of the provisions 
for sick leave for justices of the district courts. 

The provision for such sick leave is contained in the third paragraph 
of G.L. c. 218, § 6, which reads as follows: 

"Special justices of the district courts other than the municipal court 
of the city of Boston, and special justices of the Boston juvenile court 
shall be paid by the county twenty-five dollars for each day's services, 
or at the rate by the day of the salary of the justices of the same court, 
whichever is the greater amount. For each day's service so paid for in 
excess of thirty days in any court in any one year, there shall be de- 
ducted by the county treasurer from the salary of the justice who absents 
himself from said court one day's compensation at the rate by the day 
of the salary of said justice, except for services of the special justice 
in holding sinmltaneous sessions; provided, however, that if a justice 



P.D. 12. 133 

is absent, due to his illness or physical disability, for a period not 
exceeding thirty days in any year, in addition to said thirty days, he 
shall be deemed to be on sick leave and no such deduction shall be 
made; such thirty-day sick leave or any portioji thereof not used in 
any year may be accumulated, but shall, in any event, not exceed 
ninety days in any consecutive three-year period; and provided, further, 
that if a justice is absent due to an assignment on the administrative 
committee . . . no such deduction shall be made therefor." (Emphasis 
supplied.) 

Your question is, in effect, whether the reference in the provision 
underlined in the above quotation from G.L. c. 218, § 6, is to be taken 
to refer to the total accumulation of unused sick leave which is 
allowed, or the total sick leave which is to be allowed, for the period 
stated. 

You state that there are differences of opinions among judges as to the 
correct interpretation of the provision and that the Director of the 
Bureau of Accounts has expressed the view that the provision in ques- 
tion refers to the total sick leave, and not to the total accumulation of 
sick leave, which is to be allowed. 

In my opinion, for the reasons hereafter stated, the provision in 
question is properly to be construed as fixing a limitation on the 
number of days of unused sick leave which may be accumulated, rather 
than to the number of days of sick leave which may be taken, in any 
consecutive three-year period. 

If the provision is construed as fixing the number of days of sick 
leave which may be taken in any "consecutive three-year period" the 
result would be that in a situation where at the beginning of a year 
a judge had an accumulation of sixty days unused sick leave and during 
that year he was out on sick leave for a total of ninety days, he 
would not be entitled to any sick leave for the next two consecutive 
years. That result would follow because the year in which he was out 
for ninety days is a part of the consecutive three-year period which 
it begins, as well as the consecutive three-year period which it ends. 
The injustice of the result of such a construction is so clearly apparent 
that it demonstrates that the Legislature, despite the admittedly awk- 
ward way in which the provision is phrased, must have intended that 
it should refer to the amount of unused sick leave credits which could 
be accumulated for any consecutive three-year period. 

The construction, it is my opinion, which the Legislature intended, 
avoids the injustice referred to and the rule which results is that "sick 
leave . . . not used in any year may be accumulated . . ." up to a total 
of ninety days for any consecutive three-year period. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



134 P.D. 12. 

G.L. c. 32, s. 15 , providing for the forfeiture of certain rights by mem- 
bers of retirement systems, is applicable only in cases of misappro- 
priation of funds of the employing unit. (Need for amendments 
to § 15, referred to.) An administrative board has no authority to 
reconsider a decision but if convinced it acted lurongfully it may 
rescind its action. 

April 23, 1963. 

Hon. John T. Driscoll, Chairman, State Board of Retirement. 

Dear Sir: — I have your recent request for my opinion relative to 
your board's approval on February 27, 1963 of the retirement allowance 
for Mr. Fred B. Dole. 

Section 10 of c. 32 oi the General Laws, relating to the right to 
superannuation retirement allowance of a member of the retirement 
system, provides eligibility for retirement for said member if he or she 
". . . resigns, ... or fails of nomination or re-election, or fails to 
become a candidate for nomination or re-election, or fails of reappoint- 
ment or is removed or discharged from his office or position without 
moral turpitude on his part, or any such member whose office or 
position is abolished. . . ." Inasmuch as Mr. Dole resigned voluntarily, 
fulfilling one of the requirements as set forth in the above-quoted 
provisions of § 10, his application for retirement was properly brought 
before your board. 

Section 15 of said c. 32, relating to the denial of retirement allow- 
ances to members who have been derelict in their duties, provides under 
subsection 1 thereof, "Any member who has been charged with the 
misappropriation of funds or property of any governmental unit in 
which or by which he is employed or was employed at the time of his 
retirement or termination of service, as the case may be, or of any 
system of which he is a member, and who files a written request therefor 
shall be granted a hearing by the board in accordance with the pro- 
cedure set forth in subdivision (1) of section sixteen. If the board 
after the hearing finds the charges to be true, such member shall 
forfeit all rights under sections one to twenty-eight inclusive to a 
retirement allowance or to a return of his accumulated total deductions 
for himself and for his beneficiary, or to both, to the extent of the 
amount so found to be misappropriated and to the extent of the costs 
of the investigation, if any, as found by the board. He shall thereupon 
cease to be a member, except upon such terms and conditions as the 
board may determine." (Emphasis supplied.) 

Mr. Dole has been charged, indicted and convicted of conspiracy 
to defraud the Bureau of Public Roads of the Department of Commerce, 
an agency of the Federal government. This conviction has been ap- 
pealed to the United States Circuit Court. Pending the determination 
of the appeal, further action by your Board would be inappropriate. 

Mr. Dole, an Associate Commissioner of the Department of Public 
Works of the Commonwealth of Massachusetts prior to his resignation, 
has not been charged in this jjending action with misappropriation of 
funds or property of the governmental unit "in which or by which 
he . . . was employed at the time of his retirement. . . ." Accordingly, 
the penalties providing for forfeiture of rights to retirement allowance 
as set forth in § 15 are not applicable to Mr. Dole. 

Your letter states that the Board of Retirement considered Mr. 



P.D. 12. 135 

Dole's application for retirement on February 27, 1963 and voted 
to approve same. You now ask, in the light of new information that 
has come to your attention since approval, whether your board may re- 
consider its action of February 27, 1963. There is no statutory authority 
for your board to reconsider a matter either approved or disapproved. 
If disapproved, the applicant has his usual remedies of appeal. Under 
the broad principles of statutory procedure by administrative boards, 
your board, if convinced it has acted unlawfully, may rescind such 
unlawful action. 

You have posed the further question as to whether, under all the 
circumstances, Mr. Dole is entitled to a retirement allowance at 
this time. The matter of Mr. Dole's eligibility for retirement is, 
under the statute, a decision which rests with your board. 

The questions raised by your inquiry clearly make apparent the 
need for remedial legislation of the sections quoted. Without reference 
to the specific matter involved in this opinion, in a given instance 
a member of the retirement systemi, knowing very well he was guilty 
of moral turpitude or misappropriation of funds of his agency, may 
voluntarily resign and thus procure the benefit of his retirement 
allowance. Certainly a member of the retirement system need not be 
limited to the misappropriation of funds of his own agency to forfeit 
his rights to retirement allowance. To do otherwise is to reward our 
public servants for their own wrongdoing, a distinct disservice to the 
Commonwealth and its agencies. 

I wish to reiterate that my comments concerning the desirability 
of remedial legislation are of general scope and not to be applied 
to the specific subject matter of your request. 

Very tndy yours, 

Edward W. Brooke, Attorney General. 



An exclusive right of copying information on magnetic tapes and micro- 
film rolls of motor vehicle registrations for private commercial use 
can be sold, but only in the way permitted under rules made, or 
to be made, pursuant to the provisions of G.L. c. 7, § 22. 

April 26, 1963. 
Hon. Clement A. Riley, Registrar of Motor Vehicles. 

Dear Sir: — You have requested an opinion as to the authority to 
giant to a private company, for a consideration, an exclusive right 
of use of certain State property described by you, for a particular use 
referred to. 

It appears from your statements that the Registry has prepared 
magnetic electronic data processing tapes or microfilm rolls of informa- 
tion as to motor vehicle registrations. By running these tapes and films 
through appropriate machines, lists in numerical order of the registra- 
tion numbers, names and addresses of the owners and the type of motor 
vehicles registered, can be prepared in duplicate. The primary reason 
for the preparation of such tapes and rolls is to permit the duplication, 
for free distribution to law enforcement agencies in connection with 
law enforcement, of such numerical lists of registration numbers, 
owners, addresses and types of motor vehicles registered. 



136 P.D. 12. 

You have stated that an outside company could so process the tapes 
and rolls as to prepare lists oi owners of registered motor vehicles 
either alphabetically by owners, by geographical areas or by makes and 
models of cars registered; the list so prepared to be sold for commercial 
use. Evidently the commercial use you refer to would be the sale of 
such lists of owners, alphabetically, by area, or by make and model, 
to persons desiring to mail advertisements to the owners whose names 
and addresses appear thereon. 

In effect, your question is whether you have the authority to sell 
the exclusive right for private commercial purposes of property ol 
the Commonwealth, the use of which for public purposes has been 
accomplished or, at least, will not be affected by the use of the property 
for the use contemplated to be allowed. 

Ordinarily a state official has no right to make a sale or other dis- 
position of public property unless the authority to do so has been 
delegated to him by the Legislature. Under G.L. c. 7, § 22, the 
Commissioner of Administration is authorized, subject to the approval 
of the Governor and Council, to make rules and regulations which shall 
regulate and govern among other matters, "Disposal of obsolete, excess 
and unsuitable supplies, salvage and waste material and other prop- 
erty . . ." of the Commonwealth. (Emphasis supplied.) 

To the extent that the use of the magnetic tapes and microfilm rolls 
you refer to is valuable for purposes other than the public purposes 
for which they were prepared, in my opinion, a grant of a right to 
make a use of such tapes or rolls for other than public purposes can 
be made, but only in the mode and to the extent that such grants may 
be permitted under rules and regulations made, or to be made, pursuant 
to the provisions of G.L. c. 7, § 22. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Tlie Trustees of the University of Massachusetts in fixing the salary 
for a position of the professional staff may use salary rates appear- 
ing in the ranges for different grades in the General Salary 
Schedule. 

May 2, 1963. 
Hon. Joseph Alecks, State Comptroller. 

Dear Sir: — In your letter of recent date you requested from this 
office an opinion on the following matters relating to the post-audit 
of the University of Massachusetts payroll: 

"1. In implementing the provisions of § 14 of c. 75 as to 'salary 
range within the general salary schedule', are the trustees restricted 
for a given title and classification to the amounts shown on one hori- 
zontal line on the general salary schedule in accordance with the above- 
cited definition of 'salary range' in section forty-five? 

"2. If the answer to the first question is in the negative, may the 
trustees for a given title and classification use any amount for a 
minimum and any amount for a maximum, regardless of the range, so 
long as the amounts appear in dollars and cents somewhere on the 
general salary schedule?" 



P.D. 12. 137 

You point out that the trustees of the University of Massachusetts 
have approved classification of position titles and salary rates of the 
professional staff with a range of salary from minimum to maximum, 
which is not in precise accord with the general salary schedule as set 
out in c. 30, § 46, as amended. 

Pursuant to answering your questions, an examination has been made 
of c. 30, § 46, as amended, in the light of the provisions of c. 648 of 
St. 1962, with particular attention to § 14 of said c. 648. 

Chapter 648 of St. 1962, which substantially amended §§ 1 through 
15 of c. 75 of the General Laws, confers on the trustees broad dis- 
cretionary powers as to their operation of the university. On salary 
matters this discretion is limited to their annual appropriation and as 
set forth in § 14 of c. 648, the trustees shall determine "the classifica- 
tion, title and salary within the general salary schedule. . . ." Section 
14 further authorizes the trustees: "In establishing the classification, 
title and salary plan for the professional staff of the vmiversity, the 
trustees shall give recognition to the need to establish and maintain 
appropriate academic ranks and titles as may be appropriate for higher 
education in order to provide for outstanding scholars, scientists and 
teachers." 

In view of the above-quoted provision, as well as the authoritative and 
discretionary fiscal policy apparent throughout the legislative enactment, 
it is my opinion that the trustees, in implementing salary schedules 
for their staff, are not bound on a horizontal line within the general 
salary schedule as set forth in G.L. c. 30, § 46. 

Accordingly, my answer to the first question you pose is in the 
negative. My answer to the second question you pose is in the affirmative. 

You have, however, pointed out that the performance of your post- 
audit functions requires the designation of a job group and step for 
each salary appearing in a payroll and it is, therefore, my opinion that 
you may properly require the trustees to designate the job group 
and step within the general salary schedule at which each salary amount 
contained on the payroll of the university appears. 

Very truly yours. 

Edward W. Brooke, Attorney General. 

Service as a member of the Metropolitan Transit Authority by the re- 
tired president of the former Boston Elevated Railway Company, 
would not violate the conflict of interest statutes, or St. 1913, 
c. 197. 

May 2, 1963. 

His Honor Francis X. Bellotti, Lieutenant Gox>ernor of tJte Common- 
wealth. 

Dear Sir: — I have your recent request relative to the nomination of 
Edward Dana as Trustee of the Metropolitan Transit Authority. 

You present the question: 

"Whether the mere nomination and confirmation of Edward Dana, 
retired President of the Boston Elevated Railway Authority, creates a 
conflict of interest pursuant to the conflict of interest statute and/or 
St. 1953, c. 197." 



138 P.D. 12. 

Specifiically, you have inquired as to whether the "mere nomination 
and confirmation" of a retired president of the Boston Elevated Rail- 
way as Trustee of the Metropolitan Transit Authority constitutes a 
conflict of interest under c. 779. 

Please be advised that on the facts presented, nothing more appear- 
ing, the nomination and confirmation of Mr. Dana would not violate 
c. 779 of St. 1962. 

You have raised the further question whether there is a conflict 
under c. 197 of St. 1953. 

Section lA of said c. 197 provides: 

"Section 3 of said chapter 544 is hereby amended by striking out 
the third sentence and inserting in place thereof the following sentence: 
— They shall not be in the employ of, or own any stock in, or be in 
any way, directly or indirectly, pecuniarily interested in, any gas or 
electric company, railroad corporation, bus or street railway company." 

The Metropolitan Transit Authority acquired the assets, property and 
franchises of the Boston Elevated Railway Company under c. 544 of 
St. 1947. Accordingly, the Boston Elevated Railway Company is no 
longer an existing street railway company within the purview of said 
§ lA. 

The pecuniary interest intended under this section is deemed to be 
ownership therein. Therefore, it is my opinion that, although Mr. Dana 
is a retired president of the Boston Elevated Railway Company, his 
interest as such is not a pecuniary interest within the intent and scope 
of c. 197 of St. 1953. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



St. 1956 c. 718 (Accelerated Highway Program), grants discretionary 
authority to reimburse an owner for the cost of an ordered neces- 
sary relocation of "utility facilities." Facts which may be considered 
in exercising authority. Such grant of authority is a constitutional 
exercise of the legislative power. 

May 3, 1963. 

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

Dear Sir: — In connection with the subject of Reimbursement of 

Utility Relocation Costs under Chapter 718 of Acts of 1956, you have 

asked for my opinion on two specific question: 

"1. Does the Commonwealth of Massachusetts have the power under 
existing statutes to reimburse public utility companies, whether owned 
municipally or privately, for relocation of utility facilities which have 
been installed in highway locations pursuant to a governmental permit, 
even though the Commonwealth has no liability at common law? 

"2. Is that portion of c. 718 of St. 1956, which authorizes the 
Commonwealth to reimburse public utilities for facility relocation made 
under Federal, Primary, Secondary, or Interstate Highway Systems, con- 
stitutional under the Massachusetts Constitution?" 



P.D. 12. 139 

In the letter submitting the two questions stated above, you in- 
corporated by reference and requested that cognizance be taken in my 
opinion of the following quotation from the letter of the Bureau of 
Public Roads to E. J. McCarthy, Chief Engineer of your department, 
dated October 15, 1962: 

"This office will accept a decision of the court of last resort of 
Massachusetts or an opinion of the State Attorney General establishing 
the validity of the subject law and of the policy of the Department 
of Public Works announced pursuant thereto. The opinion must be 
well reasoned and take into account such constitutional issues as (1) 
the lending of the State's credit, (2) the impairment of the obligation 
of contract, and (3) the grant of special privilege or franchise. Accord- 
ingly, we recommend that you inform the State Department of Public 
Works of our policy and suggest that it either obtain an opinion of 
the Attorney General of Massachusetts or secure a decision of the 
highest court of the State before we decide whether Federal funds, 
could participate in utility relocation costs." 

By custom and tradition public utilities have been permitted to use 
State, County, City and Town highways and rights of way for installa- 
tion of transmission facilities. Statutory authority for such licenses is 
contained in § 7D of c. 81 of the General Laws of the Commonwealth. 

Authorization to make use of a part of the highway for utiUty 
facilities has never been considered to create a property right or 
any estate or interest in the land occupied. It has been consistently 
construed as a license to use a public easement. Springfield vs. Spring- 
field Ry. Co., 182 Mass. 41; Lorain Steel Co. v. Norfolk Electric St. 
Ry Co., 187 Mass. 500. If some other public need requires the removal 
or alteration of utility facilities installed under such a license it is 
well settled that such removal or alteration does not constitute a taking 
or damaging of property which requires payment or compensation by 
the public authority responsible for the highway. Dndley v. Jamaica 
Pond Aqueduct, 100 Mass. 183; Natick Gas Light Co. v. Natick, 
175 Mass. 246; N. E. Tel. & Tel. Co. v. Boston Terminal Co., 182 
Mass. 397; Boston Electric Light Co. v. Boston Terminal Co., 184 
Mass. 566. 

Under the common law of the Commonwealth there is no question 
but that public utilities must bear the cost of removing or altering 
any facilities which they may have installed by license under, on, or 
over public highways and roads. (See unpublished opinion of Assistant 
Attorney General Joseph H. Elcock, Jr. to H. G. Gray, Chief Engineer 
of the Department of Public Works, under date of July 15, 1954. This 
was reaffirmed in an unpublished opinion of Assistant Attorney General 
John E. Sullivan to the Commissioner of Public Works under date of 
February 15, 1963.) 

The questions propounded raise the issue of whether or not certain 
provisions of c. 718 of St. 1956 either alter or supplement existing 
common law of the Commonwealth. 

Chapter 718 of St. 1956 was enacted by the General Court to permit 
the Commonwealth to participate in the benefits of the Federal-Aid 
Highway Act enacted by the Congress of the United States in 1950. 
23 U.S.C.A. § 151 et seq. 



140 P.D. 12. 

In the second paragraph of § 1 oi said c. 718 the General Court 
directed the Department ot Public Works and the Metropolitan District 
Commission to accept any Federal funds available by use of the fol- 
lowing language: 

"The department and the commission shall accept any federal funds 
available for such projects, and such federal funds when received shall 
be credited to the Highway Fund. . . ." 

Section 1 of c. 718 of St. 195G also provides in paragraph 3: 

"Whenever the department or the commission shall determine it is 
necessary that any 'utility facilities' as referred to in section one hundred 
and eleven of the federal highway act of nineteen hundred and fifty- 
six, enacted by Congress as Public Law six hundred and twenty-seven, 
or as hereafter amended, be relocated because of the construction of a 
project on the federal aid primary or secondary systems or on the na- 
tional system of interstate highways, including extensions thereof within 
urban areas, such facilities shall be rolcated by the owner thereof in 
accordance with the order of said department or commission; provided 
however, that the commonwealth may reimburse the owner of such 
utility facilities for the 'Cost of Relocation' as such cost is defined in 
said act." 

As stated in letter of this department to you of February 15, 1963, 
it is my opinion that Chapter 718 of St. 1956 does not alter the 
common law of the Commonwealth on the issues covered by this opinion. 

However, it is clear that c. 718 of St. 1956 was enacted by the Gen- 
eral Court lo provide statutory authority for Commonwealth acceptance 
of and maximum participation in the Federal Highway program by 
the inclusion of language directing that the Department of Public 
Works and the Metropolitan District Commission "shall accept any 
federal funds available." 

The General Court is presumed to know the common law of the 
Comm.onwealth prohibiting compensation of public utilities for re- 
location costs as a matter of property right. However, it is not to be 
assumed that the General Court included the third paragraph in § 1 
of c. 718 of St. 1956 for no reason. Ihe General Court is presumed 
to understand and intend all consequences of its own measures. Spauld- 
ing V. McConnell, 307 Mass. 144. 

It is my opinion that the General Court has given permission to 
the Commissioners of the Department of Public Works and the Metro- 
politan District Commission to compensate public utilities for reloca- 
tion costs when said commissioners, in their discretion, consider such 
compensation to be in the public interest. However, it is significant 
that the General Court made the payment of such costs discretionary 
and not mandatory. 

In the exercise of their discretion certain related facts may well 
be useful to the commissioners. First would be the methods by which 
public utilities compute their costs to support their rates. In this 
connection any payment to any utility under the authority granted 
by c. 718 of St. 1956 could be made only on the condition that the 
recipient utility warrant that such cost of relocation would never be 
included in any costs used to support rates. Copies of such agreements 



P.D. 12. 141 

and the amounts paid for specific relocation work should be sent to 
the Department ot Public Utilities for information and file. 

In addition the commissioners might well take cognizance of the 
three distinct highway systems included in the Federal Highway Act 
of 1956, as amended. They are the primary, secondary and inter-state 
systems. The Federal share of work done on primary and secondary 
systems shall not exceed fifty percent (50%) of the cost. U.S.C.A. Title 
23, Section 120 (a). Payment of relocation costs to utilities in primary 
and secondary systems would decrease the amount of funds available for 
actual highway construction by at least one-half of the cost of reloca- 
tion. Under those circumstances the commissioners may deteimine that 
payment of relocation costs is not in the public interest. However, the 
Federal reimbursement to the Commonwealth for work on the inter- 
state system is ninety percent (90%) of its cost. Under those circum- 
stances the commissioners may consider the public interest to be 
best served by the payment of utility relocation costs because the 
Commonwealth would pay only ten percent (10%) thereof. 

Statutory conditions are attached to the exercise of the discretionary 
authority of the commissioners to pay utility relocation costs. The 
commissioners must determine that any relocaion of utility facilities, 
as defined in the Federal Highway Act of 1956, is necessary. Reim- 
bursement of the "cost of relocation" may be made only if the cost 
meets the definition contained in the Federal Highway Act of 1956. 
To be eligible lor reimbursement, the relocation of utility facilities 
must have been ordered by either the Department of Public ^Vorks or 
by the Metropolitan District Commission. 

For the purposes of the exercise of the discretionary autliority to 
reimburse utilities for relocation costs the Federal Highway Act of 
1956 in Section 123 (b) defines the word "utility" to include "publicly, 
privately and cooperatively owned utilities." This opinion is therefore 
equally applicable to privately, cooperatively and municipally-owned 
utilities. 

The paragraph in the Bureau of Public Roads' letter of October 15, 
1962, to which you invite my attention in connection with this opinion, 
among other things raises constitutional questions. The provisions of 
the Constitution of the Commonwealth which might be involved are 
contained in Art. LXII, Section 1, and Art. LXXVIII of the Amend- 
ments. 

Article LXII, Section 1 of the Amendments to the Constitution of 
the C^ommonwealth provides: 

"The credit of the commonwealth shall not in any manner be given 
or loaned to or in aid of any individual, or of any private association, 
or of any corporation which is privately owned and managed." 

When considering Art. LXII, Section 1 of the Amendments to the 
Constitution, the Supreme Judicial Court has consistently held that an 
appropriation of funds to a private corporation or individual is valid 
when the money is to be spent for a public purpose. Opinion of the 
Justices, 337 Mass. 800 (private railroad); Boston v. Treasurer & Re- 
ceiver General, 237 Mass. 403 (Boston Elevated Railway); Opinion of 
the Jutsices, 320 Mass. 773 (Veterans' Housing); Opinion of the Justices, 
334 Mass. 721 (Mass. Port Authority); McLean <-. City of Botson, 



142 P.D- 12. 

321 Mass. 118; Allydonn Realty Corp. v. Holyoke Housing Authority, 
304 Mass. 288. 

It is my opinion that the services rendered by public utilities are 
of a public nature as defined in the above-cited cases. Those services 
are accessible to all and are necessary to the public health, welfare and 
safety. Any payment made to utilities for necessary relocation costs 
incidental to the construction of an interstate highway would be 
payment for a public purpose. Chapter 718 of St. 1956, Section 1, 
paragraph 3 does not conflict with the provisions of Art. LXII, Section 
1, of the Amendments to the Constitution of the Commonwealth. 

Article LXXVIII of the Amendments to the Constitution of the 
Commonwealth, provides: 

"No revenue from fees, duties, excises or license taxes relating to 
registration, operation or use of vehicles on public highways, or to 
fuels used for propelling such vehicles, shall be expended for other 
than cost of administration of laws providing for such revenue, making 
of refunds and adjustments in relation thereto, payment of highway 
obligations, or cost of construction, reconstruction, maintenance and 
repair of public highways and bridges and of the enforcement of state 
traffic laws. . . ." 

The issue raised by .Art. LXXVIII of the Amendments to the Con- 
stitution of the Commonwealth as it relates to c. 718 of St. 1956 is 
whether or not the removal or relocation of utility facilities is properly 
included within the words ". . . cost of construction, reconstruction, 
maintenance, and repair of public highways and bridges. . . ." 

Land taken for highways is taken not only for the passage of travelers 
but also for the transmission of intelligence between the points con- 
nected. Every such taking has for its object the procurement of an 
easement for the public. The incidental powers of the sovereign in 
connection therewith must be construed so as to most effectually secure 
for the public full enjoyment of such easement. Commomoealth v. 
Teinple, 14 Gray 69. Although water or gas or other public services 
might be provided by private companies formed for the purpose, there 
has never been any doubt of the authority of the General Court to 
permit the use of highways for the location of gas, water or sewerage 
pipe subject to public regulation. Conwionxuealth v. Lowell Gas Light 
Co., 12 Allen 75; Attorney General v. Metropolitan Railroad, 125 
Mass. 515. It is well-established in the law of the Commonwealth that 
the installation of public utility facilities in a public way is within 
the scope of the public easement taken for highway purposes. Many 
other jurisdictions concur. 101 N.H. 527; Northwestern Bell Tel Co. v. 
Wentz 103 N.W. 2d 245 (North Dakota); State v. City of Austin, 160 
Texas 348, 371 S.W. 2d 737; State v. Lavender, 365 P 2d 652 (New Mex- 
ico); Edge V. Brice 113 N.W. 2d 755 (Iowa); Minn. Gas Co. x). Zimmerman 
91 N.W. 2d 642 (Minnesota). 

It is to be noted that Art. LXXVIII of the Amendments to the 
Constitution of the Commonwealth neither specifically defines nor re- 
stricts ". . . cost of construction or reconstruction. . . ." Construction of 
a modern interstate highway encompasses matters which probably 
would not have been included in the construction of a country road 
fifty or even twenty-five years ago. Reason dictates that the proceeds 
of the highway fund may be expended for whatever is reasonably neces- 



P.D. 12. 143 

sary to accomplish all of the basic purposes for which a highway exists. 
In addition, every presumption is in favor of validity of a statute en- 
acted by the General Court unless it is unmistakably unconstitutional. 
Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371; 
Worcester County National Bank v. Commissioner of Banks, 340 Mass. 
695. 

The language of the Federal Highway program makes it clear that 
the Congress of the United States recognizes that the relocation of public 
utility facilities is a part of highway construction. 

It is my opinion that the costs of the relocation of utility facilities 
are included within the words ". . . costs of construction, reconstruction, 
maintenance and repair of public highways . . ." as they are used in 
Art. LXXVIII of the Amendments to the Constitution of the Common- 
wealth. 

It is my opinion that c. 718 of St. 1956 of the General Court complies 
with the requirement of Art. LXXVIII of the Amendments to the Con- 
stitution of the commonwealth when it states ". . . (revenue) shall be 
expended by the commonwealth . . . for said highway purposes only and 
in such manner as the general court may direct. . . ." 

In summary, it is my opinion that the provisions of c. 718 of St. 
1956, examined herein, are not in conflict with any applicable provisions 
of the Constitution of the Commonwealth of Massachusetts. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G.L. c. 112, s. 73E, limits a licejise as a dispensing optician to a citizen; 
one who has filed a declaration of intent to become a citizen does 
not qualify. 

May 7, 1963. 
Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam: —I am in receipt of your recent letter in which you 
make reference to c. 112, § 73E. You state that under § 73E "Applica- 
tion for registration as a dispensing optician may be made by any 
citizen. . . ." 

In view of the foregoing you request my opinion as to whether 
an applicant for registration as a dispensing optician, having filed a 
"Declaration of Intent" to become a citizen of the United States, would 
be eligible for examination. 

The law has been well-established that each word of a statute is 
to be accorded its appropriate weight and none of the words of a 
particular statute is to be rejected as surplusage, nor is any to be 
given undue emphasis. Each word is to be accorded the appropriate 
weight and meaning which the context and an examination of the 
statute as a whole indicate the framers of the statute intended it to 
have. More particularly, since § 73E is a statute penal in nature, carry- 
ing criminal sanctions for its violation, it must be strictly construed 
and matters which are not clearly included cannot be brought within 
its operation by construction, nor intended by implication. 

Libby v. N.Y. N.H. & H. R.R., 273 Mass. 522. 
Beloin v. Bullett, 310 Mass. 206. 



144 PD- 12. 

Tilton V. City of Haverhill, 311 Mass. 572. 

Commissioner of Corp. & Taxation v. Assessors of Boston, 324 Mass. 
32. 

The statute to which you refer permits the filing of an application 
only by a citizen who nieets the age requirement, the experience or 
training requirement and who pays the required fee. Only when all of 
these conditions have been met is the applicant in a position to take the 
examination. A "Declaration of Intent" to become a citizen does not 
fulfill these requirements. To cite one reason, although a declaration 
is filed, there is no certainty that the applicant will ever become a 
citizen. 

In view of the foregoing, I am compelled to answer your question in 
the negative. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



Sittings of the Second District Court of Plymouth should be held only 
at Himrham after thirty days from, the date of approval of St. 1963, 
c. 198^ 

May 8, 1963. 

Hon. Alvin C. Tamkin, Presiding Justice, Second District Court of 

Ply7nouth. 

Dear Sir: — You have requested my opinion as to the date upon 
which St. 1963, c. 198, which was approved on April 1st, 1963, took 
effect and specifically whether it took effect thirty days after or whether 
it takes effect ninety days after said April 1, 1963. 

Acts of 1963, c. 198, amended G.L. c. 218, § 1 by striking out the 
first paragraph under the caption Plymouth and inserting in j^lace 
thereof the following paragraph: 

"The second district covnt of Plymouth, held at Hingham; Abington, 
Hingham, AVliitman, Rockland, Hull, Hanover, Scituate, Norwell and 
Hanson." 

Prior to the above amendment tlie said paragraph read as follows: 

"The second district court of Plymouth, held at Abington and Hing- 
ham; Abington, Hingham, Whitman, Rockland, Hull, Hanover, Scituate, 
Norwell and Hanson." 

The effect of the 1963 amendment was to provide that the sittings 
of the Second District Comt of Plymouth be held only at Hingham rather 
than as was previously provided at both Hingham and Abington. 

Under the provisions of G.L. c. 4, § 1, a statute which may not be 
made the subject of a referendum petition for which a different time 
of taking effect is not therein expressly provided and which is not de- 
clared therein to be an emergency law, shall take effect on the thirtieth 
day after the earliest day on which it has the force of law. Article 
XLVIII of the Articles of Amendment to the Constitution of the 
Commonwealth, pt. Ill, The Referendum, § 2 — "Excluded matters" 
provides that "No law that relates ... to the powers, creation or aboli- 



P.D. 12. 145 

tion of courts; or the operation of which is restricted to a particular 
town, city or other political division or to particular districts or locali- 
ties of the commonwealth; . . . shall be the subject of a referendum 
petition." 

In VIII Op. Atty. Gen. 331, the Attorney General considered a 
statute containing two sections. The first section authorized the ap- 
pointment of a Fourth Assistant Register of Probate for the County of 
Middlesex and fixed his tenure at three years. The second section made 
a provision for the salaries of Fourth Assistant Registers of Probate 
generally. 

The Attorney General ruled that tlie provision ol tlie first section 
of the Act authorizing the appointment of a Fourth Register of Probate 
for the County of Middlesex clearly dealt with the powers of the courts 
and if it stood alone would be excluded from the referendum. The 
Attorney General also ruled that: 

"The whole of section 1, if it stood alone, would be excluded from 
the operation of the referendum for the reason that its operation is 
restricted to a particidar political division of the Commonwealth, 
namely, Middlesex County." 

In the case of Co^nmomcealth v. Handren, 261 Mass. 294, the Court 
considered the validity of sittings of the Superior Court for the County 
of Middlesex, which are referred to in the following quotation con- 
taining the rulings of the Court (261 Mass. 294, at 298 and 299): 

". . . The time and place prescribed by G.L. c. 212, § 14, for the 
civil and criminal sittings ol the Superior Court for tlie county of Middle- 
sex, as also for the county of Norfolk, are essential constituents for the 
organization of that court; and sittings cannot be held elsewhere, un- 
less provisions for sittings in other places is provided by statute. G.L. 
c. 34, § 3. G.L. c. 212, § 21. G.L. c. 220. St. 1927, c. 306. Greemuood v. 
Bradford, 128 Mass. 296. McArthur Brothers Co. v. Co7nmonwealth, 197 
Mass. 137. Catheron v. County of Suffolk, 227 Mass. 598, 602. In re 
Allison, 13 Col. 525. Hobart v. Hobart, 45 Iowa, 501. Carter v. State, 
100 Mass. 342. Adams v. State, supra. 

"The judge in the case at bar was without authority to adjourn the 
court from the place in Middlesex County prescribed by law to any 
place in another county or to a different place than that prescribed in 
Middlesex County, and the sittings held in Brookline and in Watertown 
were consequently null and void. . . ." 

There is, as appears from the rulings of the Attorney General re- 
ferred to above, a strong basis for the conclusion that St. 1963, c. 198, 
is excluded from the Referenchmi for the reason that its provisions 
relate to the powers of the courts and also for the conclusion that 
the operation of its provisions is restricted to a particular town, city 
or other political division, or to a particular district or locality of the 
Commonwealth, and, therefore, that it took effect thirty days after 
its effective date. 

In view of the decision in the Handren case, there is a serious ques- 
tion whether sittings of the Second District Court of Plymouth may 
lawfully be held in Abington after the effective date of the amend- 
ment made by St. 1963, c." 198. 

ITnder the circumstances, in order to preclude anyone from raising 



146 P-D. 12. 

a question as to the validity of any action taken by the Second District 
Court of Plymouth on the ground that it was taken at a sitting of the 
Court held in a place other than Hingham, on a date more than thirty 
days alter the approval date of St. 1963, c. 198, it is my view, and I 
so advise you, that future sittings of the Court should be held only at 
Hingham. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The amount to he expended by the Southeastern Massachusetts Tech- 
nological Institute for "educational planning" is limited, by the 
amendments to its enabling act, to $40,000. 

May 8, 1963. 
Hon. William A. Waldron, Commissioner of Administration. 

Dear Sir: —I have your request of April 3, 1963 for an opinion rela- 
tive to the expenditure of appropriated funds for the Southeastern 
Massachusetts Technological Institute. 

The Institute was established under Chapter 543 of St. 1960, now 
c. 75B of the Massachusetts General Laws. Under this statute the 
board of trustees was authorized to acquire a site and award construc- 
tion contracts necessary for the carrying on of the work of the Institute. 
The sections of c. 543 of St. 1960 pertinent to this matter are as follows: 

"Section 4. All receipts from student activities shall be retained by 
the trustees in a revolving fund or funds and shall be expended as 
the trustees shall direct in furthering the activities from which the 
receipts were derived; provided, that the foregoing shall not authorize 
any action in contravention of the requirements of section 1 of Article 
LXIII of the Amendments to the Constitution. The said fund or funds 
shall be subject to annual audit by the state auditor. 

"Section 3. A complete accounting of receipts and expenditures shall 
be made to the governor annually. Monthly statements of receipts and 
expenditures shall be made to the comptroller by the president or his 
designated alternate, who shall keep complete records and files of 
payrolls and bills in his office. The term 'receipts' as herein used shall 
include all federal grants received by the trustees." 

The planning and actual construction of the Southeastern Massa- 
chusetts Technological Institute could not have been started without 
funds. The Legislature provided the necessary funds and specified in 
the appropriation statute the specific purposes for which the money 
should be spent. 

St. 1960, c. 774, § 2, Item 8261-03. 

'Tor the acquisition of a site for the Southeastern Massachusetts 
Technological Institute, authorized by chapter five hundred and forty- 
three of the acts of the current year, by purchase or by eminent domain 
under chapter seventy-nine of the General Laws; provided, that no 
payment shall be made for the purchase of said site until an independent 
appraisal of the value of said site has been made by a qualified, dis- 
interested appraiser; and for the preparation of plans for classroom and 
other buildings to be erected on said site. $1,500,000.00." 



P.D. 12. 147 

Closely allied with the problem of what buildings are needed, is the 
further matter of the purpose for which the buildings are to be used. 
In order to ascertain this, a curriculum must be devised and the build- 
ing tailored to implement this program. Some educational planning 
must then necessarily precede the actual construction. The Legislature 
was not unmindful of this fact. They specifically earmarked a part of 
the original appropriation for this purpose. 

Chapter 185 of St. 1961. 

"Whereas, The deferred operation of this act would tend to defeat 
its purpose, which is to provide funds forthwith for the preparation 
of educational plans for the Southeastern Massachusetts Technological 
Institute, therefore, it is hereby declared to be an emergency law, neces- 
sary for the immediate preservation of the public convenience. 

"Be it enacted, etc., as folloxos: 

Item 8261-03 of section 2 of chapter 774 of the acts of 1960 is hereby 
amended by adding after the word 'site,' in line 9, the following words: 
— ; and, provided further, that a sum not to exceed ten thousand dollars 
may be expended for the preparation of educational plans for said 
institute." 

In 1962 the Legislature considered this matter further and increased 
the amount which would be expended for the "preparation of educa- 
tional plans." 

St. 1962, c. 649, § 2, Item 8261-03. 

"Item 8261-03 of section two of chapter seven hundred and seventy- 
four of the acts of nineteen hundred and sixty, as amended by chapter 
one hundred and eighty-five of the acts of nineteen hundied and sixty- 
one, is hereby further amended by striking out the word 'ten' and 
inserting in place thereof the word: — forty." 

In light of the action taken by the Legislature specifically designating 
those funds which can be spent for "educational planning," it is my 
opinion that no more than $40,000 may, without further legislative 
action, be expended for "the planning of educational specifications, 
program development and necessary expenses, both personnel and 
material, connected with such planning." 

The scope of the enabling act, c. 543 of St. 1960, indicates a 
legislative intent to give the trustees broad authority in establishing 
all phases of the Southeastern Massachusetts Technological Institute. 
Were it not for the legislative amendments in 1961 and 1962 above 
quoted, the interpretation of the Legislature's intent in adopting the 
enabling act could well be deemed to include expenditures for educa- 
tional planning. In this regard I think it appropriate to suggest that, 
in order to obviate the necessity of a succession of legislative amend- 
ments to provide funds for educational planning, c. 543 of St. 1960 
be amended with language sufficient in form to allow the trustees more 
flexibility in the area of educational planning. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



148 P.D. 12. 

A school comjnittee electing to provide instnictioyi for speech liandi- 
capped or hard of hearing, children, must do so for private as 
well as public school children. The Department of Education may 
regulate the granting of priorities for instruction; and an aggrieved 
parent, or the Department, may bring proceedings to enforce equal 
instruction. 

May 10, 1963. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — In your letter of recent date you refer to the following 
questions that have been posed by a school committee of one of the 
towns relative to certain responsibilities of a school committee that 
intends to furnish a program under G.L. c. 69, § 29: 

"first: If a school committee sees fit to put in a program under 
§ 29, must it also provide instruction for residents of a 
town who attend private schools in the town? 

"Second: If a public school system, through the school committee, 
decided to offer services to private school pupils but found 
itself unable to do so by reason of an excessive number 
of pupils within its own system needing speech help, is 
it the privilege of the school administration to determine 
the priority of treatment? 

"Third: If a public school system did not choose to accept any 
responsibility for providing speech therapy to private 
school students, could it be forced to do so? If so, by whom?" 

You state that your department has an interest in the matter because 
it administers c. 69, §§29 and 29B, and that you therefore seek an 
opinion on the questions raised. 

The enactment of G.L. c. 69, § 29 permitted school committees to 
provide special instruction periods for any child who is speech handi- 
capped or hard of hearing and in attendance at any public or private 
school, said instruction to be in a place under the control of the 
particular school committee, union, or district. The statute further 
provides that such instruction shall be in addition to the regular school 
instruction and shall be subject to such regulation as may be prescribed 
by the department. 

I believe it is in order to examine the language of our Supreme Court 
in the case of (hiinn v. School Committee of Plymouth, 332 Mass. 410, 
at 412. There, our Court interpreted G.L. c. 76, § 1 as a mandatory act, 
enacted by the Legislature with the intention that transportation be 
made available to school children in attendance at private schools to 
the same extent as a school committee, within its statutory powers, made 
trans])ortation available to children in pubic schools. The Court said: 
"Thr question is not what the committee can be made to do. The 
recpiirement imposed is that there be no discrimination against private 
school children in what the committee in its discretion decides to do." 

While it is true that the cited case concerns itself wtih the trans- 
portation of school children, we must, to a great extent, rely on 
the inference that is to be gained from the language used by the Court. 
It mav Avell be argued that the wording of G.L. c. 69, § 29 is permissive 
rather than mandatory; but it would nevertheless seem that once such 
a course is inaugurated by a school committee, it should be offered 



P.D. 12. 149 

to the community as a whole. The incident of attendance at a private 
school is not a factor here, no more than it was in the Quinn case. True, 
the enabling language is different in the particular statutes that are 
involved, but once established, the course of instruction should be 
made available to both public and private school children, always, of 
course, subject to such regulations as may be prescribed by your de- 
partment. This would necessarily involve various criteria of need, 
standards, and the like. 

The answer to your first question, therefore, is in the affirmative; 
to your second question, in the negative, except within the purview of 
such rules and regulations as the Department of Education may 
prescribe; to your third question, the answer is in the affirmative and 
any person claiming to be aggrieved and who is a resident of the par- 
ticular town may bring appropriate proceedings in this regard. Of 
course, your own department is in a position at all times to question 
the school committee's action in this respect. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The only records of the Board of Pharmacy luhich are made public rec- 
ords are those specified in G.L. c. 112, s. 25. 

May 12, 1963 
Mr. Louis J. Rossetti, Secretary, Board of Registration in Piiarmacy. 

Dear Sir: — You have requested my opinion on your obligation to 
comply with a request received by your board from one Cal Brumley, 
New England News Manager, The Wall Street Journal. Mr. Brumley's 
request was set forth as follows in his letter dated April 30, 1963, a copy 
of which letter accompanied vour request for the instant opinon: 

"Specifically, I request access to the Board's records of applications for 
licenses to open new drug stores or pharmacies in the Commonwealth of 
Massachusetts, the records pertaining to the disposition of these applica- 
tions, whether they are granted, denied or held in abeyance, records of 
reapplication and the disposition of these applications." 

Such records as you are required by some specific statute to keep, re- 
ceive for filing, or upon which you are required to make an entry are 
open to public inspection. VII Op. Atty. Gen. 8. 

General Laws c. 112, § 25, provides: 

"The board shall keep a record of the names of all persons examined 
and registered by it, of all persons to whom permits are issued under 
section thirty-nine, and of all money received and disbursed by it, and 
a duplicate thereof shall be open to public inspection in the office of the 
state secretary. The board shall make an annual report of the condition 
of pharmacy in the commonwealth." 

I am therefore of the opinion that only the specific records referred to 
in the above-quoted paragraph are open to the inspection of the general 
public; representatives of the press stand upon the same footing as the 
general public. VII Op. Atty. Gen. 8. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



150 P.D. 12. 

The State Department of Public Works is not authorized to expend 
funds for furnishing advisory relocation assistance, not involving 
financial payments, to persons dislocated. 

May 13, 1963. 
Hon. Jack P. Ricciardi, Commissioner of Public Works. 

Re: Relocation Assistance Payments by the Department of Public 
Works 

Dear Sir: — You have asked for my opinion on the following questions 
concerning Relocation Assistance Payments by the Department of Public 
Works: 

"1. Has the Department of Public Works the right under the existing 
laws of the Commonwealth to expend funds for carrying out relocation 
assistance which did not include any financial payments to persons dis- 
located, but was advisory in nature and might require hiring a local 
office? 

"2. Has the Department of Public Works a present right to enter into 
an agreement with a local agency to perform relocation assistance services 
on behalf of the department?" 

In reply to your first question it is my opinion that under the present 
laws of the Commonwealth no authority for the expenditure of funds for 
such assistance exists. 

In reply to your second question it is my opinion that under the pres- 
ent laws of the Commonwealth no authority for such an expenditure 
exists. 

Chapter 81 of the General Laws of Massachusetts establishes the au- 
thority of the Department of Public Works in connection with State 
Highway Programs. Section 7 of said c. 81 provides in part: 

"When injury has been caused to the real estate of any person by the 
laying out or alteration of a state highway, he may recover compensation 
therefor from the commonwealth under Chapter seventy-nine. . . ." 

The concept of damages set forth in c. 79 of the General Laws of the 
Commonwealth neither envisions nor provides for relocation assistance. 
The few cases in this area indicate a strict and narrow interpretation by 
the Supreme Judicial Court of the authority of the Department of Public 
Works. The Court has held that no activity is permissible unless it has 
been specifically authorized by the General Court. Boston, Worcester 6- 
N.Y. Street Railway v. Commomoealth, 301 Mass. 283 (19S8); George A. 
Fuller Co. v. Commonwealth, 303 Mass. 216 (19S9). 

The Federal- Aid Highway Act of 1962 provides for Federal reimburse- 
ment to those states that furnish relocation assistance in connection with 
their Federally-aided highway construction projects. However, the Federal 
Government may not require a state to make relocation paynients where 
such payments are not authorized by state law. (Federal- Aid Highwav 
Act of 1962, Sections 133 (b) and (c)). 

As indicated above, it is my opinion that payments for that purpose 
are not authorized by present Massachusetts Law. Several bills are pend- 
ing before the General Court which propose to authorize relocation as- 
sistance in connection with Federally-aided highway construction pro- 
jects in Massachusetts. Until such legislation is enacted the laws of the 



P.D. 12. 151 

Commonwealth dealing with this subject will remain as stated herein 
even though relocation assistance is available in Federally-aided urban 
renewal projects. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The bidding procedures under G.L. c, 149, 44 A, are applicable only to 
the construction of public buildings alone, and do not apply as to 
certain buildings to be constructed by the Metropolitan District 
Commission under St. 1957 , c. 647, for a dam across the Mystic 
River. 

May 13, 1963. 

Hon. Robert F. Murphy^ Comynissioner, Metropolitan District Com- 
mission. 

Dear Sir: — You have requested an opinion as to whether or not the 
proposed work by the Metropolitan District Commission as authorized 
by St. 1957, c. 647, constitutes a "public building" within the mean- 
ing of G.L. c. 149, § 44A. so that the sixty-day bid period as contem- 
plated by the present contract documents may be utilized. 

The pertinent portions of said c. 647 provide as follows: 

"Section 1. The metropolitan district commission, hereinafter called 
the commission, is hereby authorized and directed to construct, main- 
tain and operate a dam with locks, drawbridge if needed, works and 
appurtenances across the Mystic river in the cities of Everett and Somer- 
ville, for the purpose of maintaining in said river and in the Maiden 
river above said dam a substantially permanent water level, and a storage 
area to provide control of waters for flood relief purposes." 

General Laws, c. 149, § 44A provides in part as follows: 

"Every contract for the construction, reconstruction, alteration, re- 
modeling, repair or demolition of any public building by the common- 
wealth or by any governmental unit thereof, estimated to cost more than 
live thousand dollars in the case of the commonwealth, and more than 
two thousand dollars in the case of any governmental unit thereof, shall 
be awarded to the lowest responsible and eligible general bidder on the 
basis of competitive bids in accordance with the procedure set forth in 
the provisions of sections forty-four B to forty-four L, inclusive." 

Chapter 647, as referred to above, authorizes the commission to con- 
struct a dam with its necessary appurtenances. The proposed contract 
for this work envisions construction of certain structures for employees 
maintaining and operating the facilities, the cost of which is estimated at 
two per cent to four per cent of the total cost of about six million dollars 
for the entire project. The buildings involved would be incidental to the 
work performed and the cost involved in proportion is a small part of 
the contemplated project. 

Section 44A, as referred to above, specifically refers to and contem- 
plates the construction of a "public building". The Legislature, in enact- 
ing this section, in my opinion, demonstrated an intent that it apply to 
the construction of public buildings alone. See Deary v. Toion of Dudley, 



152 P.D. 12. 

343 Mass. 192, which held that this section could not be extended to 
cover a sewer project. 

On the same subject, the Court, in the case of Pacella v. Metropolitan 
District Commission, 339 Mass. 338, stated at 346: 

"It is not for us, however, ... to impose rigid standards and require- 
ments which the Legislature has not seen fit ... to impose . . . and which 
the legislative history suggests may have been intentionally omitted." 

It would seem to me, therefore, that to stretch § 44A to fit the contract 
in question Avould be imposing rigid standards that the Legislature has 
not seen fit to impose. 

In the case of Nowell v. Boston Academy of Notre Dame, 130 Mass. 
209, the Court made it clear that any "structure" did not fit the defini- 
tion of a "building." 

From an examination of the statutes involved and the facts that you 
have submitted, it is my opinion that it was the intention of the Legisla- 
ture that this project as a whole, as contemplated by c. 647 of St. 1957, 
was one of a public work rather than a public building, does not literally 
fall within the purview of G.L. c. 149, § 44A, is not governed bv said 
statute, and the thirty-day period is not applicable. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Chairman of the State Housing Board being under indictment for 
for alleged misconduct in office, the Governor may suspend him 
and appoint a temporary CJiairman wJio may exercise all the potuers 
of the Chairman. 

May 15, 1963. 

His Excellency Endicott Peabod^ , Governor of the Commomvealth. 

Dear Sir: — I have your request dated May 14, 1963 for my opinion 
relative to the following: 

" (1) Whether you have the power under c. 798 of St. 1962 to suspend 
the present Chairman of the State Housing Board, as Chairman and 
member while he is under indictment for alleged misconduct. 

" (2) Whether or not the person appointed by you in his stead would 
possess the authority and powers of the chairman of the State Housing 
Board and, in particular, those powers set forth in c. 121, § 26 NN of 
the General Laws. 

The State Housing Board was established by c. 260 of St. 1948, and 
thereafter has been amended in 1949, 1954 and 1960. The act, as 
amended, is now found as c. 6, § 64 of the General Laws. This section 
in part provides: "Any vacancy shall be filled in the manner aforesaid 
(appointment by you with the advice and consent of the Council) for 
the remainder of the inicxpired term. Any vacancy therein shall not im- 
pair its powers nor affect its duties." 

Accorch'ngly, should you suspend the chairman of the State Housing 
Board, you have tlie power and authority, with the advice and consent 
of the Council, to appoint a chairman in his stead. 

Chapter 798 St. 1962, now c. 30, § 59 of the General Laws, provides in 
part that: 



P.D. 12. 153 

"The appointing authority ol any department of the commonwealth, 
or of any board, commission or agency thereof, in which a person is em- 
ployed may suspend such person during any period during which said 
person is under indictment for misconduct in his office or employment 
of the commonwealth. Notice of said suspension shall be given in writ- 
ing in hand to said person, and the receipt thereof shall automatically 
suspend the authority of said person until he is notified, in like manner, 
that his suspension is removed." 

Said chapter further provides: 

". . . During the period of any such suspension, the appointing author- 
ity may fill the position of the suspended employee on a temporary 
basis." 

Therefore, since the present chairman is under indictment for alleged 
misconduct in office, you have the power and authority under c. 798 of 
St. 1962 to suspend him and to fill the position on a temporary basis. 
In respect to the authority of your appointee filling this position on a 
temporary basis, it is my opinion that such appointee has all the author- 
ity and power vested in the permanent chairman of the State Housing 
Board. The Legislature clearly provided for continuity in this office in 
stating in § 64 of c. 6 that, "Any vacancy therein shall not impair its 
powers nor affect its duties." The acts of the State Housing Board, acting 
by and through its chairman, have been dealt with in the case of 
Bowker v. Worcester, 334 Mass. 422. 

It is my opinion that the chairman, as provided by statute, be he tem- 
porary or permanent, has the powers and duties as set forth in § 64 of 
c. 6. and as more particularly set forth in § 26 NN of c. 121. 

In summation, I conclude that under c. 798 of St. 1962 you do have 
the power to suspend the chairman of the State Housing Board, and 
that your temporary appointee in his stead may properly exercise all the 
powers of the chairman of the State Housing Board as provided in c. 
121, § 26 NN of the General Laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Cojnptroller has authority to require affidavits and certifications on 
accounts or demands against the Commonivealth by contractors on 
public works regardless of any contract provisions. 

May 15, 1963. 

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

Dear Sir: — In your recent letter, you requested advice as to whether 
or not the John F. White Contracting Company is required, on its esti- 
mates submitted to the Comptroller for work done on contracts executed 
prior to July 17, 1962, with your department to submit a signed affidavit 
that the work specified in partial payment estimates has been performed. 

Chapter 7, § 13 of the General Laws provides, in part, as follows: 

"The comptroller shall examine all accounts and demands against the 
commonwealth. . . . He may require affidavits that articles have been 
furnished, services rendered and obligations incurred, as claimed." 



164 P.D. 12. 

Section 16 oi the said chapter has the following provision: 

"The comptroller shall design and install an accounting system for 
the commonwealth and prescribe the requisite forms and books of ac- 
count to be used by each department, office, commission and institution 
of the commonwealth. No form or book of account other than that pre- 
scribed as aforesaid shall be used without the approval of the comptrol- 
ler. He may revise such forms, books or system from time to time. He 
shall prepare and distribute a book of instructions covering the use and 
application of said accounting system for the guidance of the various de- 
partments, offices, commissions and institutions of the commonwealth." 

I might add also that there are other applicable statutes which provide 
the comptroller with ample authority to require affidavits or certificates 
in situations of this sort. 

The foregoing statutes were in effect when the contract in question 
was signed. It is, therefore, true that John F. White Contracting Com- 
pany is held to the knowledge of and is bound by the statutes in effect at 
the time that it signed this contract. The argument of the contractor that 
he need only comply with certain sections of your Standard Specifica- 
tions to obtain periodic partial payments does not in any way limit the 
powers of the Comptroller nor does it in any way pretend to limit the 
powers of the Comptroller to specify forms that lie might require to 
authorize periodic payment. The specifications of the contract merely set 
forth the procedure to be followed between your department and the 
contractor and these specifications do nat supersede statutes governing 
public construction contracts. 

In conclusion, it is my opinion that by signing a contract with the 
Commonwealth, the John F. White Contracting Company submitted 
itself to the clearly defined authority of the Comptroller to require affi- 
davits or certification of all "accounts and demands" against the Com- 
monwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



No person may, without the approval of the Art Co7nmission, assert any 
control, or interfere with, the custody and care of historical relics 
or works of art in the State House. 

May 20, 1963 

Mr. Joseph A. Coletti^ CJiairinaii Massaclnisetts Art Commission. 

Dear Sir: — In a recent letter you have asked my opinion on the 
following: 

"Your opinion is requested as to whether or not any individual has 
the right to remove, repair, change, arrange, or assert any control over 
or interfere with the custody and care of any of the historical relics or 
works of art as defined in Section 20, that are in the State House, with- 
out the express permission and approval of the Art Commission for 
the Commonwealth, or an order of a court of competent jurisdiction." 

The powers and duties of the Art Commission are set forth G.L. c. 6, 
§ 20. The last paragraph of said section, as inserted by c. 242 of St. 1924, 



P.D. 12. 155 

reads as follows: "Said commission shall have the custody and care of 
all historical relics in the state house, and of all works of art, as herein 
defined, erected or maintained therein." 

According to the words "custody and care" in their usual and natural 
sense, pursuant to long-established guides of statutory construction, I 
answer your question in the negative. 

Works of art are defined in said section 20 as ". . . any painting, por- 
trait, mural decoration, stained glass, statue, bas-relief, ornament, foun- 
tain or any other article or structure of a permanent character intended 
for decoration or commemoration." 

The foregoing opinion is buttressed by consideration of the purposes 
of adoption of the said last paragraph of said § 20 by c. 242 of St. 1924 
(the statute prior thereto giving the Art Commission advisory powers 
only), which purposes were set forth in an address of the then Governor, 
Channing H. Cox, as lollows: 

"The Commonwealth is fortunate in the possession of many fine por- 
traits and priceless relics. Some of these are in the Executive Chamber, 
some in the Senate reading and reception rooms, while others are in 
different places about the building. From time to time it has become 
necessary to clean or treat the portraits and to rearrange the relics. It 
is doubtful if any one has authority to act in such cases, although they 
have been usually referred to the Governor for decision. It is clear that 
the responsibility for proper care of these valuable portraits and me- 
morials be definitely fixed. I therefore recommend legislation giving 
their custody to a commission composed of the Lieutenant-Governor, the 
Chairman of the Art Commission and a member of the Executive Coun- 
cil, or some other group of officials." 

Accordingly, I answer your question by stating that it is my opinion 
that no person may remove, repair, change, arrange, or assert any con- 
trol over or interfere with the custody and care of historical relics or 
works of art situated in the State House without the approval of your 
commission. 

In answer to your further question relative to the action to be taken by 
the Art Commission should an individual remove, alter or change an 
historical relic or work of art in the State House, it is difficult to de- 
termine the appropriate procedural remedy without knowledge of the 
nature or degree of the specific violation. However, should a violation 
result from a dispute between state departments or boards, I respectfully 
call your attention to c. 30, § 5 of the General Laws, which provides for 
the disposition of disputes between state departments. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



156 P.D. 12. 

The proceeds of a bond issue of the Commonwealth were not subject to 
(I limitation on the period for expenditure enacted after the date of 
issue. 

May 21, 1963 

Hon. Robert F. Murphy, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — In your recent letter, you have asked my opinion con- 
cerning the legal effect of G.L. c. 29, § 14 upon the bond issue authorized 
by c. 546 of St. 1946. 

Acts of 1946, cc. 86 and 546 authorize the town of Ashland to construct 
an extensive sewerage system. The financing and construction of this 
project is to be done largely by the town. The Metropolitan District 
Commission, however, is to construct a part of this project. 

St. 1946, c. 546, § 3. 

"The cost ot constructing the works for pimiping and conveying the 
sewage and the necessary lands, water rights, easements, and other 
property or interest in property shall be paid by the metropolitan dis- 
trict commission. For the cost of maintenance and operation of the 
above works, said commission shall pay and the town of Ashland shall 
accept in lieu of annual payments a lump sum of fifteen thousand dol- 
lars. . . ." 

The Legislature was not unmindful of the fact that an undertaking 
such as this would need financing. A bond issue to pay for the cost of 
this part of the project is authorized by statute. 

St. 1946, c. 546, § 4. 

"To meet the cost of construction, maintenance and operation to be 
paid by the metropolitan district commission under the provisions of 
this act, the state treasurer shall from time to time on the request of said 
commission borrow on the credit of the commonwealth, a sum or sums, 
not exceeding, in the aggregate, one hundred and seventy-five thousand 
dollars, and may issue in one or more series bonds, notes or other forms 
of written acknowledgement of debt, hereinafter referred to as obliga- 
tions. . . ." 

General Laws c. 29, § 14, as originally enacted (St. 1939, c. 502, § 11), 
reads as follows: 

Gen. Laws c. 29, § 14 (1939). 

"An appiopriation for any purpose other than ordinary maintenance, 
for the first fiscal year of the biennium, shall not be available for more 
than two years alter the effective date of the appropriation act. A like 
appropriation for the second fiscal year of the biennium shall not be 
avaihible for more than two years after the beginning of such year. In 
either case payments to fulfill contracts and other obligations entered 
into within the said two years may be made thereafter." 

In 1941 the Attorney General rendered an opinion stating that this 
section did not apply to bond issues. 

Attorney General's Report (1941) p. 104. 

"In my opinion said section 14 of chapter 29 refers to appropriation 
of money already in the treasury, or money to be paid into the treasury 



P.D. 12. 157 

through taxation or the ordinary revenue, and does not apply to an act 
which authorizes the expenditure of money to be raised by an issuance 
of bonds." 

Subsequent to this opinion, St. 1939, c. 502, § 11 was amended by St. 

1945, c. 242, § 12. This was the statute in effect when the Ashland Sewer- 
age System Acts were passed. 

Gen. Laws c. 29, § 14 (1945). 

"An appropriation for any purpose other than ordinary maintenance 
shall not be available for more than two years after the effective date 
of the appropriation, except that payments to fulfill contracts and other 
obligations entered into within the said two years may be made there- 
after." 

The amendment to the 1939 version of this section has not altered the 
validity of the Attorney General's Opinion (1941). The scope of the two 
sections is the same. This section does not apply to a bond issue. 

In order to ascertain the intent and purpose of the Legislature, the 
law to be applied would be that which was in effect at the time that St. 

1946, c. 86 and c. 546 were enacted. At that time G.L. c. 29, § 14 did not 
apply to bond issues. Therefore, the bonds to be issued to finance the 
work of the Metropolitan District Commission are not subject to the 
provisions of G.L. c. 29, § 14. 

Any subsequent amendments to that section could not alter this result 
unless the amendment specifically mentioned the Ashland Sewerage Sys- 
tem or was inconsistent with the purpose of that statute. No reference 
or inconsistency is present. 

"But, in accordance with the rule of construction . . . which special acts 
growing out of the peculiar wants, condition, and circumstances of the 
locality have been granted to a particular place, and afterwards a gen- 
eral law is passed having some of the same purposes in view . . . whether 
the general act is an implied repeal of all repugnant special acts depends 
upon a careful comparison of the statutes and the objects intended to be 
accomplished, and, speaking generally, it requires 'pretty strong terms in 
the general act, showing that it was intended to supersede the special 
acts,"in order to hold it to be such a repeal'." Copeland v. Springfield, 
166 Mass. 498, 504 (1896). 

In view of the former opinion of this office and the action taken by 
the Legislature, it is my opinion that GT. c. 29. § 14 (as amended) does 
not apply to c. 546 of St. 1946. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



The requirement that contractors on public works give preference to 
domestic products is applicable only if other considerations are 
equal. 

May 23, 1963. 

Hon. Charles Gibbons, Chairman, Goverjiment Center Commission. 

Dear Sir: — You have requested my opinion relative to the use of 
foreign steel in the construction of the State Office Building to be erected 



158 P.D. 12. 

pursuant to your contract numbered 62-04. You state that the contractor 
who was awarded this contract has notified you of its intention to use 
steel manufactured in England in certain portions of the building. You 
further state: (I) that this foreign steel appears to conform to the con- 
tract requirements; (2) that it will be fabricated by the foreign manu- 
facturer for |14 per ton less than a comparable domestic product; (3) 
that this reduced price was reffected in the contractor's original bid. 
General Laws c. 7 § 22, paragraph 17 reads as follows: 

"A preference in the purchase of supplies and materials, other con- 
siderations being equal, in favor, first, of supplies and materials manu- 
factured and sold within the commonwealth, with a proviso that the 
state purchasing agent mav, where practicable, allow a further prefer- 
ence in favor of such supplies and materials manufactured and sold in 
those cities and towns within the commonwealth in which the ratio of 
unemployment to the total labor force, as determined by the division of 
employment security, is in excess of five and nine tenths per cent, and 
second, of supplies and materials manufactured and sold elsewhere with- 
in the United States." 

The provisions of this statute have been expressly included in con- 
tract 62-04 (Page 5, § 2C), and the statute clearly creates a preference in 
favor of domestic steel in the event that the other considerations are 
equal (see Atorney General's Report (1956) p. 44). 

The above-quoted opinion of the Attorney General concerned a situ- 
ation very similar to the problem here presented, and has been cited, if 
not approved by the Supreme Judicial Court (Pacella v. Metropolitan 
District Commissio7i, 339 Mass. 338 at page 348). In that opinion the At- 
torney General stated: 

"There is, however, no prohibition against the use of foreign steel pro- 
vided you determine as a question of fact that other considerations are 
not equal and that the use of such foreign steel would be more beneficial 
to the Commonwealth. In reaching this conclusion it should be de- 
termined first of all, as an engineering question, whether the foreign 
steel is at least the equivalent of domestic steel." 

The contractor has stated that it was unable to obtain domestic steel 
at the lower price, that this lower price was reflected in the contractor's 
original bid and that as a resvdt, a considerable saving has resulted to 
the Commonwealth. If you determine these allegations are true, then it 
would appear that other considerations are not equal and the contractor 
is complying with the provisions of the statute in question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Evnhling legislation zuould be necessary to permit tlie Massachusetts 
Aeronautics Commission to assume operational control over any 
state airports which might he built in the future. 

May 28, 1963.^ 

Hon. Crocker Snow, Director, Massachusetts Aeronautics Commission. 

Dear Sir: — In your recent letter you have asked my opinion as to 

whether St. 1956, c. 465, as amended by St. 1958, c. 599, could be inter- 



P.D. 12. 159 

preted as giving the Massachusetts Port Authority operational control 
over state-owned airports other than Laurence G. Hanscom (Bedford 
Airport) and General Edward Lawrence Logan International Airport 
(Logan Airport). 

There are presently only two state-owned airports, Bedford Airport 

and Logan Airport. The airports are maintained and controlled by 

the Massachusetts Port Authority. Prior to this, operational control of 

these airports was maintained by the State Airport Management Board. 

Acts of 1956, c. 465 created the Massachusetts Port Authority. 

St. 1956, c. 465, § 2. 

"There is hereby created and placed in the department of public 
works a body politic and corporate to be known as the Massachusetts 
Port Authority, which shall not be subject to the supervisiort or regulation 
of the department of public works or of any department, commission, 
board, bureau or agency of the commonAvealth except to the extent and 
in the manner provided in this act. . . ." 

When the Massachusetts Port Authority became a legal entity, the State 
Airport Management Board was dissolved and the Massachusetts Gen- 
eral Laws creating this agency were repealed. 

St. 1956, c. 465, § 32. 

"Upon title to the airport properties becoming vested in the Author- 
ity under the provisions of section five of this act, sections fifty-nine A to 
fifty-nine C, inclusive, of chapter six of the General Laws and sections 
fifty A to fifty L, inclusive, of chapter ninety of the General Laws shall be 
inoperative and cease to be effective." 

Acts of 1956, c. 465 designates those properties to be transferred to 
the Massachusetts Port Authority. 

St. 1956, c. 465, § 1. 

" (b) The term 'airport properties' shall include the General Edward 
Lawrence Logan International Airport, hereafter called the Logan 
Airport, and Laurence G. Hanscom Field, together with all buildings 
and other facilities and all equipment, appurtenances, property, rights, 
easements and interests acquired or leased by the commonwealth in con- 
nection with the construction or the operation thereof and in charge 
of the state airport management board." 

It is evident then from the words of this section that it was the op- 
erational control of these specific properties which was being transferred. 
There is no provision for control of state airports to be acquired at a 
future date. This is to be contrasted with the broad provisions under 
which the now defunct State Airport Management Board operated. 

G.L. c. 90, § 50B (as repealed by St. 1956, c. 465, § 32). 

"The major responsibility of the state airport management board shall 
be to assure the adoption and carrying out of sound business manage- 
ment policies in the management and operation of Logan Airport and 
Hanscom Field and any other state-owned airport that may he estab- 
lished. . . ." (Emphasis supplied). 

If the Massachusetts Port Authority were to maintain operational 
control of other state airports to be constructed at a future date, further 
legislative authority would be necessary. 



]()0 P.D. 12. 

The iunctions and duties of the Massachusetts Aeronautics Commis- 
sion was thoroughly discussed and outlined in the Attorney General's 
Report (1948), p. 33. This opinion was not changed by St. 1956, c. 465. 
The Massachusetts Aeronautics Commission is not presently empowered 
to assume operational control over any state-owned airport. If the com- 
mission is to assume this responsibility, enabling legislation would be 
necessary. 

It is my opinion that the Legislature must take further action before 
either the Massachusetts Port Authority or the Massachusetts Aeronau- 
tics Commission could assume operational control over state airports to 
be built at a future date. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



All amounts collected by the Massachusetts Port Authority on account 
of debts due the Commontvealth incurred prior to the transfer of 
the port, etc., properties to the Authority, must be remitted to the 
State Treasurer. The balance of a federal grant payable upon 
completition of a control tower finished by the Authority is to 
be shared zuit/t tJie AutJiority. 

May 28, 1963. 

Mr. Edward J. King, Secretary-Treasurer, Massachusetts Port Authority. 

Dear Sir: — In your recent letter you have asked my opinion con- 
cerning the proper disposition of certain accounts receivable collected 
by the Massachusetts Port Authority for the Treasurer of the Common- 
wealth. 

The Massachusetts Port Authority was created by St. 1956, c. 465, as 
amended by St. 1958, c. 599. 

St. 1956, c. 465, § 2. 

"There is hereby created and placed in the department of public works 
a body politic and corporate to be known as the Massachusetts Port 
Authority, which shall not be subject to the supervision or regulation 
of the department . . . commission, board, bureau or agency of the 
commonwealth except to the extent and the manner provided in this 
act. . . ." 

The properties formerly administered by the State Airport Management 
Board and the Port of Boston Commission were transferred to the 
Massachusetts Port Authority. Under this statute the accounts receivable 
accruing to these now defunct administrative agencies were to be 
collected by the Treasurer of the Commonwealth. 

St. 1956, c. 465, § 5. 

"The treasurer shall collect for the commonwealth all accounts re- 
ceivable as certified by the state airport management board outstanding 
on the date of transfer. . . ." 

St. 1956, c. 465, § 6. 

"The treasurer shall collect for the commonwealth all accounts re- 
ceivable of the Port of Boston Commission outstanding on the date of 
transfer. . . ." 



P.D. 12. 161 

On February 14, 1959, the Commonwealth of Massachusetts and the 
Massachusetts Port Authority entered into an agreement by which the 
statutory duty of collecting the accounts receivable was modified. Under 
this agreement a closing date of February 17, 1959 was stipulated 
at which time the State Airport Management Board and the Port of 
Boston Commission would transmit to the State Treasurer and the 
Massachusetts Port Authority a copy of those accounts receivable which 
were still outstanding. These outstanding accounts receivable were then 
to be collected by the Port Authority and transmitted to the Treasurer. 

Agreement between the Commonwealth of Massachusetts and the 
Massachusetts Port Authority (Feb. 14, 1959). 

3. The Board and the Commission shall each certify and deliver 
to the State Treasurer and to the Authority at the closing a list of its 
outstanding accounts receivable as of said midnight. 

4. The Board and Commission shall also prepare a list of all ac- 
counts receivable, including rentals and other fees and charges, for 
current periods commencing prior to said midnight which depend upon 
volume, or a percentage of sales, or other facts not presently deter- 
minable, showing the minimum and estimated maximum amounts that 
will accrue thereon up to said midnight. 

5. The Commonwealth hereby authorizes the Authority to collect 
all accounts receivable referred to in section 3 above, and authorizes 
the Authority to notify all such debtors that all payments to be made 
by them after the closing on account of such accounts, rentals and 
other fees and charges shall be made to the Authority thereon, even 
if billed in the name of the Commonwealth, the Board or the Com- 
mission, shall be valid discharge to the debtors for the amount so paid. 

The list of accounts receivable was drawn up and submitted in 
accordance with these sections of the agreement. This list included 
trade remittances as well as monies due from the federal government for 
federally-aided airport projects. 

The source of the accounts receivable is immaterial. The duty of 
collection and remittance to the Treasurer of the Commonwealth is 
implicit in the agreement. If the payment is in the form of a negotiable 
instrument, the Massachusetts Port Authority is not expressly or im- 
pliedly authorized to endorse it as an agent of the Commonwealth. 
Hallett V. Moore, 282 Mass. 380, 395 (1933). 

The Massachusetts Port Authority must transmit all the accounts 
receivable to the State Treasurer. 

A further matter which you raise in your letter deals with the 
extent to which the Massachusetts Port Authority may participate in 
receiving federally appropriated funds. The problem which you have 
outlined deals with the construction of the control tower at Logan 
International Airport. 

Construction on this tower was started while the airport was still 
under the supervision of the State Airport Management Board. The 
tower was to be partially financed through federal funds. When appli- 
cation for these funds was made to the federal government, the federal 
agency stated that it would not release the remainder of the funds 
for this project until the tower was satisfactorily completed. The project 
was completed by the Massachusetts Port Authority. 



162 P.D. 12. 

Acts of 1956, c. 465 empowered the Authority to participate in funds 
reimbursed by the federal government. 

St. 1956, c. 465, § 3. 

"The Authority is hereby authorized and empowered — 
(n) To make application for, receive and accept from any federal 
agency grants for or in aid of the planning, construction or financing 
of any project or any additional facility, and to receive and accept 
contributions from any source of either money, property, labor or other 
things of value, to be held, used and applied only for the purposes for 
which such grants and contributions may be made. . . ." 

The project here involved was started before the Massachusetts Port 
Authority became a legal entity. It could not then have applied for these 
funds. However, the Authority did assume the responsibilities of the 
state agency which had applied for these funds. The result was that the 
Massachusetts Port Authority had to complete the project to the satis- 
faction of the participating partner, the federal government. 

St. 1956, c. 465, § 5. 

"Thereupon, the possession of the airport properties shall be trans- 
ferred to the Authority and there shall be vested in the Authority the 
control, operation and maintenance of the airport properties and all 
rents, tolls, charges and revenues pertaining thereto, provided, however, 
that the Authority shall assume all of the obligations and have the 
benefit of all the rights of the commonwealth in and to all leases, 
contracts and agreements relating to the airport properties and exist- 
ing on the date of the transfer. . . ." 

The benefit and the burden go hand in hand. Since the Authority 
had to complete the facilities started by its predecessor, and the project 
was federally subsidized, the Massachusetts Port Authority should share 
in this subsidy. The extent of this share would be the same as that 
enjoyed by its predecessor, and would be figured on the basis of what 
percentage the federal government contributed to the overall project 
for the construction of a completed control tower. 

In light of the action taken by the Legislature and the agreement 
entered into between the parties, it is my opinion that all accounts 
receivable collected by the Authority, in whatever form, must be re- 
mitted forthwith to the Treasurer of the Commonwealth. As for the 
participation of the Massachusetts Port Authority in the federal funds 
appropriated for the building of the control tower at the Logan In- 
ternational Airport, the Authority may participate to the extent en- 
joyed by its predecessor. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12. 163 

Opinions rendered by the Attorney General pursuant to G.L. c. 12, s. 3, 
shall be rendered and signed by the Attorney General or the Acting 
Attorney General. 

May 29, 1963. 
Hon. Joseph Alecks, State Comptroller. 

Dear Sir: — Reference is made to your recent letter in which you state: 

"As Comptroller I have been and shall be called upon to render 
decisions based upon written opinions from your office. Will you 
kindly inform me whether or not all opinions rendered by your office 
and signed by one of your Assistant Attorneys General have the same 
efficacy, validity and authority as an opinion rendered and signed by 
you personally." 

It is my understanding that your question is inspired by receipt of 
a letter addressed to a member of the Senate and signed by an Assistant 
Attorney General. 

First, let me state the circumstances under which formal opinions 
of this office are rendered. General Laws c. 12, § 3 provides in effect 
that all legal services required by the Commonwealth, its departments, 
officers and commissions shall, except as otherv/ise provided by statute, 
be rendered by the Attorney General or under his direction. In accord- 
ance with such statutory mandate, it has been the practice of Attorneys 
General to render opinions to such representatives of the Common- 
wealth upon questions which concern them in the performance of their 
official duties. 

You are therefore advised that any opinions rendered by the Attorney 
General pursuant to the provisions of said § 3 of c. 12, shall be rendered 
and signed by the Attorney General or the Acting Attorney General 
at any given time. 

It has also been the long-standing practice of this office to render 
what might be termed informal opinions to various representatives of 
the State on matters which are not necessarily the subject of a formal 
opinion. As was stated by Attorney General Benton (VIII Op. Atty. 
Gen. 125) after stating that there was serious doubt as to whether or 
not the addressee fell within the class of State departments, officers 
and commissions to whom the Attorney General is the duly constituted 
legal adviser, "nevertheless ... it seems to me that I may properly 
express to you my personal views for such weight as you may see fit 
to ascribe to them." 

The letter of the Assistant Attorney General to the State Senator 
falls within the second category; it was not rendered to a person to 
Vv^hom the Attorney General is the duly constituted legal adviser pur- 
suant to G.L. c. 12, § 3; and it represents an informal point of view 
for the information of the addressee. 

On the other hand, the subject matter of such informal point of 
view is one to which you, by virtue of your office, would be entitled to 
a formal opinion of the Attorney General, if you deemed it necessary 
or advisable to seek such an opinion as a basis for performing your 
official duties. 

I hope that the foregoing will clarify the distinction between the 
two types of opinions which emanate from this office from time to time. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



164 P.D. 12. 

A person licensed to engage in the private detective business may engage 
in the business of a watch, guard or patrol agency under the license. 

June 7, 1963. 
Hon. Frank S. Giles, Commissioner of Public Safety. 

Dear Sir: — In your recent letter you have asked my opinion whether 
G.L. c. 147, § 25 requires a license to engage in the "private detective 
business" and a license to engage in the business of watch, guard, or 
patrol agency, by concerns engaged in both of these businesses. 

Acts of 1960, c. 802 struck out §§ 22-30 of G.L. c. 147 and inserted 
in place thereof nine new sections. The pertinent sections of the former 
statute are as follows: 

G.L. c. 147, § 22 (before amendment). 

"No person shall engage in the business of or solicit business as a 
private detective, or the business commonly transacted by a private 
detective, under any name or title whatsoever, without first obtaining 
a license so to do. . . ." 

G.L. c. 147, § 25A (before amendment). 

"For the purposes of this chapter, the term 'private detective', shall 
include, among others . . . any agency which furnishes guard or patrol 
protection for homes, stores, industrial plants and private or public 
institutions." 

From these sections it is apparent that prior to the present amendment 
only one license was necessary whether the holder was engaged in the 
private detective business, or the business of watch, guard or patrol, 
or both. 

Acts of 1960, c. 802 completely rewrote the old provisions of G.L. 
c. 147, §§ 22-30. Under this new statute special qualifications must be 
met before one can be licensed as a private detective business. These 
qualifications do not apply to one applying for a license to operate a 
watch, guard or patrol agency. 

G.L. c. 147, § 24 (as amended). 

". . . The applicant, or, if the applicant is a corporation, its resident 
manager, superintendent or official representative, shall be at least 
twenty-five years of age and of good moral character, and, unless such 
application is for a license to engage in the business of watch, guard or 
patrol agency, shall have been regularly employed for not less than 
three years as a detective doing investigating work, a member of an 
investigative service of the United States, or a police officer, of a rank 
or grade higher than that of patrolman, of the commonwealth or any 
political subdivision thereof. 

After fulfilling these qualifications, an applicant may apply for a 
license under G.L. c. 147, § 25. 

"The commissioner may grant to an applicant complying with the 
provisions of section twenty-four a license to engage in the private de- 
tective business or a license to engage in the business of watch, guard 
or patrol agency; provided, however, that no such license shall be 
granted to any person who has been convicted in any state of the 
United States of a felony. . . . (Emphasis supplied.) 



P.D. 12. 165 

In order to ascertain what is meant by the phrase "private detective 
business" as used in this licensing section, one must turn to the defini- 
tion section. 

G.L. c. 147, § 22 (as amended). 

"In this section and in sections twenty-three to thirty, inclusive, the 
following words shall have the following meanings unless a different 
meaning is clearly required by the context: 

'private detective business', the business of private detective or private 
investigator, and the business of watch, guard or patrol agency." 

Reading G.L. c. 147, § 22 together with § 25, it is evident that a license 
to engage in the private detective business also includes the right to 
engage in the business of watch, guard or patrol agency. 



The converse, however, is not true. One who has qualified only to 
engage in the business of watch, guard or patrol agency may not 
be engaged in the further business of being a private detective. 

In light of these statutory provisions, it is my opinion that a person 
who has fulfilled the qualifications to engage in the private detective 
business and has been licensed to do so may engage also in the business 
of watch, guard or patrol agency without obtaining a second license. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Department of Public Works may grant an assignable option to 
purchase lands deemed to be no longer required for highway 
purposes. 

June 10, 1963. 

Hon. Jack Ricciardi, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion as to whether your 
department has authority under G.L. c. 81, § 7E to execute an assign- 
able option in favor of the United States Post Office Department, grant- 
ing the Post Office Department the right to purchase a parcel of land 
located in Worcester. 

It is my opinion that execution of an assignable option is permissible 
within the provisions of c. 81, § 7E. 

Said statutory provision authorizes the deparment to sell at public 
or private sale any land which the department determines is no longer 
necessary for State highway pinposes. No cases specifically state that 
by granting a power of sale, a statute thereby impliedly grants a 
power to option. However, each express power granted by a statute, 
such as a power to sell, carries with it by implication all incidental 
authority required for the full and efficient exercise of the power con- 
ferred. "All ordinary means reasonably necessary for the full exercise 
of the power . . ." conferred may be used. Bureau of Old Age Assistance 
of Natick V. Commissioner of Public Welfare, 326 Mass. 121, 93 NE 
2d 267, 1950. 

"The Legislature need not enumerate nor specify, definitely and 
precisely, each and every ancillary act. ... It is enough for the Legisla- 
ture to impose the duty to be performed within a prescribed field for 



166 P.D. 12. 

a designated end, leaving to the board's discretion the selection of the 
appropriate methods and means and the other administrative details 
to be employed in accomplishing the statutory purpose." Scannell v. 
State Ballot Laio Commission, 324 Muss. 494, 87 NE 2d 16, 1949. 

Thus, the Department of Public Works has discretion to employ such 
means as it sees fit toward accomplishing sale of lands no longer 
needed for State highway purposes. Grant of an option is, in my opinion, 
an appropriate ancillary step toward exercising a power of sale. 

Therefore, in expressly conferring power of sale on the department, 
c. 81, § 7E of the General Laws also confers the power to grant an 
option as a reasonable means toward that end. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A provisioji requiriyig the State Treasurer to invest funds in "bonds", 
excluded investment in notes or obligations other than bonds. 

June 12, 1963. 
Hon. John T. Driscoll, Treasurer and Receiver General. 

Dear Sir: — You have requested my opinion as to the applicability 
of G.L. c. 32A, § 9A with reference to the investment of funds. 

Your request relates specifically to the use of the word "bonds" in 
the above section which reads: 

"Subject in each instance to the approval of the investment com.mittee 
established under the provisions of this section, the state treasurer shall 
invest and reinvest such funds to the extent not required for current 
disbursements as authorized h\' section nine in bonds . . . which are 
legal for the investment of funds of savings banks under the laws of 
the commonwealth. . . ." 

There was a similar provision for the investment of funds in G.L. 
c. 32, § 23 wherein you are required to invest in bonds. However, this 
provision was amended in 1961 to allow the investment of funds "in 
securities, other than mortgages or collateral loans, which are legal 
for the investment of funds of savings banks under the laws of the 
commonwealth. . . . "St. 1961, c. 441, § 2. 

General Laws c. 168, § 42 authorizes Savings Banks to "invest in 
bonds, notes or other interest-bearing obligations of the following 
classes. . . ." 

On the basis of the above it is my opinion that the use of the word 
"bonds" in G.L. c. 32A, § 9A is restricted to the purchase of bonds 
to the exclusion of notes or other interest-bearing obligations. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12. 167 

The pension of a state police officer must be computed on the salary 
ichich was actually paid to him at the time of his retirement. 

June 12, 1963. 
Hon. John T. Driscoll, Treasurer and Receiver-General. 

Dear Sir: — You have asked my opinion relative to the computation 
of the pension of a former patrolman of the Department of Public 
Safety, which matter is currently before the Board of Retirement. 

You state that the former patrolman was retired under the provisions 
of c. 32, § 57, effective as of close of business March 15, 1951. On 
March 16, 1951 his pension payments were begun and were computed 
at the rate of 62% of his regular salary. 

You further state that on March 29, 1951 a general order, #1250, 
was issued by the department in which it was announced that the 
applicant was promoted to the grade of Special Officer Sergeant, effec- 
tive March 15, 1951. The processing of those papers was never com- 
pleted and the applicant never received the salary attached to the 
higher grade. 

Pursuant to these facts you ask whether your office can now recompute 
the applicant's pension, leased oji his retirement at the higher grade, 
and make necessary adjustments retroactive to March 16, 1951. 

Chapter 32, § 57 provides thai a veteran who has been in the service 
of the Commonwealth for a period of ten years may be retired at one- 
half of the highest annual rate of compensation payable to him while 
he was holding the grade held by him at his retirement with certain 
additions for length of service. 

In view of the fact that the subject of your inquiry did not serve 
even a single day under the higher grade, it is inconceivable that he 
is entitled to a greater pension based upon said promotion. ". . . the 
amount of the pension must be capable of computation at the time 
of retirement. . . ." Selectmen of Brookline v. Allen, 325 Mass. 482 at 
486. The computation of the pension in question is to be based 
upon the payments actually received by the retiring employee. The 
phrase "payable to him while he was holding the grade held by him 
at his retirement", as it appears in c. 32, § 57, therefore, is to be 
construed as meaning paid. It is to be noted that the subject of your 
inquir)' was never compensated at the grade of "Special Officer Sergeant." 

In view of the foregoing, I am constrained to answer your inquiry 
in the negative. 

Very truly yours, 
Edward W. Brooke, Attorney General. 

A regional school district may authorize a bond issue solely for the 
purpose of preparing architectural plans and specifications for the 
construction of a regional school. 

June 19, 1963. 
Hon. Simeon J. Domas, Administrator, School Building Assistance Com- 
mission. 
Hon. Arthur H. MacKinnon, Emergency Finance Board. 

Gentlemen: — In a recent letter you have asked my opinion concern- 
ing G.L. c. 71, § 16 (d), which reads as follows: 



168 P.D. 12. 

"To incur debt ior the purpose of acquiring land and constructing, 
reconstructing, adding to, and equipping a school building or buildings 
for a term not exceeding twenty years or for the purpose of remodeling 
and making extraordinary repairs to a school building or buildings for 
a term not exceeding ten years; provided, however, that any indebted- 
ness so incurred shall not exceed an amount approved by the emergency 
finance board; and provided, further, that written notice of the amount 
of the debt and of the general purposes for which it was authorized 
shall be given to the board ^f selectmen in each of the towns compris- 
ing the district not later than seven days after the date on which 
said debt was authorized by the district committee; and no debt may 
be incurred un.til the expiration of thirty days from the date on which 
said debt was so authorized; and prior to the expiration of said period 
any member town of the regional school district may call a town meet- 
ing for the purpose of expressing disapproval of the amount of debt 
authorized by the district committee, and if at such meeting a majority 
of the voters present and voting thereon express disapproval of the 
amount authorized by the district committee, the said clebt shall not 
be incurred and the district school committee shall thereupon prepare 
an alternative proposal and a new or revised authorization to incur 
debt." 

You have attached to your letter copies of pertinent statutes and 
ask specifically whether a regional school district may, under the 
provisions of clause (d) of § 16 of c. 71 of the General Laws, incur 
debt only for the purpose of preparing architectural plans and speci- 
fications for the construction of a regional school. You make reference 
to the fact that various regional school districts have in many cases 
made two separate board authorizations, the first one for the purpose 
of preparing plans and specifications for the construction of the school 
and the second one for the purpose of completing the construction. In 
view of this reference, I assume that what you wish to know is whether 
a regional school district may first authorize the incurring of debt only 
for the purpose of preparing plans, and then authorize, at a later date, 
a bond issue for the entire cost of the school, and in that light I under- 
take to answer you. 

The purpose of the legislation in question is, in my opinion, to pin- 
point responsibility for the general construction and operation of the 
schools of the various school districts and to aid the duly constituted 
body to easily carry out these responsibilities. I am unable to determine 
that there was intended any restrictive measures to hamper the smooth 
functioning of the body politic. 

It is a well-established principle of law, set forth in many cases, that 
a statute as a whole ought, if possible, to be so construed as to make 
it an effectual piece of legislation in harmony with common sense 
and sound reason. 

Acford v. Auditor of City of Cambridge, 300 Mass. 391. 

Manser v. Secretary of Commonwealth, 301 Mass. 264. 

Selectmen of Topsfield v. State Racing Commission, 324 Mass. 309. 

Sun Oil Co. V. Director of Division on Necessaries of Life, 340 Mass. 
235. 

Stronger language may be found in McCarthy v. Woburn Housing 
Authority, 341 Mass. 539, where the Court held that a construction 



P.D. 12. 169 

of a statute which would lead to an absurd and unreasonable conclusion 
is not to be adopted where its language is fairly susceptible to a con- 
struction leading to a logical and sensible result. 

Such an interpretation must be placed upon G.L. c. 71, § 16, and 
in view of the foregoing, it is my opinion that a regional school district 
may authorize a bond issue solely for the purpose of preparing archi- 
tectural plans and specifications for the construction of a regional school. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

No further legislative permission than that contained in the existing 
statutes is necessary for the promulgation of certain plumbing codes 
by the Board of Examiners of Plumbing. 

June 24, 1963. 
Mrs. Helen C. Sullivan, Director of Registration. 

Dear Madam: — You have requested my opinion relative to the fol- 
lowing: 

"Under G.L. c. 142, § 21, is it necessary for the Board of State Ex- 
aminers of Plumbers to secure the approval of the General Court in 
order to formulate or revise rules relative to the construction, alteration, 
repair and inspection of all plumbing work in buildings owned and 
used by the Commonwealth? 

"Under G.L. c. 142, § 8, is it necessary for the Board of State Ex- 
aminers of Plumbers to secure the approval of the General Court in 
order to formulate or revise rules relative to the construction, alteration, 
repair and inspection of all plumbing work in towns that petition this 
Board for regulations?" 

Chapter 142, § 21 of the General Laws provides: 

"The examiners shall formulate rules relative to the construction, 
alteration, repair and inspection of all plumbing work in buildings 
owned and used by the commonwealth, subject to the approval of the 
department of public health, and all plans for plumbing in such build- 
ings shall be subject to the approval of the examiners." 

It is clear that § 21 of the statute gives the examiners the power to 
formulate rules relative to plumbing work in buildings owned and 
used by the Commonwealth. To hold that in each instance the ex- 
aminers must return to the Legislature in order to revise such rules 
would, indeed, be a cumbersome procedure and not within the scope 
and the intent of the statute. 

Accordingly, it is my opinion that the examiners may formulate or 
revise rules under this section without the necessity of permissive 
legislation therefor. 

Section 8 of said c. 142 provides for the promulgation of rules by 
the examiners upon the petition of the Board of Health of any town. 
Accordingly, the Board of State Examiners of Plumbers may not on 
its own motion originally prescribe, nor formulate nor revise, regula- 
tions for towns unless it has received a petition by the appropriate 
Board of Health. 



170 P.D. 12. 

The said § 8 gives the Board the power to revise such regulations 
should a Board of Health petition for same. 

Accordingly, it is my opinion that, under § 21 of c. 142, neither 
upon the original formulation of rules nor revision thereof is it 
necessary for the Board to seek permissive legislation enabling same. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The term of the incumbent Registrar of Motor Vehicles on December 12, 
1962, expired on that day by virtue of St. 1959, c. 562, and his 
successor is to serve for the balance of a term of five years beginning 
on said December 12, 1962. 

June 24, 1963. 
Hon. Kevin H. White, Secretary of the Cornmonxuealth. 

Dear Sir: — In a recent letter your requested my opinion on the 
following matter: 

"On April 26, 1956 Rudolph F. King was reappointed Registrar of 
Motor Vehicles for a five-year term under the provisions of G.L. c. 16, 
§ 5, the expiration date being April 24, 1961. On November 30, 1957, 
Mr. King retired from that appointive office. Subsequently, on Decem- 
ber 12, 1957, Clement A. Riley was appointed by former Governor 
Foster Furcolo to the office of Registrar for the unexpired term, the 
date of expiration being April 24, 1961. In 1959 the Great and General 
Court enacted c. 562 of St. 1959 which reads as follows: 

'Notwithstanding any provision of law to the contrary, the term of 
office of the incumbent, on the date of the passage of this act, of the 
office of registrar of motor vehicles shall be five years from the date 
on which he was appointed.' 

"Accordingly the date of expiration of Registrar Riley's term became 
December 12, 1962. This act purports to be applicable only to the 
then incumbent Registrar. On May 16, 1963 James Lawton was appointed 
and confirmed as Registrar of Motor Vehicles. 



"Is the date of expiration of Registrar Lawton's term April 24, 1966, 
i.e., the remainder of the original expiration, or December 12, 1967, 
the remainder of Mr. Riley's expiration by virtue of c. 562 of St. 1959?" 

Under the provisions of St. 1959, c. 562, the term of office of the 
incumbent of the office of Registrar of Motor Vehicles at the time the 
act was passed at the expiration of five years from the date on which 
he was appointed. 

General Laws c. 30, § 10, which is applicable to the Registrar of 
Motor Vehicles, provides, in part, that ". . . the appointment of a 
successor of any incumbent . . . who is holding over after the expira- 
tion of his term of office shall be made . . . for the remainder of the 
term which would have begun at such expiration if his successor had 
then been appointed." 

General Laws c. 16, § 5 provides a term of five years for the Registrar 
of Motor Vehicles. 



P.D. 12. 171 

The appointment of the present Registrar on May 16, 1963 was 
as the successor of the then incumbent, who was the incumbent referred 
to in St. 1959, c. 562. 

The incumbent of the office of Registrar prior to the appointment 
of the present Registrar was holding over after the expiration of his 
term of office. 

Under the provisions of G.L. c. 30, § 10, the successor of such an 
incumbent is to be appointed for the term which would have begun 
at the expiration of the term of the incumbent if his successor had then 
been appointed. 

The period of any term to begin at the expiration of the term of the 
present Registrar's predecessor under G.L. c. 16, § 5 had to be for five 
years. 

It is, therefore, my opinion that the date of expiration of the present 
incumbent's term is five years from the date of expiration of the term 
of his predecessor. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Under St. 1960, c. 635 , § 8 (Government Center), the annual payment 
in lieu of taxes to Boston is to equal the taxes received by the city 
as the result of the assessed values made as of January 1, 1959, 
reduced by any abatements. 

June 26, 1963. 

Mr. Leo F. Benoit, Chairman, State Housing Board. 

Dear Sir: — You have requested an opinion as to the construction of 
the provisions of § 8 of c. 635, St. 1960. 

Said c. 635 established the Government Center Commission and 
authorized it to construct a State Office building and other buildings 
in the City of Boston. 

Section 8 of the Act reads as follows: 

"During each year after the acquisition of real estate under this act, 
the commonwealth shall make a payment in lieu of taxes to the city of 
Boston equal to the amount which the city actually received for taxes 
as of January first of the year preceding the passage of this act, on 
the land, buildings and other improvements comprising the real estate 
so acquired, as reduced by all abatements, if any." 

You state that "The question now arises should the payment in lieu 
of taxes referred to in said section 8 for land taken be based upon 
the actual taxes received or collected on the 1958 assessments up to 
January 1, 1959 or be based upon the assessed valuations as of January 
1, 1959, and collected through the year of 1959 . . ." and ask to be 
advised as to the correct interpretation of the section. 

I advise you that, in my opinion, the amount to be paid the city 
in lieu of taxes is to be based upon the amounts actually received by 
the city for taxes as a result of the assessed valuations made as of 
January 1, 1959, reduced by all abatements, whether the amounts were 
received by the city in 1959 or were received thereafter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



172 P.D. 12. 

St. 1962, c. 798, authorizes the suspension of a state officer convicted 
after its effective date upon an indictment returned prior thereto. 

June 26, 1963. 
Hon. Jack P. Ricciardi, Coimnissiouer of Public Works. 

Dear Sir: — In a recent letter you requested my opinion relative to 
the following: 

"In view of the recent conspiracy conviction of Rodolphe G. Bessette, 
Director of the Division of Waterways of the Department of Public 
Works, I request your opinion as to whether this conviction, as well 
as his pending indictment for peijury, gives me the right to suspend 
Mr. Bessette under the laws of the Commonwealth." 

In substance, yoiu- request relates to the applicability of St. 1962, 
c. 798, now § 59 of c. 30 of the General Laws, to the indictments and 
conviction of Rodolphe G. Bessette. 

Mr. Bessette was indicted for conspiracy and perjury by the Suffolk 
Comity Grand Jury in November, 1962. He has subsequently been 
tried and convicted on June 18, 1963 on the conspiracy count, which 
conviction he has appealed to the Supreme Judicial Court. The trial 
on the perjury indictment is pending. 

Section 59 of c. 30 of the General Laws provides in part: 

"The appointing authority of any department of the commonwealth, 
or of any board, commission or agency thereof, in which a person is 
employed may suspend such person during any period during which 
said person is under indictment for misconduct in his office or employ- 
men of the commonwealth. Notice of said suspension shall be given in 
writing in hand to said person, and the receipt thereof shall auto- 
matically suspend the authority of said person until he is notified, in 
like manner, that his suspension is removed. 

"Any person so suspended shall not receive any compensation or 
salary during the period of such suspension, nor shall the period of 
his suspension be counted in computing his sick leave or vacation bene- 
fits or seniority rights, nor shall any person who retires from service 
while under such suspension be entitled to any pension or retirement 
benefits, notwithstanciing any contrary provisions of law, but all con- 
tributions paid by him into a retirement fund, if any, shall be returned 
to him. 

"A suspension under this section shall not, in any way, be used to 
prejudice the rights of the suspended person either civilly or criminally. 
During the period of any such suspension, the appointing authority 
may fill the position of . . . the suspended employee on a temporary 
basis. . . . 

"If the criminal proceedings against the person suspended are ter- 
minated without a finding or verdict of guilty on any of the charges 
on which he was indicted, his suspension shall be forthwith removed, 
and he shall receive all compensation or salary due him for the period 
of his suspension, and the time of his suspension shall count in deter- 
mining sick leave, vacation, seniority and other rights, and shall be 
counted as creditable service for purposes of retirement." 



P.D. 12. 173 

The obvious intent of this statute is to provide for suspension of a 
public employee when such employee is under indictment for misconduct 
in office. The statute serves an excellent purpose in that it provides for 
suspension of an alleged wrongdoer in office, eliminating the possibility 
of continuing misconduct, promotes confidence of the public in its 
officials as well as sustaining the morale of employees serving the Com- 
monwealth. 

It is to be noted that should a person be suspended under this act 
and be subsequently found not guilty of the charge for which he was 
indicted, he is to be reinstated without prejudice to any rights accruing 
during the period of his suspension. The statute is qualifying in scope 
and intent in that it prescribes a hiatus period of suspension of employ- 
ment pending the determination of an indictment for wrongdoing. 

The conviction of Mr. Bessette for conspiracy dated June 18, 1963 
necessarily includes the indictment for this crime. The Legislature, in 
enacting St. 1962, c. 798, having in mind an indictment for misconduct 
in office or employment of the Commonwealth, clearly intended that 
during such period the person so charged should not continue serving 
the Commonwealth in his given capacity. To hold that the Legislature 
did not comprehend a subsequent conviction under the indictment 
as contemplated, would be an absurd conclusion. Conviction following 
an indictment, duly prosecuted in the Courts of the Comm.onwealth with 
the benefit of counsel for the accused, manifestly falls within the legislative 
intent in enacting St. 1962, c. 798 since the onus of conviction could 
not attach to the crime unless there first had been an indictment of 
the person guilty of misconduct in ofiice. 

Further, the statute recites that the ". . . appointing authority . . . 
may suspend such person during any period during which said person 
is under indictment for misconduct in office . . ." 

The statute was approved July 27, 1962 and liecame efTsctive January 
1, 1963. Thus, since* the effective date of the statute, Mr. Bessette has 
been under indictment. Clearly, such indictments and conviction fall 
within the purview of St. 1962, c. 798 during the period of Mr. Bessette's 
employment by the Commonwealth. 

The indictments alone are sufficient bases for suspension under the 
statute. Since the conviction for conspiracy has been appealed to the 
Supreme Judicial Court it would be inappropriate for me to comment 
on this finding herein and this opinion is not to be construed so as 
to affect the rights of the individual involved on appeal. 

In the recent case of Welch v. Mayor of Taunton, 343 Mass. 485 
(1962), Justice Whittemore, in construing a statute of like purpose, 
held that statute to be applicable to an act committed prior to the 
effective elate of the statute. 

Justice Whittem-ore quoted in part therein the case of Hanscom v. 
Maiden and Melrose Gas Light Co., 220 Mass. 1, 3 (1914), as follows: 
"staiutes . . . relating to remedies and not affecting substantive rights 
. . . commonly are treated as operating retroactively. . . ." 

It is clear and manifest, and need not be dealt with at length at this 
time, that the Legislature, having the power and authority to create 
public offices and prescribed the tenure of public servants serving therein, 
also has the power and authority to provide for revisions or abolish- 
ment of such tenure and offices. 



174 P.D. 12. 

In enacting St. 1962, c. 798, the Legislature provided a new remedy 
lor the protection of the rights of the Connnonwealth and the continued 
elfective operation of its agencies. Prior to the enactment of this legisla- 
tion, the appointing authority had no power to suspend an indicted 
employee save lor the lengthy process of removal and suspension under 
Chapter 31 of the General Laws. It was obvious the legislative intent 
was directed to immediate suspension of the wrongdoer. The statute 
does not impair the contractual or vested rights of the person sus- 
pended inasmuch as should the person indicted be proven not guilty, 
he is restored to his position without impairment of rights. 

The statute is remedial in nature and provides a remedy for a 
wrongful discontinuance already existing as well as for future misconduct. 

As stated in Selectmen of Ameshury v. Citizens Electric Street Rail- 
way Company, 199 Mass. 394, 395 (1908). "This statute . . . was purely 
remedial in its character and did not change any existing rights, it 
naturally would be applicable to proceedings begun after its passage, 
though relating to acts done previously thereto." 

Accordingly, it is my opinion that St. 1962, c. 798 applies to servants 
of the Commonwealth indicted for misconduct during their period of 
employment, whether or not such indictment occurred prior or sub- 
sequent to the passage of the statute. It is therefore my considered 
opinion that you may properly and lawfully suspend Rodolphe G. 
Bessette, as Director of the Division of Waterways of the Department 
of Public Works. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Governor may pardon a person convicted under the bastardy 
statute, but a conditio?! that he continue to aid in the support of 
the child should be imposed. 

June 27, 1963. 

Hon'. Cornelius J. Twomev, Chairman, Advisory Board of Pardons and 
Parole Board. 

Dear Snt: — You have asked my opinion as to whether or not a full 
and complete pardon of a person convicted imder the provisions of 
G.L. c. 123, § 11, as set forth in your letter dated May 24, 1963, 
would in effect or fact wipe out the paternity adjudication, leaving 
the petitioner free of any obligation toward the minor child involved 
in the case. 

It is provided under the provisions of G.L. c. 127, § 152: 

"In a case in which the governor is authorized by the constitution 
to grant a pardon, he may, with the advice and consent of the council, 
and upon the written petition of the prisoner, grant it, subject to such 
conditions, restrictions and limitations as he considers proper, and he 
may issue his warrant to all proper officers to carry such pardon into 
effect. . . ." 

It is my opinion that the petitioner was convicted of an offense 
within the meaning of the above statute for it has been held that the 



P.D. 12. 175 

act described in the statute (G.L. c. 273, § 11) is a criminal offense. 
See Coimnonwealth v. Mekelburg, 235 Mass. 383, 384. 

It is important to note, however, that one of the purposes of bastardy 
statutes is to adjudge a person to be the putative father of the child 
so that he may be compelled to aid the mother in its support. The 
crime charged is closely allied with the duty of the putative father 
to aid in the support of the child. The statute further makes the 
begetting of an illegitimate child a misdemeanor and the non-support 
of such child a distinct and continuing offense. It utilizes the probation 
collection system, iiuidental to criminal proceedings, and adopts the 
practice of the Reciprocal Enforcement of Support Act, so far as it is 
possible. See Conunonwealth v. Domes, 239 Mass. 592; Conmonwealth 
V. Baxter, 267 Mass. 591. 

In view of the history of the legislation, it is my oj^inion that the 
Governor may pardon the offender tor the crime. In his wise discretion, 
however, it would appear that such a pardon should be granted upon 
the condition that the petitioner continue to fulfill his duly to aid 
in the support of the child. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



A "roadwatch," involving stopping vehicles ivithout probable cause, is 
unlaw Jul. 

June 27, 1963. 
Hon. James R. Lawton, Registrar of Motor Vehicles. 

Dear Sir: — Your predecessor has requested my opinion of the legality 
of a "roadwatch," which, according to the request, operates as follows: 
during the night, uniformed law enforcement officers station them- 
selves at various points along the highways of the Commonwealth. There 
they select oncoming vehicles at random and stop them without reason 
to believe that the operator of any particular such vehicle is unlicensed, 
or is committing or has committed any offense, or that any particular 
such vehicle is not properly registered or in legal working order, or 
contains contraband or other seizable property. After each such vehicle 
has stopped, the officers inspect the operator's license, the registration 
of the vehicle, observe the condition of the operator, and check certain 
of the equipment on the vehicle to determine whether it is working 
properly. 

The power to conduct a "roadwatch" must be derived, if at all, by 
implication from §§21 and 25 of c. 90. There is no precedent nor 
authority for such action either in common law or in traditional methods 
of law enforcement. Section 25 provides: 

"Any person who, while operating or in charge of a motor vehicle, 
shall refuse, when requested by a police officer, to give his name and 
address or the name and address of the owner of such motor vehicle, or 
who shall give a false name or address, or who shall refuse or neglect 
to stop when signalled to stop by any police officer who is in uniform 
or who displays his badge conspicuously on the outside of his outer 
coat or garment, or who refuses, on demand of such officer, to produce 



176 P.D. 12. 

his license to operate such vehicle or his certificate of registration, or 
to permit such officer to take the license or certificate in hand for the 
purpose of examination, or who refuses, on demand of such officer, 
to sign his name in the presence of such officer, and any person who on 
the cicman.d of an officer of the police or other ollicer mentioned in 
section twenty-nine or authorized by the registrar, without a reasonable 
excuse fails to deliver his license to operate motor vehicles or the certi- 
ficate of registration of any motor vehicle operated or owned by him 
or the number plates furnished by the registrar for said motor vehicle, 
or who refuses or neglects to produce his license when requested by a 
court or trial justice, shall be punished by a fine of not less than twenty- 
five nor more than one hundred dollars." 

Section 21, prior to its amendment in 1954, provided: 

"Any officer authorized to make arrests may arrest without warrant 
and keep in custody for not more than twenty-four hours, unless Sun- 
day intervenes, any person operating a motor vehicle on any way who 
does not have in his possession a license to operate motor vehicles 
granted to him by the registrar, and who violates any statute, by-law, 
oj-dinance or regulation relating to the operation or control of motor 
vehicles; and at or before the expiration of said period of time such 
person shall be brought before a magistrate and proceeded against 
according to law. An investigator or examiner appointed under section 
twenty-nine, may arrest without warrant, keep in custody for a like 
period, bring before a magistrate and proceed aaginst in like manner, 
any person operating a motor vehicle while under the influence of 
intoxicating liquors, irrespective of his possession of such a license." 

Chapter 669 of St. 1954 amended § 21, by adding after the semicolon, 
the loliowing: 

"and any officer authorized to make arrests, provided such officer 
is in uniform or displaying his badge of office conspicuously on his 
outer coat or garment, may arrest without warrant any person, regard- 
less of whether or not such person has in his possession a license to 
operate motor vehicles issued by the registrar, if such person upon any 
way or in any place to which the public has the right of access, operates 
a motor vehicle after his license or right to operate motor vehicles in 
this state has been suspended or revoked by the registrar, or whoever 
ujDon any way or place to xvhich the public has the right of access 
operates a motor vehicle while under the influence of intoxicating 
licjuor, or whoever uses a motor vehicle without authority knowing that 
such use is unauthorized, or any person who, while operating or in 
charge of a motor vehicle, shall refuse, when requested by such police 
offirer, to give his name and address or the naine and address of the 
owner of such motor vehicle, or who shall refuse on demand of such 
police officer, to produce his license to operate such vehicle or the cer- 
tificate of registration for such vehicle for examination by such officer." 

Subsequent amendments to § 21 authorized the arrest without warrant 
of persons under the influence of narcotics, and made other changes 
not material for these purposes. 

1. Section 25 is directed to the motorist. It sets forth certain of his 
duties while operating a motor vehicle; it does not address itself to 



P.D. 12. 177 

the question of when the officer properly may signal the motorist to 
stop; it does not, in terms, qualify or limit the motorist's obligations. 
Similarly, § 21 sets forth the right of an officer to arrest without a war- 
rant a motorist who, among other things, refuses to comply with the 
requirements of § 25. Like § 25, § 21 does not set forth the circum- 
stances under which the officer first may order the motorist to stop. 
Accordingly, it could be argued that there are no limitations on the 
motorist's obligations; and tliat the corresponding powers of the officer 
must be equally broad. In my judgment, however, the statutes cannot 
be so construed. 

2. Section 25 imposes no duty on the driver to speak to the officer, to 
submit to any test relevant to determine his condition to drive, or to 
permit the officer to inspect the vehicle or any of its equipment. Yet 
compliance with any or all such duties would detain the motorist only 
momentarily. The basic purpose of a roadwatch must be to minimize 
the incidence of highway accidents by clearing the roads of dangerous 
vehicles and drivers. To be sure, no roadwatch could be effective if 
papers were not checked. But on the other hand, the mere inspection 
of papers, without anything more, is so ill-suited to serve the basic 
purpose of a roadwatch as to indicate that the n;iked duties set forth in 
§ 25 express policies wholly luirelated to roadwatches. 

Section 25, to the extent that it deals with the motorist's duties on 
the highways, relates exclusively to problems of identification. An easy 
and trustworthy means of identifying motorist and vehicle ownership 
at the time a violation of the motor vehicle laws is observed is essential 
to the orderly processing of criminal and administrative complaints 
tlierefore. From the information derived as a result of compliance with 
§ 25, the officer, without taking custody of the motorist, may institute 
appropriate administrative or criminal proceedings. See G.L. c. 90, 
§ 20; G.L. c. 276, § 24. In the absence of § 25, the officer would be 
required in many cases to investigate to determine proper identity 
or to arrest. The latter alternative would be oppressive in most cases, 
and both alternatives woidd be imfeasible. Section 21 confirms and 
implements the policy of § 25. If, of course, the officer determines that 
an immediate danger to public safety, such as driving while under 
the influence of alcohol or narcotics, exists, or that a serious offense 
specified in § 21 has been committed he may, under that section, arrest 
the offender without a warrant. But if the motorist has committed one 
of the more common, minor, motor vehicle offenses, such as speeding, 
the officer can not arrest if the motorist complies with § 25. Accordingly, 
in my opinion, § 25 does not authorize an officer to stop a vehicle, but 
only sets forth the duties of a motorist who has theretofore been law- 
fully stopped by such officer. The authority of an officer, as an initial 
matter, to stop a vehicle, which is the condition precedent to § 25's 
becoming operative, must be found elsewhere. 

3. As I indicated earlier, there is no precedent at common law for 
the conduct of a roadwatch. Mnniz v. Mehhnan, 327 Mass. 353, sets 
forth the limits of an officer's authority under circumstances relevant 
to your request. Miiniz was an action for false imprisonment. The evi- 
dence showed that the plaintiff driver was weaving over the road. The 
defendant officer stopped the plaintiff, and thereupon arrested him 
for drunkenness. Plaintiff contended that he was not gnilty of the 
crime. The Supreme Judicial Court first set forth the principle that 



17S P.D. 12: 

" 'If in fact no breach of the peace [which constitutes a misdemeanor] 
has been committed, a mistaken behef on the part of the actor, whether 
induced by a mistake of hiw or of fact and however reasonable, that 
a breach of the peace has been committted by the other, does not confer 
a privilege to arrest.' ", 327 Mass. at 358, quoting with approval, Re- 
statement, Torts, section 119 (o) (com.ment). The Court continued as 
follows- 

"We are not to be understood as intimating that the defendent had 
no right in the circumstances existing here to order the plaintiff to 
stop and to detain him long enough to make a reasonable examination 
concerning his fitness to operate his automobile. See G.L. (Ter. Ed.) 
c. 90, section 25; Commomuealth v. Siillivnn, 311 Mass. 177. Even on 
the plaintiff's story the defendant had probably cause to make the 
investigation which he made. But when he went farther and arrested 
the plaintiff he was required to justify his act by showing that the 
plaintiff had in fact committed the offences for which he was arrested." 

Thus, even if § 25 were to be held to contain a grant of authority 
to police officers on the highways — and the context within which the 
Court cited the section does not indicate this to be the case — the limits 
of such authority as set forth in Muniz fall far short of sanctioning 
random spot checks. True, the language indicates that the standards 
for determining "probable cause to make , . . [an] investigation" 
are less exacting than are those for determining the more traditional 
probable cause to arrest. See Henry v. United States, 361 U.S. 98; 
Johnson v. United States, 333 U.S. 10, Ker v. California, 31 U.S.L.W. 
4611 (U.S.S.Ct. June 10, 1963). But the distinction constitutes an adapta- 
tion of the common law concept of probable cause, rather than its 
abandonment. The officer can observe the passing vehicle for but a 
short time. There is good reason to free him from exposure to actions 
for false arrest whicli would accompany any order to stop, were such 
an order irrevocably to be viewed an "arrest." See Muniz v. Mehlman, 
supra. Furthermore, current highway law enforcement practices, which 
have proved reasonably effective and are generally accepted as unoppres- 
sive by the populace, can proceed within a legal framework. The ulti- 
mate beneficiary of which is the motorist himself. 

"It might be possible, for example, to lessen the risk of arrest without 
probable cause by giving the police clear authorization to stop persons 
for restrained questioning whenever there were circumstances sufficient 
to warrant it, even though not tantamount to probable cause for 
arrest. Such a minor interference with personal liberty would touch 
the right to privacy only to serve it well. If questioning failed to reveal 
probable cause, it would thereby forestall invalid arrests of innocent 
persons on inadequate cause and the attendant invasion of their per- 
sonal liberty and reputation. If it revealed probable cause, it w^ould 
do no more than open the way to a valid arrest. It would then not be 
possible for a guilty defendant to magnify slight detention for question- 
ing, based on probable cause to question, into an arrest lacking the 
validity that proceeds from a higher level of probability, probable cause 
to arrest." Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 
Duke L.j. 319,' 333 (footnote omitted). 



P.D. 12. 179 

4. It is not surprising that neither § 21 nor § 25, in terms, qualifies 
the motorist's obligations or otherwise deals with the problem at hand. 
The sections set forth narrowly-defined rules of conduct for specific 
purposes. They do not pretend to enunciate expansive principles of 
human behavior. They should not be expected to transgress the particu- 
lar subject matter of concern. Sections 21 and 25 are, like most legisla- 
tion, interstitial. As interstices, and without a clear indication to the 
contrary, the sections should be fitted into the context of existing, 
relevant principles. Those principles are set forth in Muniz, supra. So 
viewed, the basis for the absence of specific reference to spot checking 
becomes clear. For the legislative assumption that an officer order 
a motorist only when circumstances exist which justify finther investi- 
gation is perfectly consistent with an absolute obligation of such 
motorist to stop when so ordered. The authority to arrest ^vithout war- 
rant for failure to stop or display a license or registration, is equally 
consistent with an assumption that the initial request to do so not 
be made capriciously. 

5. The 1954 amendment to § 21 is not inconsistent with the above. 
As an amendment to an existing statute, it was doubtless designed to 
extend the policies set forth therein, rather than to enunciate radically 
different, unrelated principles. Had the General Court sought to intro- 
duce such a dramatic change into the existing body of laws, it would 
have done so in a less oblique fashion. Furthermore, the Muniz case, 
decided but a lew years earlier, pointed out the hiatus in the un- 
amended statute which the amendment resolved; the situation which 
existed when, after having stopped the vehicle upon reasonable cause 
to justify an investigation, such investigation proves that the violation 
for which the investigation was instituted had not been committed, but 
that the motorist nonetheless was in violation of § 25. Prior to the 
amendment, the officer would be required to release the motorist. The 
importance of compliance with § 25, however, the Legislature deter- 
mined, justifies the arrest of the motorist under such circumstances. 
Finally, it may well have been thought prior to Muniz that the order 
to stop itself constituted an "arrest." Cf. Thompson v. Boston Publish- 
ing Co., 285 Mass. 344; Opinion of the Attorney General of Washington, 
1959-60, No. 88. If this were the case, and if the officer's investigation 
proved that no violation in fact existed, then the "arrest" would have 
been illegal, see Muniz v. MeJihnan, supra; Commomoealth v. Gorman, 
288 Mass. 294, and discovery of another crime in connection with an 
illegal arrest itself might not justify arrest. E.g., Henry v. United States, 
.S61 U.S. 98. Muniz disspelled any such conceptions, and by holding 
the order to stop to be justified, paved the way for the 1954 amend- 
ment. 

6. Finally, the rules of permissible conduct enunciated above are, in 
my opinion, constitutional. I am not unaware that in Henry v. United 
States, .861 U.S. 98, the Court held an arrest to have been effected when 
a vehicle stopped on orders of the police. This holding, however, was 
based on the Government's concession of the point and on "our view 
o[ tlie f^cts of this particular case," 361 U.S. at 103, which justified 
the conclusion that the officers took custody of the men as soon 
as the car stopped. And even assimiing that the order to stop, whether 
or not technically termed an "arrest" is a "seizure" within the meaning 



180 P.D. 12. 

o£ the Fourth Amendment, the states are free, within the broad con- 
stitutional limitations of "reasonableness," to fashion tlieir own rules 
relative thereto. Ker v. Cnli^ornia, 31 U.S.L.W. 4611 (U.S.S.Ct., June 
10, 1963). As I have indicated, the rules of permissible official conduct 
set forth above constitute a reasonable and sensible accommodation 
between the need for efficient highway law enforcement and the rights 
of the motorist. The highest court of California has evolved similar 
rules, the validity of which were defended by an eminent jurist of 
that Court as follows: 

"We have had to rule in our state on the validity of an arrest in 
several cases in which officers on night patrol have observed auto- 
mobiles or pedestrians in questionable situations that arguably fell 
short of probable cause for arrest. We have upheld the authority of 
officers not only to question but also to make a subsequent arrest on 
the basis of probable cause that developed in the course of the ques- 
tioning. Wlien questioning prompts flight or obvious attempts to con- 
ceal or dispose of something, such action in sequence of the initial 
suspicious circumstances constitutes probable cause for arrest. It would 
seem higlily unrealistic to hold such an arrest invalid on the ground 
that arrest actually coincided with the initial police questioning and 
that the then suspicious circumstances fell short of probable cause for 
arrest. Such technicality would invite the circumvention of building 
up suspicious circumstances to probable cause for arrest, and the eventual 
consequence might be lower standards of arrest. Surely there is a middle 
ground between the excesses of questioning on mere suspicion and of 
invalidating an arrest that followed upon questioning on suspicion 
reasonably generated by the immediate circumstances." (Footnotes 
omitted). Traynor, supra at 334. 

Although the Supreme Court of the United States has not specifically 
ruled on the question, it has indicated that such practice is constitu- 
tional. See Rios v. United States, 364 U.S. 253. 

I am fully aware of the necessity and desirability of retaining broad 
discretion in the Registrar to administer the motor vehicle laws. See 
G.L. c. 90, § 31. But, such discretion obviously must be confined by 
the limits of the principles of the statutes to be administered. As in- 
dicated above, those limits fall short of authorizing roadwatches. It is 
unnecessary for me, in view of this opinion, to consider the con- 
stitutionality of any statute which granted such authorization. See 
CarroU v. United States, 267 U.S. 132; United States v. DiRe, 332 U.S. 
581; Rios v. United States, 364 U.S. 253; Henry v. United States, 361 
U.S. 98; Johnson v. United States, 333 U.S. 10. Compare Wirin v. 
Horrall, 85 Cal.App. 2d 497, 193 P. 2d 470 and Opinion of Pa. Attorney 
General dated June 29, 1960 with Miami v. Aronovitz, 114 So. 2d, 784 
(Fla.) and Robertson v. State, 184 Tenn. 277, 198 S.W. 2d, 633. It is 
interesting to note that the Attorney General of Washington concluded 
that a statute of that state, worded almost identically to § 25, did 
not confer authority upon the police to stop a vehicle without probable 
cause to believe that an offense was being committed, although on 
grounds other than those set forth herein. Attorney General's Opinion 
1959-60, No. 88. 



P.D. 12. 181 

It is thereiore my considered opinion, based on the reasons stated 
above, that a roadwatch, as defined in the request by your predecessor 
for an opinion, is unlawful. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



A person charged ivith crime and committed to a State hospital, the 
criminal proceedings against ivhom haxje been dismissed because 
he ivas mentally ill, may be granted temporary leave or be dis- 
charged by the superintey^dent. If such a person should be dis- 
cJiarged, although possible, it is unlikely that criminal proceedings 
would be instituted against him. 

June 27, 196.3. 

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

Dear Sir: — Referring to your recent letter wherein you recited the 
facts as they relate to a certain prisoner, my answer to your questions 
are as follows: 

As to question (1), it would appear that the answer may be found 
in G.L. c. 123, § 105, which provides: 

"If a prisoner under complaint or indictment is committed in ac- 
cordance with section one hundred, and such complaint or indictment 
is dismissed . . . the superintendent of the institution to which commit- 
ment was made or said medical director and the commissioner, in case 
of commitment to the Bridgewater state hospital, as the case may be, 
may permit such prisoner temporarily to leave such institution in ac- 
cordance with sections eighty-eight and ninety, or may discharge such 
prisoner in accordance with section eighty-nine. . . ." 

It would therefore appear that the Legislature has gianted your office 
the right to discharge said petitioner if you deem it expedient. 

As to question (2), it is possible that criminal proceedings could be 
instituted against the petitioner after dismissal of the delinquency com- 
plaint under the provisions of G.L. c. 119, § 61. See A^assar v. Common- 
loealth, 341 Mass. 584, 589. However, it would appear highly unlikely 
that such proceedings would be instituted in view of the opinion of the 
superintendent of the state hospital referred to in the letter attached 
to your request for opinion that the patient was mentally ill at the 
time of the commission of the alleged crime. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



INDEX TO OPINIONS 



PAGE 

Abatement; of State taxes. See Taxation. 

Absentee Ballot; may be mailed to voter's home 67 

Accelerated Highway Program: 

Reimbursement for cost of relocation of "utility facilities." . 137 
Settlement of land damages claims under. See Eminent Domain; 
Highways; Public Works, State Department of. 

Accountants. See Certified Public Accountants. 

Adjutant General; may assign a Brigadier General to Division 

headquarters 93 

Administrative Board; may not reconsider a decision, but may 

rescind action if convinced it acted wrongfully. . . . 133 

Adminislraii\e Procedure Act: 

Records Conservation Board, is not subject to 81 

Setting of rates for nursing and convalescent homes by Director 

of Hospital Costs and Finances 93 

Application of, to action by Alcoholic Beverages Control Com- 
mission in fixing minimum consumer prices Ill 

Aeronautics Commission. See Massachusetts Aeronautics Com- 
mission. 

Age: 

One who has not attained majority, is a "child of school age." 45 

One is not over 50 years of, until his 51st birthday. ... 49 
Aging, Employment of. Council on; membership on, of persons 

over age 70 71 

Airports. See Massachusetts Aeronautics Commission. 

Alcoholic Beverages Control Commission: 

Action to be taken by, to validate minimum consumer prices; 

emergency order Ill 

Dispensing with necessity for hearing prior to approval of mini- 
mum (onsumer prices of alcoholic beverages, as proposed, 
would not be in the public interest 125 

Alcoholic Beverages; manufacturers and wholesalers of, may au- 
thorize others to compile, publish and mail their filed price 
schedules 123 

Alien; taking loyalty oath, and otherwise in compliance with 

laws, may be employed and paid by the Commonwealth. . 57 

Alterations; under state highway construction contract. See Con- 
tract. 

Annual tour of duty. See Armed Forces Reserves. 



P.D. 12. .183 

PAGE 

Anti-discrimination Law; applicable to renting of rooms where 

public solicited, regardless of number of guests ... 31 

Appeal; no, from mandatory revocation of license to operate 

motor vehicles 77 

Apprentice Electrician. See Electrician. 

Apprenticeship Council; membership on, of persons over age 70. 71 

Appropriations: 

For Board of Regional Community Colleges, may be used to 

acquire land and buildings from city of Worcester . . 91 

For construction of athletic plant in Medford by Metropolitan 
District Commission. See State Finance; State Police. 

For Accelerated Highway Program; expenditure of. See High- 
ways. 

Architectmal plans and specifications. See Regional School Dis- 
trict; Bonds. 

Aimed Forces; reinstatement rights of public employees serving in. 41 

Armed Forces Reserves; compensation of public employees for 
periods of absence allowable for annual tour of duty in, but 
not for orientation course 41 

Arrest. See "Roadwatch". 

Art Commission; only, may control historical relics and works of 

art in State House 153 

Assignment. See Option. 

Attorney General; formal opinions of 163 

Ballot: 

Absentee; may be mailed to voter's home 67 

For 1962 State election in Lawrence. See Lawrence. 

Bastardy. See Pardon. 

Beaches, Division of; occupancy of space in Public Works Build- 
ing by 37 

Begetting. See Pardon. 

Bidding. See Competitive Bidding. 

Blind; in rest homes, direct assistance to, not limited to per diem 

rest home rate 55 

Boiler. See Steam Boiler. 

Bond; furnishing of, by corporation, etc., licensed as real estate 

broker 89 

Bonds: 

For expense of preparing architectural plans and specifications, 

may be issued by school district 167 

Investments in. See State Treasurer. 



184 P.D. 12. 



Bonds, of Commonwealth: 

Proceeds ot issue tor highways, may not be used for study of 

charges for street lighting. 55 

Limitations on period of expenditure, of proceeds of, not ap- 
plicable to bonds issued before enactment 155 

Boston: See Constitution. 

Commonwealth liable to, lor sewer charges 67 

Basis for payment, in lieu of taxes to, by Government Center 

Commission. 171 

Boston Elevated Railway Company. See Metropolitan Transit 
Authority; Conflict of Interest Law. 

Boston and Maine Railroad; obligations of under 1946 lease of 

Hoosac Pier 39 

Buildings, bidding procedure on public, not applicable to proj- 
ect for dam across Mystic River 151 

"Certified Public Accountant"; use of words in name of non- 
profit membership corporation for social and cultural pur- 
poses permitted. 45 

Certified Public Accountants, Board of; determines whether ap- 
plicant a "resident"; "domicil" not necessarily meant. . . 69 

Charles River Basin; Massachusetts Turnpike Authority may, 
under certain circumstances, place fill in, without approval of 
the Metropolitan District Commission 101 

"Child of School Age"; one who has not attained majority is, 45 

Citizen; declaration of intention to become. See Dispensing Op- 
ticians. 

Colleges, Regional Community. See Regional Community Col- 
leges. 

Community College. See Regional Community Colleges. 

Competitive Bidding; procedure for, as to public buildings, not 
applicable to buildings to be erected as part of the project for 
a dam across the Mystic River to be constructed by the 
Metropolitan District Commission. 151 

Comptroller; State. See State Comptroller. 

Confiict of Interest: 

Service as member of the Metropolitan Transit Authority by J 

retired President of Boston Elevated Railway Company "^ 

would not be 137 

Medical Director of Massachusetts Rehabilitation Commission; 

none by, in circumstances stated 81 

Statute, violated, if contract for chapter 90 highway project 
awarded corporate low bidder, officer of which is also a select- 
man of town 83 

Attorney employed by State Labor Relations Commission, with 
right to engage in private practice, is within definition of a 
"Special state employee." 83 



P.D. 12. 185 

PAGE 

Constitution, of Commonwealth: 

Proceeds of highway bond issue could not be used by Metro- 
politan District Commission for study of charges to it for 

street lighting 55 

The General Court is under a duty to reapportion the House 

of Representatives. 123 

Initiative procedure may not be used to propose an amendment 
to abolish the Governor's Council. 
Consumers; minimum retail prices to for alcoholic beverages. See 
Alcoholic Beverages Control Commission. 

Contract: 

For chapter 90 highway project, award of, to corporate low bid- 
der, oflicer of which is a selectman of town, would violate ^ 
conflict of interest statute 83 

For state highway construction; in computing 25% increase in 
cost due to alterations requiring renegotiation, increases due 
to overruns in unit price items and negotiated prices for 
specific alterations are to be included 57 

For state highway design engineering, small engineering part- 
nership entitled to payment for drafting work by partner 
under cost plus provision for payment of ordered plan re- 
visions 107 

Contracts for Construction of Public Works: 

Lien of sub-contractor; retainage for, from amounts due general 

contractor 51 

Provisions of, do not exclude authority of State Comptroller 

to require affidavits, etc., as to claims for payments under 153 

Preference for domestic products under 157 

Convalescent Homes. See Nursing and Convalescent Homes. 

Conviction; for operating motor vehicle under influence. See 
Motor Vehicles. 

Co-operative Banks; deposit of public moneys in, by State Treas- 
urer. 113 

Cost-plus; provision of State highway design engineering contract. 
See Contract. 

Counties; allowances to personnel of, for expenses of mid-day 

meals 47 

Corporation: 

Prohibition of use of words "certified public accountants" by, 
not applicable to prevent use of, in name of non-profit mem- 
bership corporation for social and cultural purposes. . . 45 
Must furnish bond to be licensed as a real estate broker. . . 89 
Revocation of charter of. See State Racing Commission; State 
Secretary. 

Corrupt Practices. See Elections. 

Criminal Defendant; committed to State hospital as mentally 
ill, discharge, etc. See Mentally 111. 



186 P.D. 12. 

PAGE 

Declaration of intent to become citizen. See Dispensing Opti- 
ticians. 

Deed; from Commissioner of Mental Health to Boston Police 

Post 1018, V.F.W., title under 97 

Deer, damages by. See Hunting and Fishing. 

Design; engineering contract for state highway. See Contract. 

Detective; private. See Private Detective. 

Discrimination. See Anti-discrimination Law. 

Dislocated persons. See Relocation Assistance; Public Works, State 
Department of. 

Dispensing Opticians; only citizens may be licensed as — declara- 
tion of intent not enough 143 

District Court: 

Justices of, accumulation of unused vacation credits. . . 131 
Second, of Plymouth, sittings of 143 

Domestic Products; requirement of preference for, on public 

works limitation 157 

"Domicil." See Certified Public Accountant, Board of. 

Driving under the influence. See Motor Vehicles. 

Education; provisions for, of emotionally disturbed children, ap- 
plicable to one who has not attained majority. ... 45 

Education, State Department of: 

Functions of, as to instruction of speech handicapped and hard 
of hearing children attending private schools in towns elect- 
ing to provide such instruction to children in public schools. 

Reimbursement for transportation of pupils attending private 

schools. See Transportation 147 

"Educational Planning." See Southeastern Massachusetts Tech- 
nological Institute. 

Elections: 

Absentee ballot may be mailed to voter's home. . . . 67 
Retired public employees may be polling officers. ... 67 
Financial reports of candidates; State Secretary has no investi- 
gatory powers 79 

Recount; certification of results of, by Governor alone, invalid. 95 

Electrician: 
Journeyman, licensee may contract to install wiring, and em- 
ploy apprentice or helper 69 

Master; non-licensee as, may employ journeyman and appren- 
tice on regular basis 69 

Elevator constructor, maintenance man and repairman; license 

as, must be for all functions 59 



P.D. 12. 187 



Emergency; finding ot, by Alcoholic Beverages Control Commis- 
sion in connection with establishing retail price schedule. Ill 
Eminent Domain: 

Court approval, after hearing, required for settlement of claims 
for takings under Accelerated Highway Program, for amounts 
in excess of $2,500 and of the Review Board figure. . . 117 

State Department of Public Works may not do work in lieu 

of paying money damages lor property taken by. . . . 129 

Reimbursement for relocation of "utility facilities," under Ac- 
celerated Highway Program 137 

See Tidewaters; Relocation Assistance; Public Works, State 
Department of. 

Emotionally Disturbed Children; one who has not attained ma- 
jority is a "child of school age." 45 

Engineer; in charge of steam boiler, absence for inspection trips, 

not permissible. 73 

Engineering; design contract, for State highway. See Contract. 

Examiners, Board of; licensing of elevator constructor, etc. . 59 

Examiners of Plumbing. See Plumbing, Board of Examiners of. 

Expenses: 

Allowances for, of mid-day meals to county personnel. . . 47 
For travel from home to office; of members of Government 

Center Commission. 77 

Federal Grant; for control tower at Logan airport. See Massachu- 
setts Port Authority. 

Federal Savings and Loan Associations; deposit of public moneys 

in, by State Treasurer 113 

Fee: 

Annual, for Sunday entertainment; see Sunday. 
Refund of, for license. See State Racing Commission. 

Fish and Game, Division of. See Hunting and Fishing. 

Forced circulation heaters. See Steam Boiler. 

Foreign Products; use on public works. See Domestic Products; 
Preference. 

Formal Opinions; of Attorney General. See Attorney General. 

Franklin Fair Association, Inc.: 

State Secretary could revoke charter of 115 

Revocation of charter of, made license to it for a racing meeting 

a nullity 121 

General Appropriation Act; provision of 1963, as to recruitment 
rate for state position. See State Officers and Employees. 

General Salary Schedule; for state employees. See University of 
Massachusetts; State Officers and Employees. 



188 P.D. 12. 

PAGE 

Government Center Commission: 

Members of, expenses for travel from home to office. . . 77 
Basis lor payments to City of Boston in lieu of taxes. . . 171 

Governor: 

May appoint retired person over 70 as state department head; 

compensation 73 

May suspend indicted Chairman of State Housing Board, and 

appoint temporary Chairman with powers of Chairman. . 151 
Certification of results of a lecount. See Elections. 
Pardon by, for bastardy. See Pardon. 

Governor and Council: 
Approval of, not required for deposit of public moneys in co- 
operative banks, etc., by State Treasurer 113 

Certification of results of a recount. See Elections. 

Governor's Council; initiative procedure may not be used to pro- 
pose a constitutional amendment to abolish 127 

Group Insurance Commission; dividends received by, use for ad- 
ministrative costs 105 

Group Insurance Trust Fund; Comptroller must make transfer 

from, required by St. 1961, c. 572 129 

Hard of Hearing Children; instructions of. See Speech Handi- 
capped and Hard of Hearing Children; Education, State De- 
partment of. 

Health, Welfare and Retirement Funds; prohibition of exclusion 

of payment for care in Soldiers Homes 39 

Highways: 

Chapter 90 project for construction of; where selectman also 
officer of corporate low bidder award of contract to it would 
violate Conflict of Interest statute 83 

Accelerated Program; use of funds of, for traffic safety devices 
and specifications for roads to be constructed with grants 
under to cities and towns 87 

Settlement of land damage claims, under Accelerated Highway 
Program. See Eminent Domain. 

Engineering design contract for state highway. See Contract. 

Relocation assistance. See Public Works, State Department of. 

Highway Fund; no payments into, on acount of occupancy of 
space in Public Works Building, by Divisions of Waterways, 
Beaches or Motor Boats, required 37 

Hingham, sittings of Second District Court of Plymouth at. . 143 

Historical Relics; in State House. See Art Commission. 

Hoosac Pier; 1946 lease to Boston and Maine R.R. of, and powers 

of Massachusetts Port Authority as to new lease. ... 39 

Horse Racing. See State Racing Commission. 



P.D. 12. 189 

PAGE 

Hospital Costs: 

Per diem rate for rest homes, does not limit direct assistance 

to blind in rest homes 55 

Setting of rates for nursing and convalescent homes. ... 93 

House of Representatives, reapportionment of. See Constitution, 
of the Commonwealth. 

Housing, State Board of. See State Housing Board. 

Hunting and Fishing; no compensation for damages caused by 

deer or moose allowable to owner posting land against. . 31 

Hurricane Barrier in New Bedford Harbor. See Tidewaters. 

Illegitimacy. See Pardon. 

Indictment: 

Suspension of State officer under, for misconduct in office. See 
State Officers and Employees. Of Chairman of State Hous- 
ing Board. See State Housing Board; Governor; State Offi- 
cers and Employees. 

Insanity. See Mentally 111. 

Insurance: 

Prohibition of policy exclusion of payment for care in Soldiers 

Homes. 39 

See Group Insurance Commission. 

Intoxicating liquors. See Alcoholic Beverages Control Commis- 
sion; Motor Vehicles. 

Journeyman Electrician. See Electrician. 

Labor and Industries. See Apprenticeship Council; Aging, Em- 
ployment of, Council on. 

Labor Relations Commission; staff attorney employed by, with 
right to engage in private practice, is within definition of 
"Special state employee" in Conflict of Interest Law. . . 83 

Land Takings. See Eminent domain. 

Lawrence; question of acceptance by voters of, of statute as to re- 
gional vocational school district, may be placed on ballot for 
1962 State election 53 

Lease; of Hoosac Pier, obligations of Boston and Maine R.R. 
under 1946 lease and powers of Massachusetts Port Authority 
as to new lease 39 

Legislatvue; apportionment of. See Constitution; House of 
Representatives. 

License: 

As elevator constructor, maintenanceman and repairman. . 59 
See Private Detective; Steam Boiler; State Racing Commission; 
Motor Vehicles. 



190 P.D. 12. 

PAGE 

Lien; of subcontractor on public works; retainage for, from 

amounts due general contractor 51 

Liquor; minimum consumer prices for. See Alcoholic Beverages 
Control Commission. 

Lodgings. See Anti-discrimination Law. 
Logan Airport. See Massachusetts Port Authority. 
Loyalty oath. See Alien. 

Magnetic Tapes; of registrations of motor vehicles, sale of exclu- 
sive right to copy for commercial use. 135 

Massachusetts Aeronautics Commission; cannot, without enabl- 
ing legislation, assume control over state airports to be built. 157 

Massachusetts Port Authority: 

1946 Lease of Hoosac Pier to Boston and Maine R.R., obliga- 
tions of lessee under and Authority's powers as to negotiation 
of new lease 39 

Must remit collections of accounts due the Commonwealth to 

the State Treasurer 159 

Is entitled to share federal grant for construction of control 

tower completed by the Authority 159 

Massachusetts Rehabilitations Commission. See Conflict of In- 
terest. 

Massachusetts Turnpike Authority; under certain circumstances 
may place fill in Charles River Basin without approval of 
Metropolitan District Commission 101 

Massachusetts, University of. See University of Massachusetts. 

Master Electrician. See Electrician. 

Medford, City of; construction of athletic plant in, by Metropoli- 
tan District Commission. See State Finance. 

Medical student; may serve as private duty nurse without being 

registered by Nursing Board 55 

Mental Health: 

Commissioner of, transfer of land to Boston Police Post 1018, 

V.F.W., title of grantee 97 

Appointment of retired person over 70 as Commissioner of. See 
Governor. 

Mentally 111; defendant, in criminal proceeding, committed to 
State hospital as, grant of temporary leave or discharge by su- 
perintendent. 181 

Metropolitan District Commission: 

Use of highway bond issue money for study of street lighting 

charges 55 

Under certain circumstances the Massachusetts Tiunpike Au- 
thority may place fill in Charles River Basin without ap- 
proval by 101 

Bidding on dam project of, across Mystic River. See Competi- 
tive Bidding. 



P.D. 12. 191 

PAGE 

Metropolitan Transit Authority; service of retired president of 
Boston Elevated Railway Company as member of, would not 
violate Conflict of Interest Law, etc 137 

Misappropriation; of funds of employing unit, by member of retire- 
ment system, forfeiture of rights 133 

Microfilms; of registrations of motor vehicles, sale of exclusive 

right to copy for commercial use 135 

Mid-day Meals; allowances for expenses of, to county personnel. 47 

Military Service, of public employees. See Armed Forces; Armed 
Forces Reserves. 

Militia. See Adjutant General. 

Minimum Consumer Prices; for alcoholic beverages. See Alcoholic 
Beverages Control Commission. 

Minimum; salary rate above, not permissible where person re- 
cruited for state position has been in its service. . . . 121 

Misconduct; in office, suspension of state officers convicted and 
under indictment for. See State Officers and employees; State 
Housing Board. 

Moose, damages by. See Hunting and Fishing. 

Motion Pictures; license approved by Commissioner of Public 

Safety required for showing on Sunday 37 

Motion Picture Houses; annual fee for Sunday operation. . 61 

Motor Boats, Division of; occupancy of space in Public Works 

Building by 37 

Motor Vehicles: 

under the influence, involving death 63 

Operator's license, life revocation for subsequent offense of driv- 
Operator's license, no appeal from mandatory revocation by 

Registrar of 77 

Mandatory revocation ot license to operate, for conviction for 
driving under the influence, not applicable in case of acquit- 
tal after withdrawal of guilty plea 117 

Procedure for sale of exclusive right to copy magnetic tapes 
and microfilms of registrations of, for commercial use. . 135 

Registrar of, term of incumbent 169 

"Roadwatch," involving stopping without cause, is unlawful. 175 

National Guard. See Adjutant General; Armed Forces; Armed 
Forces Reserves. 

Natural Resources. See Hunting and Fishing. 

New Bedford Harbor; hurricane barrier in. See Tidewaters. 

"Next state election." See Lawrence. 

Notes; investments in. See State Treasurer. 



192 P.D. 12. 

PAGE 

Nursing, Board of Registration of; medical students may serve as 

private duty nurses without being registered by. . . . 55 

Nursing and Convalescent Homes; rates for, setting of, by Director 

of Hospital Costs and Finances 93 

Officer. See State Officers and Employees. 

Opinions of Attorney General. See Attorney General. 

Opticians. See Dispensing Opticians. 

Option; assignable for purchase of public land, execution by State 

Department of Public Works, authorized 165 

Pardon; Governor may, for bastardy — condition for continued 

support should be imposed 17.^ 

Partnership: 

Must furnish bond, to be licensed as a real estate broker. . 89 
Having design engineering contract for state highway construct- 

tion, payments under cost-plus provision for changes. . . 107 

Patient; at State hospital, committed as mentally ill criminal de- 
fendant. See Mentally 111. 

Pharmacy: 

Ownership of a pharmacy not a prerequisite for appointment 

to. Board of 115 

Board of, what records of, are public records 149 

Plumbing, Board of Examiners of; has authority under existing 

statutes to promulgate plumbing codes 169 

Police. See State Police; "Roadwatch." 

Polling Officers; retired public employees, may be. . . . 67 

Port Authority. See Massachusetts Port Authority. 

Preference; for domestic products, on public works, limitation. 157 

Price Schedules; for alcoholic beverages. See Alcoholic Beverages 
Control Commission. 

Private Detective; license, covers watch, guard or patrol agency. 163 

Professional Staff. See University of Massachusetts; Regional 
Community Colleges. 

Provisional Employees; serving in armed forces, and armed forces 
reserves, reinstatement rights of, and when compensation 
allowed for absenses for service 41 

Provisional State Employee; vacation credits of. See State Officers 
and Employees. 

Public Buildings; bidding procedure on, not applicable to proj- 
ect for dam across Mystic River 151 



P.D. 12. 193 

PAGE 

Public Employees: 

Serving in armed forces or armed forces reserves; reinstatement 

rights of, and when compensation allowed for absences in. 41 

Retired, may be polling officers 67 

Public Entertainments; on Sunday, annual fee for. ... 61 

Public Moneys; deposit of, by State Treasurer 113 

Public Officer: 

Term of incumbent Registrar of Motor Vehicles. . . . 169 
Suspension of indicted. See State Housing Board; Governor 
See also State Officer and Employees. 

Public Records: 

Motor vehicle registrations, on magnetic tape and microfilm, 

sale of exclusive right to copy for commercial use. . . 135 
Of Board of Pharmacy 149 

Public Safety, State Commissioner of; license, approved by, re- 
quired for showing motion pictures on Sunday. ... 37 

Public Safety, State Department of: 

Board of Examiners in; licensing of elevator constructor, etc. 59 
Fee for Sunday entertainments. See Sunday. See also Steam 
Boiler. 

Public Works; lien of subcontractor on, retainage for, from 

amounts clue general contractor 51 

Public Works Building; occupancy of space in, by Divisions of 

Waterways, Beaches and Motor Boats. 37 

Public Works, State Department of: 

Specifications for construction of roads in cities and towns with 

grants of Accelerated Highway Program funds. ... 87 

May not do work in lieu of paying money damages for property 

taken by eminent domain 129 

May not expend funds for advisory relocation assistance, not in- 
volving financial payments, to dislocated persons. . . . 149 

Authorized to grant assignable option to buy public lands 
See Contract; Contracts for Construction of Public Works 

Purchasing Bureau, State; preference for domestic products. 

See Domestic Products; Preference; Contracts for Construction 
of Public Works. 

Racing. See State Racing Commission. 

Real Estate Broker; bond for license as, corporation, etc., must 

furnish 89 

Reapportionment; of House of Representatives. See Constitution, 
of the Commonwealth. 

Records. See Public Records; Board of Pharmacy. 

Records Conservation Board; is not subject to the Administrative 

Procedure Act 81 



194 P.D. 12. 

PAGE 

Recount. See Elections. 

Regional Community Colleges: 

Board of, cannot pay rate above minimum to person already in 

the service of the Commonwealth 

Appropriations for Board of, may be used to acquire land or 
buildings from city of Worcester 

Regional School District; may issue bonds for purpose of prepar- 
ing architectural plans and specifications 

Regional Vocational School District; acceptance of statute as 
to, by Lawrence. See Lawrence. 

Registrar of Motor Vehicles. See Motor Vehicles, Registrar of. 

Registration, Division of. See names of Boards, in. 

Registration; motor vehicle, sale of exclusive right to copy, for 
commercial use. 

Rehabilitation, Massachusetts Commission. See Conflict of In- 
terest. 

Reimbursement, for cost of relocation of "utility facilities." See 
Eminent Domain. For school transportation cost. See Trans- 
portation. 

Relocation of "utility facilities"; reimbursement for cost of. 
See Eminent Domain. 

Relocation Assistance; advisory, State Department of Public 
Works may not expend funds for, not involving financial pay- 
ments to dislocated persons 

Renegotiation; under state highway construction contract, where 
cost increased 25% by alterations. See Contract. 

"Resident." See Certified Public Accountants, Board of. 

Rest Homes; per diem rate for care in, does not limit direct as- 
sistance to blind in rest homes 

Retirement: 

Retired public employees may be polling officers. 

Non-members of retirement system over 70, may serve on Ap- 
prenticeship Council or Council on Employment of Aging. 

Governor may appoint retired member of system, over age of 70, 
as a State department head; compensation 

Forfeiture of rights by member of system for misappropriations 
of funds of employing unit 

Of state police officer, basis for computation of pension. 

Revocation. Of license to operate motor vehicles. See Motor Ve- 
hicles. 
Of charter of corporation. See State Secretary. 

Representatives, House of; reapportionment. See Constitution, of 
the Commonwealth. 



P.D. 12. 195 

PAGE 

Retroactive; operation o£ statute. See State Officers and Employ- 
ees. 

Review Board; for land damages claims under Accelerated High- 
way Program settlements. See Eminent Domain. 

"Roadwatch;" involving stopping motor vehicles without cause, is 

unlawful 175 

Salary; rate above minimum, not permissible where person re- 
cruited for state position has been in its service. . . . 121 

Sale of Public Lands, option for. See Option; Public Works, State 
Department of. 

School Committee. See Speech Handicapped and Hard of Hearing 
Children. 

Schools. Pupils in private; see Speech Handicapped and Hard of 
Hearing Children. Transportation of pupils attending priv- 
ate schools; see Transportation. Regional district; see Region- 
al School District; Lawrence. See also Teacher; Vocational 
School. 

Search. See "Roadwatch." 

Second District Court of Plymouth; sittings of 143 

Secretary of the Commonwealth. See Elections. 

Selectman; conflict of interest. See Highways. 

Self-incrimination; privilege against. See "Roadwatch." 

Settlement; of land damage claims under Accelerated Highway 
Program. See Eminent Domain. 

Sewer Charges; Commonwealth liable to city of Boston for. . 67 

Soldiers Homes; prohibition of exclusive of payment for care in, 
under insurance policies and health fund agreements applica- 
ble to out-of state organizations with Massachusetts members. 39 

Southeastern Massachusetts Technological Institute; expenditures 

for "educational planning" by, limit on 145 

"Special state employee." See Conflict of Interest Law. 

Speech Handicapped and Hard of Hearing Children; instruction 
for, must be made available to private as well as public 
school pupils, priorities, etc 147 

State Comptroller: 

Must make transfer from Group Insurance Trust fund re- 
quired by St. 1961, c. 572 129 

Has authority to require affidavits, etc., on claims of contract- 
ors on public works 153 

State Finance: 

Condition for expenditures from appropriation for construction 
by Metropolitan District Commission of athletic plant in 
Medford 33 



196 P.D. 12. 

PAGE 

No payments into Highway Fund required for occupancy of 
Public Works Building by Divisions of Waterways, Beaches 
and Motor Boats 37 

Reference in item of 1963 General Appropriation Act as to 
number of positions in State Police, prevails over reference 
in item of 1963 Supplementary Appropriation to lesser num- 
ber .... 43 

Use of highway bond issue money by Metropolitan District 
Commission for study of charges to it for street lighting, pro- 
hibited by Constitution 55 

Limitations on period of expenditure of proceeds of bonds of 

Commonwealth, not applicable to issue prior to enactment. 155 

State Hospital; discharge, etc., of criminal defendant committed 
to. See Mentally 111. 

State House. See Art Commission. 

State Housing Board; Governor may suspend indicted Chair- 
man of, and may appoint temporary Chairman with powers of 
Chairman 151 

State Officers and Employees: 

No compensation for vacation credits to provisional employee 

terminating service prior to June 30 35 

Serving in armed forces and armed forces reserves, reinstate- 
ment rights of, and when compensation allowed for absences 
for service 41 

Governor may appoint person over 70 as State department 

head; compensation. 73 

Salary rate for professional personnel hired by Board of Regional 

Community Colleges 75 

Travel expenses of State Officer from home to office, when al- 
lowable. 77 

St. 1962, c. 798, permitting suspension of certain indicted, is not 

applicable to person indicted before its effective date. . 99 

Salary rate in excess of minimum may not be approved for a 
person recruited for state position, if he has been in the state 
service in certain period 121 

Governor may suspend indicted Chairman of State Housing 
Board and appoint a temporary Chairman to have the powers 
of the Chairman 151 

The suspension of a State officer convicted after the effective 
date of St. 1962, c. 798, on an indictment for misconduct in 
office returned prior thereto, is authorized 171 

Term of person appointed as successor to incumbent State offi- 
cer whose term has not expired. See Motor Vehicles, Regis- 
trar of. 

State Police: 

Officer of, pension for, basis of computation 167 

Appropriations for. See State Finance. 

State Racing Commission: 

May refund fees for three days of racing relinquished by li- 
censee 109 



P.D. 12. 197 

PAGE 

Could seek court decrees in certain litigation. . . . 121 
License to Franklin Fair Association, Inc., became a nullity 

when its corporate charter was revoked 121 

State Secretary; could revoke charter of Franklin Fair Associa- 
tion, Inc. 115 

See also Elections. 
State Tax Commission. See Taxation. 
State Treasurer: 

Deposit of public moneys by 113 

Limitation of investments to "bonds," excludes investing in 

notes, etc 165 

See also Massachusetts Port Authority. 

Statute: 

Effective date of 145 

Limiting period for expenditure of proceeds of bond issue, not 

applicable to issue prior to enactment 155 

Retroactive effect. See State Oificers and Employees. 

Steam Boiler: 

Over 150 horsepower, absence of engineer in charge of, for in- 
spection trips, not permissible. 73 

A forced circulation heater is classified as a 91 

Steel; foreign. See Domestic Products. Preference. 

Street Lighting; See State Finance; Constitution of Common- 
wealth; Metropolitan District Commission. 

Subcontractor; on public works, lien of, retainage for, from 

amounts due to general contractor 51 

Successor; to State officer, term of. See Motor Vehicles, Registrar 
of. 

Sunday: 

License approved by Commissioner of Public Safety required 

for showing motion pictures on Sunday 37 

Annual fee for operation of public entertainments, including 

motion picture houses 61 

Suspension; of state officer convicted under indictment for mis- 
conduct in office. See State Officers and Employees. Of in- 
dicted Chairman of State Housing Board. See State Hous- 
ing Board; Governor; State Officers and Employees. 

Tax Commission; State. See Taxation. 

Taxation; abatement of state taxes under G.L. c. 58, § 27, by State 

Tax Commission, only for error or illegality 63 

Teacher: 

In vocational school; qualified person may be appointed as, 

who has not attained 51st birthday. 
See also Regional Community College 49 



198 P.D. 12. 

PAGE 

Term; of office, of incumbent Registrar of Motor Vehicles. See 
Motor Vehicles, Registrar of. 

"Testimonial dinners;" application of G.L. c. 268, § 9A to. . . 109 

Tidewaters; land in, is held subject to public rights, but Com- 
monwealth entitled under its participation agreement with 
Federal authorities for construction of a hurricane barrier in 
New Bedford Harbor, to be reimbursed for sums paid by it 
for takings or rights below high water mark 103 

Traffic Safety Devices; use of Accelerated Highway Program funds 

for 87 

Transportation; of pupils attending private schools outside town, 
no reimbursement for, where no pupils attending public 
schools are furnished transportation to schools outside the 
town 85 

Travel Expense; from home to office, of members of Government 

Center Commission. 77 

Unexpired Term; appointment to, of successor to state officer. 
See Motor Vehicles, Registrar of. 

Unit Price; state highway construction contract. See Contract. 

University of Massachusetts; trustees of, may use rates appearing 
in different grades of General Salary Schedule in fixing range 
for professional staff position 135 

"Utility facilities;" relocation of, reimbursement for cost of. See 

Eminent Domain. 
Vacation: 

Accumulation of unused vacation credits by Justices of District 

Courts 131 

Credits, of provisional state employee. See State Officers and 
Employees 

Veterans. Military service of public employees; See Armed Forces; 
Armed Forces Reserves. 

Veterans of Foreign Wars; Boston Police Post 1018, title of, to 
land transferred to, by Commissioner of Mental Health, 
under St. 1954, c. 416 97 

Veterinary Medicine Approving Authority; cannot delegate au- 
thority to approve schools of veterinary medicine. ... 99 

Vocational School District; acceptance of provisions for, by 
Lawrence, See Lawrence. 

Vocational School; teacher in, qualified person may be appointed 

as, who has not attained 51st birthday 49 

Watch, Guard or Patrol Agency. See Private Detective. 

Water Resources Commission. See Tidewaters. 

Waters. See Tidewaters. 



P.D. 12. 199 

PAGE 

Waterways, Division of; occupancy of space in Public Works 

Building by 37 

Ways; chapter 90, etc. See Highways. 

Worcester, city of, appropriations for Board of Regional Com- 
munity Colleges may be used to acquire land and buildings 
from 91 

Works of Art; in State House. See Art Commission.