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

Public Document 



No. 12 



W$t Commcmtoealtf) of Jfflas&acfjusietta 



REPORT 



ATTORNEY GENERAL 



FOR THE 



Year ending June 30, 1964 




Publication op this Document Approved by Alfred C. Holland, State F urchaSiNO Aoat.'T. 
1100-6-64-941054 Estimated Cost Per Copy: $2.36 



- ..oACliUSETTS 

JUL 2 
STATE HOUSE, BOSTON 



3^o M3, 

C.I 



CJ)e Commontoealtf) of ^a$sac!)U0ett0 



Boston, December 7, 1964 

To the Honorable Senate and House of Representatives: 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1964. 

Respectfully submitted, 

Attorney General 



Cfce Commontoeaitf) of Wjazsatbumt* 

DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
EDWARD W. BROOKE 



First Assistant and Deputy Attorney General 
Edward T. Martin 



Assistant Attorneys General 

Samuel Adams 12 Robert L. Hermann 4 

George W. Arvanitis 3 Lee H. Kozol 

Richard E. Bachman 8 Carter Lee 

James W. Bailey Gael Mahony 5 

Aileen H. Belford Glendora J. McIlwain 

Augustus J. Camelio 13 Paul F. X. Powers 

William I. Cowin 2 Theodore Regnante, Sr. 

Nelson I. Crowther, Jr. Walter J. Skinner 

Jay L. Fialkow 3 John E. Sullivan 

Samuel W. Gaffer Edward M. Swartz 

Benjamin Gargill Herbert F. Travers, Jr. 

Leonard Glazer 6 7 Herbert E. Tucker, Jr. 

Bertha L. Gordon 1 David L. Turner 
David W. Hays 1 

Assistant Attorney General: Director, Division of Public Charities 
James J. Kelleher 
Assistant Attorneys General assigned to Department of Public Works 
Robert A. Belmonte Victor L. Hatem 

Burton F. Berg Foster Herman 

John S. Bottomly Richard A. Hunt 

Frank H. Freedman Rudolph A. Sacco 

Frederic E. Greenman 11 Julian Soshnick 

James N. Gabriel Fred D. Vincent, Jr. 

John J. Grigalus Henry G. Weaver 

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

Robert B. Sheiber 
Assistant Attorneys General assigned to Div. of Employment Security 
Joseph S. Ayoub William H. Lewis 9 

Assistant Attorney General assigned to Veterans' Division 
Donald W. Whitehead 10 Roger H. Woodworth 

Chief Clerk 

Russell F. Landrigan 

Head Administrative Assistant 

Edward J. White 

1 Appointed, July 1, 1963 « Appointed, November 21, 1963 

2 Appointed, July 17, 1963 9 Appointed, December 10, 1963 

3 Resigned, August 15, 1963 10 Resigned, February 3, 1964 

4 Appointed, August 22, 1963 u Appointed, March 9, 1964 
s Resigned, September 15, 1963 12 Resigned, April 17, 1964 

6 Appointed, September 25, 1963 13 Appointed, April 22, 1964 

7 Resigned, November 20, 1963 



P.D. 12 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
for the Period July 1, 1963-June 30, 1964 



Appropriations 

Attorney General's Salary .... 

Administration, Personal Services and Expenses 
Veterans' Legal Assistance ... 

Claims, Damages by State Owned Cars 
Moral Claims ...... 

Capital Outlay Program, Equipment . 

Total 



$ 20,000.00 

581,182.00 

18,602.00 

100,000.00 

8,000.00 

12,508.70 

$740,292.70 



Expenditures 

Attorney General's Salary .... 

Administration, Personal Services and Expenses 
Veterans' Legal Assistance .... 

Claims, Damages by State Owned Cars 
Moral Claims ...... 

Capital Outlay Program, Equipment . 

Total 



$ 20,000.00 

560,553.02 

17,595.70 

99,995.19 

8,000.00 

6,709.19 

$712,853.10 



Financial statement verified (under requirements of C. 7, S 19 GL) , January 
18, 1965. 

By JOSEPH T. O'SHEA, 

For the Comptroller 



Approved for publishing. 



JOSEPH ALECKS, 

Comptroller 



P.D. 12 



C!)e Commontocaltf) of ejpa$s;acI)U0ett$ 



Department of the Attorney General 
Boston, December 7, 1964 

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, 1964, totaling 30,115, are tabulated as follows: 

Extradition and interstate rendition 

Land Court petitions ..... 

Land Damage cases arising from the taking of land: 

Department of Public Works 

Metropolitan District Commission 

Civil Defense ...... 

Department of Natural Resources 

Department of Public Safety 

Department of Public Utilities 

Government Center Commission . 

Lowell Technological Institute 

Massachusetts Maritime Academy 

Massachusetts Turnpike Authority 

Salem Teachers College .... 

Southeast Massachusetts Technological Institute 

State Reclamation Board .... 

Town of Tewskbury Water Commissioners Board 

County Commissioners, Worcester 

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

Commonwealth ..... 

Estates involving application of funds given to public charities 
Settlement of cases for support of persons in State institutions 
Small Claims against the Commonwealth 
Workmen's compensation cases, first reports 
Cases in behalf of Division of Employment Security 
Cases in behalf of Veterans' Division . 

Introduction 

My second Annual Report as Attorney General of the Commonwealth 
of Massachusetts, as required by General Laws, Chapter 30, Section 32, 
encompasses the fiscal year from July 1, 1963, to June 30, 1964. 

The reorganization of the Department of the Attorney General into 
twelve divisions together with an outline of the responsibilities and func- 
tions of each Division are detailed in the 1963 Annual Report. Each Divi- 
sion has continued to handle efficiently and expeditiously all matters that 
have come before it. 

The routing of all problems in one sphere to the appropriate section 
of the office has proved to be most beneficial. This procedure has enabled 



113 
225 

2,387 

105 

1 

48 
1 
2 

39 
1 
1 
2 
1 
5 
1 
1 
1 
3 

16,121 
2,100 
558 
338 
6,371 
720 
970 



8 P.D. 12 

the Assistant Attorneys General in each Division to develop an expertise 
in dealing with the matters before them, as similar and related questions 
recurr. Consequently, we have witnessed the development of a "law firm" 
staffed by experts in each area of state administration. 

The workload of the Department is unprecedented in the history of the 
Commonwealth. Dedicated and diligent service to the citizens has been 
possible only because the members of this office are constant and unswerv- 
ing in their devotion to their responsibilities. Public service at its very 
finest has characterized the attitude of the men and women who have 
served the Commonwealth in the Department of the Attorney General. 

In addition to the day-by-day problems occupying the time of the staff, 
each Division has suggested and drafted legislation in an attempt to cor- 
rect and improve existing law. This Department has proposed and worked 
for the passage of remedial legislation which closed loopholes in our laws. 
These changes have greatly strengthened the framework of government 
and have promoted the orderly administration of justice in the Common- 
wealth. The bipartisan support given to many of these measures in and 
out of the Legislature exemplifies, I believe, a salutory change in the moral 
and political climate of Massachusetts. 

The legislative program presented by this Department is included in 
the 1963 Annual Report. To date, the following bills proposed by this 
office have been enacted into law: 

Chapter 44 of the Acts of 1964 An act penalizing the making of false 

written reports by public officers or 
employees. 

Chapter 449 of the Acts of 1964 An act requiring public charities to 

file more detailed financial reports 
with the Division of Public Charities 
of the Department of the Attorney 
General. 

Chapter 287 of the Acts of 1964 An act clarifying the penalty which 

may be imposed upon persons violat- 
ing certain provisions of the Conflict 
of Interest Law, so-called. 

Chapter 457 of the Acts of 1964 An act relating to the appointment of 

taxes in certain eminent domain pro- 
ceedings. 

Chapter 448 of the Acts of 1964 An act relating to the recommenda- 
tions of the Real Estate Review Board 
in the Department of Public Works 
in determining the value of certain 
land taken by eminent domain. 

Chapter 579 of the Acts of 1964 An act relating to proceedings for the 

taking of real estate and interests 
therein by eminent domain. 



P.D. 12 y 

Chapter 548 of the Acts of 1964 An act providing for the payment of 

interest on judgments against the 
Commonwealth and on settlements in 
eminent domain cases. 

Chapter 557 of the Acts of 1964 An act further regulating the issuance 

and contents of search warrants. 

Chapter 458 of the Acts of 1964 An act providing for the payment of 

witness fees to persons assisting the 
Attorney General in the investigation 
of crime. 

Chapter 193 of the Acts of 1964 An act relative to the calling of special 

town meeting by a justice of the peace 
in a town having a form of representa- 
tive town meeting government. 
As this is written, other bills are well on their way to becoming law; 
others have been defeated by the Legislature. 

Those who serve in the Office of the Attorney General are in a unique 
position to appraise the basic soundness of the Massachusetts General 
Laws and how, in fact, the laws are implemented and administered. We 
have, I believe, a responsibility to put this knowledge to constructive use 
by presenting to the Legislature on a regular and sustained basis, remedial 
and pioneering legislation which would improve the fabric of Massachu- 
setts government. 



10 P.D. 12 

Administrative Division 

The responsibilities of the Administrative Division of the Department 
of the Attorney General are wide ranging: — fulfilling requests for opin- 
ions of law from constitutional officers and agency and department heads, 
appearing on the Commonwealth's behalf in civil court proceedings, ad- 
vising the Governor on the constitutionality of pending legislation, com- 
bating anti-trust conspiracies, approving town by-laws. 

In addition, the members of the Division are called upon to answer a 
host of legal questions which do not necessitate the drafting of formal 
opinions. The discussion of legal problems both in person and through 
correspondence with state officials and private citizens further requires 
the attention of this Division. 

The establishment of the Administrative Division as a central clearing- 
house for all opinions issued by the Department is discussed in the An- 
nual Report of 1963. 

During our first full fiscal year in office, the demands upon the Office 
of the Attorney General for opinions has continued to increase. The 
value of the opinions of the Attorney General, as guides for present and 
future governmental and personal conduct, lies in their legal soundness. 
We have tried to combine painstaking and thorough research with skill- 
ful draftsmanship in preparing all opinions. 

A recitation of a partial list of important opinions drafted by the Divi- 
sion this year will graphically demonstrate the scope and variety of the 
Division's responsibilities in the "opinion" phase of its work. 

— An opinion was requested by several public officials regarding polit- 
ical advertising in program books, relative to the Corrupt Practices Act, 
G.L., c. 55. Although corporations cannot ordinarily make political con- 
tributions, the Attorney General ruled that corporations could buy ad- 
vertisements in political program books as long as the corporations were 
receiving appropriate value for their purchase. 

— The subject of which taxicabs had the right to operate at Logan 
Airport was called to the attention of this Division as the result of an 
inquiry by the Department of Public Safety. It was determined that the 
City of Boston could require that taxicabs operating at the Airport be 
licensed by the City. In litigation independently pursued, the opinion 
of the Attorney General has been sustained by the Supreme Judicial 
Court. 

— Pursuant to an opinion prepared by this Division last year interpret- 
ing G.L., c. 30, § 59, the so-called "Perry Law", the Governor of the 
Commonwealth requested further definition of the rights of appointing 
authorities to suspend appointees indicted for misconduct in office. The 
Governor was advised that he might suspend the Commissioner of Public 
Safety pursuant to G.L., c. 30, § 59. However, he was further advised 
that the statute is inapplicable both to offenses by elected officials and to 
offenses bearing no relation to the office or position held by the indicted 
individual at the time the criminal acts in question allegedly were com- 



P.D. 12 11 

mitted. The language and intent of the "Perry Law" has been extensively 
studied and researched so that the interpretations and definitions which 
the Opinions of the Attorney General have set forth would be instru- 
mental in bringing the goals of the statute into proper focus. 

— An important public policy question arose in regard to the effect of 
an absolute pardon upon individuals with criminal records who seek ap- 
pointments to certain positions within the Department of Correction. 
The Commissioner of Correction sought an opinion from the Attorney 
General as to whether absolute pardons enable such persons to be ap- 
pointed to positions involving personal and direct contact with prisoners. 
In an opinion drafted by the Administrative Division, the Attorney Gen- 
eral ruled that when a full pardon is granted, commission of the crime 
cannot be a consideration in the appointment of a pardoned applicant 
to a position involving personal contact with prisoners. 

— A matter that is becoming the subject of increasing public concern — 
eligibility of an individual for parole — was brought to the attention of 
this Division by an inquiry from the Chairman of the Massachusetts 
Parole Board. The propriety of the method employed by the Parole 
Board, under G.L., c. 127, § 133, to compute parole eligibility was at 
question. The practice of the Parole Board was first to reduce the 
prisoner's sentence by deducting from the minimum sentence good con- 
duct credits calculated pursuant to G.L., c. 127, § 129 and then to declare 
the prisoner eligible for parole after two-thirds of such reduced minimum 
sentence had been served. The Opinion of this Department was that 
for purposes of parole, the good conduct deductions should be made from 
minimum sentences, and that the Parole Board was, therefore, properly 
administering G.L., c. 127, § 133. 

— The controversial matter of the distribution of State aid for edu- 
cation to the cities and towns, authorized by c. 70 of the General Laws, 
was subjected to study by this Division at the request of the Commis- 
sioner of Education. The issue revolved around the new apportionment 
of state and county taxes by the General Court, (c. 660 of the Acts of 
1963), which was designed to supersede the apportionment of such taxes 
established pursuant to c. 559 of the Acts of 1945. The opinion declared 
that the valuations specified in the 1963 statute were not to take effect 
before 1965 for all purposes, including that of determining State aid 
amounts, and that, consequently, the Department of Education should 
proceed on the basis of present law, and should prepare the forms for 
State aid in accordance with the valuations appearing in c. 559 of the 
Acts of 1945. 

— The Commissioner of Administration and Finance requested an 
opinion of this office on an extremely technical matter concerning the 
new Executive Office for Administration and Finance, created by Chap- 
ter 757 of the Acts of 1962. Close scrutiny of the statutes relative to the 
offices of both the former Commission of Administration and Finance and 
the new Executive Office for Administration and Finance, as well as of 
the provisions regarding transfer of personnel between the two offices, 
led to the conclusion that the position of Director of Personnel and Stand- 



12 P.D. 12 

ardization existed in the new structure, but that there had been no pro- 
vision for transfer of the individual holding the position in the former 
structure to the new organization. 

— The Conflict of Interest Law, (G.L., c. 268A), which became effective 
May 1, 1963, has required continual and minute analysis and interpreta- 
tion by members of the Division. During the period of this report, 136 
Conflict of Interest Opinions have been issued to State employees regard- 
ing their status under the Law. In addition, informal opinions have 
been rendered to, and conferences held with, members of State agencies, 
city solicitors, town counsels, and municipal officials relative to the effect 
of this statute. The Division has also sent to the 351 cities and towns in 
the Commonwealth interpretive memoranda to aid local officials in under- 
standing and administering the Act and has continued its extensive public 
education program (via news media and personal appearances) to fa- 
miliarize citizens with the provisions and purposes of the Act. Further- 
more, a statistical survey of the classification of municipal employees and 
the operation of the statute throughout the State was compiled by this 
Division from information about the operation of the statute from every 
city and town. This data provides an up-to-date and comprehensive 
guide about the actual effect of the law, its application and how it is 
being implemented and interpreted. This information will prove to be 
invaluable to the Legislature as it reviews the effectiveness of the law. 
The data will help in the drafting of amendments which will make an 
excellent statute even more effective. 

The Administrative Division handles all civil litigation which affects 
the constitutional officers or that is "extraordinary" in nature, and is also 
responsible for much of the litigation work involving state agencies and 
departments. The most notable increase in the workload of this Division 
during the past year has been in this area. Among the matters handled 
in court by members of the Division were cases involving daily Bible- 
reading in the public schools; the legislative pay-raise; the protection of 
marine fisheries; the book Memoirs of a Woman of Pleasure (commonly 
known as Fanny Hill); and the disposition of some works of art owned 
by the Commonwealth. 

After the Supreme Court had declared compulsory Bible-reading in 
public schools to be unlawful, the Commissioner of Education requested 
an opinion regarding the practice of daily reading of the Bible in our 
public schools, pursuant to the Massachusetts statute. The Attorney 
General replied that our statute was indistinguishable from the Penn- 
sylvania statute which the United States Supreme Court had invalidated, 
and that therefore our statute was likewise unconstitutional. Neverthe- 
less, the School Committee of North Brookfield insisted upon the con- 
tinuation of the practice of daily reading of the Bible in its public schools. 
For some months, the Attorney General and the Commissioner of Edu- 
cation engaged in an extensive dialogue with the Town Counsel and 
members of the North Brookfield School Committee, and repeatedly 
conferred with them in attempts to achieve compliance with the law. 
These attempts failed. 



P.D. 12 13 

The Attorney General continued to set forth clearly and unmistakably 
the obligation of the School Committee to comply with the supreme law 
of the land. Still, the Committee refused to comply. To seek uniform 
compliance with the law, this Division, acting on behalf of the Depart- 
ment of the Attorney General, filed a petition with the Supreme Judicial 
Court for a writ of mandamus to order the Committee to discharge its 
duties according to the Constitution. In Attorney General vs. The School 
Committee of North Brook field, a single Justice of the Supreme Judicial 
Court issued the writ, instructing the School Committee to comply with 
the law. The case was appealed to the Full Bench of the Supreme 
Judicial Court, which has recently upheld the action of the Single Justice. 
It is important to note that the point at issue is not the merit of school 
prayer, but, rather, the effect of a U. S. Supreme Court decision upon a 
State statute in conflict with the decision. 

The State Ballot Law Commission declared invalid a substantial 
number of the signatures gathered for the purpose of placing upon the 
ballot a referendum to repeal the statute granting the legislative pay 
raise. Accordingly, the question could not be voted upon by the public. 
In Molesworth v. the State Ballot Law Commission, this office represented 
the State Commission in the Superior Court. The Superior Court Justice 
has reported the case to the Supreme Judicial Court. A hearing is awaited. 

Other litigation of a sensitive and unusual nature in which this Division 
has been involved includes a case regarding the protection of marine fish- 
eries arising from a suit brought by the Department of Natural Resources 
against a contractor. The Director of Marine Fisheries had imposed con- 
ditions prohibiting the filling of a salt water marsh in the Town of Ware- 
ham. The case was argued in the Superior Court and judgment was ren- 
dered for the Department of Natural Resources. An appeal is now pend- 
ing before the Supreme Judicial Court. 

Of most recent note has been the institution of a suit in rem, at the 
request of the Commission Against Obscene Literature, pursuant to the 
agreement between the Attorney General and the District Attorneys, (de- 
scribed in detail in the 1963 Annual Report), against John Cleland's 
Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), in 
order to determine whether the book is obscene. This matter has been 
argued in Superior Court and the decision of the trial justice is awaited. 

An equitable replevin suit has been brought against the Chairman of 
the House Ways and Means Committee on behalf of the State Art Com- 
mission to recover, for the Commission, art treasures owned by the 
Commonwealth. This case has not yet been brought to trial. 

The cases cited above are examples of the extraordinary matters which 
have been handled by the members of the Division. Much of the everyday 
work lies in counselling, advising and representing in court the numerous 
boards, commissions and agencies of the Commonwealth. Members of the 
Division have spent many hours counselling the Board of Registration of 
Architects relative to the preparation of new regulations. The Board of 
Registration of Plumbers has also asked for and received a considerable 
amount of counsel and advice. 



14 P.D. 12 

It is the Civil Service Commission, however, which has the greatest 
need for the Division's Services. Division members render constant legal 
advice and nearly daily representation in the Courts of the Common- 
wealth on behalf of this Commission. 

Efforts have been made to urge our State boards to adopt the necessary 
regulations and to conform to the Administrative Procedure Act (G.L., 
c. 30A) in an attempt to streamline their operations. 

Prior to signing enacted legislation into law, in certain cases, the 
Governor forwards the proposed measure to the Attorney General for 
his opinion relative to its form and constitutionality. It is the responsi- 
bility of this Division to consider such pending legislation in detail. 
Particularly during the latter part of this fiscal year, the number of legis- 
lative proposals awaiting enactment sent to this Department has been 
very heavy. 

Anti-trust work is extremely involved and complex but it is necessary 
and vitally important. A great deal of work is necessary in the prepa- 
ration of briefs and arguments in court in prosecution of these cases. 
As a result of the extensive research and action undertaken by members 
of this Division, approximately $350,000 has been collected for the Com- 
monwealth from overcharges and price-fixing by national utilities and in- 
dustries. This money is being refunded to the cities and towns within 
the State. 

Under the mandate of G.L., c. 40, § 32, which requires that town by- 
laws be approved by the Attorney General before they become effective 
this Division has continued to perform this important function. Advice 
and guidance on a host of municipal problems are also provided to city 
and town officials by the Assistant Attorney General who is assigned to 
this responsibility on a full time basis. 

Civil Rights Division 

Some of the areas in which the Civil Rights Division has made contri- 
butions are discussed below. 

Following the United States Supreme Court decisions in the compan- 
ion cases of Schempp v. The School Committee of Abington Toxunship 
and Murray v. Curlett, decided in June, 1963, which decisions held that 
Bible reading in the public schools was unconstitutional under the First 
and Fourteenth Amendments, the Attorney General rendered two opin- 
ions explaining the decision. In response to the Secretary of the Boston 
School Committee, the Attorney General ruled that the Constitutional 
principle expounded by the United States Supreme Court did in fact ap- 
ply to Massachusetts despite the fact that Massachusetts had not been a 
party before the Court. (The testing of this ruling in the Courts of the 
Commonwealth is discussed in the Administrative Division section of this 
report). 

A little more than a month later, the Attorney General sent to the 
Commissioner of Education the opinion which has come to be known 
as "The School Prayer Ruling" and which has received national recog- 



P.D. 12 15 

nition. In this opinion, a series of questions were answered explaining the 
effect of the United States Supreme Court decisions and establishing 
guides as to what activities could and could not be carried on in the public 
schools. This was the first attempt by a State Attorney General to 
interpret and explain on a practical day-by-day basis, the mandate of the 
United States Supreme Court. 

In another area relative to the first amendment, the Department an- 
swered a request of the Commissioner of Public Safety regarding the li- 
censing powers of municipalities. The opinion declared that the Mayor 
or Selectmen did not have the power to suspend or revoke the license 
of a motion picture theatre operator for having shown a motion picture 
which was considered "objectionable," so long as no actual statute or 
other law had been violated. Expanding on this theme later, the Attor- 
ney General, in a letter to the House Ways and Means Committee, articu- 
lated the principal opposition to a newspaper censorship bill. The bill, 
which proposed to set up a censor within the Attorney General's Office 
to review for accuracy newspaper reports of criminal trials, was finally 
defeated. 

A bitter dispute raged during the past year over alleged de facto seg- 
regation in Boston's schools. Throughout the year, this office has sought 
to apply the principles of law involved in this dispute in a nonpartisan, 
fair and legally correct manner. The Attorney General, in an opinion re- 
quested by the Commissioner of Education, ruled that a proposed school 
boycott scheduled for February 26, 1964, was illegal, because it violated 
statutes of the Commonwealth which provided that children were to be 
in school at a given time. 

Relative to this same dispute, the Boston School Committee rejected 
a joint request by the Attorney General and the Commissioner of Edu- 
cation that the dispute be mediated by the former officials. The dispute 
between the parties then became polarized. The struggle continues and 
is being waged in the political arena. 

Nonetheless this Division continued to examine the problem in the 
light of the applicable statutes, and concluded that the problem had not 
adequately been defined. The Commissioner of Education submitted to 
the Attorney General the question of the legality of a "race census," an 
investigation to obtain information concerning the race of all students 
attending certain grades in the Massachusetts public school system. The 
Attorney General affirmed the legality of such a census. This opinion 
paved the way for the Commissioner's so-called "Blue Ribbon" study, the 
first high level, professional study of the problem undertaken by any 
agency of the Commonwealth. The City of New Bedford contested the 
validity of the Attorney General's opinion and took the matter to court. 
An opinion of the Superior Court is awaited. 

Relative to the extension of the Fair Housing Laws: 

After chapter 197, § 2 of the Acts of 1963 had been enacted into law — 
discussed in the previous Annual Report — a group of Massachusetts 
citizens felt that the new bill was a radical departure from prior Massa- 



16 P.D. 12 

chusetts law and prevented a householder from establishing preferences 
in the leasing of a part of his house in "family" type situation. A test 
case was therefore brought. 

In addition, legislation was proposed which sought to correct the imag- 
ined problem. The amendment was studied by the Civil Liberties Divi- 
sion and the Attorney General. We were convinced that the bill's enact- 
ment would have reinstated the unfortunate situation which Ch. 197 of 
the Acts of 1963 was designed to correct. 

An opinion of the Division was solicited in connection with the test 
case. The Division once more painstakingly analyzed the history and 
structure of the law. The Attorney General concluded that the fears of 
those who had instituted the test case and drafted the amendment 
which the Legislature was considering were without foundation; that, in 
fact, the existing law was not a radical departure from established prin- 
ciple; and that the proposed bill was both unnecessary and unwise. 

The test case was resolved. The Attorney General's analysis was pre- 
sented to the legislative leaders; and the bill was defeated. 

The opinion that stopped the Registry "roadwatch" on the grounds 
that it was an invasion of citizen privacy was discussed in the 1963 Annual 
Report. Recently, another problem involving the liberty of citizens arose. 
The political course would have been to ignore the principles expressed 
in the roadwatch opinion. However, the Department declined such a 
course and submitted a brief, as amicus curiae, in Commonwealth v. 
Lehan, a case in which the Supreme Judicial Court affirmed the princi- 
ples of citizen privacy and radically altered forty years of practice whereby 
police believed themselves able to impose restrictions on the liberty of 
motion of citizens beyond that allowable by law. 

The Civil Rights Division represents the Massachusetts Commission 
Against Discrimination, an administrative agency established to enforce 
our Fair Practices Law. The draft agreement, (discussed in the 1963 An- 
nual Report) prepared by this Division for use in a stalemated case which 
asserted that there was illegal segregation in Boston Public Housing, 
proved to be the basis for fruitful negotiation and ultimately, the foun- 
dation for a signed agreement between the parties involved. It is signif- 
icant that in the summer of 1963, amidst all the rancor and frustration 
engendered by problems of intergroup relationships in Boston, this one 
racial problem was being solved by discussion and negotiation. In this 
effort, the Attorney General's role was significant. 

"The criminal is to go free because the constable has blundered" (Car- 
dozo, J., in People v. Defore, 242 N.Y. 13, 21), is a concept which both 
citizen and policeman find difficult to comprehend. Yet the possibility 
of widespread acquittals due to unlawful arrests has become a very real 
problem. One solution is to attempt to define better this confused area of 
law, as was done in the "roadwatch" opinion and in the presentation of 
two briefs in the above-mentioned Lehan case before the Supreme Judicial 
Court. The obvious other approach is to attempt to better instruct the 
"constable." This Division established the practice of lecturing each State 



P.D. 12 17 

Police Class at Framingham on the law of search and seizure. Further, 
when the Lehan case was decided, the office sent a copy of it to every 
police chief in the Commonwealth, together with a brief summary of its 
content and meaning. Early in his term of office, in a memorandum to all 
police chiefs, the Attorney General laid to rest the confusion surrounding 
the rights of police to eavesdrop on prisoners' conversations. This action 
safeguarded prisoners' rights to talk freely to counsel. 

The Attorney General has sought to impress upon all police chiefs the 
importance of, and to obviate the dangers of incapacity to prove, compli- 
ance with the telephone statute, as has already been mentioned. In a fur- 
ther effort to clarify the rights of prisoners, in September, 1964, this office 
sent to all police chiefs a reminder of statutory rights of prisoners to the 
use of a telephone. The Attorney General noted the likelihood that fail- 
ure to comply with the statute may impede the trial of the case, and rec- 
ommended a form (reprinted below) which would minimize the number 
of false claims of violations by disgruntled prisoners. The action by the 
Attorney General turned out to be farsighted and necessary. For, some 
eight months later, the Massachusetts Supreme Judicial Court ruled that 
evidence obtained from a witness who had not been informed of his rights 
to use a telephone would not be admissible in court. 

Still another approach was adopted in the effort to remove cages from 
some of the criminal courtrooms in our Commonwealth. For several years, 
bills to abolish such relics were presented to the Legislature, amidst much 
publicity. These bills never passed. The Attorney General, therefore, 
sought the opinion of several of the most experienced Superior Court trial 
judges on the benefits and detriments of cages. Using the information so 
obtained, he quietly but persuasively, put the case for abolition to several 
key legislators. Result: the bill to abolish cages was, this year, enacted 
into law. 

The emphasis by the Attorney General on non-partisan legal pro- 
fessionalism in these matters is important. The Prayer Reading and 
Boycott opinions — the most widely publicized civil right decisions made 
this year were issued amidst a storm of controversy. But it is hoped that 
they have engendered respect for the law. For the law applies to the 
strong and to the weak — to the majority, but also to the minorities. 
Perhaps the Attorney General's insistence that sex deviates be accorded 
the due process of law which our statutes provide for them is not "pop- 
ular." Perhaps his decision that the inmates of the state farms not be 
deprived of their access to legal counsel were not decisions which en- 
gendered great popular approval. But such decisions must be based on 
the law and not on the ebb and flow of public approval or disapproval. 



18 P.D. 12 

Prisoner's Right to the Telephone 

Station No. Prisoner: 

Date: Time of arrival: 

Forthwith upon arrival of the above-named prisoner, I informed him 
of his rights to the use of a telephone at his own expense, to communicate 
with his family or friends, or to arrange for release on bail, or to engage 
the services of an attorney; and I permitted such use within an hour 

therefrom. Said prisoner (did not) use the telephone (at about ). 

(did) time 

The above statement is correct. 

Official in charge 

Prisoner (or witness, if prisoner 
refuses to sign) 

Remarks: Whenever the above is not signed by both the official in charge 
and the prisoner, the attendant facts and reasons therefor (such as that 
the prisoner was unconscious, refused to sign, or the like) must be set 
forth; and pertinent facts should in all events be set forth here. 



Official in charge 
The above facts are correct. 



Witness 

Most significantly, the opinions, agreements, legislative arguments, 
judicial appearances of this office, are all matters of public record. This 
office does not give unofficial or casual advice. Its record is set forth in 
print for all to see and it is hoped that it will be subject to scrutiny of 
critics both present and future. 

Contracts Division 

The Contracts Division examines all state contracts and leases for pro- 
priety of legal form. It represents the Commonwealth in all civil actions 
brought by or against it as the result of such contracts and leases. In ad- 
dition, the Division conducts conferences, engages in legal research, and 
prepares briefs, memoranda, and opinions in conjunction with contracts 
problems presented to the Attorney General. 

The influx of the Commonwealth's leases and contracts is voluminous. 
Each such instrument must be carefully, competently and expeditiously 
handled in order to permit the Commonwealth's business to proceed un- 
interruptedly. During the fiscal year members of the Division reviewed 
and approved approximately 1,500 contracts for the state departments and 
agencies of Massachusetts. 



P.D. 12 19 

In order to forestall later litigation from developing, the Division has, 
when requested to do so, continuously given advice and guidance to vari- 
ous state departments to aid them in the preparation, drafts and proper 
execution of contracts and leases affecting their departments. Moreover, 
the Division has investigated the background, researched the appropriate 
statutes, and subsequently rendered advice regarding competitive bidding 
procedures to some twenty state agencies. 

The Contracts Division staff has compiled a series of inter-office legal 
memoranda with detailed analyses on questions related to public works 
construction and other relevant contracts subjects, thereby providing back- 
ground continuity for the Department in these areas of the law. 

Attorneys in this Division have scheduled, attended, directed and mod- 
erated more than seventy-five major conferences between contractors and 
various state and federal agencies. The conduct of these conferences re- 
quired familiarity with public works construction laws, and a knowledge 
and thorough understanding of the detailed background of a host of 
complex and individual situations. 

Members of the Division have been called upon from time to time to 
research and draft numerous opinions and memoranda, and to give tech- 
nical advice in response to inquiries submitted to the Division. 

Some of the more significant topics covered were: 

1. Revision of the Metropolitan Transportation Authority's 
Inter-Agency Indemnity Agreement as to qualification of con- 
tracting firms applying for state contracts; 

2. Release of tax liens for the Metropolitan District Commis- 
sion; 

3. Motorboat regulations and the problems related to their 
operation under G.L., c. 90B (Ter. Ed.); 

4. Effect of interpleader statute in contract situations involving 
the Commonwealth; 

5. Effect of changes in specifications made by an engineer; 

6. Delays and their effect in construction contracts; 

7. Effect of "quantum meruit" actions against the Common- 
wealth. 

Another important function of the Contracts Division is the determina- 
tion of whether state departments may make direct payments to sub- 
contractors having claims against funds retained by the Commonwealth 
under General Laws (Ter. Ed.) c. 30, § 39F, and the issuance of written 
authorizations or disapprovals in connection with such claims. In the 
course of the year some 150 of these determinations were made and issued. 

The Division also has been consulted for advice and examination of 
state leases. Much of the increased activity in this area is due to matters 
relating to the Board of Regional Community Colleges. 

Litigation activity in the Contracts Division has been heavy, requiring 
that three of the five attorneys devote substantially all of their time to 
trial work. 



20 P.D. 12 

Many cases against the Commonwealth were pending when this ad- 
ministration came into office in January of 1963; in addition, numerous 
cases brought by sub-contractors against the general contractor with the 
Commonwealth joined as a co-defendant were awaiting final decision. 
These lien cases all required the drafting, filing, and argument of demur- 
rers or motions to dismiss in order to obtain dismissal of the Common- 
wealth from the actions; however, in many instances appearances and 
arguments in the Commonwealth's behalf were required at the trial. 

The Division received and prepared appropriate pleadings in approxi- 
mately thirty-five cases which were forwarded to outlying counties for at- 
tention. In over one-half of these cases, resident counsel obtained favora- 
ble decrees by using the initial pleadings submitted. 

Members of the Division conducted the successful appeal of several 
cases in the Supreme Judicial Court. One case brought by an aviation 
company against the Commonwealth and the Massachusetts Port Author- 
ity, in which there had been an adverse finding against the Common- 
wealth and the Port Authority by a Superior Court justice, was appealed 
to the highest court during this period. The Supreme Judicial Court's 
findings was favorable saving the Commonwealth $11,000 and the Port 
Authority, $32,000. 

Of the approximately two-hundred cases active during the year, the 
Division has achieved favorable final dismissal of the Commonwealth in 
approximately one-hundred-twenty cases by special pleadings. Prepara- 
tion for these cases necessitated conferences, drafting of pleadings, writing 
of briefs in support of motions, and oral arguments by the trial attorneys. 

Trial attorneys were engaged in hearings and trials before auditors, 
masters and justices of the Superior Court. The length of trials varied 
from one or two days in relatively simple matters to over eight months in 
more complicated ones. Two extended trials were conducted by the staff 
(both for the Metropolitan District Commission) in the field of tunnel 
construction. The principal issues in these two cases concerned quanti- 
ties and rock formation difficulties encountered during the course of the 
work. 

Another major litigation area in which the Division participated in- 
volved the liability of the Commonwealth for restoration of premises 
leased by it at the termination of the leasehold period. 

The staff is, of course, constantly engaged in preliminary research on 
pending cases which will be scheduled for trial in the ensuing six months. 

In summary, the efforts of the Division have been successfully directed 
towards maintaining current status both in its non-trial functions and in 
litigation. We have continued to implement the Attorney General's "no- 
settlement" (See last year's report of the Attorney General) policy in 
treating disputed claims arising from contracts between private compa- 
nies and state departments and agencies. 



P.D. 12 21 

Criminal Division 

In accordance with the designation of the Attorney General as the chief 
law enforcement officer of the Commonwealth, the Criminal Division has 
continued its vigorous prosecution of crime and corruption in Massachu- 
setts. 

Boston Under-Common Garage Cases 

The circumstances and results of the first Boston Under-Common Ga- 
rage Case are discussed in the Annual Report of 1963. In the second garage 
trial, one of the defendants from the first trial and two other individuals 
were charged with conspiracy and larceny of $344,468 from the Massa- 
chusetts Parking Authority during construction of the facility. Two of 
the defendants were found guilty and sentenced to terms of from five to 
five and one-half years in prison. The third individual was acquitted. 

The key to the convictions in these garage trials was spectacular police 
work and remarkably thorough preparation by the personnel assigned to 
the case. The efforts of these men brought to light scientific evidence es- 
tablishing falsification of documents. In the extensive preliminary work 
for, and in the conduct of the two trials of this Under-Common Garage 
case, a turning point in the moral climate of the Commonwealth was 
reached. The principle that no one is beyond the law was reaffirmed. 
Those in the community who were seeking the return of the rule of law 
in government were given hope. 

Appeals have been taken in both these cases. The preparation of the 
voluminous record has caused a long delay in the hearing of the appeals 
by the Supreme Judicial Court. The first appeal was heard on May 13, 
1964, and has not yet been decided. The second appeal will probably be 
heard at the October sitting of the Court. 

Raceway Investigation — Hampden County 

The investigation into racing in Massachusetts, particularly relative 
to the stock of Hancock Raceway, Inc., in Hampden County was discussed 
in last year's Annual Report. Three men were indicted for larceny and 
accessory before the fact to larceny. In the trials that followed in January 
and February of 1964, both a former racing commissioner and a partici- 
pant in the Hancock Raceway manipulations were convicted for larceny. 
Investigation of the financing of "Berkshire Downs" in 1964 is under con- 
tinuing investigation. 

Contract-Swapping Conspiracy 

This conspiracy involving the Division of Waterways, also detailed in 
the 1963 Report, is still pending on appeal. The delay was due to the in- 
ability of the court stenographer to produce a transcript until a year after 
the trial, and additional delays caused by dispute over the accuracy of the 
transcript. 

Building Inspector Cases 

Initial investigation in this series of cases was undertaken by the pre- 
vious administration. To date, two of the building inspectors have been 



22 P.D. 12 

brought to trial and acquitted. The remaining four men have not yet 
been tried. 

Health Inspectors Case 

In February of 1964 it came to the attention of the Division that a 
group of men, by falsely representing themselves as state health inspec- 
tors, were soliciting advertising for a book containing sanitation codes. 
This Division, after investigation, secured complaints and conviction of 
three men in the Middlesex Superior Court in June of 1964. 

Each of these cases, plus many others which, for one reason or another, 
never reach the prosecution stage, require intense research, investigation, 
and preparation of materials by competent Assistant Attorneys General 
and police officers. The description of the indictment and prosecution may 
take but a few sentences on this page, but the work involved often 
consumes the better part of a year. 

The Criminal Division has continued to represent the Commonwealth 
in extraordinary writs [writs of error, writs of habeas corpus and man- 
damus actions] and has expended a great deal of time in the preparation 
and presentation of pleadings and briefs and argument before the Courts 
of the Commonwealth. These extraordinary writs have required one As- 
sistant Attorney General to be in court virtually continuously. Recent 
decisions of the United States Supreme Court have generated a flood 
of petitions from prisoners seeking release because of alleged failure of 
constitutional safeguards in their trials. This is work requiring the high- 
est degree of constitutional scholarship and the Assistant Attorney Gen- 
eral assigned to this area has had notable success. 

It is the responsibility ot the Criminal Division of the Department of 
the Attorney General to work closely with the Massachusetts Crime Com- 
mission in its efforts to gather and present evidence of corruption in state 
government. In fact, the main work of the Division has been the review, 
preparation and presentation of evidence initially developed by the Crime 
Commission. This work has necessitated assessment of the evidence as to 
sufficiency; additional investigation where possible and necessary; selec- 
tion of proceeding to be brought; presentation to a grand jury where the 
evidence warranted; and preparation of indictments for the grand jury 
on the basis of this evidence. These efforts have been undertaken in close 
cooperation with Crime Commission personnel. In this cooperative effort, 
the office of the Attorney General has been careful to preserve the neces- 
sary constitutional distinction between the legislative and executive func- 
tions. 

To date, Crime Commission cases concerning thirteen major areas of 
corruption have been presented. These cases have resulted in 164 indict- 
ments involving forty individuals and ten corporations. Of these, 134 
indictments relate to corruption in the small loan industry, and name as 
defendants four present and former public officials, nine corporations and 
seventeen officials of small loan companies. The large majority of these 
indictments relate to multiple instances of alleged conspiracy, larceny 
and bribery. 



P.D. 12 23 

In January of this year, at the request of the Attorney General, a spe- 
cial grand jury was convened in Suffolk County for the first time in twenty- 
five years. The jury, which is hearing principally Crime Commission evi- 
dence, has been sitting in virtually continuous session since January. On 
evidence presented by the Massachusetts Crime Commission and the At- 
torney General, this grand jury, on May 8, 1964, handed down the most 
extensive series of indictments ever returned in this Commonwealth — 
137 of the 164 indictments mentioned above were returned at this time. 
The 137 indictments contained 217 counts against twenty-six individuals 
and ten corporations. High-ranking public officials were included in this 
list. Arraignments of these cases are incomplete and special pleadings are 
still being filed. 

The trial of the cases resulting from these indictments has been delayed 
by the vast number of special pleadings which have been filed by counsel 
for the defendants. Some of these pleadings have raised ingenious and 
novel questions of law. For instance, one case went to the Supreme Judi- 
cial Court twice on reports of preliminary matters before trial. This is 
unique in the history of criminal cases in the Commonwealth. There- 
after, one of the defendants discharged counsel and engaged new coun- 
sel, causing further delay in bringing the case to trial. Of all the indict- 
ments returned, two cases have gone to trial to date. In the first, the de- 
fendant was acquitted. In the second, three defendants were convicted, 
which convictions are currently on appeal. 

The Complaint Section of this Division, the establishment of which is 
explained in the 1963 Annual Report has continued to operate as a forum, 
where in confidence, any citizen may present complaints or evidence 
about violations of Massachusetts law. The Section has processed 2,610 
complaints since its inception in January, 1963. These complaints have all 
been handled expeditiously. When necessary, they have been referred to 
the State Police for eventual disposition. Other cases have been brought 
to the attention of the Boston Police, and have resulted in numerous ar- 
rests. 

A cemetery lot fraud which was reported by a citizen to the Complaint 
Section was turned over to the Middlesex County District Attorney's 
office and resulted in the exposure of the fraud and the final conviction 
of the guilty persons. 

To coordinate state and local law enforcement, the Attorney General 
has held meetings with the local police chiefs, sheriffs, district attorneys 
and the Commissioner of Public Safety. The Attorney General established 
a Crime Council to make more effective the detection and prosecution of 
crime and corruption. The efforts of the Council are being directed to 
specific means of improving law enforcement, such as the investigative 
functions of District Attorneys and the use of search warrants. 

In regard to the committee established a year ago to undertake statistical 
research, this Division has attempted to coordinate and upgrade the level 
of statistical crime reporting in the Commonwealth. Criminal statistical 
reporting is of two kinds: the reporting of criminal occurrences, which is 
the basis of most official crime reports; and the reporting of information 



24 P.D. 12 

relative to the individual criminal. It is our belief that the second form 
of reporting is the more significant, and offers more hope to the law 
enforcement officer and the social scientist in discovering the sources of 
criminal impulses and of crime prevention. Much well-documented learn- 
ing is available on this subject, and there already exists in the Common- 
wealth administrative machinery to process it. Effort is needed to develop 
a system for processing significant facts, correlating them, and making 
them available to the proper authorities. The small advisory committee, 
the membership of which is enumerated in the 1963 Annual Report, has 
now been expanded to include representatives of the agencies principally 
concerned, namely, the Board of Probation, Department of Correction, 
Youth Service Board, and the record bureau of the State Police. Among 
the aims of this group is the establishment of an electronic data process- 
ing system to record and correlate the information. The committee is 
working with the Commissioner of Administration and Finance to ac- 
complish this. 

This Division was also responsible for the drafting of a substantial 
portion of the Attorney General's legislative program. Working closely 
with the existing criminal law and practice, members of the Division 
noted areas in which improvements in the statutes would aid the process 
of efficient and equitable law enforcement. After many months of research 
and study, proposals were formulated. Among the bills passed by the 
Legislature this year which were products of this Division's work: — a 
bill which penalized the making of false written reports by public officers 
or employees; a bill which regulated the issuance and contents of search 
warrants; a bill which provided for the payment of witness fees to per- 
sons assisting the Attorney General in the investigation of a crime. The 
passage of these measures represents a distinct improvement in the Massa- 
chusetts criminal law. 

Eminent Domain Division 

The Eminent Domain Division is concerned with problems arising from 
the taking of private property for a public purpose. If property is taken 
by the sovereign power of eminent domain the owner must be compen- 
sated in a fair and reasonable amount. 

The taking agency and the former owner attempt to agree on the fair 
value of the property. When agreement is not reached the owner may pe- 
tition the Superior Court to assess damages under Chapter 79 of the Gen- 
eral Laws. It is the responsibility of this Division to represent the Com- 
monwealth in such litigation. 

The Division has continued to work to assure that all those from whom 
property is taken are compensated promptly and equitably. Administra- 
tion of the policy of complete preparation for trial in every pending case 
at the earliest possible date has been expanded and refined. Further prog- 
ress has been made in reducing the number of Chapter 79 petitions pend- 
ing in the Superior Courts of the Commonwealth. In January, 1963, ap- 
proximately 1,800 such cases had accumulated. In the following sixteen 



P.D. 12 25 

months 600 new cases were filed making a total of 2,400 cases to be con- 
sidered. During the same period approximately 1,600 petitions have been 
disposed of, leaving 800 cases pending. Trial and settlement of land-taking 
cases is therefore now on a current status in this Department. 

The average number of cases closed per month has been about 100. 
In comparison the previous average monthly rate had been thirty-five 
cases. This accomplishment represents a record of practical public serv- 
ice to the citizens of the Commonwealth. Individual property owners are 
now paid far more promptly. All citizens benefit from the substantial 
savings which have been achieved in the cost of land acquisitions for 
public improvements. 

The Division continued to request special sessions of the Superior Court 
as a part of the program to reduce this backlog. The Chief Justice of the 
Superior Court approved nine special sessions in three counties in July, 
1963 for the sole purpose of hearing land-damage cases. In that month 
267 cases were settled or tried in Bristol, Norfolk and Middlesex [Lowell] 
Counties. 

Herewith are two examples of the types of cases in which the Division 
becomes involved and the success which the Division has achieved: — 
One concerned a granite quarry. The second found this Department 
representing a petitioner — the Armory Commission. 

In the quarry case alone, the Commonwealth saved perhaps four mil- 
lion dollars plus interest. The petitioner sought damages of $4,5D0,000. 
The Commonwealth claimed that the damages amounted to only $50,000. 
After a four week trial the jury returned an award of $50,000. 

The Commonwealth was the petitioner against the Massachusetts Turn- 
pike Authority as a result of the taking of the Irvington Street Armory 
for the Turnpike Extension into Boston. The Massachusetts Turnpike 
Authority offered the Commonwealth $240,000. A three week trial re- 
sulted in a verdict of $895,000 for the Commonwealth. Accumulated inter- 
est brought that liability to more than a million dollars. 

In accordance with a directive of the Attorney General the Division 
reviewed in depth the procedures governing the use of the power of emi- 
nent domain. No such in depth study had been undertaken for fifty 
years. From it came the opinion of December 27, 1963 [see page 000 of 
current report] on the illegality of token, $1.00 awards when property was 
taken by eminent domain and recommendations for legislation. Pre- 
pared for the first time by the staff of an Attorney General are the 
legislative proposals revising extensively the existing law as embodied in 
Chapter 79 of the General Laws. The proposed legislation required the 
taking authority at the time it adopts an order of taking to vote a realistic 
award based on an appraisal of damages arising from the taking of prop- 
erty and to state in the notice of taking a definite time limit within which 
it must pay the landowner, either within sixty days after the taking or 
fifteen days after the property owner asks for the award. Most important, 
the individual property owner on November 1, 1964 will have the right 
to petition for a writ of mandamus if the taking authority does not obey 
the new law and to ask for damages caused by any payment delay. So for 



26 P.D. 12 

the first time in Massachusetts history the individual citizen has an effec- 
tive remedy when he or she is not given the fair and prompt treatment 
which the statute mandates. 

The legislation further provides for computation of the apportionment 
of real estate taxes in a land-taking procedure by a trial judge. Detailed 
written statements of reasons for appraisals of damages by the Review 
Board of the Department of Public Works are now required. Beginning 
January 1, 1965, payment of interest on judgments or settlements, in ad- 
dition to interest on damages to the taken property, will be required by 
law as with all other judgments of the Superior Court. Attached hereto 
is a summary comparison of the old and new provisions. 

Members of this Division are continuing the work of codification of all 
highway laws of the Commonwealth. Present schedules include presenta- 
tion of a comprehensive new code to the 1966 Session of the General Court 
for enactment into law. 

The financial savings to the Commonwealth as a result of the work of 
this Division are considerable. The interest payments which are saved 
due to the rapid disposition of cases amounts to hundreds of thousands of 
dollars. The return of more favorable verdicts due to new and more 
thorough procedures for preparation of all cases has saved the Common- 
wealth incalculable sums. For example, in 1963 alone, approximately 
$13,000,000 was saved by these methods of preparation and trial. That is 
to say, settlements and court verdicts were $13,000,000 less than amounts 
claimed by former owners. 

The greatest saving to the Commonwealth, however, will result from 
the legislative program enacted in 1964. Prompt payment of damages 
from future land takings will substantially reduce the interest expenses of 
the Commonwealth. They should also eliminate a significant number of 
lawsuits previously considered necessary by property owners who could 
not obtain their money when it was sorely needed. Reduction of this 
time-consuming litigation will also help to clear some of the congestion 
on the civil side of the Superior Courts of the Commonwealth. 



P.D. 12 



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P.D. 12 31 

Employment Security 

The Division of Employment Security of the Department of the Attor- 
ney General works in close conjunction with the Massachusetts Division 
of Employment Security. Members of the Division are concerned with the 
prosecution of employers who are delinquent in making employment 
security tax payments and with the prosecution of fraudulent compen- 
sation claimants. Complaints brought against corporations and individ- 
uals in the aforementioned categories have resulted in large sums of 
money being recovered for the Treasury of the Commonwealth. 

However, in no instance is an individual or corporation unfairly or 
hastily prosecuted. Every opportunity is given to both corporations and 
individuals to make restitution. Only after persuasion fails are criminal 
charges brought. 

The approved procedure, relative to delinquent employers is as fol- 
lows: The contributions department of the Massachusetts Division of 
Employment Security sends a demand notice to the employer, specifying 
the amount due. If there is no response, a second demand is sent, which 
is then followed by contact with the employer by the field sendee depart- 
ment of the agency. The field investigator endeavors to obtain payment, 
or to obtain reports in those cases where the employer has failed to file 
quarterly returns. After all administrative procedures have failed, the 
case is referred to the Legal Department of the agency. Civil court action 
is instituted by the Division Counsel as provided by G.L., c. 151 A; the 
cases are brought to judgment and execution, and demand is made on 
the execution. Only when civil process in the courts have been exhausted, 
or adequate arrangements for payment cannot be made or are not kept 
up, is the case referred to the Employment Security Division of the De- 
partment of the Attorney General. 

In each case the subject employer and the principal officers of the cor- 
poration are given many opportunities to come and discuss their financial 
problems and to arrange for a schedide of payments. In the event that co- 
operation is not elicited, the employer is notified by letter that we are 
preparing the case for prosecution. This often encourages payment with- 
out further court action; but, if not, the employer is notified that we have 
no alternative but to proceed with prosecution in accordance with the 
provisions of the law. 

When enforcement is sought under the criminal provisions of the law, 
many employers who previously have completely ignored all correspond- 
ence and demands for payment, somehow find means of raising the money. 
Further, the prosecutions have encouraged other employers to take a more 
serious attitude toward payment of these taxes. 

Diligent prosecution of delinquent employers, coupled with detailed 
investigation has brought the following results: During this fiscal year, 
in 134 employer cases, 5130,869.78 was collected; in addition to this, 856 
criminal complaints were brought against 68 employers. 

Due to the intensive efforts of this Division there has been a reduc- 
tion in the number of delinquent employers, in areas where the Division 



32 P.D. 12 

has prosecuted — employers' having become cognizant of the fact that 
state taxes must be paid. Moreover, this reduced number of fraudulent 
cases has been of benefit to employers, for it has helped to keep the employ- 
ment tax rate for employers minimal, with 3.7 the maximum Massachu- 
setts tax rate. 

The Division has also conscientiously prosecuted claimants who illegally 
collect unemployment benefits. As the result of these efforts, forty-seven 
such cases were closed during the period of this report. $21,671.00 in over- 
payment benefits owed the Commonwealth were recovered and 922 crim- 
inal complaints were issued against 35 employees. 

In addition to the cases mentioned above, three cases were argued by 
the members of this Division before the Supreme Judicial Court on behalf 
of the Director of the Division of Employment Security. In all instances 
a decision favorable to the Director was obtained. 

Finance Division 

The responsibilities of the Finance Division include assisting the De- 
partment of Corporations and Taxation; the Department of Insurance; 
the Department of Banking and the State Treasurer with legal problems 
and litigation on the appellate level. In addition, a member of this Divi- 
sion sits on the Contributory Retirement Appeal Board, in compliance 
with the statute so providing, and also acts as counsel for the Board. 

Further, the Division acts as counsel to the Treasurer and Receiver- 
General of the Commonwealth and also represents the State Retirement 
Board and the Teachers Retirement Board. The members of the Division 
are active, too, in helping to research and prepare opinions requested of 
the Department of the Attorney General in the aforementioned areas. 
Finally, this Division includes in its responsibilities that of rendering 
constant legal advice and informal opinions to citizens and state officials 
in a variety of situations involving the general area of its assignment. 

With particular respect to the Department of Corporations and Taxa- 
tion, this Division has the obligation of furthering litigation above the 
administrative level. Most of the cases coming to our attention involve 
review of decisions made by the Appellate Tax Board although, on occa- 
sion, when the matter concerns inheritance or estate taxes, a decree of a 
probate court is involved. During the period covered by this report, five 
cases have been argued in behalf of the Department in the Supreme Judi- 
cial Court. A true picture of the work of this Division cannot be por- 
trayed by setting forth statistics on the victories or losses, but it can be 
asserted that in each instance we have been able, through judicial deter- 
mination, either to test existing tax statutes or to decide whether new 
legislation is necessary to close loop-holes which deprive the Common- 
wealth of a great deal of revenue. 

Cases of note include Steward, Executor v. Tax Commissioner. The 
resolution of the legal question in that case resulted in $350,000 in taxes 
being due the Commonwealth. Old Colony Trust Company v. Commis- 



P.D. 12 M 

sioner of Corporations and Taxation concerned the value of considera- 
tion given for the establishment of a trust. 

With respect to the Department of Banking and Insurance, during this 
year, this Division has argued four cases in the Supreme Judicial Court, 
two in the United States District Court and several before the Superior 
Courts of the Commonwealth. All of the cases involved appeals from 
the decisions of the respective commissioners. Cases of note argued for 
this Department include David Rose, Commissioner of Insurance and 
Chicopee Co-Operative Bank, et al v. The Board of Bank Incorporation. 
The former case was argued at the November, 1963, sitting of the Supreme 
Judicial Court. The court held that the medical service contract [Blue 
Shield] entered into between Harvard University and the Massachusetts 
Medical Service was valid and that, therefore, Dr. Rose was bound by the 
fee schedule established by that contract. The decision of the Superior 
Court was thereby affirmed and the plaintiff was ordered to return the 
surcharge he had been paid by his patient, an employee of Harvard Uni- 
versity. The Chicopee Bank case involved the conversion of a co-operative 
bank to a Federal Savings and Loan Association under Chapter 170, § 49, 
of the General Laws. The Board granted the conversion and the petitioner 
appealed. The case was presented to the Full Bench of the Supreme Judi- 
cial Court by reservation and report from a single justice. In its decision 
the Court stated that the declared purpose of the conversion was not to 
merely withdraw from the state system, but to merge with and become a 
branch of a large federal savings and loan association. The Board was 
held to have exceeded its authority by deciding that the proposed merger 
would promote the public convenience and advantage. The decision of 
the Board of Bank Incorporation was therefore reversed. 

The duties of the member of the Division with regard to retirement 
matters are dual in nature. During this fiscal year, we have been able for 
the first time, to hear appeals which had been filed within a period of 
thirty days. The long list of continued cases was finally completely ex- 
hausted. During this year, full-scale hearings have been held in approxi- 
mately two hundred appeals and of this number, less than ten percent 
of the decisions have found their way to the Superior Courts and fewer 
than two percent to the Supreme Judicial Court. One case which was 
taken to the Supreme Judicial Court was Easthampton Retirement Board 
vs. Contributory Retirement Appeal Board. The matter involved acci- 
dental death benefits to the widow of the former Recreational Director in 
the Town of Easthampton. The local board had denied benefits and the 
Contributory Retirement Appeal Board reversed the decision and 
awarded benefits, which decision was affirmed by the Superior Court. 
The case was argued before the Full Bench of the Supreme Judicial 
Court and the decision of the Contributory Retirement Appeal Board was 
sustained. 

The preparation and writing of briefs and subsequent trial of cases 
such as the above consumes a great deal of the time of the personnel of 
this Division. 



34 P.D. 12 

Much time is also devoted to drafting opinions requested by the above- 
named state agencies. An opinion of outstanding importance considered 
by the members of the Finance Division concerned the matter of tax as- 
sessments. Several months of research and conferences with the Tax Com- 
missioner's Office, representatives of taxpayer federations, and interested 
citizens preceded the issuance of the opinion. The problem of tax assess- 
ments was resolved in the opinion which placed the primary responsibili- 
ties upon local authorities. It is the purpose of this opinion to see that the 
decision of our Supreme Judicial Court [Bethgole vs. Assessors of Spring- 
field, 343 Mass. 223] is adhered to, with the assistance of the Tax Commis- 
sioner and those local authorities who would attempt to correct improper 
methods of assessment. Several other opinions have also been drafted by 
the members of this Division. 

Division of Health, Education and Welfare 

The Division of Health, Education and Welfare was created in Janu- 
ary, 1963, as detailed in the 1963 Annual Report. During the past year 
the Division's activities have concentrated on increasing the effectiveness 
of the operation of the Administrative Procedure Act (G.L., c. 30A), 
within the many state departments, agencies and boards assigned to the 
Division, and augmenting and refining the powers of several state depart- 
ments, agencies and boards through legislation and regulation. Brief sum- 
maries of the work accomplished for each state agency assigned to this 
Division are set forth below. 
Department of Public Health 

The Department requested the division to take action against 14 cities 
and towns in order to correct health hazards: contaminated water sup- 
plies, the improper discharge of effluent from sewage treatment plants 
into rivers and streams, and pollution of the atmosphere by the improper 
operation of town dumps and piggeries. After additional investigation 
and discussion with the appropriate city and town officials, the problem 
was corrected in all but a few instances. The Division was required to 
bring two actions in the Superior Court against towns which failed to 
comply with department orders. In addition, the Division drafted many 
opinions for the Department of Public Health, represented it in 6 cases 
before the Superior Court and in 2 instances before the Supreme Judicial 
Court. 

Work by the Division for the Massachusetts Hospital School in Canton 
included title opinions and certifications forwarded to Washington so that 
that institution could receive Federal aid for certain building programs. 
Department of Education 

While acting as legal counsel for the Department of Education and 
various other educational agencies, the Division has reviewed, revised and 
approved a concessionaire's agreement and several other contracts; drafted 
many opinions dealing with State Teachers Colleges and the Southeastern 
Massachusetts Technological Institute; defended the Department in one 



P.D. 12 35 

action before the Superior Court and reviewed title abstracts, purchase 
and sale agreements, deeds and taking papers in land acquisitions for the 
State Teachers College in Fitchburg, the Salem State Teachers College, 
the Bridgewater and Framingham State Teachers Colleges and the South- 
eastern Massachusetts Technological Institute. 

All of this work resulted in the expansion of educational facilities at 
the State Teachers Colleges in Framingham, Salem, Bridgewater and 
Fitchburg and the Southeastern Technological Institute. 
Department of Public Welfare 

During the period covered by this report the Division has represented 
the Department of Public Welfare in eight cases before the Supreme 
Judicial Court and in fifty-four cases in the Superior Court. In addition, 
considerable work has been done to improve the hearing procedures and 
strengthen and clarify the rules and regulations of the Department. 
State Housing Board 

The Division has reviewed title to twenty-seven parcels of land to be 
acquired either by the State Housing Board or by local housing authori- 
ties. In addition, the members of the Division have been called upon to 
perform the necessary legal work for the taking of twenty-five additional 
parcels of land throughout the Commonwealth for housing projects. One 
hundred fifty-one new building projects have been reviewed and approved 
by this office. Each project required individual consideration, from the 
vote of the local housing authority authorizing the project to the develop- 
ment of a workable contract of assistance between the State Housing 
Board, the local housing authority and the financing agency. The Divi- 
sion has represented the State Housing Board in three cases before the 
Superior Court. 
Massachusetts Board of Regional Community Colleges 

As legal counsel for this Board, the Division commenced six cases in the 
Appellate Tax Board. 

Industrial Accidents Division 

In accordance with the provisions of G.L., c. 152, § 69A, the Attorney 
General must approve all compensation payments made under this Chap- 
ter by the Commonwealth, as a self-insurer, to state employees who sus- 
tain injuries arising out of and in the course of their employment with 
the Commonwealth, including also the payment of related medical and 
hospital expenditures resulting from such injuries. 

In 1963 this Division faced a heavy backlog of cases before the Indus- 
trial Accident Board. Most of these cases then were from two to four 
years old. This situation worked an undue and unfair hardship on in- 
jured state employees but also imposed the possibility of a greater finan- 
cial liability in workmen's compensation costs to the Commonwealth. 
With the cooperation of the Chairman of the Industrial Accident Board 
and its Supervisor of Compensation Agents, these cases have received the 
close and constant attention of this Division. 



36 P.D. 12 

Through the maximum use of the Board's pre-trial procedure a sub- 
stantial number have since been adjusted without trial. Many others have 
been tried and decisions rendered. During the fiscal year covered by this 
report this Division engaged in 450 appearances on Commonwealth cases 
before the Industrial Accident Board sitting in several cities throughout 
the Commonwealth. This figure includes hearings, pre-trial and other as- 
signed conferences. In addition, there were 85 conferences on fatal cases 
with the Board and insurance company representatives concerning con- 
tributions to the "second injury" funds of the Commonwealth. [§§ 65 
and 65N] 

Equally important to this Division is the handling of current claims 
for compensation benefits in lost-time disability cases. Our policy of giv- 
ing prompt approval of proper claims has received the praise of state 
employees' groups, such as the Massachusetts State Council representing 
state employees and the Massachusetts State Employees' Association. Our 
approach has done much to restore the confidence of state employees in an 
important employer-employee relationship. It is also designed to prevent 
any unnecessary future litigation on claims that should be adjusted at 
their inception. The policy has also resulted in a reduction of the finan- 
cial liability of the Commonwealth. In this fiscal period the Division ap- 
proved 972 agreements for payments of weekly compensation submitted 
by the various compensation agents during such period. This represents 
a marked increase in approvals on lost-time cases. 

During the same period a total of 6,825 first reports of injury were 
filed, including the no lost-time claims on which the Attorney General's 
office is required to review for approval all outstanding bills. 

Total payments made by the Commonwealth to injured state employees 
under § 69A for the period, July 1, 1963 through June 30, 1964, were as 
follows: 

Industrial Accident Board [General]: 

Public Employees — Incapacity Compensation $ 997,295.34 

Public Employees — Doctors and Nurses et al 152,267.28 

Public Employees — Hospital, Drugs, et al 175,418.91 



$1,324,981.43 



Metropolitan District Commission *: 

Incapacity Compensation $ 106,540.11 

Medical and Hospital Costs 48,799.97 



$ 155,340.08* 



* Please note that these disbursements are from MDDC funds. 

Despite the increase in the number of new agreements approved over 
previous years, the amount paid from the General Compensation Account 
was reduced by $45,560 over the previous fiscal period. An increase in the 
hospital and medical payments is attributable largely to continued in- 



P.D. 12 37 

creases in rates applicable in Workmen's Compensation cases. The sub- 
stantial number of older and usually costlier cases which were disposed 
of through adjustment, settlement or Board order during this period re- 
mains a strong factor in maintaining a high-cost level in these claims. 

This Division represents the Commonwealth at the Industrial Accident 
Board in its capacity as custodian of the so-called "second injury" funds 
in petitions by insurers for reimbursements under § 37 A of c. 152 payable 
out of that fund [Veterans Industrial Accident Fund] established under 
§65N of c. 152 and similar petitions under § 37 of c. 152 payable out of 
the fund [General Industrial Accident Fund] established by § 65. The 
Division also processes claims by the Commonwealth under these provi- 
sions for payments by insurers into these funds. 

At the close of the fiscal year 1964, the balance on hand in the Veter- 
ans' Fund [§ 65N] was $269,688 with $18,294 collected during that 12- 
month period. Disbursements totaled $62,490. 

The balance in the General Fund [§ 65] at the close of the same fiscal 
year was $13,237 with collections for the period $75,475. Payments totaled 
$68,593. 

Since payments into the "General" or § 65 fund are required only in 
fatal cases where the deceased employee leaves no dependents, unlike the 
"Veterans" or § 65N fund into which payments are required in all fatal 
cases, the former fund showed a steady decline from $86,396 in 1956 to 
$6,355 at the close of fiscal 1963. In July 1963 the Legislature enacted spe- 
cial emergency legislation in Chapter 554 of the Acts of 1963 to remain 
in effect until December 31, 1964, which provided that for the effective 
period of that Act, notwithstanding the provisions of § 65N of c. 152, 
all payments made by insurers or self-insurers under § 65N would be 
credited to the special fund under § 65 ["General" fund] and used for the 
purposes of that second-injury fund and under the conditions set forth in 
§§ 37 and 65 of c. 152. This accounts for the decline in the balance in 
the "Veterans" fund at the close of fiscal year 1964 and the temporary 
increase in the balance on hand in the "General" fund. This legislative 
enactment thus made it possible to make proper reimbursements to insur- 
ers out of the latter fund, many of which claims had been outstanding for 
some time due to the lack of funds. 

It is the responsibility of the Attorney General to handle these funds 
so that the legislative intent is fulfilled. He must also see to it that the 
stability of the funds is maintained by proper supervision of claims there- 
under. An important consideration in this regard is the funding process. 
While the "General" fund [§§ 37 and 65] has no built-in provision for re- 
imbursement in the event the fund becomes exhausted, the "Veterans" 
fund differs in that § 37A of c. 152 provides that if this fund becomes 
exhausted, the State Treasurer shall make such payments from the gen- 
eral fund of the Commonwealth without appropriation. 



38 P.D. 12 

Public Charities 

The Division is notified in the course of each year of thousands of pro- 
ceedings in the Probate and other courts with regard to public charities. 
The largest percentage of such cases are proceedings for the allowance of 
accounts of trustees. All accounts and other matters are examined care- 
fully and in many cases, questions are raised before the Court. The cur- 
rent year was typical in respect to the large number of matters brought 
to our attention, and reference is made hereinafter to some of the more 
important cases presented to the Courts. 

In addition to the above, the Division receives, records, and files thou- 
sands of annual financial reports and other data, required under the pro- 
visions of G.L., c. 12, §§ 8A-8J, inclusive. These files are open to public 
inspection. 

Each account and financial report is examined. If discrepancies are 
noted, letters are written requesting explanations. In addition we have 
initiated a program of directly examining the records and accounts of 
some of the public charities filing annual financial reports when ques- 
tions are raised as to their methods of operation. We hope to increase 
the number of such investigations and to expand the investigations to 
some of the testamentary trusts, as occasion arises. 

The organized charities of Massachusetts are conducted properly in 
nearly all cases and do a great deal of good. Only a very few are open to 
suspicion of insincerity or solicitation for selfish ends. Even the family 
foundations, becoming quite numerous because of the provisions of the 
Internal Revenue Code, appear to be operated with good charitable in- 
tentions and within the provisions of our laws. From time to time a few 
cases occur when the funds of such foundations are diverted from their 
proper charitable channels. The Division watches as carefully as possible 
to see that no such instance escapes notice and correction. 

To the end of encouraging the due and proper application of all char- 
itable funds, complete cooperation with the press is fostered. The Depart- 
ment has found that there is a continuing interest on the part of the press 
in matters concerning charities. Press coverage has made the public, and 
the charities, aware of the governmental concern with and supervision 
of charitable funds. 

While the existing and new legislation regulating charitable solicita- 
tions does not answer all the problems presented by public charities, it 
supplies a measure of control far beyond any which existed in Massachu- 
setts before. 

Presently, the Division is preparing new and revised forms of applica- 
tions, financial and other reports, required of public charities which are 
subject to the new and changed statutory provisions. These new forms 
will be available for use upon the effective date of the Acts. Action has 
been taken on the Federal level to discourage mere accumulation of 
funds for charity, and self-dealing by trustee-donors, by denying exemp- 
tion from taxation in certain instances. However, it is questionable 
whether any solution short of further state legislation regulating trusts 



P.D. 12 39 

for charitable purposes will fully remedy the situation. Some of the re- 
maining problems concern the grant of wide powers of investment and the 
broad exculpatory provisions inserted in instruments creating charitable 
foundations, the creators of which are frequently designated as trustees. 

In the course of a study of charitable foundations in one of our neigh- 
boring states, it was revealed that a representative of one of the leading 
trust companies there was quoted as stating that he had never heard of 
some of the investment clause grants included in foundation instruments. 
He was of the opinion that no trustee would be safe in using them even 
though the instruments included sweeping exculpatory clauses designed 
to protect the trustee from personal liability. 

One of the recommendations of the study referred to was that legisla- 
tion was necessary to provide that, regardless of any language of the trust 
instrument, the attempted exoneration of a trustee of an inter-vivos char- 
itable trust from liability to exercise reasonable care, diligence and pru- 
dence should be deemed contrary to public policy. Such a provision, it 
was stated, would prevent the dissipation of charitable funds by improper 
conduct of trustees without interfering with gifts by charitably minded 
donors. 

The Division, is as stated, maintaining as close a watch as possible over 
the operations of the foundations and is following the investigation of 
Congressman Wright Patman of Texas, Chairman of the Select Commit- 
tee on Small Business of the U. S. House of Representatives, for possible 
disclosure of situations requiring the enactment of state legislation to 
remedy any improper administration of such charitable trusts. 

Cy Pres and Other Court Proceedings. 

Some of the many court proceedings in which the Division participated 
in the reporting period are detailed in the following paragraphs. 

The Hawes Fund. This charity was created almost one hundred and 
fifty years ago under the will of John Hawes, a resident of South Boston. 
He provided that about half of the trust funds should aid a Congrega- 
tional Church in South Boston, for the site of which he had given a por- 
tion of his farm. The church was later known as the Hawes Place Uni- 
tarian Church. It ceased services and meetings in 1950. The remaining 
portion of the fund he provided should be used for a school open to the 
public in South Boston. The most recent application of the latter por- 
tion of the fund was for classes held at the Boys Club in South Boston. 

The fund now has a value of about 5500,000. The benefit of the relig- 
ious portion of the fund is claimed by a Trinitarian Congregational 
Church in South Boston and by various Unitarian organizations which are 
active there. The Attorney General took the position that despite the fact 
that the Hawes church had ceased to exist, the charity had not failed and 
the religious portion of the fund shall be used, as the Court should decide, 
over the intention of the testator, and further either Unitarian or Trini- 
tarian Congregational doctrines, and that the education portion should 
continue to be used to support classes at the Boys Club in South Boston. 
After extended hearings, a master appointed by the Supreme Judicial 



40 P.D. 12 

Court filed a report favoring the application of the religious portion of 
the trust for the benefit of the Trinitarian Congregational Church and 
the application of the education portion for maintaining classes at the 
Boys Club in South Boston. Proceedings for confirmation of the master's 
report, and objections thereto, are to be considered by the Court. 

The bequest under the will of Laban Pratt for a hospital in Weymouth. 
The testator, who died in 1924, left $300,000 to the Town of Weymouth 
for a hospital. Because of the inadequacy of the original amount of the 
gift, no action was taken for many years. Later, because of war and post 
war shortages it was not possible to consider construction of a hospital. 
In recent years greatly increased costs of construction as well as of equip- 
ment and maintenance would make it difficult to properly staff a hos- 
pital, and to defray the costs of construction. In addition, there would be 
a duplication of the facilities of the South Shore Hospital also located 
in Weymouth. Proceedings were instituted by the Town in the Probate 
Court, the Attorney General and the heirs being made parties, and a mas- 
ter was appointed. The Attorney General's position was that the gift had 
not failed, the heirs of the testator had no claims against the fund and 
that if it was impracticable to carry out the testator's general charitable 
intentions in the way he had suggested, the Court should authorize the 
use of the fund for hospital purposes in a way to approximate the donor's 
intentions. After many days of hearing the master filed a very compre- 
hensive report which was confirmed by the Court and a decree was entered 
excluding the heirs from any interest in the fund (then amounting to 
about $1,000,000) and for its application, under the doctrine of cy pres 
with other funds to be furnished by the recipient, for the erection of an 
addition to the South Shore Hospital to be known as the "Laban Pratt 
Memorial Wing." 

The Catherine Johnson case. A decree was entered on a petition brought 
by the trustees under her will in the Probate Court for the County of Es- 
sex, to which the representatives of the residuary legatees under her will 
were parties, determining that it was impracticable to use the testatrix's 
gift in the way she intended, i.e., by the establishment on her home prop- 
erty of a home for old ladies of North Andover, but that the testatrix 
had a general charitable intention such that the property should be ap- 
plied, under the doctrine of cy pres, for a similar purpose and that the 
residuary legatees were not entitled to any benefit by way of resulting 
trust. An appeal was taken to the Supreme Judicial Court by the residu- 
ary legatees. A brief was filed for the Attorney General which supported 
the decree of the Probate Court. Against the strong opposition of coun- 
sel for the residuary legatees, the decree of the Probate Court was af- 
firmed and a motion for rehearing filed on behalf of the residuary lega- 
tees was denied. 

Extended hearings were held in the Superior Court on a petition 
brought by a member of the Second Church in Boston to restrain the sale 
by the Church of five silver vessels given to the Church in pre-revolution- 
ary times for use in church services. The five silver vessels had, for many 
years, been kept and exhibited with other colonial silver of the Church, 



P.D. 12 41 

at the Boston Museum of Fine Arts, being removed therefrom only occa- 
sionally for exhibition at the Church. The petitioner argued that the sil- 
ver vessels had been given subject to a trust requiring that the Church 
hold and use the silver vessels for religious services. The sale which was 
in issue was to the Henry Francis de Pont Winterthur Museum in Dela- 
ware, for purposes of exhibition, and the agreed price was $50,000. The 
Justice of the Superior Court who heard the case ruled that the Church 
had the right to sell the silver and has reported his decision to the Su- 
preme Judicial Court. The case will be heard on review before the Su- 
preme Judicial Court sometime in the coming fall. 

Another cy pres proceeding is that concerned with the gift under the 
will of Lillis R. Sawyer for the purpose of establishing a Community 
House in Shelburne Falls. The fund was not large enough for the purpose 
designated at the time the donor died, and later the shortages and restric- 
tions of the World War II, and post World War II periods prevented con- 
struction. A plan was approved a few years ago for the use of the fund 
for the construction of a hall as part of a proposed regional school, but 
the plan failed because the school was not approved by the towns in- 
volved. The inadequacy of the present funds (about $250,000), in view 
of current costs and other factors, was relied on by the trustees as justify- 
ing the entry of a decree by the Probate Court, under the cy pres doc- 
trine, authorizing the use of the income and principal for concerts, lec- 
tures, and other community activities. The position taken for the Attor- 
ney General was that the gift would not fail in any event, and that if the 
Court was satisfied the inadequacy of the fund made it impracticable or 
impossible to carry out the testator's plan, some such plan as that pro- 
posed could be adopted. At the time of this report the case had been 
taken under advisement by the Probate Court judge. 

Members of the Division participated in proceedings, in the Probate 
Court and in the Land Court, involving first a sale, and later a ninety- 
nine year ground lease, of property on Boylston Street, in Boston, by the 
trustees under the will of George Robert White. The Court dismissed the 
petition for the sale of the premises. In subsequent proceedings the Pro- 
bate Court, after hearing, approved a ninety-nine year ground lease of 
the property containing options permitting the lessor to require the lessee 
to purchase the land, and giving the lessee options to purchase. 

Proceedings, commenced with the approval of the Attorney General, 
for the determination of the validity of various changes initiated with re- 
spect to the operation of the Arnold Arboreteum (See Ames v. Attorney 
General, 332 Mass. 246) which had been heard before a master appointed 
by the Supreme Judicial Court were continued. The master's report has 
been confirmed and a motion for the entry of a final decree in accordance 
with the findings of the master has been made. 

The Division participated in arguments before the Supreme Judicial 
Court on an appeal taken by a church desiring to be the recipient of a 
cy pres application of funds under the will of Wilhelmina W. Jackscm. 
The Court dismissed the appeal. 



42 P.D. 12 

Also requiring the attention of the Division were several hearings in 
the Superior Court with respect to the proper governing body of an in- 
corporated economic research organization. The proceedings were brought 
by a group claiming to have been illegally suspended as members of the 
governing board of the corporation. All parties agreed that a responsible 
independent governing board should be provided for, and agreements to 
that end are expected to be worked out. 

In addition to the foregoing the Division participated in a great many 
other proceedings before the Courts, including proceedings for the de- 
termination of the reasonableness of trustees' fees, the adequacy of the 
prices for real estate for which licenses to sell were sought, and proceed- 
ings regarding the dissolution of charities and the application of charita- 
ble funds cy pres. 

Perpetual Care Funds 

Funds given for the perpetual care of individual lots in cemeteries have 
not, historically, been considered to be public charities. Inasmuch as the 
funds are for the care of a particular grave or lot, the trust has a direct 
and definite object other than the indefinite benefit of the public. 

Statutes, have, however, provided that private and public cemeteries 
may accept funds to be held in perpetuity, the income to be used to care 
for a burial lot designated by the creator. While these perpetual care funds 
are similar to charitable trusts, in that they can exist in perpetuity, it is 
obvious that rights to enforce the interests of particular creators, like the 
property interests in the grave lot of a deceased owner, pass to the heirs 
of the deceased creator or to the persons designated in his will to take 
his interests in the burial lot. This situation is quite different from that 
as to donors of funds for public charitable purpose where only in the 
event of a failure of the charitable purpose and the lack of a general 
charitable intent on the part of the donor do the heirs have any possible 
interest. 

A perpetual care fund consisting of a consolidation of the amounts 
paid by lot owners, or others, for perpetual care of particular lots, is no 
more strictly a public charity than a single small fund, although it does 
have some similarity to a perpetual public charitable trust fund which 
must be kept in tact as to principal. There is a public, as well as private 
interests, in such a consolidated fund. Testamentary, and other trusts, 
for the care and upkeep generally of publicly owned and perhaps of other 
kinds of cemeteries, are to be distinguished from funds established for the 
care of particular lots. In most instances the latter type of fund does con- 
stitute a public charity and such trusts are directly supervised by the Divi- 
sion. The administration of the former type of fund is also closely scru- 
tinized whenever any occasion arises in view of the public interest in- 
volved. 

Public Administration and No Heir Will Cases 

The interest of the Commonwealth in these cases arises out of the 
possibility of the escheat of the funds of the deceased. 



P.D. 12 43 

The system of administration by public administrators has been criti- 
cized and there have been objections to the methods followed by certain 
public administrators in seeking appointments in particular estates and 
to their activities in the handling of estates. 

The Division checks the thousands of public administration matters 
presented to us each year as carefully as possible, and objects to any trans- 
action believed to be against the best interests of the Commonwealth or 
the possible heirs. 

Torts, Claims and Collections Divisions 

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

General Laws, chapter 12, Sec. 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 state employees foi not more than $10,000 in case of injury to, 
or death of, one person, and for not more than $5,000 for property 
damage. 

The Division points with understandable pride to the fact that it has 
not had to seek a supplemental appropriation from the Legislature for 
payment of motor tort claims during this fiscal year. For the fiscal year 
ending June 30, 1960 the sum of $30,000 was obtained as a supplemen- 
tary appropriation for motor tort claims and for the fiscal year ending 
June 30, 1961 the sum of $5,000 was obtained as a supplementary appro- 
priation for motor tort claims. 

The Torts, Claims and Collections division has for the first time in its 
history kept records in order to determine the average amount of motor 
tort settlements under Chapter 12, §§ 3B and 3C. It appears that from 
January 15, 1963 to June 30, 1963 the average motor tort settlement, in- 
cluding trials, was $407.00 for 112 claims. During the fiscal year July 1, 
1963 to June 30, 1964 the average motor tort settlement was reduced from 
$407.00 to $312.09 for 320 claims thereby achieving a reduction of about 
25% in average motor tort settlements. 

The Division has been able to work within its allotted appropriation 
and to maintain a proper average of motor tort settlement as a result 
of the following major innovations in claim procedures: 

1. All claims for damage to property in excess of $100 are 
promptly appraised by an independent appraiser. 

Prior to January 15, 1963 property damage appraisals were obtained 
only in rare instances and then after repairs had already been made by 
claimant. 

2. In all claims for personal injuries or in the event it appears 
from the facts that a personal injury claim may be forthcom- 
ing, arrangements are promptly made for a medical examina- 
tion by a medical examiner selected by this Division. 



44 



P.D. 12 



Prior to January 15, 1963 arrangements for medical examinations by a 
medical examiner selected by the Division was made only in selected cases 
and often after the period of disability of claimant had ended. 

3. Lists of appraisers for property damage and medical exam- 
iners are now practically completed. They will serve in all 
areas of the Commonwealth of Massachusetts as guides so that 
there will be no delay in arranging for property damage ap- 
praisals of medical examinations. 

Prior to January 15, 1963 no list of appraisers for property damage and 
medical examiners throughout the Commonwealth of Massachusetts was 
available and as a result, there was substantial delay in arranging for 
medical examinations and property damage appraisals of claimants. 

4. Claims have been properly investigated so that equitable 
evaluation of the claims is possible. As a result, during the 
past fiscal year, the number of plaintiffs obtaining verdicts 
has been very small, and in such instances the verdicts have 
not been substantial. 

The files which were kept prior to January 15, 1963 indicated lack of 
sufficient investigation for a proper evaluation of claims. 

The 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 thirty-one cases 
which have been settled for an average amount of $139.22 per case. Nine 
cases have arisen from defective state highways, and the average settle- 
ment per case is $249.64. Small moral claims have been settled for an 
average of $42.24 in the 120 cases considered. Statistics on moral claims 
and defective state highways are not available prior to January 15, 1963 
so that no comparison with previous administrations is possible. 

All correspondence in the motor vehicle tort area is up-to-date, acknowl- 
edged and answered on a current basis. 

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

The following collections have been made in 847 cases during the pe- 
riod covered by this report: 

Department 

Mental Health 

Public Health 

Public Works 

Metropolitan District Commission 

Public Safety 

Adjutant General 

Department of Commerce 

Department of Correction 

Department of Education 

Department of Education — 

Division of the Blind 54.70 



ount Collected 


No. of Cases 


$95,597.70 


96 


193,902.13 


231 


26,445.05 


166 


7,191.52 


25 


2,284.00 


254 


375.60 


1 


2.10 


1 


145.82 


6 


613.50 


8 



tount Collected 


No. of Cases 


352.37 


1 


300.00 


1 


200.00 


1 


956.09 


6 


91.55 


1 


161.85 


1 


2,796.43 


4 


278.04 


3 


140.87 


2 


3,387.84 


1 


10.00 


1 


873.31 


34 


$336,160.47 


847 



P.D. 12 45 

Department 

Department of Labor and Industry 
Department of Public Utilities 
Department of Public Welfare 
Department of Natural Resources 
Division of Employment Security 
Division of Youth Service 
Massachusetts Port Authority 
Parole Board 
Soldiers' Home 
Treasury Department 
Veterans' Services 
University of Massachusetts 



There has been, it should be noted, a significant increase in the sums 
collected for the Commonwealth in this area since this administration 
took office in January of 1963. The aforementioned $336,160.47 which 
represents this administration's first full fiscal year in office and the com- 
parative figures below tell the story. 

Statistics as to amount of collection by this Division in past years and 
in 1964: 

Fiscal Year Ending Amount Collected 

June 30, 1958 $123,925.65 

June 30, 1959 95,000.00 

June 30, 1960 113,439.15 

June 30, 1961 127,776.41 

June 30, 1962 118.919.61 

June 30, 1963 225,078.93 

June 30, 1964 334,160.47 

Veterans' Division 

It is the responsibility of the Veterans' Division to advise Massachu- 
setts veterans of their rights and duties under Massachusetts and Federal 
law. The Division furnishes legal assistance to veterans and to members 
of their families. It helps to guide veterans in the securing of the many 
special services, local, state and federal, available to them. The Veterans' 
Division is available at all times to help veterans resolve any problems 
that may arise in this regard and the time of the Division is expended tin- 
stintingly in an effort to provide this service. 

Many inquiries have continued to be directed to the Division from vet- 
erans and their dependents, especially concerning tax problems. 

This Division is called upon to hold frequent conferences with other 
state agencies and with local tax officials. Once again, we are most pleased 
to note our gratitude for the excellent cooperation received from the 
Commissioner of Veterans' Services and from his entire staff. 



46 P.D. 12 

Springfield and Worcester Offices 

The responsibilities of the Department of the Attorney General extend 
throughout the Commonwealth. Many of the wide-ranging tasks of the 
office can be handled efficiently and satisfactorily from the central Boston 
location. But to provide maximum accessibility to and understanding ol 
local problems, regional offices in Springfield and in Worcester are essen- 
tial. 

Two Assistant Attorneys General and a Legal Assistant are at the serv 
ice of the citizens of the Springfield area. Available to the residents of the 
Worcester community are an Assistant Attorney General and a Legal As 
sistant. In addition, Special Assistant Attorneys General have been ap- 
pointed from time to time to augment the regular staff in the resolution 
of specific legal problems. 

The attorneys in these offices have devoted the bulk of their time during 
the past fiscal year to handling land damage cases. But they have also been 
active in processing and preparing motor tort and industrial accident 
claims. 

But the primary value which these regional offices provide is service to 
each and every citizen. By being readily available to assist with all prob- 
lems and complaints the office of the Attorney General fulfills its most 
useful function: — serving as the people's attorney. 

Conclusion 

The preceding division reports provide only a synopsis and summary 
of the manifold responsibilities and actions which the members of the 
staff have undertaken in the last year. 

They have carried the heaviest work load in the history of the Depart- 
ment of the Attorney General. And they have worked with tireless 
dedication and great skill at each and every assignment. They have been 
"the people's attorneys" in the best sense of that phrase and it has been an 
honor and a privilege for me to have worked with them. 

Respectfully submitted, 

EDWARD W. BROOKE, 

Attorney General 



P.D. 12 47 

A disabled veteran on an eligible list for a State position must be ap- 
pointed, if able, although he also holds a non-conflicting municipal 
civil service position. 

July 8, 1963. 

Hds. Robert F. Murphy, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — You have requested an opinion as to the effect of the pro- 
vision of the Civil Service Law requiring the appointment of a disabled 
veteran on an eligible list in preference to all others. 

It appears that a disabled veteran who has been certified for appoint- 
ment to the Commission by the Division of Civil Service and who has, in 
fact, been employed by the Commission since October 27, 1961, on a 
full-time, but temporary, basis in the position for which he has been 
certified, also holds, and has continuously held during the period of his 
employment with the Commission, a permanent position under civil serv- 
ice with the City of Boston. The disabled veteran is willing to accept ap- 
pointment by the Commission but if appointed intends to continue his 
service with the City of Boston. 

You ask, in effect, whether in the circumstances and despite the statute 
requiring the appointment of a disabled veteran who is on an eligible 
list in the preference of all others, the Commission can appoint a person 
on the eligible list who is not a disabled veteran. 

The disabled veteran you refer to apparently has, as required by G.L., 
c. 31, § 23A, presented a certificate of a physician approved by the Director 
of Civil Service that his disability is not such as to prevent the efficient 
performance of the duties of the position to which he is eligible. It is 
stated in the correspondence you enclosed with your request that the hours 
of duty of the person in question with the Commission and the city have 
not conflicted and that if he is appointed permanently with the Com- 
mission, there will be no conflict. 

Also, it appears that his sick leave record with the Commission indi- 
cates no excessive sick leave has been taken as a result of holding the two 
positions and that while the Commission desires to appoint some person 
on the list other than the disabled veteran on a permanent basis it would 
continue to employ the disabled veteran on a full-time, but temporary, 
basis. 

General Laws c. 31, § 23 provides in part that "A disabled veteran 
shall be appointed and employed in preference to all other persons includ- 
ing veterans." 

In view of the explicit provision quoted, I am constrained to the opin- 
ion that the Division of Civil Service cannot permit the appointment of 
anyone other than a disabled veteran when a disabled person is on an 
eligible list for a position. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



48 P.D. 12 

A municipality accepting the statute permitting group insurance coverage 
of persons retired prior to the date of a contract therefor, may include 
a retired employee receiving an annuity as the spouse of an em- 
ployee. 

July 8, 1963. 

Mr. William A. Burke, Executive Secretary, Group Insurance Com- 
mission. 

Dear Sir: — You have requested my opinion as to the applicability of 
Chapter 647 of the Acts of 1962 to Mary V. Kelley, a former employee of 
the Town of Brookline. 

Specifically, you have asked whether she is eligible to secure hospital- 
surgical-medical coverage under said chapter. 

Mary V. Kelley was retired by the Brookline Retirement Board in 1952 
at an annual rate of $356.40. Chapters 32A and 32B had not yet been en- 
acted and, therefore, it would have been impossible to secure the hospital- 
surgical-medical coverage at this time. Chapter 647 of the Acts of 1962 
was enacted to make this insurance available to "elderly governmental 
retirees . . . retired prior to the effective date of contracts or agreements 
issued under the provisions of chapter thirty-two B as, or when, adopted 
by the political subdivision from which they are retired, and who are 
receiving a pension, annuity or retirement allowance sufficient from which 
a monthly insurance premium may be withheld." 

In 1963 the Town of Brookline adopted Chapter 647 of the Acts of 1962 
but at the same time granted an annuity to survivors of deceased officials 
or employees who died or were retired under the provisions of c. 32, § 95A. 
Mrs. Kelly qualified and thus waived her own pension so as to be eligible 
for the annuity. 

It is my opinion that Mary V. Kelley is eligible to secure hospital- 
surgical-medical insurance coverage under Chapter 647 of the Acts of 
1962, since the Town of Brookline has adopted said chapter and because 
she retired prior to the enactment of c. 32B and is receiving an annuity 
from the Town of Brookline sufficient from which a monthly insurance 
premium may be withheld. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The office of Director of Personnel and Standardization was abolished by 
St. 1962, c. 757 , and the incumbent thereof was not transferred to the 
specific newly created office with the same title, which is vacant. 

July 8, 1963. 

Hon. William A. Waldron, Commissioner of Administration and Fi- 
nance. 

Dear Sir: — In your letter of April 26, 1963 you have requested my 
opinion as to whether, under Chapter 757 of the Acts of 1962, a vacancy 
exists in the office of Director of Personnel and Standardization in the 
new Executive Office for Administration and Finance. 



P.D. 12 49 

The former Commission of Administration and Finance was created 
under the Acts of 1922, c. 545 which became a part of Mass. Gen. Laws 

c. 7. 

Mass. Gen. Laws c. 7, section 2. 

There shall be a commission on administration and finance consisting 
of four commissioners, which shall serve directly under the governor and 
council within the meaning of Article LXVI of the amendments to the 
constitution of the Commonwealth. 

Under the provisions of such chapter, one of the commissioners was desig- 
nated the chairman of the commission and served in the capacity of Com- 
missioner of Administration. 

Mass. Gen. Laws c. 7, section 3. 

One commissioner shall be appointed by the governor, with the advice 
and consent of the council, as chairman of the commission, and he shall 
serve a term of office concurrent with that of the governor. Said commis- 
sioner shall be designated and be known as the commissioner of adminis- 
tration . . . 

Under the then administrative organization of the commission, the 
Director of Personnel and Standardization was placed directly under the 
commission. 

Mass. Gen. Laws c. 7, section 5. 

There shall be directly under the commission a division of personnel 
and standardization, in charge of a director of personnel and standardiza- 
tion. 

Chapter 757 of the Acts of 1962 abolished the Commission on Adminis- 
tration and Finance [c. 757, section 74 (1962)]. A new agency was created 
called the Executive Office for Administration and Finance. This change 
became effective as of January 3, 1963. The legislature did this by strik- 
ing out sections 2, 3, 3A, 4, 5, 5A, 5B, and 6, of chapter 7 of the Massa- 
chusetts General Laws, and inserting in their place nine new sections. 

Mass. Gen. Laws c. 7, section 2 (as amended). 

There is hereby established the executive office for administration and 
finance, which shall serve directly under the governor and council within 
the meaning of Article LXVI of the constitution of the commonwealth. 
Unlike the old provisions of chapter 7, the governor may now appoint the 
Commissioner of Administration without the advice and consent of the 
council and may remove him at will. 

Mass. Gen. Laws c. 7, section 4 (as amended). 

The governor shall appoint a commissioner of administration, who 
shall be a person of ability and experience. He shall serve at the pleasure 
of the governor, shall receive such salary not exceeding fourteen thou- 
sand dollars per year as the governor may determine, and shall devote 
his entire time to the duties of his office. Except in the cases of the comp- 
troller's division and the purchasing agent's division, each as established 
under section four A, the commissioner shall be responsible for the exer- 
cise of all powers and the performance of all duties assigned by law to the 



50 P.D. 12 

executive office for administration and finance or to any division, bureau 
or other administrative unit or agency under the said office. He shall be 
the executive and administrative head of the said office; and every divi- 
sion, bureau, section and other administrative unit and agency within the 
said office, other than the comptroller's division and the purchasing 
agent's division, shall be under his direction, control and supervision . . . 

Under the new organization created by c. 757 (1962), the Director of 
Personnel and Standardization is no longer directly under the Commis- 
sion. The Executive Office for Administration and Finance is comprised 
of four divisions: the comptroller's division, the purchasing agent's divi- 
sion, the fiscal affairs division and the central services division. In two of 
these divisions, fiscal affairs and central services, the Commissioner of 
Administration enjoys broad inter-departmental reorganization powers. 
(Mass. Gen. Laws c. 7, section 4A, as amended.) The legislature granted 
the commissioner broad powers not theretofore in existence and the fiscal 
affairs division, under whose jurisdiction the Bureau of Personnel is now 
situated, is not an excepted division from those powers as set forth in sec- 
tion 4 of the reorganization act. 

The new Bureau of Personnel and Standardization is now directly un- 
der the Fiscal Affairs Division rather than under the Commission. Also, 
c. 757 (1962) has added new qualifications for the office of Director not 
present in the old statute. 

Mass. Gen. Laws c. 7, section 4B. 

There shall be within the fiscal affairs division a . . . bureau of per- 
sonnel headed by a director of personnel and standardization . . . The 
said director of personnel and standardization shall ... be appointed by 
the commissioner, with the approval of the governor and council, and 
may be removed, for cause, in like manner; shall be a person of ability 
and experience, and shall devote his entire time to the duties of his office; 
and none of the said officers shall be classified under chapter thirty-one. 

The legislature, in abolishing the Commission on Administration and 
Finance, also specifically abolished the old office of Director of Person- 
nel and Standardization, formerly authorized by section 5 of chapter 7, 
in enacting section 4 of the new act which recites: 

Said chapter 7 is hereby amended by striking out sections 2, 3, 3A, 4, 
5, 5A, 5B and 6, and inserting in place thereof . . . 

This section also abolished the old offices of Federal-State co-ordinator, 
comptroller's bureau, budget bureau, purchasing bureau, division of 
building construction and the two deputy commissioners of administra- 
tion. 

The legislature, being mindful that it had abolished these offices, pro- 
vided for continuity of the commission and its departments by establish- 
ing in sections 2, 3, 4, 4A, 4B and 4C the new Executive Office for Ad- 
ministration and Finance with the necessary and appropriate divisions 
and bureaus thereunder. 

In respect to the offices of Comptroller, state purchasing agent, state 
superintendent of buildings, budget commissioner and director of hospi- 
tal costs, the incumbents were continued in office by section 72 of the new 
act which provides: 



P.D. 12 51 

Notwithstanding the provisions of section three of this act, the incum- 
bents of the offices of comptroller, state purchasing agent and state super- 
intendent of buildings immediately prior to the effective date of this act 
shall continue to serve as comptroller, state purchasing agent and state 
superintendent of buildings, respectively, until expiration of the term 
for which he shall have been appointed; and the incumbent of the office 
of budget commissioner shall, until expiration of, the term for which he 
shall have been appointed, serve as the budget director established by the 
act; and such incumbent of the office of director of hospital costs, shall 
continue his office in accordance with his appointment under chapter 
thirty-one. 

It is to be noted that the incumbent of the office of Director of Person- 
nel and Standardization was not included in this section although the 
new office had been provided for in section 4B of the act. 

In addition to authorizing the specific transfers set forth in section 72, 
the legislature also adopted section 73, which reads as follows: 

c. 757, section 73 (1962). 

All officers, deputies and employees of any board, office, agency, divi- 
sion, bureau, section or other administrative unit within, under or at- 
tached to the commission on administration and finance and the office 
of the state superintendent of buildings who immediately prior to the 
effective date of this act shall hold positions classified under chapter 
thirty-one of the General Laws, or shall have tenure in their positions by 
reason of section nine A of chapter thirty of the General Laws are hereby 
transferred to the services of the divisions, bureaus, sections and other 
administrative units within the executive office for administration and 
finance which are established by this act or shall be established in accord- 
ance with this act, every such transfer to be without impairment of the 
civil service status, seniority, retirement and other rights of the employee, 
without interruption of his service within the meaning of the said chapter 
thirty-one or section nine A of chapter thirty, and without reduction in 
his compensation and salary grade, notwithstanding any change in his 
title or duties made as a result of such transfer. All officers, deputies and 
employees of any such board, office, agency, division, bureau, section or 
other administrative unit who immediately prior to the said date shall, 
without such tenure, hold positions not so classified, are hereby trans- 
ferred to the service of the said executive office for administration and 
finance without impairment of seniority, retirement, and other rights, 
without interruption of service within the meaning of the said section 
nine A of chapter thirty, and without reduction in compensation and sal- 
ary grade. 

Section 73 provides for transfer of the following three groups of em- 
ployees: 

1. Employees holding civil service positions classified under c. 31; 

2. Employees having veterans tenure under c. 30, section 9A. 

3. All other officers, deputies and employees not holding positions so 
classified and not having such tenure. 



52 P.D. 12 

The transfers authorized by said section 73 are not to specific positions 
(as is the case with section 72 appointments) but are "to the services of 
the divisions, bureaus, sections and other administrative units within the 
executive office for administration and finance . . ." The strong control 
and reorganization powers granted to the Commissioner by the new act 
indicate that the legislature did not intend to limit his discretionary dis- 
position of forces within his organization, except as specifically enumer- 
ated by the legislature. 

If the legislature had intended that the incumbent of the office of Di- 
rector of Personnel and Standardization was to be transferred to a new 
position bearing the same title under the new act, it can be assumed that 
the legislature would either have spelled it out as in the case of the sec- 
tion 72 appointments or would have used apt language to express its in- 
tention as it did in a somewhat similar situation under section 22 of 
Chapter 465 of the Acts of 1956 wherein it stated: ". . . the employees of 
said projects whose work is directly related to such projects, shall be trans- 
ferred to the Authority and shall continue to perform the same duties 
at a salary not less than theretofore . . ." 

Not having been specifically singled out for transfer to a specific posi- 
tion by either sections 72 or 73, it follows that the incumbent's rights to 
transfer to such specific position are dependent upon whether or not he 
has status as a civil service employee or as a veteran. 

The Director of Personnel and Standardization could not be classified 
as a civil service employee under Chapter 31 since appointments to that 
office are subject to the approval of the governor and council. 

Mass. Gen. Laws c. 31, section 5. 

Positions Not to Be Included. 

No rule made by the commission shall apply to the selection or appoint- 
ment of any of the following: — ... officers whose appointment is sub- 
ject to the approval of the governor and council . . . 

Whether or not the incumbent is covered by c. 30, section 9A is deter- 
mined by the length of time he has held the position of Director of Per- 
sonnel and Standardization. From the facts on file in the Office of the 
Secretary of State, the appointment of the incumbent Director of Per- 
sonnel and Standardization was confirmed December 28, 1960, and he 
took the oath of office on December 29, 1960. Since he has not been in 
office for the statutory period of three years, he does not come within the 
purview of Mass. Gen. Laws c. 30, section 9A. 

Mass. Gen. Laws c. 30, section 9A. 

A veteran, as defined in section twenty-one of chapter thirty-one, who 
holds an office or position in the service of the commonwealth not classi- 
fied under said chapter thirty-one, other than an elective office, an ap- 
pointive office for a fixed term or an office or position under section seven 
of this chapter, and has held such office or position for not less than three 
years . . . (Emphasis supplied.) 

The fact that the incumbent has performed the duties of the Director 
of Personnel and Standardization does not vitiate the effect of the statutes 



P.D. 12 53 

cited above. His continuance in office can give him no new tenure. Our 
Supreme Judicial Court, commenting on a similar situation, stated: 

"It is a general principle of expediency in the absence of any binding 
regulation that an officer may continue after the expiration of his term 
to exercise the duties of his position until his successor is selected and 
qualified. This is simply a holding over for convenience and confers no 
right for any defined period. It is not a part of the necessary tenure of his 
office. It prevents interruption in the performance of the public business 
. . ." Opinion of the Justices, 275 Mass. 575, 579 (1931). 

It is clear that the legislature had the power to abolish the old office 
and create the new. 

"The legislature may create a public office, other than one created by 
the constitution, provide for the election or appointment of its incum- 
bent, establish and modify from time to time its tenure, compensation and 
duties, and abolish the office as the public interest may require." Cullen vs. 
Mayor of Neiuton, 308 Mass. 578, 580 (1941). 

"Where an office is created by law, and one not contemplated, nor its 
tenure declared by the constitution, but created by law solely for the 
public benefit, it may be regulated, limited, enlarged or terminated by 
law, as public exigency or policy may require." Taft vs. Adams, 3 Gray 
126, 130 (1854). 

Based upon the facts that under c. 757 of the Acts of 1962 the legislature 
(a) abolished the former office of Director of Personnel and Standardiza- 
tion, (b) created a new office, bearing the same title, which fits differently 
into the organizational structure of the new Executive Office for Adminis- 
tration and Finance, (c) granted the new Commissioner broad and flexible 
powers of administration, and (d) spelled out the positions under which 
transfers to the new agency were mandatory and in so doing failed to in- 
clude the office of Director of Personnel and Standardization, it is my 
opinion that a vacancy exists in the office of Director of Personnel and 
Standardization in the New Executive Office for Administration and Fi- 
nance. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Ordinarily the Attorney General gives opinions only to State officers. 
In view of state-wide concern, opinions expressed that statute requir- 
ing the reading of the Bible in the public schools is unconstitutional 
in view of recent decisions of the Supreme Court of the United States. 

July 9, 1963. 
Mr. Edward J. Winter, Secretary, The School Committee of the City of 

Boston. 
Dear Sir: — In your letter to me of July 2, 1963, written on behalf of 
the School Committee, you request my opinion of the effect of the recent 
decision of the Supreme Court of the United States "on Bible reading and 
other religious exercises or ceremonies in the Boston Public Schools." 



54 PD. 12 

Normally, the answer to a request of such nature would be furnished 
to a local school committee by its corporation counsel, city solicitor or 
town counsel, as the case may be. Except as otherwise provided by statute, 
the legal opinions of this office are rendered only to the Governor and 
Council, the legislature and the various departments of our state govern- 
ment. 

Nevertheless, in view of the time limitation suggested in your letter and 
because the underlying question involves matters applicable to every city 
and town in the commonwealth, I have formulated the opinion which 
follows. 

On June 17, 1963, the Supreme Court of the United States decided, in 
a single opinion, School District of Abington Township v. Schempp (No. 
142) and Murray v. Curlett (No. 119). In Schempp, the Court considered 
the constitutionality of a Pennsylvania statute, which read as follows: 

"At least ten verses from the Holy Bible shall be read, without com- 
ment, at the opening of each public school on each school day. Any child 
shall be excused from such Bible reading, or attending such Bible read- 
ing, upon the written request of his parent or guardian." 24 Pa. Stat, sec- 
tion 15-1516, as amended. 

In Murray, the Court considered the validity of a Baltimore ordinance of 
like effect. 

The Court reaffirmed the doctrine — of some twenty years' standing — 
that those restraints on the power of the Federal government imposed by 
the First Amendment also apply to the states through the Fourteenth 
Amendment. See Cantwcll v. Connecticut, 310 U. S. 296. These restraints 
prevent all governments — federal, state or local — from passing laws 
which "aid one religion, aid all religions, or prefer one religion over an- 
other." Everson v. Board of Education, 330 U. S. 1, 15. See also Engel v. 
Vitale, 370 U. S. 421; Torasco v. Watkins, 367 U. S. 488; McGowan v. 
Maryland, 366 U. S. 420. 

G.L., ch. 71, section 31, reads as follows: 

"A portion of the Bible shall be read daily in the public schools, with- 
out written note or oral comment; but a pupil whose parent or guardian 
informs the teacher in writing that he has conscientious scruples against 
it, shall not be required to read from any particular version, or to take 
any personal part in the reading. The school committee shall not pur- 
chase or use in the public schools school books favoring the tenets of any 
particular religious sect." 

It is apparent that section 31 is indistinguishable from the Pennsylvania 
statute invalidized in Schempp. Section 31 calls for the same type of cere- 
monial recitation in the public schools as did the Pennsylvania statute. 
Accordingly, under the principles enunciated by the Supreme Court, sec- 
tion 31 is unconstitutional, utterly void and without any force or effect, 
without the necessity of formal repeal. 

We are a nation of laws and not of men. Respect for and obedience 
to the law has been a hallmark of our history. We may, as individuals or 
as members of a larger association of citizens, disagree with a decision 
made by the Supreme Court of the United States. But when the Supreme 
Court of the United States has ruled that a state statute is in conflict with 
our federal constitution, every American — the public official and the 



P.D. 12 55 

private citizen alike — has a duty to abide by that decision. To do other- 
wise would undermine the very foundations on which this country was 
built. 

You also referred in your letter to "other religious exercises or cere- 
monies in the Boston Public Schools." You have not indicated the nature 
of any other "religious exercises or ceremonies" which may be practiced 
in the Boston schools; and I have not been made aware of any which are 
uniformly practiced throughout the Commonwealth. Whether any such 
exercises or ceremonies would be valid under the principles of the First 
Amendment, or of applicable laws of the Commonwealth, would obvi- 
ously depend upon the facts. Not having been given any such facts, I can- 
not attempt to express an opinion on the effect thereon of such principles, 
and accordingly cannot further answer your request. When and if the 
question is appropriately presented, it will receive my fullest attention. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Civil Service Commission has no jurisdiction to review the suspen- 
sion of a civil servant indicted for misconduct in his employment. 

July 10, 1963. 

Hon. John C. Carr, Jr., Chairman, Civil Service Commission. 

Dear Sir: — In your letter of July 10, 1963, you have asked my opin- 
ion as to whether the Civil Service Commission has the authority to hear 
the complaint of a civil servant suspended under the provisions of St. 1962, 
c. 798. 

The facts as stated in your letter are as follows: 

"Mr. Bessette is currently under indictment by the Suffolk County 
Grand Jury and has been convicted of the crime of conspiracy. He has 
appealed his conviction to the Supreme Judicial Court where his appeal 
is now pending. 

"After Mr. Bessette was indicted, Mr. Jack P. Ricciardi, the Commis- 
sioner of Public Works, suspended Mr. Bessette from the position of Di- 
rector of the Division of Waterways in accordance with St. 1962, c. 798. 

"Mr. Bessette in his complaint contends that he has been illegally sus- 
pended by the Commissioner of Public Works. It is his contention that he 
could only be suspended by the procedures outlined in Mass. G.L., c. 31, 

§ 43." 

Massachusetts General Laws c. 31 deals generally with the rights and 
privileges of employees having civil service status. Section 43 of this chap- 
ter deals with a procedure by which a civil servant may be suspended. 

Mass. Gen. Laws c. 31, § 43. 

" (a) . . . He shall not be discharged, removed, suspended for a period 
exceeding five days, laid off, transferred from such office or employment 
without his consent, lowered in rank or compensation, nor shall his office 



56 P.D. 12 

or position be abolished, except for just cause and for reasons specifically 
given him in writing. . . ." 

This section was most recently amended by St. 1959, c. 569, §1. It speaks 
only in general terms of the suspension of a civil servant. It does not ex- 
clude the suspension of a civil servant for a cause or by a procedure spe- 
cifically provided for by the Legislature to meet a precise situation. 

That situation is where an employee of the Commonwealth has been 
indicted for misconduct in office. The Legislature (St. 1962, c. 798) pro- 
vided specifically for this situation. I call your attention to my opinion 
dated June 26, 1963 relative to this recent enactment which holds, inter 
alia, that the Legislature comprehended a subsequent conviction under 
the indictment as contemplated by the statute. Enclosed you will find a 
copy of my opinion for your convenience. Any general provision of the 
law which might apply to this situation has been superseded by this speci- 
fic statute. 

It is a familiar rule of statutory interpretation that a specific provision 
will govern even though general provisions, if standing alone, would in- 
clude the same subject. Karrell v. United States, 181 F2d 981, 986 (9th 
Cir. 1950). 

It is the established law that where two statutes cannot be otherwise 
reconciled, the general statute must yield to the specific statute, particu- 
larly where the specific statute is a later one. Papiernick v. City of New 
York, 115 N.Y.S. 2d 454, 458 (1952). 

Where there are two statutory provisions, one of which is general and 
designed to apply to cases generally, and the other is particular and relates 
only to one subject, the particular provision must prevail and must be 
treated as an exception to the general provision, especially where the par- 
ticular provision is later in time enactment. Boiues v. City of Chicago, 
120 N.E. 2d 15, 31 (1954). 

This statute provides an exclusive procedure. Massachusetts General 
Laws c. 31, § 43 does not apply where a civil servant has been suspended 
for being "under indictment for misconduct in his office or employment of 
the commonwealth." The Civil Service Commission then would not have 
jurisdiction to hear this case since their reviewing authority under Mass. 
General Laws c. 31, § 46 A is predicated on the basis that Massachusetts 
General Laws c. 31, § 43 has been inapplicable. 

The rights of the employee are fully protected under St. 1962, c. 798. 
If the indictment is found by the Court to be without justification, the 
employee is restored to all his rights and privileges without loss of com- 
pensation. Further, if the appointing authority failed to restore the em- 
ployee to his former position, an action based on this statute could be 
brought in the courts. 

Therefore, it is my considered opinion that the Civil Service Commis- 
sion lacks the authority or jurisdiction to hear the complaint of Mr. Bes- 
sette. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 57 

The 1963 statute fixing the compensation of the legislators is not excluded 
from the Referendum as an appropriation; but since it is an Emer- 
gency Laiu its suspension cannot be requested. 

July 11, 1963. 

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

Dear Sir: — I have your request dated July 9, 1963 relative to my opin- 
ion on the constitutional sufficiency of two referendum petitions calling 
for the repeal and suspension of St. 1963, c. 506, being a legislative enact- 
ment entitled "AN ACT FURTHER REGULATING THE COMPEN- 
SATION, TRAVEL ALLOWANCE AND EXPENSES OF THE MEM- 
BERS OF THE GENERAL COURT." 

You have asked three distinct questions and I shall reply as enumer- 
ated. 

"1. Is the subject matter embodied in the petitions within the excluded 
matters for referendum as contained in the Constitution?" 

The exclusion section of amended Article 48 of the Amendments to the 
Constitution reads as follows: 

"No law that relates to religion, religious practices or religious institu- 
tions; or to the appointment, qualification, tenure, removal or compensa- 
tion of judges; or to the powers, creation or abolition of courts; or the 
operation of which is restricted to a particular town, city or other po- 
litical division or to particular districts or localities of the commonwealth; 
or that appropriates money for the current or ordinary expenses of the 
commonwealth or for any of its departments, boards, commissions or insti- 
tutions shall be the subject of a referendum petition." 

In the recent case of Daniel F. Murray v. Secretary of the Common- 
wealth, et al, 184 N.E.2d 336, 339, 1962 Adv. Sh. 1299, 1303, wherein 
the Court treated with the last legislative pay raise, St. 1960, c. 783, Chief 
Justice Wilkins stated therein "We are of opinion that, viewed by itself, 
St. 1960, c. 783, merely fixed salaries and did not appropriate funds for 
their payment. . . ." The Chief Justice also quoted the Opinion of the 
Justices, 301 Mass. 571, 587, to the effect that, "A provision . . . fixing 
the salary of a public officer is not an appropriation of that amount for 
the payment of such salary." The statute treated with herein is not un- 
like St. 1960, c. 783. 

It is, therefore, my considered opinion that the subject matter embodied 
in the petitions filed with your office does not fall within the excluded mat- 
ters for referendum as contained in amended Article 48 of the Constitu- 
tion. 

"2. In the case of the petition numbered 2, which in addition to re- 
peal, requests the suspension of the above Chapter 506, to which an 
emergency preamble has been affixed by the Legislature, does the Con- 
stitution make provision for the suspension of an emergency law, under 
Article 487" 

The constitutional provision for legislative enactment of emergency 
measures is found in amended Article 48 "The Referendum", "II. Emer- 
gency Measures" which provides in part: 



58 P.D. 12 

"A law declared to be an emergency law shall contain a preamble set- 
ting forth the facts constituting the emergency, and shall contain the 
statement that such law is necessary for the immediate preservation of 
the public peace, health, safety or convenience. A separate vote, which 
shall be recorded, shall be taken on the preamble, and unless the pre- 
amble is adopted by two-thirds of the members of each House voting 
thereon, the law shall not be an emergency law. . . ." 

The enactment of legislation containing an emergency preamble ren- 
ders the bill effective forthwith. The constitutional authority granted to 
the Legislature to enact emergency measures necessarily carries with it 
the power to enact legislation deemed by that body to be of such im- 
portance as to affix thereto an emergency preamble. Such authority far 
exceeds the weight given to an ordinary law which, when enacted, does 
not take effect for ninety days. 

Amended Article 48, III. Referendum Petitions, Section 3 of the Con- 
stitution entitled "Mode of Petitioning for the Suspension of a Law and 
a Referendum Thereon.", does not specifically provide for the suspension 
by referendum petition of an emergency law. Whereas, Section 4 thereof 
provides: "A referendum petition may ask for the repeal of an emergency 
law. . . ." 

The framing of our Constitution, and particularly an amendment 
thereto, must be presumed to have been accomplished only after profound 
thought, research and study. It is manifest and apparent that the silence 
of Section 3 of Amended Article 48 relative to suspension of emergency 
laws carries considerable significance when one does find the specific pro- 
vision for repeal of emergency laws in Section 4 of Amended Article 48. 
Where the intention is clear, there is no room for constitutional construc- 
tion and no excuse for interpolation or addition. 

Our Justices stated in Opinion of the Justices to the Senate, 286 Mass. 
611, 626, "The very presence in Article 48 of the reservation to the General 
Court of power to enact emergency measures imports competency to en- 
act laws with respect to matters of high importance which override the 
inchoate and incomplete law of an ordinary nature. . . ." 

You have not raised the question, nor may I properly treat with herein, 
the validity or invalidity of the General Court's judgment in affixing the 
emergency preamble to a measure concerning the subject matter of legis- 
lative compensation. 

I, therefore, answer your second inquiry in the negative. 

"3. For inclusion on the petitions for subsequent signers, will you 
kindly provide a concise summary of the proz'isions of the referenda as 
soon as possible." 

Inasmuch as I have answered your second inquiry in the negative, your 
request for a concise summary of the proposed law, repeal of which is 
sight by referendum petition, will follow under separate cover. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 59 

A contractor with the Metropolitan District Commission on a "unit price" 
sewer contract has no claim for the cost of pipe not used, and the pipe 
cannot he paid for as "extra work" or purchased, under the contract, 
by the Commission. 

July 12, 1963. 

Hon. Robert F. Murphy, Commissioner Metropolitan District Commis- 
sion. 

Dear Sir: — You have requested an opinion as to the proper method of 
payment under M.D.C. Contract 273 for 24 linear feet of unused pipe. 

Your letter states that this length of pipe was not installed as expected 
because of a change in the topography of the area. You further state that 
the contractor has made claim for payment for the pipe and that the 
Commission believes this pipe could be of possible use in the future for 
extension or repair. 

Contract 273 provides for the construction of approximately five thou- 
sand, four hundred and fifty-four (5,454) linear feet of out-fall sewer. 

The contractor has no claim for damages if, at the completion of the 
work as directed, he has remaining a quantity of uninstalled pipe. 

The contractor agreed to accept as full compensation the unit prices 
incorporated into the contract (Proposal for Contract 273, page 16; Arti- 
cle II, Work to be Done by Contractor, page 44.) Under the pertinent 
terms of this contract, the contractor shall be paid at the rate of $320 per 
linear foot for pipe "satisfactorily built into place in the completed work." 
(Item 19, page 23; Section 14.14, Measurement and Payment, p. 92.) See 
also Section 14.1, Work Included, p. 85. 

The contract is replete with warnings to the contractor that the quan- 
tities estimated by the Commonwealth were only approximations and not 
to be the basis of any claims for damages. 

Advertisement for Bids. 

". . . The work to be done under this contract consists of constructing 
approximately five thousand four hundred and fifty-four (5,454) linear 
feet of outfall sewer. . . ." Page 1. 

Approximate Statement of Quantities. 

"The following quantities are approximate only. . . ." Page 5. 

8. Conditions of Work. 

". . . Each bidder will form his own opinion of the character of the 
material to be excavated . . . and must satisfy himself by his own inves- 
tigation and research regarding all conditions affecting work to be done 
and labor and materials needed and make his bid in sole reliance thereon. 

"The quantities listed in the proposal are approximate only, being 
given for use in the comparison of bids and the Commission reserves the 
right to increase or decrease the amount of work to be done under any 
of these items, as may be deemed necessary or expedient by the Engineer. 
The Commission does not expressly or by implication agree that the ac- 
tual amount of any portion of the work will correspond with the quan- 
tities listed in the Proposal." Page 11. 



60 P.D. 12 

"The undersigned (Contractor) agrees that he will accept the above- 
stated unit prices as full payment under the items opposite which they 
are respectively set whether or not the actual amount of work under any 
or all of the items corresponds with the estimated quantities shown on the 
contract plans or in his proposal under any or all of the items, it being 
expressly understood that these quantities are approximate only, that they 
are uncertain and cannot be predicted in advance and that the work 
under certain items may be materially greater than or less than indicated 
as may be necessary, in the judgment of the Engineer, to complete the 
work contemplated in the contract. . . ." Page 37. (See also General De- 
scription of the Work, page 46, para. 2.) 

The contract further provides that if the Engineer makes any altera- 
tions in the work to be done "the Contractor shall have no claim for 
damages or for anticipated profits on the work that thus may be dispensed 
with". (Article XVII, Alterations, page 191.) See also Compensation for 
Work, Article XXIII, page 197. 

The courts have consistently upheld provisions of this type and denied 
damages to contractors. 

Allen v. Melrose, 184 Mass. 1, 5. 
Bay State Dredging fc Contracting Co. v. South Essex Sewerage District, 

279 Mass. 158, 162. 

Veneto v. McCloskey & Co., 333 Mass. 95, 101. 

United States v. Spearin, 248 U.S. 132. 

This contract does not give the authority to pay for or purchase pipe 
for "possible use in the future for extension or repair of the line". The 
terms of this contract are limited to the construction of a sewer line. 
There are no provisions in the contract for subsequent repair or extension 
of the line. 

Furthermore, Article XVIII (Extra Work) does not provide a method 
of payment for this pipe, however advantageous this may appear. This 
article provides a method of payment for: "any work not herein otherwise 
provided for and as ordered in writing by the Engineer or his agent. . . ." 
Page 192. 

Selling unused pipe can hardly be considered "work". The provisions 
of this article following the above-cited quotation demonstrate its inap- 
propriateness: 

"The cost of extra work shall not include any general or indirect over- 
head charges except that there shall be included an allowance, equal to 
the actual amount paid, for Public Liability, Performance Bond, Prop- 
erty Damage and Workmen's Compensation Insurance, and Federal So- 
cial Security and Massachusetts Unemployment Acts. . . ." Page 192. 

Therefore, Contract #273 neither authorizes nor provides a method 
for purchasing this unused pipe, and any attempt to do so under the con- 
tract, even if done in good faith, would be subject to being avoided by 
the Court. 

Morse v. Boston, 253 Mass. 247. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 61 

The deposit of material in the dredging area by a hurricane is an Act of 
God, and the Contractor is not entitled to compensation, at the unit 
price, for its removal. 

July 16, 1963. 

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

Re: Edgartown-Oak Bluffs Contract No. 2287, Ercon Const. Corp. 

Dear Sir: — You have requested an opinion as to whether the deposit 
of approximately 3,000 cubic yards of material, in the dredging area 
shown in the contract plan by Hurricane Donna is such an act of God 
as would entitle the Department of Public Works to pay the contractor 
on the basis of the unit bid price for the removal of such material. 

The following portion of Article 60 of the Standard Specifications for 
Waterways drawn up by your Department is pertinent: 

"Until its final approval by the Party of the First Part, the contractor 
shall assume full charge and care of the work and shall take every neces- 
sary precaution against injury or damage to the work by action of the ele- 
ments." 

Article 74 is also pertinent in that an act of God and unforeseeable 
causes will only allow an extension of contract time for completion and 
nothing more. Section D of said article reads as follows: 

"When delay occurs due to unforeseeable causes beyond the control and 
without the fault or negligence of the Contractor, including but not re- 
stricted to acts of God, acts of the public enemy, acts of the Government, 
acts of the State or any political subdivision thereof, acts of other con- 
tracting parties over whose acts the Contractor has no control, fires, floods, 
epidemics, strikes except those caused by improper acts or omissions of 
the Contractor, extraordinary delays in delivery of materials caused by 
strikes, lockouts, wrecks, freight embargoes, or acts of God, the time for 
completion of work shall be extended in whatever amount is determined 
to be equitable. 

"An act of God is construed to mean an earthquake, flood, cloudburst, 
cyclone, or other cataclysmic phenomenon of nature beyond the power 
of the Contractor to foresee or make preparation in defense of. A rain, 
windstorm or other natural phenomenon of normal intensity, based on 
United States Weather Bureau reports, for the particular locality and 
for the particular season of the year in which the work is being prose- 
cuted shall not be construed as an "act of God" and no extension of 
time will be granted for the delays resulting therefrom. 

"Within the scope of acts of the Government, consideration will be 
given to properly documented evidence that the Contractor has been de- 
layed in obtaining any material or class of labor because of any assign- 
ment of preference ratings by the Federal Government or its agencies to 
War, Navy or other defense contracts. 

"No extension of time will be granted for any delay or any suspension 
of the work due to the fault of the Contractor, nor if a request for an ex- 
tension of time on account of delay due to unforeseeable causes is not filed 
within fifteen (15) days of the date of the termination of the delay." 



62 P.D. 12 

The answer to the above question has been set forth in Boyle v. The 
Agawam Canal Co., 22 Pickering 381. In that land-mark case, it was held 
that the contractor was not entitled to recover for extra labor of repairing 
portions of the embankment and excavation, which was washed away or 
filled up by floods before the work was completed. The court said: 

"The general rule undoubtedly is, that in cases of contracts for con- 
struction of an entire work at a stipulated sum to be paid by the same, if 
any casualty shall occur, which shall increase the labors and expenditures 
of the contractor, the loss must fall on him who engages to do the work." 

The case of Adams v. Nichols, 36 Mass. 275 establishes the same prin- 
ciple. There a person contracted to build a house on the land of another 
and the house was, before its completion, destroyed by fire, it was held 
that the contractor was not discharged by his obligation. The court stated: 

"It is, that where the law imposes a duty upon anyone, inevitable ac- 
cident may excuse the non-performance, for the law will not require of a 
party what, without his fault of his, he becomes unable to perform. But 
where the party by his agreement voluntarily assumes or creates a duty 
or charge upon himself, he shall be bound by his contract, and the non- 
performance of it will not be excused by accident or inevitable necessity; 
for if he desired any such exception, he should have provided for it in his 
contract." 

On the bases of the foregoing specifications and cited cases, your ques- 
tion must be answered in the negative. The contractor is not entitled to 
be paid for the removal of such material. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Legislation to authorize the use of land given to the Commonwealth for 
a wild-life sanctuary, as a ski area by a private group, would be un- 
constitutional. 

July 23, 1963. 

Mr. Francis W. Sargent, Director, Division of Fisheries and Game. 

Dear Sir: — In your letter of May 10, 1963, you have asked my opin- 
ion concerning proposed legislation which would authorize the Director of 
the Division of Fisheries and Game, with the approval of the Governor 
and Council, to grant an easement to a private group or corporation for 
use as a ski area over land conveyed to the Commonwealth as a wild-life 
sanctuary. 

The facts which you have outlined are as follows: 

"The Commonwealth of Massachusetts received, as a gift, from the 
Federation of Bird Clubs of New England, Inc., a parcel of land contain- 
ing 100 acres more or less situated in Ashby and Ashburnham. 

"This land was conveyed as a wild-life sanctuary under the provisions of 
Chapter 131, Sec. 69 of the General Laws as amended by Statute of 1923, 
Chapter 301, Sec. 1. 



P.D. 12 63 

"The deed to the Commonwealth from the Federation of Bird Clubs 
of New England, Inc., contains in addition to the description of the 
boundaries, etc., the following clause; 

" 'Said premises are conveyed for use as a wild-life sanctuary for all 
time, for the purposes of Chapter 131, Section 69 of the General Laws, as 
amended by Statute of 1923, Chapter 301, Section 1.' 

"This deed was dated May 4, 1926 and was accepted, after approval of 
the Governor and Council on December 15, 1926. It was recorded in Wor- 
cester Northern District Deeds Book 444, Page 344 on Jan. 18, 1927 and 
also in Middlesex South District Deeds Book 5063, page 95 on February 4, 
1927. 

"The Division does not have authority, without legislative approval, to 
sell, lease or otherwise dispose of property under its jurisdiction." 

Massachusetts General Laws c. 131, § 69 was revised by St. 1941, c. 599 
and now appears as Mass. General Laws c. 131, § 90. 

Mass. Gen. Laws c. 131, § 90: 

"For the purpose of protecting any species of useful birds, mammals or 
fish, and for aiding the propagation thereof, the commissioner may acquire 
in fee by purchase, gift or devise, or may lease, or, with the consent of 
the owners, may control, any land, water or shore or the right to use the 
same, including the right of the public on such land or on or in such 
water or shore, as a wild life sanctuary. The commissioner, with the ap- 
proval of the governor and council, may receive in trust for the common- 
wealth any grant or devise of land or any gift or bequest of personal prop- 
erty for the purpose of aiding in the propagation and protection of any 
useful birds, mammals or fish; provided, that, unless approved by the gen- 
eral court, no obligation shall be imposed on the commonwealth to ex- 
pend in the carrying out of any trust more than the income of the trust 
property, or more than the income and principal thereof if by the terms 
of the trust the principal may be expended. Any such gift or bequest 
of money or securities shall be transferred forthwith to the state treas- 
urer, who shall administer it as provided in section sixteen of chapter 
ten." 

This land was conveyed to the Commonwealth in accordance with the 
second sentence of Mass. G.L., c. 131, § 90 (cited above). A valid charita- 
ble trust was created. 

From the facts which you have submitted to this office, it is clear that 
the purpose of the conveyor was that the land should be used only as a 
wild-life sanctuary. There is no evidence to indicate that it is now im- 
possible to maintain this land in accordance with this purpose. 

Massachusetts General Laws c. 131, § 90 provides only that the Gov- 
ernor and Council shall approve the acceptance of such a gift. No statu- 
tory provision has been made for altering or amending the trust agree- 
ment after it has been accepted. This is to be contrasted with Mass. G.L., 
c. 155, § 3. 

Mass. Gen. Laws c. 155, § 3: 

"Every act of incorporation passed since March eleventh, eighteen hun- 
dred and thirty-one, shall be subject to amendment, alteration or repeal 



64 P.D. 12 

by the general court. All corporations organized under general laws shall 
be subject to such laws as may be hereafter passed affecting or altering 
their corporate rights or duties or dissolving them. . . ." 

An easement granted to a private group or corporation lor use as a ski 
area is materially different from the land being used as a public wild-life 
sanctuary. No provision was included in the conveyance for alteration 
or amendment of the trust. 

You have suggested that this trust be changed by a special statute. In 
the leading case of Gary Library v. Bliss, 151 Mass. 364, 378 (1890), the 
Court discussed the feasibility of such a course of action and found that 
it would impair the obligations of contract. 

". . . We are of the opinion that the statute which we are considering 
impairs the obligation of the contract under which this charity is adminis- 
tered. The principles which lie at the foundation of the Dartmouth Col- 
lege case, and of other similar decisions, are decisive of the questions be- 
fore us. . . . The law laid down in these cases, that a charter establishing 
an eleemosynary corporation is a contract which cannot be changed by 
the Legislature without the consent of the partner to it, is a mere exten- 
sion of the doctrine which gives a similar effect to the written statement 
of a scheme that is made the foundation of donations to unincorporated 
trustees of a public charity. [151 Mass. 364 at p. 378.] 

In light of the precedent established by the Supreme Judicial Court 
and the action taken by the Legislature, it is my opinion, on the facts 
that you have presented, that this land must remain a public wild-life 
sanctuary, uninhibited by an easement granted to a private group or cor- 
poration. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The person appointed as the substitute for a State official suspended be- 
cause of an indictment for misconduct in office succeeds to the ex 
officio appointments held by the latter. 

July 30, 1963. 

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

Dear Sir: — I have your request of July 23, 1963 relative to two ques- 
tions concerning the suspension of Rodolphe G. Bessette, Director of the 
Division of Waterways, as it affects the Merrimack River Flood Control 
Commission, of which Commission Mr. Bessette was a member. 

You ask (1) is the Acting Director, Mr. Anthony W. Spadafora, now a 
member of said Commission and (2) if Mr. Spadafora is a member, is 
he then Treasurer of the Commission? 

The Merrimack River Valley Flood Control Commission was created 
by Article II of St. 1956, c. 608, which provides in part as follows: 

"A member of the commission may be removed or suspended from 
office as provided by the law of the state from which he shall be appointed, 



P.D. 12 



65 



and any vacancy occurring in the commission shall be filled in accordance 
with the laws of the state wherein such vacancy exists." 
Article II further provides: 

"The commission shall elect from its members a chairman, vice-chair- 
man, clerk and treasurer." 

Section 3 of Article IX of the act provides in part: 

". . . The director of the division of waterways in the department of 
public works, and the director of sanitary engineering and chief sanitary 
engineer in the department of public health, shall compose said com- 
mission." 

Accordingly, in answer to your first question, it is my opinion that Mr. 
Bessette ceased to be a member of this Commission as of June 27, 1963, 
the effective date of his suspension, and that Mr. Spadafora, upon his 
qualification as Acting Director of the Division of Waterways, by virtue 
of the provisions of St. 1956, c. 608, became a member of the Merrimack 
River Valley Flood Control Commission. 

In respect to your second question, it is my opinion that Mr. Spadafora 
does not become treasurer of the Commission, inasmuch as the Commis- 
sion must elect a treasurer from its members. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Obscene Literature Control Commission may publicize its functions 
and collect information outside the Commonwealth but cannot hold 
official meetings under the sponsorship, and on the premises of, pri- 
vate organizations. 

July 31, 1963. 
Obscene Literature Control Commission. 

Gentlemen: — I have your request for my opinion relative to the au- 
thority of the Obscene Literature Control Commission to accomplish the 
following matters: 

1 . To publish a pamphlet describing the powers, functions and activi- 
ties of the Commission; 

2. To answer questions relative to the powers, functions and activities 
of the Commission propounded by citizens either orally at open 
meetings of the Commission or in writing through the mail; 

3. To visit the national capital or other places for the purpose of se- 
curing information which will be of assistance to the Commission in 
the performance of its duties; and 

4. To hold official, public meetings of the Commission under the spon- 
sorship and at the premises of private organizations. 

The first two items can be dealt with together. The Commission is an 
organ of government. The populace is entitled to information concern- 
ing the powers, functions and activities of the Commission. Otherwise, 



66 P.D. 12 

the public could not intelligently evaluate the performance of the Com- 
mission, or recommend any legislation which such information may indi- 
cate to be desirable. This is not to say, of course, that the Commission 
is obliged to answer each and every question propounded to it. A request 
that the minutes of a meeting of the Commission in executive session be 
made public is but one example of a request which might properly be 
denied. In general, however, the Commission may respond to questions 
concerning its powers, functions and activities and may on its own initia- 
tive publish a descriptive pamphlet setting forth such powers, functions 
and activities. 

The third item of the request concerns the power of the Commission to 
gather information relevant to the performance of the Commission's du- 
ties. As you know, the Commission was established "in order to facili- 
tate the enforcement of sections twenty-eight to thirty-two, inclusive, of 
chapter two hundred and seventy-two. . . ." G.L., c. 4, § 101. The Com- 
mission has the power to collect data or information in pursuance of 
this purpose. The fact that such data or information is located in Wash- 
ington, D. C, or elsewhere, as opposed to within the Commonwealth, does 
not defeat such power. 

I do not imply by the foregoing that the General Court is required to 
appropriate such funds as may be necessary or desirable for the exer- 
cise of any of the above powers, but only that any such appropriation 
would be for a lawful purpose. The size of the appropriation for the 
Commission, as you know, is not within the jurisdiction of this office. 

Finally, it is my opinion that the Commission cannot properly hold its 
official meetings under the sponsorship and at the premises of private 
organizations. As any agency of government, the Commission can serve 
but one master — the Commonwealth. A sponsorship of the type you 
mention would create a reasonable basis for the impression that the spon- 
soring organization could improperly influence the Commission or its 
members or unduly enjoy its or their favor in the performance of its 
or their official duties, in violation of the principles of section 23 (e) of 
chapter 779 of the Acts of 1962. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Under the 1962 Amendments to the Sunday Laws only activities referred 
to for which admission fees are charged are required generally to be 
licensed, but the licensing of certain activities for which admission 
fees are charged is prohibited. 

Aug. 2, 1963. 
Hon. Frank S. Giles, Commissioner of Public Safety. 

Dear Sir: — This is in reply to your letters of April 15, May 24 and 
June 3 requesting opinions relative to interpretation of G.L., c. 136, the 
so-called Sunday Law. Since the questions are related, I am taking the 
liberty of combining the answers in one opinion. 



P.D. 12 6 7 

Your questions involve an interpretation of the new Chapter 136, added 
to the General Laws by Chapter 616 of the Acts of 1962. The controlling 
part of the statute is section 4, which is as follows: 

" (1) The mayor of a city or the selectmen of a town, upon written ap- 
plication describing the proposed dancing or game, sport, fair, exposition, 
play, entertainment or public diversion, except as provided in section one 
hundred and five of chapter one hundred and forty-nine, may grant, upon 
such reasonable terms and conditions as they may prescribe, a license to 
hold on Sunday dancing or any game, sport, fair, exposition, play, enter- 
tainment or public diversion for which a charge in the form of payment 
or collection of money or other valuable consideration is made for the 
privilege of being present thereat or engaging therein, except horse rac- 
ing, dog racing, automobile racing, boxing, wrestling and hunting with 
firearms; provided, however, that no such license shall be issued for danc- 
ing for which a charge in the form of the payment of collection of money 
or other valuable consideration is made for the privilege of engaging 
therein; and provided further, however, that no license issued under this 
paragraph shall be granted to permit such activities before one o'clock in 
the afternoon; and provided, further, that such application, except an 
application to conduct an athletic game or sport, shall be approved by 
the commissioner of public safety and shall be accompanied by a fee of 
two dollars, or in the case of an application for the approval of an annual 
license by a fee of fifty dollars. 

" (2) Licenses may be issued by the authorities designated in paragraph 
(1) to permit such activities before one o'clock in the afternoon, with the 
written approval of the commissioner of public safety and upon such rea- 
sonable terms and conditions as prescribed by him therein. The applica- 
tion for the approval of the proposed activity by the commissioner shall 
be in writing and shall be accompanied by a fee of five dollars or in the 
case of an application for the approval of an annual license by a fee of 
one hundred dollars. 

" (3) The licensing authority, or the commissioner of public safety or 
his designee, may revoke, cancel or suspend any license issued under this 
section upon evidence that the terms or conditions of such license or pro- 
visions of law are being violated; provided, however, that said commis- 
sioner shall not revoke, cancel or suspend any license issued under para- 
graph (1) which he is not required by said paragraph to approve. 

" (4) The city council of a city or board of selectmen of a town may de- 
termine fees for the issuance of licenses not to exceed ten dollars for a 
license for a single event, nor two hundred dollars for an annual license. 

" (5) The city council of a city and board of selectmen of a town may 
make regulations relative to granting of licenses under this section and 
may revoke or amend them from time to time. 

" (6) The provisions of this section, in so far as they require a license for 
the use of radio and television, shall not apply to premises licensed under 
the provisions of section twelve of chapter one hundred and thirty-eight. 

" (7) Sections two and three and this section shall not apply to golf, 
tennis, bowling-on-the-green, skiing, or any activity in a gymnasium or on 



68 P.D. 12 

any rink, court, or field, for which a charge is made only for the privilege 
of engaging therein and not for the privilege of being present thereat as a 
spectator." 

/. Dancing, Entertainments and Other Public Diversions. 

I The new Chapter 136 substituted in 1962 is somewhat more lenient 

I than the old chapter. Section 4 now authorized the licensing of any Sun- 
day dancing, game, entertainment, public diversion, etc., for which there 
\ is a charge either to participate or to be present as a spectator. In compari- 
son, the former Chapter 136 required licenses for such Sunday activities 
i whether or not there was an accompanying charge. Presumably, therefore, 
• no more being said, the new legislation indicates that free entertainments, 
j public diversions, etc., may be held Avithout prior application for a license. 
Farther on in the statute it is provided that no license shall be issued for 
Sunday dancing for which a charge is made; clearly, therefore, dancing 
for which there is no charge (either to participate or to be present as a 
spectator) is contemplated as a permissible, unlicensed activity. Other- 
wise there would have been no point in including it at a prior point in 
the statute in the list of allowable Sunday recreations. 

Where no license is required, then clearly there is no necessity of ap- 
proval of the license application by the Commissioner of Public Safety. 
The paragraph denoting activities which must be licensed states: 

". . . such application, except an application to conduct an athletic 
game or sport, shall be approved by the commissioner of public safety. 
. . ." G.L. c. 136, section 4(1) 

Of course, where no license is required, there will be no application and 
nothing under the statute to be approved by the Commissioner. 

//. Golf Driving Ranges. 

Such a Sunday activity would ordinarily fall within the licensing pro- 
visions of section 4(1) as a game, sport or public diversion. However, 
paragraph (7) of said section 4 operates to remove the activity from the 
effect of the section. Paragraph (7) provides: 

" (7) Sections two and three and this section shall not apply to golf, 
tennis, bowling-on-the-green, skiing,, or any activity in a gymnasium 
or on any rink, court, or field, for which a charge is made only for the 
privilege of engaging therein and not for the privilege of being present 
thereat as a spectator. 

Whether or not what is done at a driving range should be classified as 
"golf" need not be decided. In any event the activity clearly falls within 
the category of "any activity ... on any . . . field, for which a charge 
is made only for the privilege of engaging therein", and thus is exempted 
by the paragraph from the licensing requirements of the section in any 
case where there is no charge for the privilege of being present as a spec- 
tator. 



P.D. 12 69 

///. Motorcycle Racing. 

Motorcycle racing appears to fall within the category of "entertain- 
ment" or "public diversion" specified in section 4(1); therefore, if a charge 
is made for the privilege of being present thereat or engaging therein 
the activity is required to be licensed, and the application for a license 
must be approved by the Commissioner of Public Safety. 

In so far as section 4(1) prohibits entirely any Sunday "horse racing, 
dog racing, automobile racing, boxing, wrestling and hunting with fire- 
arms" for which any charge is made, the question has been raised whether 
or not the term "automobile" should be construed so as to include motor- 
cycles. Chapter 136 contains no definitions section; the only applicable 
definition is that appearing in Chapter 90, the statutes generally regulat- 
ing motor vehicles. There "automobile" is defined as "any motor vehicle 
except a motor cycle". G.L. c. 90, section 1. Whether or not the legisla- 
ture actually intended motorcycle racing to be prohibited on Sunday is a 
matter of conjecture; whatever the answer, the Sunday laws are criminal 
statutes and must be construed strictly. Motorcycles are not in the com- 
mon sense considered to be automobiles, and it must be assumed that had 
the legislature intended to include them within the prohibition that these 
vehicles would have been specifically mentioned. 

It is my opinion that motorcycle racing cannot be considered an ordi- 
nary athletic game or sport so as to exempt it from the requirement of 
section 4(1) that the license application be approved by the Commis- 
sioner of Public Safety. Likewise, the exemption granted by paragraph (7) 
of section 4 is inapplicable, since a charge is made for the privilege of 
being a spectator at such a race. Therefore, motorcycle racing must be 
treated as any other Sunday "entertainment" or "public diversion" for 
which a charge is made either to participate or to be present as a spec- 
tator; i.e., it must be licensed, and the application for a license must be 
approved by the Commissioner of Public Safety. 

In regard to Sunday activities conducted without a license in cases 
where section 4(1) requires that such a license be issued, sections 2 and 
3 of new Chapter 136 come into effect. Section 2 imposes a fine upon any 
person who is present at or engages in any such unauthorized game, en- 
tertainment, public diversion, etc. Section 3 is a broad section which 
fines any person who attempts, offers to or actually promotes, maintains 
or conducts such unauthorized entertainment. 

"Whoever on Sunday is present at or engaged in dancing or any game, 
sport, fair, exposition, play, entertainment or public diversion for which 
a charge in the form of the payment or collection of money or other 
valuable consideration is made for the privilege of being present thereat 
or engaging therein, and for which a license has not been granted as pro- 
vided in section four, shall be punished by a fine of not more than fifty 
dollars." 

"Whoever on Sunday offers to view, sets up, establishes or maintains, 
or attempts to set up, establish or maintain, or promotes or assists in such 
attempt, or promotes, or aids, abets or participates in offering to view, 
setting up, establishing or maintaining, or acts as proprietor, manager or 
person in charge of, dancing or any game, sport, fair, exposition, play, en- 
tertainment or public diversion for which a charge in the form of the 



70 P.D. 12 

payment of money or other valuable consideration is made for the privi- 
lege of being present thereat or engaging therein, and for which a license 
has not been granted as provided in section four, shall be punished by a 
fine or not more than two thousand dollars." 

Where Sunday activities are being held in conformance with law other 
clauses of the statute become applicable. Section 5 of Chapter 136 gen- 
erally penalizes the keeping open of shops and the doing of any manner 
of labor, business or work, except works of necessity and charity, on Sun- 
day. Section 6 then lists activities which shall not be prohibited under 
section 5. In connection with the problem at issue, the following should 
be noted: 

"Section 6. Limitation of operation of section 5. 

"Section five shall not prohibit the following: 

" (39) The necessary preparation for, and the conduct of, events licensed 
under section four, or activities as to which, under the provisions of para- 
graph (7) of section four, sections two, three and four do not apply. 

" (40) Any labor, business or work necessary to the performance of or 
incidental to any religious exercises, including funerals and burials, the 
execution of wills or codicils, or any other activity not prohibited nor re- 
quired to be licensed on Sunday." (Emphasis supplied.) 

"herefore, in accordance with the above analysis, I advise you that^ 
I under the new provisions of G.L., c. 136, as now in effect, no license is 
required for holding on Sunday dancing, or any game, sport, fair, expo- 
sition, play, entertainment or public diversion for which no charge in 
the form of payment or collection of money or other valuable considera- 
tion is made for the privilege of being present thereat or engaging therein. 
Likewise, no license is required for "golf, tennis, bowling-on-the-greenf 
skiing, or any activity in a gymnasium or on any rink, court, or field, for 
which a charge is made only for the privilege of engaging therein and not 
for the privilege of being present thereat as a spectator". 

However, no license may be issued to permit the holding on Sunday of 
horse racing, dog racing, automobile racing, boxing, wrestling or hunting 
with firearms, for which a charge in the form of payment or collection of 
money or other valuable consideration is made for the privilege of being 
present thereat or engaging therein; and no license may be issued for 
dancing for which such a charge is made for the privilege of engaging 
therein. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 71 

State Secretary may accept Referendum petition asking for suspension of 
emergency law increasing salaries of legislators and issue forms for 
subsequent signers where Attorney General has stipulated in pend- 
ing court proceedings that such would be done. 

Aug. 5, 1963. 
Hon. John T. Driscoll, Treasurer and Receiver General. 

Dear Sir: — I have your request of July 30, 1963 for my opinion rela- 
tive to whether or not there are any impediments to your department 
in paying the members of the General Court their increased allowances 
and salary as provided by c. 506 of the Acts of 1963. 

In the present litigation (Jack E. Molesworth, et al. v. Secretary and 
Treasurer of the Commonwealth), a. prayer for a restraining order to en- 
join you from paying the members of the General Court their increased 
allowances and salary was denied. 

I have previously advised the Secretary of the Commonwealth in my 
opinion dated July 11, 1963, that it is my considered opinion that a pe- 
tition by referendum to suspend the legislation involved may not prop- 
erly relate to such act provided an emergency preamble is affixed thereto. 
Accordingly, it is my opinion that there are no impediments to your de- 
partment relative to paying the members of the General Court the in- 
creased allowances and salary as provided in c. 506 of the Acts of 1963. 

However, I deem it appropriate to comment that, inasmuch as the mat- 
ter is presently the subject of litigation, and should the petitioners pre- 
vail, and duly perfect the referendum petition by filing in accord with 
our Constitution, c. 506 of the Acts of 1963 would thereupon be sus- 
pended and the sums appropriated under the legislation would have to be 
returned to you as Treasurer of the Commonwealth. I suggest to you that 
from a practical viewpoint it would be well for you to advise and inform 
the members of the General Court of this possibility as the individual 
members apply to your department for the increased allowances and 
salary. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Aug. 5, 1963. 
Hon. Frank S. Giles, Department of Public Safety. 

Dear Sir: — In your letter of June 20, 1963, you have asked the opin- 
ion of this office whether St. 1963, c. 386 applies to the Logal International 
Airport which is administered by the Massachusetts Port Authority. 

The Massachusetts Port Authority was created by the Legislature as a 
corporation under the authority of Chapter 465 of the Acts of 1956 as 
amended by Chapter 599 of the Acts of 1953. 

St. 1956, c. 465, section 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 Au- 



72 P.D. 12 

thority, which shall not be subject to the supervision or regulation of the 
department of public works or of any department, commission, board, 
bureau or agency of the Commonwealth except to the extent and in the 
manner provided in this act. . . ." 

By the authority of this statute, the Massachusetts Port Authority under- 
took the administration of the properties located in the city of Boston and 
known as the "Logan International Airport." 

St. 1956, c. 465 as amended by St. 1958, c. 599, Section 1. 

(a) the term "airport properties" shall include the General Edward 
Lawrence Logan International Airport, hereafter called the Logan Air- 
port, and Lawrence G. Hanscom Field, together with all buildings and 
other facilities and all equipment, appurtenances, property, rights, ease- 
ments and interests acquired or leased by the Commonwealth in connec- 
tion with the construction or the operation thereof and in charge of the 
state airport management board. 

The duties and powers of the Authority are outlined by statute. The 
Authority may pass rules and regulations incident to the operation of the 
Logan International Airport. 

St. 1956, c. 465, section 3. 

(g) To extend, enlarge, improve, rehabilitate, lease as lessor or as les- 
see, maintain, repair and operate the projects under its control, and to es- 
tablish rules and regulations for the use of any such project; provided, 
however, that no such rules and regulations shall conflict with the rules 
and regulations of any state or federal regulatory body having jurisdiction 
over the operation of aircraft. . . . 

No vested property right is inherent in this grant of power. Tapper v. 
Boston Chamber of Commerce, 249 Mass. 229, 240 (1924). Such a right is 
limited by statute to rules and regulations tailored to meet situations pe- 
culiar to the operation of a large metropolitan airport. This power could 
be used only for this designated purpose. 

By statute the legislature gave to the towns and municipalities the 
power to license taxicabs. 

Mass. General Laws c. 40, section 22. 

Except as otherwise provided in section eighteen of chapter ninety and 
subject, so far as applicable, to section two of chapter eighty-five and sec- 
tions eight and nine of chapter eighty-nine, a city or town may make or- 
dinances or by-laws, or the board of aldermen or the selectmen may make 
rules and orders, for the regulation of carriages and vehicles used therein, 
with penalties for the violation thereof not exceeding twenty dollars 
for each offense; and may annually receive one dollar for each license 
granted to a person to use any such carriage or vehicle therein. 
The right of the city of Boston to issue such licenses has been specifically 
outlined by statute. 

St. 1930, c. 392, section 3. 

In said city, no person shall drive or have charge of a hackney carriage, 
nor shall any person, firm or corporation set up and use a hackney car- 



P.D. 12 73 

riage, unless licensed thereto by the police commissioner of the city of 
Boston; nor shall any person having the care or ordering of such a vehi- 
cle in said city suffer or allow any person other than a driver so licensed 
to drive such a vehicle. 

The Massachusetts Port Authority has not been granted such a licensing 
power by the Legislature. In the absence of a grant of this power by stat- 
ute it could not exercise such a power. 

A corporation cannot usurp functions not granted to it, nor stretch 
its lawful franchise beyond the limits of their reasonable intendment. It 
cannot engage in matters foreign to the objects for which it was" incor- 
porated. Its main business must be confined to those operations which 
appertain to the general purposes for which is was organized and which 
are defined in its charter. . . . [Teale v. Rockport Granite Co., 224 Mass. 
20, 24, 25 (1915)] 

The Legislature in 1963 passed a new statute entitled, "An Act rela- 
tive to the regulation of taxicabs within the city of Boston". This statute 
reads as follows: 

St. 1963, c. 306. 

In the city of Boston, no person driving or having charge of a taxicab 
shall solicit the carriage of a passenger or passengers for hire unless said 
person is licensed as a hackney carriage driver, and said taxicab is licensed 
as a hackney carriage, by the police commissioner of said city. This act 
shall not be construed as prohibiting the driver of a taxicab licensed as 
such outside of said city from accepting a passenger or passengers for hire 
within said city if summoned by telephone or radio for the purpose. Who- 
ever violates the provisions of this act shall be punished by a fine of not 
more than fifty dollars. 

It is without dispute that Logan International Airport is located within 
the city of Boston. The statute is clear as to the area to which it is to apply. 
The Legislature has made no exceptions. This statute must be read as 
drafted and enacted by the Legislature. 

But it is also settled that, in construing a statute, its words must be 
given their plain and ordinary meaning according to the approved usage 
of language . . . and that the language of the statute is not to be en- 
larged or limited by construction unless its object and plain meaning re- 
quire it. . . . [Johnson's Case, 318 Mass. 741, 747 (1945)] 

In light of the action taken by the Legislature, it is my opinion that St. 
1963, c. 386 applies to the Logan International Airport. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Aug. 5, 1963. 

Howard S. Willard, Director, Department of Natural Resources, Divi- 
sion of Law Enforcement. 

Dear Sir: — In your letter of June 12, 1963, you ask two questions, 

the first of which is as follows: 



74 P.D. 12 

"Your opinion is respectfully requested to the question whether the 
police powers granted to the officers of this division (i.e., the division of 
enforcement of the Department of Natural Resources) by the said section 
6B (of G.L., c. 21) are general police powers enabling them to act in 
the enforcement of all criminal laws of the Commonwealth, or are the 
police powers limited to only those duties referred in the said section 6A 
(of G.L., c. 21)." 

Section 6B of G.L., c. 21 is as follows: 

"The commissioner, director and all enforcement officers appointed by 
the director shall have and exercise throughout the commonwealth, sub- 
ject to such rules and regulations as the director may from time to time 
promulgate, all the authority of police officers and constables, except the 
service of civil process. Such rules and regulations shall be subject to the 
approval of the board of natural resources and shall be filed with the 
state secretary in accordance with section thirty-seven of chapter thirty. 
The director may in writing authorize any enforcement officer to have in 
his possession and carry a revolver, club, billy, handcuffs, twisters, or any 
other weapon or article required in the performance of his official duty." 

It is my opinion that this section authorizes and directs the Commis- 
sioner of Natural Resources, the Director of the Division of Enforcement 
and all enforcement officers in the Division to exercise general police pow- 
ers with respect to all criminal violations of the laws of the Common- 
wealth. The language of the statute is unambiguous, and in clear contrast 
to the limiting language previously used by the Legislature in G.L., c. 130, 
§ 8 and c. 131, § 20. This conclusion is further supported by the neces- 
sity of members of the division of enforcement to police large areas of 
land within the control of the Department of Natural Resources to which 
the public has access and where large numbers of people are concen- 
trated from time to time. 

It is equally clear from the general statutory scheme that the Legisla- 
ture did not intend to create a second state police force, but intended to 
authorize the exercise of general police power only as an incident to the 
general responsibilities or functions of the Department of Natural Re- 
sources. The statutory scheme contemplates practical limitations of these 
powers through administrative action, i.e., the rules and regulations es- 
tablished by the Director. It is the responsibility of the Director, therefore, 
to delineate the scope of the exercise of general police powers by officers 
of the division in accordance wth the statutory plan. 

Your letter continues as follows: 

"The second question for which an opinion is respectfully requested 
is whether or not the officers of this division are police officers within the 
meaning of General Laws Chapter 149, paragraph 178D." 

The section referred to permits employees of the Commonwealth and 
political subdivisions thereof to join labor unions for the purpose of 
collective bargaining, but excepts "police officers" from the operation of 
this action. The purpose of this exception is clearly to restate the prin- 
ciple that the sovereign will not permit those chosen to protect the public 
safety to exert economic pressure through collective action. 



P.D. 12 75 

Authorities are divided on the issue as to whether conservation officers 
with general police powers are "police officers," and the result in such 
case appears to depend upon the apparent policy of the relevant statute. 
See, for example, Wyndham v. United States, 197 F. Supp. 856 (D.C.S.C); 
City of Rochester v. Lindner, 4 N.Y.S.2d 4, 7, 167 Misc. 790; and Com- 
monwealth v. Smith, 111 Mass. 407. 

In my opinion, the exception contained in G.L., c. 149, § 178D is di- 
rected to those persons primarily charged with protection of the public 
safety, i.e., members of police departments and police forces. Enforce- 
ment officers of the Department of Natural Resources are therefore not 
"police officers" within the meaning of said section. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Referendum petition asking for the suspension of St. 1963, c. 606, an 
emergency law, does not impede the payment by the State Treasurer 
to a legislator of the increased allowances and salaries thereunder. 

Aug. 5, 1963. 

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

Dear Secretary White: — I have your request dated July 31, 1963 rela- 
tive to my opinion as to whether or not the petitions for suspension by 
referendum of c. 506 of the Acts of 1963 may be filed with your office 
should the required signatures be obtained and the petitioners present 
them to you. 

As you are aware, the subject matter of the suspension of this act and 
the emergency preamble affixed thereto is at present being litigated before 
the Supreme Judicial Court (Jack E. Molesworth, et als. v. Secretary and 
Treasurer of the Commonwealth). I have previously forwarded to you my 
opinion dated July 11, 1963 wherein I have stated that it is my opinion 
that the referendum petition to suspend may not attach to an act of the 
Legislature to which is affixed an emergency preamble. 

As counsel for you in the above noted litigation, this department has, 
with your consent, and by agreement in open court with counsel for pe- 
titioners, stipulated that inasmuch as the litigation could extend beyond 
the ninety-day period suspended by the emergency preamble, in all fair- 
ness to the petitioners your office may prepare the petitions so that in the 
interim the petitioners may circulate same in order to obtain the required 
signatures. 

The issue of whether or not these petitions may operate to suspend 
c. 506 of the Acts of 1963 pursuant to our Constitution is a matter which 
will be determined by the Court. 

Accordingly, should the petitioners present petitions to suspend c. 506 
of the Acts of 1963, your office may properly receive same for filing. How- 
ever, any official processing of said petitions by your office must await the 
outcome of the pending litigation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



76 P.D. 12 

The officers of the Division of Law Enforcement in the Department of 
Natural Resources have general police powers as to all violations of 
State criminal law, subject to limitations of the rules and regulations 
of the Director. Such officers are not, however, within the exception 
of "police officers" in the statute permitting State employees to join 
labor unions. 

Aug. 5, 1963. 

Howard S. Willard, Director, Department of Natural Resources, Divi- 
sion of Law Enforcement. 

Dear Sir: — In your letter of June 12, 1963, you ask two questions, 
the first of which is as follows: 

"Your opinion is respectfully requested to the question whether the 
police powers granted to the officers of this division (i.e., the division of 
enforcement of the Department of Natural Resources) by the said section 
6B (of G.L., c. 21) are general police powers enabling them to act in the 
enforcement of all criminal laws of the Commonwealth, or are the police 
powers limited to only those duties referred in the said section 6A (of 
G.L., c. 21)." 

Section 6B of G.L., c. 21 is as follows: 

"The commissioner, director and all enforcement officers appointed by 
the director shall have and exercise throughout the commonwealth, sub- 
ject to such rules and regulations as the director may from time to time 
promulgate, all the authority of police officers and constables, except the 
service of civil process. Such rules and regulations shall be subject to the 
approval of the board of natural resources and shall be filed with the 
state secretary in accordance with section thirty-seven of chapter thirty. 
The director may in writing authorize any enforcement officer to have in 
his possession and carry a revolver, club, billy, handcuffs, twisters, or any 
other weapon or article required in the performance of his official duty." 

It is my opinion that this section authorizes and directs the Commis- 
sioner of Natural Resources, the Director of the Division of Enforcement 
and all enforcement officers in the Division to exercise general police 
powers with respect to all criminal violations of the laws of the Com- 
monwealth. The language of the statute is unambiguous, and in clear 
contrast to the limiting language previously used by the Legislature in 
G.L., c. 130, § 8 and c. 131, § 20. This conclusion is further supported 
by the necessity of members of the division of enforcement to police large 
areas of land within the control of the Department of Natural Resources 
to which the public has access and where large numbers of people are 
concentrated from time to time. 

It is equally clear from the general statutory scheme that the Legisla- 
ture did not intend to create a second state police force, but intended 
to authorize the exercise of general police power only as an incident to 
the general responsibilities or functions of the Department of Natural 
Resources. The statutory scheme contemplates practical limitations of 
these powers through administrative action, i.e., the rules and regula- 
tions established by the Director. It is the responsibility of the Director, 



P.D. 12 77 

therefore, to delineate the scope of the exercise of general police powers 
by officers of the division in accordance with the statutory plan. 

Your letter continues as follows: 

"The second question for which an opinion is respectfully requested 
is whether or not the officers of this division are police officers within the 
meaning of General Laws Chapter 149, paragraph 178D." 

The section referred to permits employees of the Commonwealth and 
political subdivisions thereof to join labor unions for the purpose of col- 
lective bargaining, but excepts "police officers" from the operation of 
this action. The purpose of this exception is clearly to restate the prin- 
ciple that the sovereign will not permit those chosen to protect the public 
safety to exert economic pressure through collective action. 

Authorities are divided on the issue as to whether conservation officers 
with general police powers are "police officers," and the result in such 
case appears to depend upon the apparent policy of the relevant statute. 
See, for example, Wyndham v. United States, 197 F. Supp. 856 (D.C.S.C.); 
City of Rochester v. Lindner, 4 N.Y.S.2d 4, 7, 167 Misc. 790; and Com- 
monwealth v. Smith, 111 Mass. 407. 

In my opinion, the exception contained in G.L., c. 149, § 178D, is di- 
rected to those persons primarily charged with protection of the public 
safety, i.e., members of police departments and police forces. Enforce- 
ment officers of the Department of Natural Resources are therefore not 
"police officers" within the meaning of said section. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



St. 1963, c. 306, regulating the operation of taxicabs in Boston applies to 
the Logan International Airport. 

Aug. 5, 1963. 

Commissioner Frank S. Giles, Department of Public Safety. 

Dear Commissioner Giles: — In your letter of June 20, 1963, you have 
asked the opinion of this office whether St. 1963, c. 386 applies to the 
Logan International Airport which is administered by the Massachusetts 
Port Authority. 

The Massachusetts Port Authority was created by the Legislature as a 
corporation under the authority of Chapter 465 of the Acts of 1956 as 
amended by Chapter 599 of the Acts of 1958. 

St. 1956, c. 465, section 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 Au- 
thority, which shall not be subject to the supervision or regulation of the 
department of public works or of any department, commission, board, 
bureau or agency of the Commonwealth except to the extent and in the 
manner provided in this act. . . ." 



78 P.D. 12 

By the authority of this statute, the Massachusetts Port Authority under- 
took the administration of the properties located in the city of Boston 
and known as the "Logan International Airport". 

St. 1956, c. 465 as amended by St. 1958, c. 599, Section 1. 

(a) the term "airport properties" shall include the General Edward 
Lawrence Logan International Airport, hereafter called the Logan Air- 
port, and Lawrence G. Hanscom Field, together with all buildings and 
other facilities and all equipment, appurtenances, property, rights, ease- 
ments and interests acquired or leased by the Commonwealth in connec- 
tion with the construction or the operation thereof and in charge of the 
state airport management board. 

The duties and powers of the Authority are outlined by statute. The 
Authority may pass rules and regulations incident to the operation of the 
Logan International Airport. 

St. 1956, c. 465, section 3. 

(g) To extend, enlarge, improve, rehabilitate, lease as lessor or as les- 
see, maintain, repair and operate the projects under its control, and to es- 
tablish rules and regulations for the use of any such project; provided, 
however, that no such rules and regulations shall conflict with the rules 
and regulations of any state or federal regulatory body having jurisdic- 
tion over the operation of aircraft. . . . 

No vested property rights is inherent in this grant of power. Tapper v. 
Boston Chamber of Commerce, 249 Mass. 229, 240 (1924). Such a right 
is limited by statute to rules and regulations tailored to meet situations 
peculiar to the operation of a large metropolitan airport. This power 
could be used only for this designated purpose. 

By statute the legislature gave to the towns and municipalities the 
power to license taxicabs. 

Mass. General Laws c. 40, section 22. 

Except as otherwise provided in section eighteen of chapter ninety and 
subject, so far as applicable, to section two of chapter eighty-five and sec- 
tions eight and nine of chapter eighty-nine, a city or town may make ordi- 
nances or by-laws, or the board of aldermen or the selectmen may make 
rules and orders, for the regulation of carriages and vehicles used therein, 
with penalties for the violation thereof not exceeding twenty dollars for 
each offense; and may annually receive one dollar for each license granted 
to a person to use any such carriage or vehicle therein. 
The right of the city of Boston to issue such licenses has been specifically 
outlined by statute. 

St. 1930, c. 392, section 3. 

In said city, no person shall drive or have charge of a hackney carriage, 
nor shall any person, firm or corporation set up and use a hackney car- 
riage, unless licensed thereto by the police commissioner of the city of 
Boston; nor shall any person having the care or ordering of such a vehi- 
cle in said city suffer or allow any person other than a driver so licensed 
to drive such a vehicle. 



P.D. 12 79 

The Massachusetts Port Authority has not been granted such a licensing 
power by the Legislature. In the absence of a grant of this power by stat- 
ute it could not exercise such a power. 

A corporation cannot usurp functions not granted to it, nor stretch its 
lawful franchise beyond the limits of their reasonable intendment. It can- 
not engage in matters foreign to the objects for which it was incorporated. 
Its main business must be confined to those operations which appertain 
to the general purposes for which it was organized and which are defined 
in its charter. . . . [Teele v. Rockport Granite Co., 224 Mass. 20, 24, 25 
(1916)] 

The Legislature in 1963 passed a new statute entitled, "An Act relative 
to the regulation of taxicabs within the city of Boston". This statute reads 
as follows: 

St. 1963, c. 386 

In the city of Boston, no person driving or having charge of a taxicab 
shall solicit the carriage of a passenger or passengers for hire unless said 
person is licensed as a hackney carriage driver, and said taxicab is licensed 
as a hackney carriage, by the police commissioner of said city. This act 
shall not be construed as prohibiting the driver of a taxicab licensed as 
such outside of said city from accepting a passenger or passengers for hire 
within said city if summoned by telephone or radio for the purpose. Who- 
ever violates the provisions of this act shall be punished by a fine of not 
more than fifty dollars. 

It is without dispute that Logan International Airport is located within 
the city of Boston. The statute is clear as to the area to which it is to apply. 
The Legislature has made no exceptions. This statute must be read as 
drafted and enacted by the Legislature. 

But it is also settled that, in construing a statute, its words must be 
given their plain and ordinary meaning according to the approved usage 
of language . . . and that the language of the statute is not to be en- 
larged or limited by construction unless its object and plain meaning 
require it. . . . [Johnson's Case, 318 Mass. 741, 747 (1945)] 

In light of the action taken by the Legislature, it is my opinion that 
St. 1963, c. 386 applies to the Logan International Airport. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The State Department of Public Works may not charge fees for permits 
issued under statutes which do not provide for fees. Such fees may 
be authorized in the exercise of the police power or of the power to 
tax, if there is no double taxation. 

Aug. 6, 1963. 
Commissioner Jack P. Ricciardi, Department of Public Works. 
Re: Charging of Fees by the Department of Public Works. 

Dear Commissioner Ricciardi: — You have requested my opinion as 
to whether or not the Department of Public Works may charge a fee when 
a permit is issued under the following provisions of the General Laws: 



80 P.D. 12 

Chapter 81, Section 21; Chapter 85, section 30; Chapter 90, Sections 19 and 
19A; or any other statutory provision governing permits. 

You have also requested my opinion, if the answer to the preceding is 
in the negative, as to whether or not enactment of appropriate legisla- 
tion would enable the Department to charge fees for such permits. You 
state that it is your intention to pay all fees collected to the Treasury 
of the Commonwealth to be credited to the Highway Fund. 

It is my opinion that the Department of Public Works may not charge 
a fee for the issuance of permits under the provisions of the General 
Laws cited in the first paragraph hereof, nor under any other provision 
of the General Laws which does not expressly provide for such fees. 

It is further my opinion that appropriate legislation would enable the 
Department of Public Works to charge fees for such permits, provided 
said legislation does not create double taxation. 

The power to determine fees payable for the issuance of such permits 
is vested solely in the General Court by the Constitution of the Common- 
wealth. If the fee is commensurate with the reasonable expense incidental 
to issuing permits, it is an exercise of the police power vested solely in the 
General Court, under Constitution of Massachusetts, Chapter 1, Section 1, 
Article 4. If the fee is productive of revenue greatly in excess of the cost 
of administering the law, it is an exercise of the power to tax which also 
belongs exclusively to the General Court. Constitution of Massachusetts, 
Chapter 1, Section 1, Article 4. 

Therefore the Department of Public Works may not charge fees unless 
authorized to do so by the General Court. 

When the General Court intends that fees be collected for the issuance 
of permits and licenses, it expresses its intent in clear and unmistakable 
language. For example, Chapter 262, Section 34 (15) sets forth a fee of 
one dollar for the permit to conduct blasting operations required under 
Chapter 148, Section 19. Your attention is also invited to Chapter 175, 
Section 15, setting forth various fees required for licenses relative to the 
business of insurance, and Chapter 140, Section 77, making the license 
fee for pawn brokers fifty dollars; and Chapter 91, Section 50, allowing 
the Department of Public Works to charge foreign corporations engaged 
in wrecking and salvaging in navigable waters a license fee not exceeding 
twenty-five dollars. 

However, the statutes about which you have inquired do not expressly 
allow fees. Moreover, Section 33 of Chapter 90 setting forth fees payable 
under Chapter 90 contains no provision for fees under Sections 19 or 
19A. Chapter 81, Section 21 and Chapter 85, Section 30 are both silent 
on the matter of fees. 

Therefore, without specific authorization in the provisions of the Gen- 
eral Laws to which you referred it is clear that the General Court did not 
intend that fees be charged. 

In answer to your question as to whether or not fees may be collected 
under any other provisions of the General Law reference is made to 
Chapter 91, Section 50, which expressly provides for those license fees 
collectible by your Department. Chapter 253, Section 39 does not in my 
opinion permit the collection of fees because the General Court has not 
included the requisite specific authority. 



P.D. 12 81 

It is my opinion that amendments to the provisions of the General 
Laws referred to herein expressly authorizing fees and setting forth the 
amount thereof would enable your Department to charge such fees for 
permits. However, because such fees would be intended to produce reve- 
nue for the Highway Fund they would be deemed a form of taxation. 
At the present time there are other excises relating to motor vehicles. 
Therefore, if amendments are drafted to the provisions of the General 
Laws to motor vehicles violation of the principle against double taxation 
must be avoided. See Opinion of the Justices, 250 Mass. 591, 148 NE889, 
1925. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Where husband and wife reside in Massachusetts, but the husband votes 
by absentee ballot in another state, the wife may not be registered to 
vote here. 

Aug. 6, 1963. 

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

Dear Secretary White: — In your letter of July 23, 1963, you have 
requested my opinion as to whether a wife can register to vote in Massa- 
chusetts although her husband who resides with his wife in this state, 
votes by absentee ballot in another state. 

Mass. General Laws c. 51, section 1 sets forth the qualifications of voters. 
One of the qualifications set forth in this section is that the individual 
must have resided in the Commonwealth one year and in the city or town 
where he claims a right to vote six months last preceding a state, city or 
town election. 

It is well settled that when used in reference to voting qualifications 
"resided" means "domiciled". Williams v. Whiting et. ah, 11 Mass. 424; 
People ex rel. Driscoll v. Bender, 144 N.Y.S. 145; In re Caliguri, 100 
N.Y.S. 2d 7, Application of Wooley, 108 N.Y.S. 2d 165. 

While there is a trend in the direction of permitting a married woman 
to choose her domicile, Taylor v. Milam, 894, Supp. 880, Massachusetts 
courts have consistently adhered to the view that the domicile of a mar- 
ried woman who resides with her husband is by operation of law that of 
her husband, Greene v. Greene, 28 Mass. 410; Mason v. Hamer, 105 Mass. 
116; Rolfe v. Walsh, 318 Mass. 733. An exception to this general propo- 
sition has been made where the husband and wife have become separated 
due to the husband's marital wrong. Rolfe v. Walsh, 318 Mass. 733, or 
where the husband has unlawfully deserted his wife, Town of Watertown 
v. Graves, 112 F. 183. 

While the question of a married woman's domicile in regard to elec- 
tion qualifications has not previously been presented to the Massachu- 
setts courts, it would appear that case law would require the conclusion 
that a married woman living in Massachusetts cannot vote in this state 
when her husband with whom she resides votes by absentee ballot in an- 
other state. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



82 P.D. 12 

The Alcoholic Beverages Control Commission may stay the execution of 
any order suspending a license pending the outcome of judicial pro- 
ceedings to review the validity of the order. 

Aug. 7, 1963. 

Hon. Lawrence W. Lloyd, Chairman, Alcoholic Beverage Control Com- 
mission. 

Dear Sir: — This is in reply to your request for an opinion dated 
August 7, relative to the procedure governing the Alcoholic Beverage 
Control Commission. You have asked whether the Commission, having 
determined to suspend licensees for violation of the Minimum Consumer 
Resale Price Law, may properly stay the execution of such suspension 
pending determination of the validity of the said Resale Price Law. 

It is my considered opinion that such a stay of execution of the con- 
templated suspensions would be entirely proper. The licensees have filed 
pursuant to the State Administrative Procedure Act (Chapter 30A of the 
General Laws), a petition to review the determination of the Commis- 
sion. Paragraph (3) of section 14 of said Chapter 30 A of the General Laws 
provides: 

(3) The filing of the petition shall not operate a stay of enforcement 
of the agency decision, but the agency may stay enforcement, and the re- 
viewing court may order a stay upon such terms as it considers proper. 
(Emphasis supplied.) 

The above provisions of the General Laws, Chapter 30A authorizes 
your Board, as an exercise of its judgment, to grant or deny a stay of 
enforcement. Clearly, this prerogative rests with the Commissioners, and 
it is therefore my considered opinion that the Alcoholic Beverages Con- 
trol Commission may lawfully grant or deny stays of execution of pro- 
posed suspensions pending the outcome of a petition to review the agency 
decision brought pursuant to the State Administrative Procedure Act. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The discretionary authority to reimburse public utility companies for the 
cost of relocating utility facilities under the Federal Highway Pro- 
gram, referred to in the Attorney General's opinion of May 3. 1963, 
applies to situations where such facilities are located on private 
property by "permit" or "license," at sufferance. Such payments 
would be for a "public purpose" under Amendments, Article 62, of 
the State Constitution, and would be an expenditure for "cost of con- 
struction . . . of public highways," under Article 98. 

Re: Reimbursement of Utility Relocation Costs under 718 of the Acts 
of 1956. 

Dear Commissioner: — You have asked if my Opinion of May 3, 1963 
on this same subject applies to reimbursement of public utility compa- 
nies for the cost of relocation of utility facilities installed on private prop- 
erty, such as railroad rights of way, pursuant to a permit or license. 



P.D. 12 83 

The opinion contained herein is based on die assumption that the 
words "permit" and "license" as used in your letter of July 11, 1963 are 
intended to describe legal relationships between the utility and the owner 
of the private property involved which do not bestow on the utility 
which is using it any title or proprietary interest in the private property. 

For those situations in which "permit" or "license" may have been used 
loosely by the utility and owner of private property, resulting in the crea- 
tion of some property rights in the utility, your attention is respectfully 
invited to the Opinion of the Attorney General dated July 15, 1954 and 
reaffirmation thereof bv the opinion of this Department dated Febru- 
ary 15, 1963. 

If the Commonwealth takes by eminent domain private property on 
which a utility is located by "permit" or "license" granted by the owner 
of that private property and if the utility has no interest in said property 
other than a revocable right to use it at the sufference of the owner 
thereof, the Commonwealth is not required to pay the cost of relocating 
that utility. However, it is my opinion that under the provisions of Chap- 
ter 718 of the Acts of 1956 the Commonwealth may in its discretion pay 
the costs of relocating a utility under such circumstances. 

The only factual differences between the circumstances considered in 
my opinion on this subject of May 3, 1963 and that being presently con- 
sidered is that the utility in the earlier opinion was located in a public 
way at public sufferance, while here the utility is located on private prop- 
erty, and at the sufferance of the owner of that property. In either situa- 
tion the utility has no property right as a part of the damage to which 
it can claim recovery of relocation costs at common law under the pro- 
visions of Chapter 79 of the General Laws. 

Section 1 of Chapter 718 of the Acts of 1956 in paragraph 3 makes no 
distinction on the basis of whether utility facilities are located on public 
or private property. For the reasons set forth in my opinion of May 3, 
1963 it is apparent that the General Court intended the Department of 
Public Works to take full advantage of Federal aid to the highway pro- 
gram whenever it was considered to be in the public interest. The prob- 
lems which paragraph 3 of Section 1 of Chapter 718 of the Acts of 1956 
was intended to resolve exist to the same extent whether the utility is 
located at sufferance on private or public property. 

Title 23, U.S.C.A. in Section 123 makes it clear that the controlling 
Federal law permitting reimbursement in circumstances such as these 
makes no distinction based on the character of the ownership of the prop- 
erty on which the utility is located by "permit" or "license" prior to the 
relocation. 

It is also my opinion that the interpretation of Chapter 718 of the Acts 
of 1956 contained herein which permits reimbursement of relocation of 
utilities originally located on private property at sufferance by "permit" 
or "license", does not conflict with any applicable provisions of the Con- 
stitution of the Commonwealth. A payment to a utility for such costs 
which are incidental to and necessitated by the construction of an inter- 
state highway would not be any less a payment for a public purpose 
within the meaning of Article 62, Section 1 of that Constitution merely 
because the utility is originally located on private rather than public 



84 P.D. 12 

property. Either situation involves a valid appropriation of funds to a 
private corporation to be spent for a public purpose. 

It is also my opinion that the payment for relocation of utility facili- 
ties originally located on private property under the circumstances set 
forth herein is included within the meaning of expenditure for ". . . cost 
of construction ... of public highways . . .", as used in Article 78 of 
the Constitution of the Commonwealth when such relocation is inciden- 
tal to and necessitated by the taking of said private property for the con- 
struction of a highway. The cost of relocation of utility facilities under 
such circumstances is not an expenditure of revenue for a non-highway 
purpose, but is an expense reasonably incident to the installation of a 
highway. 

In conclusion, my opinion on this subject dated May 3, 1963 does apply 
to those situations in which utility facilities are originally located on pri- 
vate property by "permit" or "license" at the sufferance of and subject 
to unconditional revocation by the owner of that private property. In 
connection with the administration of the discretionary authority con- 
ferred on the Commissioners of the Department of Public Works by Sec- 
tion 1 of Chapter 718 of the Acts of 1956, your attention is respectfully 
invited to all of the conditions outlined in my opinion of May 3, 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The conduct under the auspices of public school authorities, and as part 
of the school curriculum, of religious observances such as prayers, 
is prohibited under recent decisions of the Supreme Court of the 
United States. A pause for silent meditation, or gatherings of stu- 
dents before classes on their own initiative for devotional exercises, 
is not prohibited. Vocal prayer is not prohibited at functions such as 
graduation or baccalaureate exercises, which is not a part of the regu- 
lar curricular activities. The teaching and study of the Bible, or re- 
ligion, or the use in the public schools in connection with the ob- 
servance of holidays having religious orations such as Christmas and 
Easter of exercises and songs involving religious beliefs, to illustrate 
its religious history significance of the holidays, is permissible. 

No public school official can in good conscience disobey the man- 
date of the Supreme Court in the conduct of his official function, 
and other public officials should take appropriate action if viola- 
tions persist. 

Aug. 20, 1963. 

Commissioner Owen B. Kiernan, Department of Education. 

Dear Commissioner Kiernan: — You have requested my opinion of 
the constitutionality of certain practices, real and hypothetical, of the 
public schools, as affected by the recent decisions of the Supreme Court in 
Murray v. Curlett and School District of Abington Township v. Schempp, 
10 L. Ed. 2d 844. Prior to directing my attention to the specific questions 
asked, I think it appropriate to set forth some basic considerations. 



P.D. 12 85 

In both the Schempp and Murray cases, the Court considered the valid- 
itv of reading from the Bible and reciting the Lord's Prayer as part of 
the opening exercises in the public schools. In both cases, students could 
be relieved of the obligation to participate upon request of the parents. 
In Murray, the practice was required by a rule of the Board of School 
Commissioners of the City of Baltimore, which provided that the opening 
exercises consist of "reading, without comment, of a chapter in the Holy 
Bible and/or the use of the Lord's prayer." In Schempp, the recitation 
of the Bible was required by the following Pennsylvania statute: 

"At least ten verses from the Holy Bible shall be read, without com- 
ment, at the opening of each public school on each school day. Any child 
shall be excused from such Bible reading, or attending such Bible read- 
ing, upon the written request of his parent or guardian." 

In a single opinion the Court held the statute, rule and practices un- 
conMiuuional under the First Amendment as it applies to the states under 
the Fourteenth Amendment. 

The Court made clear that in its view the First Amendment, devotional 
readings and recitations of the type under consideration exceeded the 
powers of the state. Accordingly, it was immaterial that the exercises were 
brief, enjoyed widespread support, and were not mandatory. It was 
equally immaterial, in the Court's opinion, that the practices may have 
had beneficial effects on the students. A devotional reading as part of the 
public school curriculum is simply not within the power of civil govern- 
ment, in much the same fashion that the passage of a general law, how- 
ever minor in nature and however beneficial it may be, is not within the 
power of any church. As a constitutional ruling under the Fourteenth 
Amendment, these decisions set forth the supreme law of the land, and 
are binding on the states and all political subdivisions thereof. 

But if the moral value of the exercises was not in question, it was made 
equally clear that within the limits of their jurisdictional competence, 
the schools have a right and duty to instill into the minds of the pupils 
those moral principles which are so necessary to a well-ordered society. 
It is difficult to conceive of a more compelling function of education than 
is the molding of the moral strength of the student. Indeed, this function 
has been a part of the statutory obligations of teachers in Massachusetts 
since 1789: 

"The president, professors and tutors of the university at Cambridge 
and of the several colleges, all preceptors and teachers of academies and 
all other instructors of youth shall exert their best endeavors to impress 
on the minds of children and youth committed to their care and instruc- 
tion the principles of piety and justice and a sacred regard for truth, love 
of their country, humanity and universal benevolence, sobriety, industrv 
and frugality, chastity, moderation and temperance, and those other vir- 
tues which are the ornament of human society and the basis upon which a 
republican constitution is founded; and they shall endeavor to lead their 
pupils, as their ages and capacities will admit, into a clear understanding 
of the tendency of the above mentioned virtues to preserve and perfect a 
republican constitution and secure the blessings of liberty as well as to 
promote their future happiness, and also to point out to them the evil 
tendency of the opposite vices." Mass. Gen. Laws, Ch. 71, section 30. 



86 P.D. 12 

To be sure, morality is a subject with which all religion is concerned; 
but "the separation of church and state" does not imply that civil gov- 
ernment and religion may not both seek the same ends. 

The Court, then, was concerned only with the difficult and continuing 
problem of attempting to delineate the proper role of government in mat- 
ters relating to conscience. The First Amendment's candate that "Con- 
gress shall make no law respecting an establishment of religion or prohib- 
iting the free exercise thereof" is the embodiment of the great American 
attempt to obviate the possibility of governmental tyranny over the mind 
of man. The founding fathers were familiar with the ravages of both body 
and soul which can result from governmental interference with such per- 
sonal matters. They determined that the conscience of an individual was 
never to be the proper concern of civil government. Championed by Jef- 
ferson and Madison, the Amendment was designed to implement an un- 
alterable tenet of Jefferson's philosophy: 

"Religion is a subject on which I have ever been most scrupulously re- 
served. I have considered it as a matter between every man and his Maker, 
in which no other, and far less the public, had a right to intermeddle." 
Letter to Richard Rush. The Jeffersonian Cyclopedia, Funk & Wagnalls 
Co., New York, 1900, page 744, No. 7246. 

The dual aspect of the Amendment derives from the recognition that 
tyranny may be exercised not only by suppression; but also by the placing 
of the great resources of government in support of any form of orthodoxy. 
The withdrawal of power from government to interfere by either method 
with the right of a citizen to believe as he sees fit has long been con- 
sidered to be at the foundation of our society. 

"If there is any fixed star in our constitutional constellation, it is that 
no official, high or petty, can prescribe what shall be orthodox in poli- 
tics, nationalism, religion or other matters of opinion or force citizens 
to confess by word or act their faith therein. If there are any circumstances 
which permit an exception, they do not now occur to us." Board of Edu- 
cation v. Barnette, 319 U.S. 624, 642. 

Over twenty years ago, the Supreme Court held that this principle is a 
"fundamental concept of liberty", Cantwell v. Connecticut, 310 U.S. 206, 
303, and is, therefore, applicable to the states through the Fourteenth 
Amendment. The Court had reaffirmed this holding on many occasions 
prior to its reaffirmation again in Schempp and Murray. See, e.g., Engel v. 
Vitale, 370 U.S. 421; Torasco v. Watkins, 367 U.S. 488; Murdoch v. Penn- 
sylvania, 319 U.S. 105. 

The principles rest on the assumption that "it is possible to hold a 
faith with enough confidence to believe that what should be rendered 
to God does not need to be decided and collected by Caesar." Zorach v. 
Claason, 343 U.S. 306, 324 (dissenting opinion). This assumption is but 
an application of that which was first enunciated some two thousand years 
ago. 

It is, therefore, improper to view the First Amendment as anti-religious 
or irreligious; for the Amendment merely directs the government to re- 
frain from interference with man's spiritual fulfillment. The application 
of this direction, however, is far from clear. Religion and government 
cannot, in any realistic sense, be entirely disentangled. Substantially all 



P.D. 12 87 

legislation affects religion to a greater or lesser degree. Many laws argua- 
bly can be said to aid some or all religions, whereas the absence of such 
laws, with equal plausibility, could be held to hinder the free exercise of 
these same religions. There is no simple formula by which to resolve the 
many paradoxes which seemingly arise from such situations. Certainly 
resort to sophistry is of no assistance. In scarcely a dozen words the First 
Amendment establishes the principles to govern the myriads of confron- 
tations between government and religion. Here, as elsewhere, "the mere 
formulation of a relevant Constitutional principle is the beginning of the 
solution of a problem, not its answer." McCollum v. Board of Education, 
333 U.S. 203, 212 (concurring opinion). The answer must be derived, in 
each case, by an evaluation of the questioned statute or practice, and an 
exercise of the most difficult and sensitive constitutional judgment of 
whether the government has actually and substantially encroached upon 
an area which is in the exclusive jurisdiction of the individual. In 
Schempp and Murray, the Supreme Court held that the statutes and prac- 
tices by which portions of the Bible were read and the Lord's prayer was 
recited at the opening school exercises constituted such encroachments. 
The Court noted that the primary purpose and effect of the ceremonies 
were religious. Attendance at schools is compulsory; and by definition, 
the students are impressionable and look to the teachers for guidance. 
Under such circumstances, the mere existence of the practices constitutes 
a serious and meaningful exercise of a primarily religious function: the 
propagation of a belief in God. Yet ample opportunity for religious ac- 
tivity for those who desired it existed outside the confines of the jurisdic- 
tion of school authorities. The Court concluded that under such circum- 
stances, the fusion of the functions of church and state and the endorse- 
ment of religion in this matter by government constituted a real threat 
of substituting government for parent or clergyman in the religious di- 
rection of the pupils. 

You have requested my opinion of the effect of these cases on other 
practices. The answers to many of these questions are unclear. Schempp 
and Murray stand as isolated pieces of a gigantic picture puzzle. They in- 
dicate the contours of a few specific areas, but give little direction to 
the resolution of the puzzle as a whole. No definitive answers to your 
questions can be given except by the Supreme Court. Nonetheless, it is 
my obligation to advise you of the law of the land, as I believe it to be in 
light of the most recent judicial decisions. To this end, my personal pre- 
dilections and evaluations of the opinion are irrelevant, and I shall not 
mention them. Accordingly, I now turn to your specific questions: 

1. May the Lord's Prayer be recited on a voluntary basis in the opening 
class exercises? 

In both Schempp and Murray, students could be excused from participa- 
tion in the exercises upon request of the parent. In this respect, the exer- 
cises could be considered "voluntary." In view of your subsequent ques- 
tions, I assume that this question relates to practices of the type described 
above. Such practices, being within the express proscription of the 
Schempp and Murray cases, would be invalid. 

2. May any prayer be recited on a voluntary basis in the opening class 
exercises? 



88 P.D. 12 

As in the previous question, I assume that such a prayer would be re- 
cited under the supervision of the teacher or other official; and would be 
voluntary only to the extent that the students would be entitled to refrain 
from participation. In Engel v. Vitale, 370 U.S. 421, the Court held un- 
constitutional the reading under such circumstances of the following 
prayer in the opening exercises in New York schools: "Almighty God, we 
acknowledge our dependence upon Thee; and we beg thy blessings upon 
us, our parents, teachers and our country." Few prayers could be formu- 
lated to appeal to a wider class of citizens. The basis for the Court's hold- 
ing was substantially the same as in Schempp: that the government has 
no power to indicate support of religion in such manner and under such 
circumstances. Since the decision rests on the lack of power in government 
to engage in this type of activity, as I previously indicated, the "volun- 
tary" nature of the recitation is immaterial. At least to the extent that a 
prayer invokes the aid of, or recognizes dependence upon a transcendental 
spirit, then it would be indistinguishable from these cases and could not 
properly be a part of public school activities. 

3. Is vocal prayer barred at any school functions that come under the 
jurisdiction of the school committee, such as grace before meals in 
the cafeterias of public schools? 

The Schempp, Murray and Engel cases all involve the recitation of pray- 
ers in the opening school exercises. I cannot conceive of any constitutional 
distinction which could be formulated between a prayer at such exercises 
and a prayer in the lunchroom, if both were conducted under the auspices 
of the school authorities and as part of the school curriculum. Accord- 
ingly, such a recitation of a prayer before meals in the cafeteria of public 
schools would be unconstitutional. Whether or not vocal prayer would 
be barred at "any school functions that come under the jurisdiction of 
the school committee" would depend upon the facts of the particular case. 
In this connection, compare the above with my answers to questions 
8 and 9. 

4. Is it legal for a teacher to announce at the opening of school classes 
in the morning that there will be a moment of silent prayer as the 
the youngsters remain seated and bowing or not bowing their heads? 

I have previously indicated that the unconstitutionality of officially sanc- 
tioned prayer results from the Supreme Court's holding that the states 
have no jurisdiction to act in this area. The reasons indicated above for 
such a holding apply with equal force whether such practices involve a 
prescribed prayer, the devotional reading of the Bible, or a silent prayer. 
Accordingly, under the principles set forth by the Court, none can have 
a proper place in the regular activities of the public schools. 

5. Can teachers or students on their own without any direction from 
school authorities arrange for the recitation of the Lord's Prayer 
and the reading of the Bible at the opening of class on a voluntary 
basis? In other words, this practice would not be prescribed by the 
school committee but would be something that the teacher or the 
students might do without any direction from the school committee. 

To hold that an individual teacher, acting in an official capacity, could 
effectuate a policy which is beyond the power of her employer to au- 
thorize, would create an obvious nonsequitur. The teacher is subject 



P.D. 12 89 

to the jurisdiction of the school committee, and can act only with its 
authority or by its leave. See G.L., c. 71, §§ 37, 38, 42. Yet any statute 
which was so broadly drawn as to allow the school committee to authorize 
or permit the teacher to conduct prayers would be void. See McCollum v. 
Board of Education, 333 U.S. 203, 206. The teacher is an agent of the 
state and effectuates its policies. As such, his powers must be circum- 
scribed by the limits of the state's power. 

In Zorach v. Clauson, 343 U.S. 306, which sustained the validity of a 
New York "released time" law, the Court said, at 311: 

"If it were established that any one or more teachers were using their 
office to persuade or force students to take religious instruction, a wholly 
different case would be presented." 

There would be no valid distinction between such a case and those postu- 
lated in the above question. Accordingly, to the extent such reading and 
recitation takes place at the instance or under the supervision of the 
teacher, it would not be proper. To the extent it takes place as a purely 
voluntary activity of the students, I refer you to answer number 7 below. 

6. Is it legal for a teacher to announce at the opening of school classes 
in the morning that there will be a moment of "meditative silence" 
or a moment of "reverent silence"? 

It is perfectly clear that a moment of meditation amounts neither to a 
state endorsement of any form of religion or deity nor state prohibition 
of any matter of conscience. A principle function of secular education is 
to encourage students to reflect upon problems of serious moment. A 
pause during the school day for the purpose of encouraging serious 
thought is entirely consistent with the functions of the state in education, 
and therefore would be permissible. 

7. Is it legal for students to gather in the classroom five minutes be- 
fore the opening of school on a voluntary basis and recite the Lord's 
Prayer and read from the Bible? 

Implicit in this question are the assumptions (a) that the arrangements 
are made entirely by the students, without the participation or persuasion 
of teachers or other school officials; and (b) that at the time the students 
gather voluntarily in the classroom, it is open for any orderly activities 
of the students. Zorach v. Clauson, 343 U.S. 306, held that the program in 
the New York schools of releasing children from school activities to at- 
tend churches at the request of the parent was valid. McCollum v. Board 
of Education, 333 U.S. 202, held that a similar practice where the relig- 
ious education was conducted at the premises of the school was invalid. 
The Court in ZoracJi distinguished the cases on the basis that in Zorach, 
no public classroom or funds were used and that all costs of the program 
were borne by the religion, 343 U.S. at 309. The extent of the financial 
involvement of the state in McCollum, however, entailed only the wear 
and tear of the classrooms, and the cost of heat and light and other utili- 
ties and were obviously negligible. On the other hand, the Court in 
Everson v. New Jersey, 330 U.S. 1, sustained a program of state aid for 
transportation to parochial schools. Hence, any distinction between 
Zorach and McCollum cannot be predicated on the basis of the amount 
of state funds involved, but must be on the basis of a judgment that in 
McCollum, the state, by formally placing its facilities at the disposal of 



90 P.D. 12 

religious institutions, participated in the fostering of religious education 
to an extent far greater than it did by merely releasing the students. No 
such participation exists under the facts set forth above. Students may 
gather in the classroom before supervised activities begin for the purpose 
of discussion, inspiration or for other orderly purposes. If entirely on 
their own initiative they decide to utilize that free time in devotion, that 
is their right. Such a decision would be purely personal and private, and 
would in no realistic sense involve the state at all. Although the donation 
by the state of its facilities for religious purposes may in some instances, 
as in McCollum, amount to an unauthorized alliance between church 
and state, the facts stated above do not establish any such nexus. 

8. Is vocal prayer barred at school graduations? 

Graduation exercises are in no way similar to those considered by the 
Court. Attendance is not required. The graduation is not a part of the 
regular curricular activities, nor is it a necessary or integral part of the 
educational process. It takes place only once, and then after the process 
has concluded. The educational achievement of the student is in no way 
dependent on his physical presence at the graduation. His right to a 
diploma is earned prior to graduation. 

Basically, graduation is merely a ceremonial ritual. Its purposes are to 
recognize past achievement and to encourage the further pursuit of lofty 
ideals. I do not think it a "fusion" of function or a "dependence" of gov- 
ernment or religion on the other to recognize on such an occasion that 
most people find inspiration in prayer, and to enlist the support of the 
clergy, for the benefit of whoever so desires, to further the purposes of 
the graduation. It would be specious to reason that such recognition en- 
tailed a state endorsement of religion in the same manner as did the 
daily readings and recitations during the basic educational process which 
were invalidated in Schempp and Murray. 

9. May the traditional baccalaureate exercises be held? 

In my opinion there is no distinction in constitutional principle between 
the facts attendant to baccalaureate exercises and those attendant to in- 
vocations and benedictions at school graduations. 

10. Is it permissible to teach about the Holy Scriptures and different 
religions? 

It should be clear from what has preceded that the study of the Bible or 
of religion is a proper part of a program of secular education. The State 
teaches about many subjects which it does not endorse, because knowledge 
thereof is essential or desirable to a complete understanding of the subject 
matter. 

Mr. Justice Jackson, concurring in McCollum v. Board of Education, 
333 U.S. 203 at 235-36, set forth the correct principle as 
"Perhaps subjects such as mathematics, physics or chemistry are, or can 
be, completely secularized. But it would not seem practical to teach either 
practice or appreciation of the arts if we are to forbid exposure of youth 
to any religious influences. Music without sacred music, architecture 
minus the cathedral, or painting without the scriptural themes would be 
eccentric and incomplete, even from a secular point of view. Yet the in- 
spirational appeal of religion in these guises is often stronger than in 
forthright sermon. Even such a "science" as biology raises the issue be- 



P.D. 12 91 

tween evolution and creation as an explanation of our presence on this 
planet. Certainly a course in English literature that omitted the Bible and 
other powerful uses of our mother tongue for religious ends would be 
pretty barren. And I should suppose it is a proper, if not an indispensa- 
ble, part of preparation for a worldly life to know the roles that religion 
and religions have played in the tragic story of mankind. The fact is that, 
for good or for ill, nearly everything in our culture worth transmitting, 
everything which gives meaning to life, is saturated with religious influ- 
ences, derived from paganism, Judaism, Christianity — both Catholic and 
Protestant — and other faiths accepted by a large part of the world's peo- 
ples. One can hardly respect a system of education that would leave the 
student wholly ignorant of the currents of religious thought that move 
the world society for a part in which he is being prepared." 
This principle was reaffirmed by the Court in the Schempp and Murray 
cases in the following language: "It might well be said that one's educa- 
tion is not complete without a study of comparative religion or the his- 
tory of religion and its relationship to the advancement of civilization. 
It certainly may be said that the Bible is worthy of study for its literary 
and historic qualities. Nothing we have said here indicates that such study 
of the Bible or of religion, when presented objectively as part of a secu- 
lar program of education, may not be effected consistent with the First 
Amendment." 

It is, of course, true, as Mr. Justice Jackson observed, in McCollum, 333 
U.S. at 236, that the exercise of value judgments cannot be shorn from 
the teaching of religion, the social sciences and the humanities. It would 
be a sterile school which, for example, merely "laid bare the facts" of 
the fascist or communist philosophy. Furthermore, a major function of 
education is to prepare the young mind for the exercise of those diffi- 
cult judgments which life entails. Yet there remains a distinction between 
the teaching of religion, with all the necessary incidents thereof, and the 
practice of religion in school. The line of demarcation is vague; no single 
factor is likely to be decisive. The propriety of any such judgment would 
depend upon a series of factors setting the context in which it was exer- 
cised: whether or not it was the denouement of an exposition of an entire 
area; whether the exposition set forth all the competing factors; the ex- 
tent to which it was expounded in connection with a course of study; 
the extent to which it was labelled as the teacher's own opinion, with due 
allowances made for others to hold contrary views; and whether or not 
the pupils were of an age to understand it as such. 

At this point all that can be said is that the teacher and school com- 
mittee must exercise the discretion vested in them in each case. Disputes 
in any given case must ultimately be resolved by the courts. Accordingly, 
with the caveat stated above, it is my opinion that courses in religion 
are a proper part of secular education and may be taught in the public 
schools. 

11. a. May sectarian observances of religious holidays involving dis- 
play of religious symbols be held in the public schools? 

b. May songs of a religious nature be sung in public schools? 

c. Traditionally, proclamations have been issued by Governors 
calling for appropriate observances and prayer on different holi- 
days such as Thanksgiving, Memorial Day and Veterans Day. 



92 P.D. 12 

There are religious overtones to these holidays. May public 
schools participate in holiday observances and prayer under the 
circumstances? 
Here again, the questions allude to such a wide range of practices that 
it would be impossible to set forth a definitive answer. The caveat which 
I set forth at the end of my last answer applies here. Clearly, the school 
cannot be substituted for the church either at Christmas or Easter, or at 
any other time during the year. On the other hand, many of the prac- 
tices which fall within the purview of your questions, notwithstanding 
their religious significance, can be a proper part of the public school 
programs. 

Thanksgiving, Veterans Day and Memorial Day are basically patriotic 
holidays. They involve religion because the history of this nation is in- 
extricably intertwined with religion. Thanksgiving could not be depicted 
in the schools without reference to the Pilgrims at prayer. Thanksgiving 
is an important part of the national life. Students learn of the travail 
of their forefathers, of their industry and frugality, and of the effect of 
their experience on the subsequent history of the United States. The repe- 
tition of the Thanksgiving ceremonies, in my judgment, constitutes not so 
much an endorsement of religion or of a belief in God, but a reminder 
of a great period in American history. 

The same principles are even more apparent in the ceremonial cele- 
bration of Memorial Day and Veterans Day. These holidays, both in in- 
ception and perpetuation, are patriotic. That they are permeated with 
religious overtones is but a recognition of the faith of the overwhelming 
majority of Americans. The basic purposes of the holidays — honoring 
the nation's heroes and exalting peace — can be celebrated by all Ameri- 
cans, without reference to religion. We cannot disavow history, because 
our forebears, in their celebrations, adverted to religious symbols. Were 
this to be done, there would be little of value left in our national history. 
The Declaration of Independence, the National Anthem, many of the 
great utterances of our leaders, would have to be jettisoned, or retained in 
a new and barren form. It seems clear to me that the state endorsement 
of these holidays or other matters in their traditional forms amount to 
nothing more nor less than the recognition of the rich and full history 
of this country. Such endorsement does not "by any realistic measure cre- 
ate . . . the dangers . . . [The First Amendment] is designed to prevent 
and ... do not so directly or substantially involve the State in religious 
exercises or in the favoring of religion as to have meaningful and prac- 
tical impact." Goldberg, J., concurring in Schempp and Murray. The con- 
stitutionality of patriotic exercises and songs involving professions of re- 
ligious belief has gained judicial acceptance. Engel v. Vitale, 370 U.S. 421. 
Since the exercises themselves may take place under the auspices of the 
government without constituting an "establishment", it is my opinion 
that a proclamation of the Chief Executive entreating citizens to prayer, 
if within the spirit and context of the holidays being celebrated, and ii in 
implementation thereof, may constitutionally be complied with. It should 
be noted, however, that no one can be required to participate in the exer- 
cises, Board of Education v. Bennette, 319 U.S. 624. 

Other factors, deserving separate treatment, relate to Christmas and 
Easter celebrations. It must be recalled that school activities during these 



P.D. 12 03 

holidays arise in a different context from those considered in Scltempp 
and Murray. Being seasonal, the consistency of state participation in re- 
ligious matters which was present in these cases is lacking in the activi- 
ties to which the question relates. Furthermore, the fact that great activity 
involving the holidays is transpiring outside the school cannot be over- 
looked. Much of this activity might be incomprehensible to a young mind, 
especially if a non-Christian child. Sensible programs to illustrate the re- 
ligious history, and universal significance, of these holidays can be sig- 
nificant to the education of American youth. The Christmas and Easter 
holidays constitute a fact of American life, simply because the population 
is overwhelmingly Christian. To overlook this fact because of its relig- 
ious orientation would leave the child in a vacuum. 

Plays depicting the origins of Christmas and Easter are of importance 
in promoting understanding among Christian and non-Christian children; 
and many schools, according to my understanding, also produce plays of 
Hannukah and Passover, to complement this purpose. The healthy plur- 
alism of America is likely to stand or fall on the degree of knowledge and 
understanding which exists among the various groups of society. The pub- 
lic schools are appropriate places in which to develop such understanding. 

Being religious in nature, the symbolism cannot entirely be avoided. 
On the other hand, there can be no doubt that the state cannot partici- 
pate to such an extent as to amount to an endorsement of the religious 
dogma of the holidays. Such participation would be unconstitutional. 
Accordingly, I again can only say that the whole program must be evalu- 
ated, with reference to the following, among other, factors: the extent to 
which symbols, such as a Christmas tree or Nativity scene, were utilized 
as a part of the overall educational process; the extent to which the uni- 
versal concepts such as peace on earth and good will toward men were 
stressed; whether or not ceremonies peculiar to any form of orthodoxy 
were emphasized; the extent to which the teacher used the seasons to pro- 
mote understanding and tolerance, as opposed to any particular form of 
orthodoxy; the extent to which other religions and religious holidays 
were discussed; the character of religious songs, such as Christmas Carols 
or more traditional religious hymns, and the extent to which they were 
sung in connection with the seasonal holidays and as an integral part of 
the school program relative thereto. 

In short, it is my opinion that the public schools have an important 
role to play during significant religious holiday seasons. Notwithstanding 
the high religious content of the holidays and of any program relative 
thereto, the primary purpose of the schools in this matter must be to 
provide essential and general background and promote understanding. 

It cannot be to endorse any particular form of orthodoxy or otherwise 
to materially enter the aiea which might properly be considered, as Jef- 
ferson said, between "man and his Maker." Where the line between the 
proper and improper is to be drawn, as I have indicated, cannot be stated 
categorically. Many varying factors must be considered in each questioned 
case. But if the state performs its role sensibly and with good judgment, 
then religious symbols, carols and the like can be an integral part of its 
program. 

12. In case a school committee directs that Bible reading be continued 
under Chapter 71, Section 31 and the Lord's Prayer recited in the 



94 P.D. 12 

morning as a regular part of the curriculum, what remedy is availa- 
ble: 

(a) If a parent objects who has a pupil in school? 

(b) If no one objects? 

(c) What is the responsibility of the Department of Education, the 
Attorney General, or local law enforcement agencies if Bible 
reading and prayer are continued? 

If circumstances have impelled you to seek my opinion on this question, 
then such circumstances are unfortunate indeed. We must remember that 
we are here dealing with the Constitution of the United States. This great- 
est instrument of social organization ever devised by the mind of man 
cannot lightly be disregarded. Involved in the question are implications 
which go far beyond the issue of mere disagreement with the decisions in 
Schempp and Murray. Involved are nothing less than acceptance of the 
basic structure of our government and of the principle that, without ad- 
herence to law, there is and can be no liberty. 

No official of government, of whatever station, can in good conscience 
disobey the mandate of the Supreme Court. As a citizen, he is entitled to 
use such legal means as are available to effect a change in the law; but 
he cannot discharge his official functions otherwise than in a legal fashion. 

Massachusetts has a long and noble history of leadership in the strug- 
gle for liberty under law. To jettison this heritage at the first occasion of 
disagreement with the agency duly empowered to render a binding de- 
cision would be the ultimate act of hypocrisy. 

In answer to your specific questions, I can state as follows: 

a.) It would be improper for me to advise any parent of the remedies 
which may be available to him. This office has no jurisdiction to render 
advice to private citizens on such a matter. Any parent who may care 
to may seek such advice from private counsel. 

b.) The fact that no one objects does not mitigate the duty of public 
officials to abide by the ruling of the Supreme Court. 

c.) The Department of Education should use its educational facilities 
to insure that all affected officials are aware of their obligations and will 
abide thereby. 

In the event that, notwithstanding the Department's efforts, violations 
persist, notice thereof should be given to this office and to local agencies 
with jurisdiction, all of whom would then be expected to take such ac- 
tion in the premises as is appropriate and within their respective powers. 

13. Are there any types of religious or devotional exercises which may 
be permitted in the public schools? 

You will undoubtedly realize from what has preceded that the determi- 
nation of the validity of any given exercise will depend on many factors. 
I can only refer you to the cases and the discussion above for the princi- 
ples involved. Should you request additional advice on the validity of 
specific exercises as they come to your attention, I shall be happy to 
oblige. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 95 

The Sundays Laxvs do not require the licensing of musical programs de- 
signed only or incidental or background entertainment, including 
programs, such as Muzak, transmitted by telephone wire or purchased 
FM radio programs. 

Aug. 28, 1963. 

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

Dear Commissioner: — I have received your letter of July 16 relative 
to the Sunday licensing of Muzak or purchased FM radio musical enter- 
tainment. It is my opinion that under § 4 of c. 136 (as amended by St. 
1962, c. 616, § 2) such recorded programs for which a charge is made by 
the radio station need not ordinarily be licensed. 

Paragraph (1) of section 4 of the new Chapter 136 authorizes the licens- 
ing of any Sunday "game, sport, fair, exposition, play, entertainment or 
public diversion for which a charge in the form of payment or collection 
of money or other valuable consideration is made for the privilege of 
being present thereat or engaging therein". Certain exceptions are in- 
cluded which are not applicable here. At a further point, section 4 con- 
tains an exemption paragraph which is as follows: 

" (6) The provisions of this section in so far as they require a license 
for the use of radio and television shall not apply to premises licensed un- 
der the provisions of section twelve of chapter one hundred and thirty- 
eight." 

The issue is whether or not a specially recorded musical program sold to 
a subscriber may be construed to fall within the meaning of the term 
'"radio" as used in paragraph (6). The intent of this legislation appears 
to be to require the licensing of Sunday activities for which the accom- 
panying charge is paid specifically for the purpose of watching or of par- 
ticipating in the particular entertainment. A presentation of a jazz con- 
cert on Sunday, for example, for which the public purchased tickets for 
the purpose of attending, would under the Sunday Law require a license. 
On the other hand, in cases where the public enters a tavern or restau- 
rant for the purpose of purchasing food or drink, and incidentally back- 
ground music of the Muzak variety is furnished, it could not be said that 
relative to the music there was a charge "for the privilege of being present 
thereat or engaging therein". The charge in such a case is for food, not 
music. Paragraph (6) specifically exempts radio and television in such 
establishments: and it is my opinion that — considering the above analy- 
sis — the exemption extends to any type of mechanical program which is 
designed merely as incidental or background entertainment, and not as a 
primary attraction for which admission fees are actually being charged. 
The fact that these programs may be transmitted by telephone wire, thus 
not conforming to the orthodox concept of "radio", need not affect the 
interpretation of the law. 

It should be noted, however, that a proprietor could not lawfully pre- 
sent any program he pleased by purchased radio program or by closed- 
circuit television. If, for example, a restaurant offered a closed-circuit 
television presentation of a boxing match to its patrons, charging admis- 



96 P.D. 12 

sion therefor, clearly, the program would become the prime attraction 
and, as such, would have to be licensed under the Sunday Law. In the 
ordinary case of background music such as Muzak, however, I advise you 
that a license for such an activity is not required by the provisions of 
Chapter 136. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



An application for a new license is not required ivhen all the stock of a 
corporation holding a beauty or manicure shop license is sold and 
the offices changed. 

Aug. 28, 1963. 

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

Dear Madam: — You have requested my opinion on behalf of the 
Board of Registration of Hairdressers whether, "When a corporation is 
sold and the name remains unchanged but changes are made in any or 
all officers of the corporation, should the corporation file an application 
for a new shop and pay a registration fee?" 

The Board of Hairdressers is authorized by statute to issue certificates 
of registration to beauty as well as manicure shops. 

Mass. Gen. Laws, c. 112, § 87AA: 

"The board may authorize one or more registered hairdressers or mani- 
curists or any person employing one or more registered hairdressers or 
manicurists upon payment to the board of a beauty shop or manicure 
shop registration fee as provided in section 0000, to operate a registered 
beauty shop or manicure shop and such person or persons may there- 
after operate such beauty shop or manicure shop upon payment annually 
of a beauty shop or manicure shop registration renewal fee as provided 
in said section 0000. . . ." (Emphasis supplied.) 

Under the provisions of this section, it is the practice of the Board to 
require a shop owned by a single proprietor or a partnership to file a 
new application and pay an original registration fee when the shop is 
sold. The present problem arises where the shop is incorporated, and the 
stock is sold to an individual or group acquiring control of the corpora- 
tion. 

The general rule in construing statutes is that, the word "person" in- 
cludes corporations, G.L., c. 4, § 7, clause 23. A corporation is an entity 
distinct from its individual members even though its capital stock has 
been sold and its officers changed. The corporate entity remains the same, 
and as a matter of legal principle the corporation is still the "same per- 
son." 

The ownership of all the stock and the absolute control of the affairs of a 
corporation do not make that corporation and the individual owner iden- 
tical, in the absence of a fraudulent purpose in the organization of the 



P.D. 12 97 

corporation . . . [M. McDonough Corp. v. Connolly, 313 Mass. 62, 66 
(1942)] 

In light of this well established principle of law and the action taken 
by the legislature, it is my opinion that when a corporation is sold and the 
corporate officers are changed, the corporation need not file an application 
for a new shop and pay a registration fee. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Commissioner of Public Safety may withhold the certificate of in- 
spection of a steam boiler until the prescribed inspection fee has 
been paid. 

Aug. 28, 1963. 

Hon. Frank S. Giles, Commissioner of Public Safety 

Dear Commissioner Giles: — You have requested an opinion of this 
office as to whether the Commissioner of Public Safety may properly 
withhold certificates of inspection for steam boilers until the prescribed 
inspection fees have been paid. 

The inspection of steam boilers is controlled by Mass. Gen. Laws, c. 
146. Under the terms of this chapter, a boiler subject to inspection may 
not be operated before an inspection certificate has been issued. 

No person shall operate or cause to be operated any boiler required 
by this chapter to be inspected until it has been inspected, and the cer- 
tificate of inspection required by section twenty-three or twenty-five has 
been issued and so placed in the engine or boiler room of the plant as 
to be easily read, or in the case of a portable boiler kept with it and 
always accessible. Mass. Gen. Laws, c. 146, §8. 

A certificate of inspection is to be issued after the inspector has exam- 
ined the boiler and found that it conforms to the rules and regulations 
promulgated by the board under this chapter. 

If, upon inspection, the inspector of the division finds the boiler to 
be in safe working order, with the fittings necessary to safety, and prop- 
erly set up, and the boiler and its appurtenances conform to the rules 
of the board, he shall issue to the owner or user thereof a certificate of 
inspection stating the maximum pressure at which the boiler may be 
operated, as ascertained by the rules of the board and thereupon such 
owner or user may operate the boiler mentioned in the certificate; if the 
inspector finds otherwise, he shall withhold his certificate until the boiler 
and its fittings are put in a condition to insure safety of operation, and 
the boiler and its appurtenances conform to the rules of the board, and 
the owner or user shall not operate such boiler, or cause it to be oper- 
ated until such certificate has been granted. Alass. Gen. Laws, c. 146, § 23. 

Although section 23 is in mandatory form, the word "shall" may at 
times be construed to be permissive where such construction is necessary 
to effectuate a legislative purpose or to reach a sensible result. 

City of Boston v. Quincy Market Cold Storage and Warehouse Co., 
312 Mass. 636, 646 (1942). 



98 P.D. 12 

Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932). 

The Commonwealth is entitled to be paid for conducting boiler in- 
spections. 

The owner or user of a boiler inspected by the division shall pay to 
the commissioner twenty dollars for each boiler internally and externally 
inspected, and four dollars for each visit for external inspection under 
steam, and ten dollars for each cast iron sectional boiler inspected. The 
commissioner shall pay to the commonwealth all sums so received. 

Mass. Gen. Laws, c. 146, § 22. 

Therefore, it would not, in my opinion, be unreasonable for the Com- 
missioner to require that inspection fees be paid prior to the issuance of 
an operation certificate. The statutes controlling this matter contain no 
provision for time of payment; this being the case, it appears that the 
Commissioner could lawfully regulate the time of payment. In this way, 
the practical result may be achieved, since the Commissioner would no 
longer be forced to bring suits to recover small fees owed by licensees 
who have failed to meet proper inspection expenses. 

This result does not conflict with the intentions of the General Laws, 
but rather implements them. Therefore, it is in my opinion that the 
Commissioner of Public Safety may properly withhold certificates of 
inspection for steam boilers until the prescribed inspection fees have 
been paid. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Only a temporary appointment may be made to a position that perma- 
nent incumbent of which is on leave of absence. The applicable 
statutes indicate that the non-civil service position in the Depart- 
ment of Corporations and Taxation which a person promoted to 
Deputy Commissioner of Administration held, and to zvhich he has 
rights if reinstatement, should not be filled by a permanent appoint- 
ment. 

Aug. 28, 1964. 

Hon. Leo E. Diehl, Commissioner of Corporations and Taxation 

Dear Commissioner Diehl: — You have requested my opinion as to 
whether a vacancy exists in a certain position in the Department of Cor- 
porations and Taxation and as to whether you, as Commissioner, have 
authority to make an appointment to such position. 

You state that Mr. Robert H. McClain, Jr. requested and was granted 
a leave of absence from his position as Chief of Bureau on May 13, 1963. 
On the same date, Mr. McClain was appointed to the position of Dep- 
uty Commissioner for Fiscal Affairs in the Executive Office for Admin- 
istration and Finance with the approval of the Governor and Council. 

Under the provisions of § 4D of c. 7 of the General Laws, as inserted 
by § 4 of c. 757 of the Acts of 1962, Mr. McClain upon termination of 



P.D. 12 99 

his services in such position and upon request has the right to be restored 
to the position from which he was promoted or to a position equivalent 
thereto in salary grade in the same agency. 

As Commissioner, you would be without authority to make a perma- 
nent appointment to a position the incumbent of which has been granted 
a leave of absence. However, it is my opinion that as Commissioner, vou 
would be authorized to make a temporary appointment to such position. 

If Mr. McClain were to submit his written resignation from his posi- 
tion as Chief of Bureau, relinquishing any and all rights to restoration 
under Mass. G.L. c. 7, § 4D, assuming § 4D applies to Mr. McClain, a 
permanent appointment could be made to the then vacated position. 

The specific provisions of St. 1958, c. 654, § 106 appear to indicate 
the Legislature's intent that positions relinquished under the circum- 
stances outlined in your letter should not be filled by a permanent ap- 
pointment. That section provides that at no time shall there be more 
than fifteen non-civil service positions in the Department of Corporations. 
It is my opinion that if a person has tenure in one of the fifteen positions 
and rights under § 4D then either his position of the fifteen or another 
of the fifteen must be left without a permanent incumbent. That is, 
§ 4D is not an authorization for the creation of an additional exempt 
position for each person with tenure who should accept a supervisory 
job in Administration. 

Having a permanent position filled by a temporary appointee for an 
indefinite period is not a unique situation. Under St. 1941, c. 708 a public 
employee who entered military service was given certain employment 
reinstatement rights. The employee's position was required to be kept 
open and could only be filled by a military substitute until such time 
as the permanent incumbent's military service was terminated. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



City ordinances and town by-laws xvhich are not inconsistent with, or re- 
pugnant to the rules and regulations of the Department of Public 
Safety as to the safety of persons and the prevention of fire, in con- 
valescent or nursing and rest homes, would be valid. Under G.L., 
c. 143, § 3Q any such rule or regulation providing for the installa- 
tion of a sprinkler system must provide for a hearing before an order 
for the installation of a system is made. 

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

Dear Sir: — You have requested an opinion of the Attorney General 
on two questions relating to the application of St. 1963, c. 630, AN ACT 
AUTHORIZING THE DEPARTMENT OF PUBLIC SAFETY TO 
PROMULGATE RULES AND REGULATIONS FOR THE SAFETY 
OF PERSONS AND THE PREVENTION OF FIRE IN CONVALES- 
CENT OR NURSING HOMES AND REST HOMES. 



100 P.D. 12 

Your questions are as follows: 

"In view of the words "Notwithstanding any other provision of law to 
the contrary," as appearing in lines one and two of Section 3Q of Chapter 
143 of the General Laws, inserted by the said Chapter 630, are cities and 
towns by ordinance or by-law permitted to exceed the rules and regula- 
tions promulgated by the Department of Public Safety? 

Your opinion is also respectfully requested as to whether the words 
"after hearing" appearing in line nine of the said Section 3Q refer to 
the holding of a public hearing prior to the adoption and promulgation 
of rules and regulations by the Department of Public Safety, or whether 
the said words "after hearing" require the said Department to grant a 
hearing to all persons aggrieved by a decision of the Department of Pub- 
lic Safety requiring the installation of a sprinkler system as necessary for 
the safety of persons." 

Section 1 of St. 1963, c. 630, added the following section to G.L., c. 143: 

Section 3Q. Notwithstanding any other provision of law to the contrary, 
the provisions of this chapter relative to the safety of persons and the 
prevention of fire in convalescent or nursing homes and rest homes 
licensed under the provisions of section seventy-one of chapter one hun- 
dred and eleven, including the regulation of the inspection, materials, 
construction, alteration and repair of such homes, shall be enforced under 
rules and regulations promulgated by the department. Such rules and 
regulations may provide for the installation of a sprinkler system where, 
after hearing, the department finds such system necessary for the safety 
of persons; provided, however, that the department may require alterna- 
tive methods of fire protection where a sprinkler system would be un- 
necessary or impractical either as to location, size, or construction of a 
home. 

Section 2 of said Chapter 630 reads as follows: 

Section 2. Notwithstanding the provisions of section three Q of chapter 
one hundred and forty-three of the General Laws, inserted by section one 
of this act, no rule or regulation promulgated by the department of public 
safety relative to the installation of sprinkler systems in convalescent or 
nursing homes and rest homes shall take effect prior to January first, nine- 
teen hundred and sixty-five. 

Chapter 143 of the General Laws is entitled, "Inspection and Regula- 
tion of, and Licenses for, Buildings, Elevators and Cinematographs." The 
first sentence of the fifth paragraph of G.L., c. 143, § 3, inserted by St. 
1945, c. 674, § 1, provides as follows: 

"Nothing in this chapter shall be construed as prohibiting any city or 
town in which the provisions of this section are in force, but subject, 
however, in the case of a city to the provisions of any special law relative 
thereto, from imposing, by ordinance or by-law, further restrictions, in 
accordance with the generally accepted standards of engineering practice 
and not inconsistent with law, relative to any building or other structure 
within its limits which is subject to this section; but no such city or town 
shall have power to minimize, avoid or repeal any provision of this chap- 
ter. . . ." 



P.D. 12 101 

In view of the provision last quoted, I advise you in answer to your 
first question that it is my opinion that city ordinances and town by-laws 
which are not inconsistent with or repugnant to any rules and regulations 
authorized to be promulgated by the Department of Public Safety by 
G.L., c. 143, § 3Q, would be valid. 

In answer to your second question I advise you that it is my opinion 
that the second sentence of G.L., c. 143, § 3Q, contemplates that a hear- 
ing is to be held before the installation of a sprinkler system is to be or- 
dered for any home or homes and that the Department may require al- 
ternative methods of fire protection where a sprinkler system would be 
unnecessary or impractical either as to location, size or construction of a 
home. That is, the said sentence does not refer to a hearing to be held 
prior to the adoption of rules and regulations as to sprinklers, but means 
that any such rules and regulations shall provide that a sprinkler system 
may be ordered to be installed in a home or homes whenever after a 
hearing the Department finds such a system is necessary for the safety of 
persons, provided, however, that the Department may require alternative 
methods of fire protection where a sprinkler system would be unnecessary 
or impractical either as to location, size or construction of a home. Of 
course, the provision of § 3, of G.L., c. 30A, the Administrative Procedure 
Act, as to notice and a public hearing prior to the adoption of certain 
rules and regulations by a State agency must be complied with to the ex- 
tent that they are applicable unless dispensed with as therein provided. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A person receiving retirement benefits from the Commonwealth may not 
be employed and paid for services by either the Bureau of Building 
Construction or the Trustees of the Southeastern Massachusetts Tech- 
nological Institute. 

Aug. 28, 1963. 

Joseph Leo Driscoll, President, Southeastern Massachusetts Technologi- 
cal Institute. 

Dear President Driscoll: — You have requested my opinion as to 
whether Mr. Hall Nichols, a retired state employee receiving retirement 
benefits under Mass. General Laws c. 32, may be employed and lawfully 
paid as an approving engineer for either the Bureau of Building Con- 
struction or Trustees of Southeastern Technological Institute. 

The answer to this question is dictated by the provisions of Mass. Gen- 
eral Laws, c. 32, section 91, as amended by St. 1961, c. 367 and by St. 1963, 
c. 482. It is provided therein: 

"No person while receiving a pension or retirement allowance from the 
commonwealth or from any county, city or town, shall, after the date of 
his retirement be paid for any service rendered to the commonwealth or 
any county, city, town or district. . . ." 



102 P-D. 12 

This section sets forth specific exceptions to the above quoted provisions. 
A principal object of the statute is considered to be the removal from 
public service or persons of such an age that they are entitled to receive 
retirement benefits. Because this is the apparent legislative intent, the 
exceptions included in the section must be strictly construed. Since Mr. 
Nichols' employment would not fall within one of the enumerated excep- 
tions, section 91 would preclude the hiring of Mr. Nichols by either of 
the state agencies specified in the first paragraph of this opinion. 

The foregoing opinion renders unnecessary answers to further ques- 
tions posed by you relative to protection of retirement benefits for Mr. 
and Mrs. Nichols should Mr. Nichols return to active service with the 
Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The widow of a retired state employee may be permitted to make pay- 
ments for previous non-consecutive periods of service of her husband 
to establish the total creditable service in excess of two years required 
as a condition to the payment of survivor's benefits. 

Aug. 29, 1963. 

Hon. John T. Driscoll, State Treasurer and Receiver-General. 

Dear Sir: — You have requested an opinion of this office as to the 
rights of a widow to receive benefits under the provisions of Chapter 32, 
§ 123 of the General Laws. 

You state that the deceased had become a member of the retirement 
system but had not established credit for the minimum of the two years 
required. You further state that the deceased had previous service which, 
when added to the present length of service, would exceed the minimum 
requirements. 

In view of the foregoing you ask whether the widow of such a deceased 
employee has the right to make payments for previous service in order to 
establish total creditable service in excess of the two years required and 
thereby become eligible for benefits as provided in Section 12B. 

The widow and children of state employees who fulfill specific statu- 
tory requirements may apply to the State Board of Retirement for sur- 
vivor benefits. 

Mass. Gen. Laws, c. 32, § 12B. 

If a member in service, including such a member in the uniformed 
division of the state police, who has not designated a beneficiary under 
Option (d) of sub-division (2) of section twelve other than his wife and 
who has two full years of creditable service dies and leaves a wife to whom 
he had been married for at least one year and with whom he was living 
at the time of his death or who the board finds had been living apart from 
said member for justifiable cause other than desertion or moral turpitude 
on her part, there shall be paid to such widow an allowance of one hun- 
dred dollars a month, and if there are any children of said deceased mem- 



P.D. 12 103 

ber who are under the age of eighteen or over said age and physically or 
mentally incapacitated from earning on the date of death of the member, 
an additional allowance of fifty dollars a month for one child plus an 
allowance of thirty-five dollars for each additional child shall be paid to 
the widow for the benefit of all such children. 

Where the widow and children would come under the provision of Mass. 
Gen. Laws, c. 32, §12B but for the fact that the deceased had not joined 
the retirement system, the widow is allowed to receive survivor benefits by 
making back payments to the retirement fund. 

Mass. Gen. Laws, c. 32, § 12C. 

The benefits provided for a widow and children under section twelve B 
shall be paid in like manner to the widow and children of a deceased 
employee who had completed two years of creditable service and had 
been married to such widow for one year at the time of his death and 
who having had the right to become a member of the retirement system 
failed to become or elected not to become such a member; provided, that 
there is paid into the annuity savings fund of the appropriate retirement 
system an amount equal to the deductions that would have been made 
from his annual compensation had he become a member of the retire- 
ment system at the time of his entry into service together with accumu- 
lated interest to the date of such payment. 

In an opinion of this office dated May 28, 1963, it was stated that a 
widow may complete payments to the retirement fund where the deceased 
had made some but not all of the payments required. The present prob- 
lem deals with the right of a widow to tack two or more non-consecutive 
periods of service together to make up the minimum two years of cred- 
itable service. 

The rights which the Legislature have given the widow and children of 
a deceased are derived from the status of the deceased as a state employee, 
and are contingent upon meeting the qualifications of these sections. One 
of these qualifications is that the deceased must have at least "two full 
years of creditable service." 

Mass. Gen. Laws, c. 32, § 12B. 

. . . and who has two full years of creditable service dies and leaves a 
wife . . . (emphasis supplied) 

Mass. Gen. Laws, c. 32, § 12C. 

. . . shall be paid in like manner to the widow and children of a de- 
ceased employee who had completed two years of creditable service . . . 
(emphasis supplied) 

These sections are not to be read alone. They are part of a comprehen- 
sive system of retirement benefits and must be construed in light of the 
other provisions of Chapter 32. 

Nevertheless, as stated at the outset, the question now before us is purely 
one of statutory construction. As to such a question reference should first 
be had to the statutes themselves for such assistance as may be derived 
from their language, their chronology, and their form and structure with 



104 P.D. 12 

relation to each other . . . [Sachs v. Board of Registration in Medicine, 
300 Mass. 426, 428 (1938)] 

The provisions of the present statute do not call for continuous service. 
Tacking is not prohibited. These sections should be compared with other 
sections of the retirement law which specifically call for consecutive years 
of service. 

Mass. Gen. Laws, c. 32, § 3. 

(e) Anything in sections one to twenty-eight inclusive to the contrary 
notwithstanding, no person who becomes a member under subdivision (3) 
of this section, and no member who is reinstated to or who re-enters active 
service as provided for in paragraph (b), (c) or (d) of this subdivision, 
or who transfers or re-establishes his membership as provided for in sub- 
division (8) of this section, shall be eligible to receive a superannuation 
retirement allowance or a termination retirement allowance unless and 
until he shall have been in active service for at least two consecutive 
years . . . (emphasis supplied) 

The Board is authorized by statute to ascertain the number of years of 
creditable service where the term of employment is not consecutive. 

Mass. Gen. Laws, c. 32, § 4. 

(2) (b) The board shall fix and determine how much service in any cal- 
endar year is equivalent to a year of service. In all cases involving part- 
time, provisional, temporary, temporary provisional, seasonal or intermit- 
tent employment or service of any employee in any governmental unit, 
including such employment or service of any state official or of any per- 
son elected by popular vote to a county or municipal office or position, 
the board, under appropriate rules and regulations which shall be sub- 
ject to the approval of the actuary, shall fix and determine the amount 
of creditable prior service, if any, and the amount of credit for member- 
ship service of any such employee who becomes a member, including any 
prescribed waiting period before eligibility for membership, established 
either by law or board ruling, prior to January first, nineteen hundred 
and forty-six, for which such service credit was given upon attaining mem- 
bership; provided, that in the case of any such employee whose work is 
found by the board to be seasonal in its nature, the board shall credit as 
the equivalent of one year of service, actual full-time service of not less 
than seven months during any one calendar year. 

Having been given this authority by statute, it would be within the dis- 
cretion of the Board to find that the deceased had "two years of credita- 
ble service" within the meaning of this term as used in Mass. Gen. Law, 
c. 32, §§ 12B, 12C where the employment is not consecutive. However, 
being a derivative right, the widow could not tack two or more non- 
consecutive periods where by statute the deceased would not have enjoyed 
the same privilege. 

In light of these statutory provisions pertaining to retirement benefits, 
it is my opinion that it would be within the discretion of the Board of 
Retirement to allow a widow under the provisions of 12B in a situation 
where her husband had become a member of the retirement system but 
had not established credit for the minimum of two years required and 



P.D. 12 105 

who had previous service which when added to the present length of 
service would exceed the minimum requirements to tack together these 
two non-consecutive periods ol service in a situation where the deceased 
would have enjoyed the same privilege. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



It is doubtful that the Constitution can be amended through a Consti- 
tutional correction called, or proposed, by an initiative petition, and 
the petition, since the Executive Council is designated as a per- 
mitted subject, may contain "excluded matters," and the variety of 
permitted subjects of amendment makes it doubtful that the peti- 
tion "contains only subjects . . . which are related, or mutually 
dependent." 

Despite doubts expressed, in view of the short time petitions have to 
obtain the required signatures and since the Legislature if the meas- 
ure is qualified, can seek an opinion of the justices of the Supreme 
Judicial Court, the Attorney General, resolved the doubts in favor 
of this petition, certified the petition and prepared a "fair concise 
summary" thereof. 

September 3, 1963. 

Hon. Kevin H. White, Secretary of the Commonwealth 

Dear Sir: — The attached initiative petition entitled "AN ACT TO 
ASCERTAIN AND CARRY OUT THE WILL OF THE PEOPLE IN 
1966 RELATIVE TO THE CALLING AND HOLDING OF A CON- 
STITUTIONAL CONVENTION IN 1967 TO DEAL WITH SUB- 
JECTS LIMITED TO THE REVISION, ALTERATION AND 
AMENDMENT OF THE STRUCTURE OF GOVERNMENT; AND 
TO PROVIDE FOR A PREPARATORY COMMISSION THERE- 
FOR" was submitted to me, prior to the first Wednesday of August of 
the current year, by Mr. John M. Hill, II, in accordance with Article 74 
of the Articles of Amendment to the Constitution of the Commonwealth. 

There are strong indications that the measure is not in proper form 
for submission to the people. The measure contemplates amendment 
of the Constitution of the Commonwealth in a manner entirely differ- 
ent from that provided by the Initiative and Referendum Amendment. 
The result is that the Constitution would be amended by procedures 
substantially less burdensome than was intended. In addition, the meas- 
ure appears to contain "Excluded matters", since the Executive Council 
is designated as a permitted subject for consideration and therefore the 
area of appointment of judges may be affected. Finally, the measure con- 
templates such a variety of amendments that it is doubtful that "it con- 
tains only subjects . . . which are related or which are mutually de- 
pendent". 

However, the time in which to obtain the signatures necessary to 
qualify the petition for legisaltive action is so short that any delay would 



106 P.D. 12 

probably make the task impossible. It would be very unlikely that judi- 
cial proceedings to review an unfavorable determination by this office 
— even if successful — could be completed in time to allow the petitioners 
to obtain the required signatures. On the other hand, once the petition 
is presented to the Legislature, that body may — as it has done in the 
past — seek an opinion of the Justices of the Supreme Court as to whether 
the proposed measure complies with the initiative provisions of the 
Constitution. 

Because of the seriousness of the reservations I have voiced as to the 
form of this petition, I would, if time permitted, personally seek through 
appropriate legal proceeding, a ruling from the Justices of the Supreme 
Judicial Court as to the validity of this measure. 

But as I have pointed out, the members of the General Court may 
seek, once the petition has been presented to them, an advisory opinion 
on the same point. It seems to me that the best interests of all the people 
of the Commonwealth would be served if the members of the General 
Court followed this procedure. The rights of the petitioners would in 
no way be compromised or injured by such a course of action while the 
rights of the public would, simultaneously, be fully protected. 

Consequently, with the reservation that there exist the serious doubts 
set forth, which doubts are being resolved in the petitioners' favor only 
because a contrary decision would most probably deprive them of an 
opportunity to qualify the measure for submission to the Legislature, I 
hereby certify with respect to the attached initiative petition (signed by 
ten voters certified to be qualified voters of the Commonwealth) that 
such measure and the title thereof are in proper form for submission to 
the people, and that the measure is not, either affirmatively or nega- 
tively, substantially the same as any measure which has been qualified 
for submission or submitted to the people at either of the two preceding 
biennial State elections, and that it contains only subjects not excluded 
from the popular initiative and which are related or which are mutually 
dependent. 

In accordance with the constitutional provisions cited above, I have 
prepared "a fair, concise summary" of the measure as follows: 

Summary 

The proposed measure, if adopted, will place upon the ballot at the 
1966 biennial State election the question whether or not there is to be 
a Constitutional Convention, to be held in the year 1967, for the purpose 
of revising, altering or amending the Massachusetts Constitution, thereby 
affecting the structure of government of the Commonwealth. If the elec- 
torate chooses to hold such a Constitutional Convention, the present 
measure will regulate the Convention's functioning. There shall be a 
total of 102 delegates, selected as follows: 10 from the House of Repre- 
sentatives, 10 from the Senate, 10 at large, and 6 from each of the 12 
Congressional districts. The measure provides for the nomination and 
election of delegates, and for replacement of elected delegates where 
necessary. 

If voted upon favorably, the Convention shall open in July of 1967, 
and shall remain open for no more than 120 calendar days. The Con- 
vention delegates shall select their own officers and establish procedural 



P.D. 12 107 

rules as set iorth in the measure. The purpose of the Convention is the 
revision, alteration and amendment of the Constitution of the Common- 
wealth, and the Convention shall be limited to consideration of the 
following: Number, terms and method of choosing constitutional officers 
of the Executive Branch and members of the General Court; the Execu- 
tive Council; government of counties and municipalities, and their rela- 
tionship to each other and to the State government; organization of the 
executive and administrative work of the Commonwealth; and methods 
of amending the Constitution of the Commonwealth. Notwithstanding 
anything otherwise provided, there shall be no consideration of any 
matter relating to the Declaration of Rights of the Inhabitants of the 
Commonwealth; to Judiciary Power; to Taxation; or to a particular city, 
town or county. All proposed changes shall be submitted to the people 
at the 1968 biennial State election, and shall not go into effect unless 
ratified by the people. Provision is made for quarters and compensation 
for the delegates. 

If the electorate chooses to hold the proposed Convention, there shall 
be selected as provided a Constitutional Convention Preparatory Com- 
mission, whose purpose shall be the compiling, prior to the Convention, 
of whatever information it is deemed will be of assistance to the dele- 
gates in the work of the Convention. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



September 3, 1963. 

A prisoner ivhose life sentence has been commuted to a period of years 
to life is no longer "serving a life sentence," and may be removed 
to a prison camp. 

Hon. George F. McGrath, Commissioner of Correction 

Dear Sir: — I have received your letter of August 13, 1963 relative to 
the interpretation of section 83B of Chapter 127 of the General Laws. 
You ask whether or not a prisoner whose life sentence was commuted to 
a sentence of from 32 years to life may be removed to a camp under the 
provisions of said section. 

Section 83B provides: 

"The commissioner may remove to any camp so established any pris- 
oner held in a correctional institution of the commonwealth, except 
the Massachusetts Institution, Framingham, and sentenced prisoners in 
jails and houses of correction, except a prisoner serving a life sentence, 
or a sentence imposed for violation of sections twenty-two, twenty-three 
and twenty-four of chapter two hundred and sixty-five and for attempt 
to commit a crime referred to in said sections, who, in his judgment, 
may properly be so removed and may at any time return such prisoners 
to the prison from whence removed. . . ." (Emphasis supplied.) 

I am assuming for purposes of this opinion that the prisoner in ques- 
tion is not serving a sentence imposed pursuant to one of the enumer- 



108 P.D. 12 

ated excepted sections. The statute excepts from its provisions prisoners 
"serving a life sentence". The sentence served is not always synonymous 
with the sentence handed down by the trial court. Sentences frequently 
are commuted, and the prisoner serves only the more lenient term. Since 
the statute specifically uses the word serving, I am of the opinion that 
reference is intended to be to the term of years ultimately determined 
to be inflicted upon the prisoner rather than to the sentence originally 
declared but later reduced. 

There may be some doubt as to whether reduction of a sentence from 
"life" to "from 32 years to life" actually removes the sentence from the 
category of life imprisonment. Clearly, however, the latter is more lenient 
treatment, both in the sense that the prisoner may serve less than a life 
term and in the fact that parole may be considered at an earlier date. 
Since in practice a sentence of this type frequently terminates at some 
point less than life, it is safe to say that the sentence currently imposed 
upon the prisoner in question does not amount to life imprisonment. 

Therefore, following the above analysis it is in my opinion that the 
prisoner involved is not currently "serving a life sentence", and that he 
may as a result be transferred to a prison camp pursuant to the provi- 
sions of G.L., c. 127, § 83B. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The use of an armory for dog obedience training classes may be per- 
mitted. 

September 3, 1963. 

Colonel Ralph T. Noonan, State Quartermaster 

Dear Colonel Noonan: — You have asked me whether the certain 
non-military use of an armory for dog obedience training classes is per- 
mitted under Massachusetts General Laws, c. 33, § 122. 

Paragraph (e) of the said § 122 provides that an armory may be used 
for "athletic contests and social or civic activities conducted by respon- 
sible organizations or associations." (Emphasis supplied.) "With today's 
use of dogs for multiple and varied civic purposes including those such 
as police training and duties guiding the blind, it is clear that the 
statutory word "civic" would include dog obedience training classes. 
With this definition in mind, it is evident that a dog obedience class 
can be classified as a civic activity and thus within the scope of para- 
graph (e). The proper training of dogs is germane to the health, safety 
and general welfare of the citizenry. 

There is one limitation upon the use of an armory to prevent abuses. 
The activity must be "conducted by a responsible organization or asso- 
ciation." Within this limitation, it is my opinion that dog obedience 
training classes can be conducted in armories under c. 33, § 122(e). 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 109 

The Metropolitan Transit Authority has authority to take land from the 
Boston and Maine railroad for the construction of the proposed 
rapid transit extension to Reading. 

September 3, 1963. 

Commissioner Jack F. Ricciardi, Commissioner of Public Works 

Re: Section 12, Chapter 782, Acts of 1962 

Veto Power of Certain Cities and Towns 

Dear Commissioner: — You have requested an interpretation of Sec- 
tion 12, Chapter 782, Acts of 1962 which provides that no money shall 
be expended under that act until the projects enumerated therein have 
been approved and accepted by designated officials of the cities and 
towns listed therein. You have specifically asked the following questions 
in connection with the meaning of the words, ". . . until such projects 
have been approved and accepted . . ." as used in said Section 12, Chapter 
782, Acts of 1962: 

1. Do the quoted words mean approve and accept the concept of the 
highway? or 

2. Do the quoted words mean approve and accept the exact location 
of the highway? and 

3. Does said Section 12 grant the power to approve and accept the 
actual geometric design of the highway to the cities and towns? 

Section 12 of Chapter 782, Acts of 1962 states: "No money shall be 
expended under this act by the state department of public works for 
projects in the towns of Brookline or Saugus, or the cities of Boston, 
Cambridge, Lynn, New Bedford, Peabody, Revere, Somerville or Spring- 
field until such projects have been approved and accepted by the select- 
men of said towns, the mayor of the city of Boston, Lynn, New Bedford, 
Peabody, Somerville or Springfield or the city manager of the city of 
Cambridge or Revere." 

The initial use of the word, "projects" in said Section 12 is an unam- 
biguous description of the total highway activity described in said Chap- 
ter 782. The language of said section 12 does not limit the meaning of 
"projects" by delineating specific components of total highway acitvity 
such as location or design. 

It is my opinion that the officials of the cities and towns listed in said 
Section 12 have the power to approve and accept the concept of high- 
ways, the exact location of highways, and the actual geometric design 
of highways included in projects set forth in Chapter 782, Acts of 1962. 
The exercise of these powers by specific officials is limited geographically 
to those portions of highway projects within the boundaries of the cities 
or towns which have elected or appointed them to office. Until the local 
officials designated in said Section 12 exercise the powers conferred 
upon them by said Section 12, no money may be expended on the proj- 
ects set forth in Chapter 782, Acts of 1962 which will be in the commu- 
nities listed in said Section 12. 

It is also my opinion that once the designated official of a city or town 
gives approval to a Chapter 782 project neither he nor any other rep- 
resentative of that community may interfere with any of the details of 



110 P.D. 12 

that project on the basis of Section 12 of said Chapter 782. All sugges- 
tions, objections and amendments must be raised by those officials prior 
to acceptance and approval. 

It is my further opinion that no city or town listed in Section 12, 
Chapter 782, Acts of 1962 or any official thereof may at any time unrea- 
sonably disrupt the progress of a Chapter 782 project with impunity. 
The official designated in said Section 12 is obliged to give or withhold 
acceptance and approval or to negotiate changes or compromises at the 
hearing stage. The powers conferred upon local officials by Section 12 
may not be used arbitrarily or may not be arbitrarily left unexercised. 
If acceptance and approval of a proposed project is denied or withheld 
it is the duty of the local official designated in said Section 12 who so 
acts or fails to act to advise in writing within a reasonable time the 
agency or department of the Commonwealth, which submitted the proj- 
ect, of the specific reasons for rejection of or failure to act on the project 
within the particular city or town. 

Delegation of the powers set forth in said Section 12 is unique. 
Those powers and the exercise thereof shall therefore be strictly con- 
strued. They may not be abused to the detriment of the Commonwealth. 
I shall not comment in this opinion on the responsibility and possible 
liability of individual officials or of cities or towns for loss or damage 
to the Commonwealth if they were found by an appropriate tribunal 
to have abused such powers by failing to act within a reasonable time 
or by acting unreasonably. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The "veto" power of certain local officials under St. 1962, c. 782 (accel- 
erated Highway Act), extends to the entire local portion of each 
highway project. 

September 3, 1963. 
Commissioner Jack P. Ricciardi, Department of Public Works 
Re: Metropolitan Transit Authority Eminent Domain Power 

Dear Commissioner: — On July 25, 1963 you asked for my opinion 
on the following question: 

"Does the Metropolitan Transit Authority under its power of eminent 
domain have the authority to take land from the Boston and Maine 
Railroad for the construction of the proposed rapid transit extension 
to Reading?" 

It is my opinion that the Metropolitan Transit Authority has the 
power to take by eminent domain the property of a railroad corporation 
such as the Boston and Maine Railroad. 

The Appendix to Chapter 162 of the General Laws of the Common- 
wealth in Section 1-1 confers upon the Metropolitan Transit Authority 
the power to take property by eminent domain and by describing that 
Authority as "a body politic and corporate and a political subdivision 
of the Commonwealth" The General Court granted plenary power of 



P.D. 12 111 

eminent domain to it. The Transit Authority may therefore proceed 
under the terms of Section 7 of Chapter 160 of the General Laws which 
provides: 

"The Commonwealth may, at anytime after one year's written notice 
to a railroad corporation, take its railroad, franchise and other property 
by eminent domain under Chapter seventy-nine." 

Chapter 633 of the Acts and Resolves of 1963 provides for the new 
extension to Reading. It includes the following restatement of the power 
of the Metropolitan Transit Authority to take property by eminent 
domain to implement that statute: 

"The Authority may acquire, either by purchase, or by eminent do- 
main, under chapter seventy-nine of the General Laws such portion of 
the railroad properties and other properties in the cities where the rapid 
transit line is to be built as the Authority may determine to be necessary 
for such rapid transit line and its appurtenances." 

No provisions of Chapter Seventy-nine of the General Laws inhibit 
or restrain the power conferred on the Metropolitan Transit Authority 
to take by eminent domain the property of a railroad corporation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Proceeds of the bond issues for the Accelerated Highway Program may 
be used to pay charges for office equipment to be used by the De- 
partment of the Attorney General in connection with land damages 
claims, and for leaving automobiles for the use of the personnel 
of the Right of Way Division. 

September 3, 1963. 

Commissioner Jack P. Ricciardi, Department of Public Works 

Re: Bond Issue Accounts — Authority to Purchase, Rent or Lease 
Equipment. 

Dear Commissioner: — You have asked for my opinion on whether 
or not the Department of Public Works can purchase, rent or lease office 
equipment for the Department of the Attorney General and charge the 
cost thereof to a Bond Issue Account. 

Chapter 306 of the Acts & Resolves of the General Court of 1949, 
Chapter 685 of the Acts & Resolves of 1950, Chapter 556 of the Acts & 
Resolves of 1952, Chapter 403 of the Acts & Resolves of 1954 and Chap- 
ter 718 of the Acts and Resolves of 1956 authorize the issue and sale of 
bonds to meet expenditures necessary to execute the accelerated high- 
way program. Included in each of those laws is the following language: 

"The cost of the work . . . shall include all project payments, property 
damages, expenses for consultants and engineering services . . . and for 
all legal and other technical and expert services, and incidental expenses 
in connection with the projects herein authorized." 



112 P.D. 12 

The language quoted above makes it clear that the General Court 
intended that all legal expenses and services incidental thereto should 
be included in the cost of the work to be paid from the proceeds from 
the sale of the bonds which were authorized and issued. 

Almost all of the cases and matters handled in the Contract and 
Eminent Domain Divisions of the Department of the Attorney General 
arise from activities of your Department in connection with the execu- 
tion of the purposes set forth in the laws listed in the third paragraph 
of this letter. It has long been established that the compensation oi the 
personnel of the Contract and Eminent Domain Divisions of the De- 
partment of the Attorney General may be and is paid from the various 
Bond Issue accounts. It is evident that legal services cannot be rendered 
without the employment of administrative and clerical assistance and 
the ues of office equipment of various types. 

It is my opinion that the Department of Public Works can purchase, 
rent or lease equipment for the use of the Contract Division and Emi- 
nent Domain Division of the Department of the Attorney General and 
charge the costs thereof to an appropriate Bond Issue Account. 

Your letter of August 12, 1963 also asked if the Department of Public 
Works has the authority to lease automobiles for employees, such as 
those in the Right of Way Division, who are working primarily on 
projects financed from bond accounts. 

The activities of employees of the Right of Way Division of your 
Department are directly connected with the determination of "property 
damages" as those words are used in the statutes cited in the third para- 
graph of this letter. The transportation of the personnel involved in 
those activities is an appropriate "incidental expense" as those words 
are used in said statutes. The cost of that transportation, whether for 
the leasing of automobiles, or the purchase and maintenance thereof, or 
for various forms of public transportation, can be paid from the Bond 
Issue Accounts cited herein provided those costs are directly connected 
with the projects authorized and financed in said cited statutes. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The commissioner of insurance cannot permit a life insurance company 
to delay compliance with the statute as to payment of unclaimed 
funds pending any decision by the Supreme Court of the United 
States as to its constitutionality. 

September 6, 1963. 
Hon. C. Eugene Farnam, Commissioner of Insurance 

Dear Sir: — I have received your letter of August 20, 1963 in which 
you request an opinion relative to the duties of the Commissioner of 
Insurance under Chapter 175 of the Massachusetts General Laws. You 
have asked whether the Commissioner of Insurance must, pursuant to 
§ 149C of c. 175, demand that the Metropolitan Life Insurance Com- 
pany pay over unclaimed funds to the State Treasurer on or before 
September 1, 1963, or — as an alternative — if he may accept an agree- 



P.D. 12 113 

ment that such funds will be paid as soon as a decision of the United 
States Supreme Court indicates that the Commonwealth is entitled to 
them. 

General Laws, c. 175, § 149A defines unclaimed funds as "monies 
. . . which shall have remained unclaimed and unpaid for seven years 
or more after . . . such monies became due and payable . . . and which 
monies are payable to a person whose last known address is within this 
commonwealth. . . ." Section 149B as amended provides that every life 
company shall ... on or before April 1 . . . make a report to the Com- 
missioner of Insurance of all such unclaimed funds held by the company 
on the preceding December 31st. 

The disposition of such unclaimed funds is governed by c. 175, § 149C: 

"On or before the first day of September in each year, each life com- 
pany shall pay over to the state treasurer all unclaimed funds set forth 
in the report required by section one hundred and forty-nine E, except- 
ing any funds which since the date of such report have ceased to be 
unclaimed. Each such payment shall be accompanied by a duplicate of 
the report made under section one hundred and forty-nine B, together 
with a statement with respect to any funds which since the date of such 
report have ceased to be unclaimed." 

The matters covered in these statutes are not left to the discretion of 
the Commissioner of Insurance; the statutes impose an obligation upon 
the Commissioner to receive written reports and to demand timely pay- 
ment over to the state treasurer of unclaimed funds. 

"The commissioner shall administer and enforce the provisions of 
this chapter and chapter one hundred and seventy-six, and, so far as is 
provided therein, chapter one hundred and seventy-eight. If upon com- 
plaint, examination or other evidence exhibited to him he is of the 
opinion that any provision of said chapters has been violated, he shall 
forthwith report the facts to the attorney general, to the proper district 
attorney or to the commissioner of public safety, who shall cause the 
offender to be prosecuted therefor." 

Mass. General Laws, c. 175, §3A. 

It is the function of the Commissioner of Insurance to enforce these 
provisions, not to determine whether they are desirable or even consti- 
tutional. Pending judicial determination as to the statute's validity, the 
only course of action open to the Commissioner is to enforce the pro- 
visions of the law as enacted bv the Legislature. It is my opinion that 
the Commissioner is not the appropriate party to decide whether the 
law is valid, or even to grant life companies a delay pending decision 
by the United States Supreme Court. The statute as currently in effect 
requires the Commissioner to demand timely payment by Metropolitan 
Life over to the state treasurer. 

I am aware of the effect of Western Union Telegraph Co. v. Pennsyl- 
vania, 368 U.S. 71, decided bv the United States Supreme Court in 1961, 
that a state judgment of escheat which does not bar another state from 
escheating the same property is void under the Due Process Clause of 
the Fourteenth Amendment. It is true that similar cases are pending in 



114 P.D. 12 

the United States Supreme Court, and that Metropolitan Life has no 
guarantee that payment to this Commonwealth will end the matter. 
However, it is not the function of either the Commissioner of Insurance 
or the Attorney General to suspend enforcement of properly enacted 
legislation. Such matters are within the province of the courts; Metro- 
politan Life is free to seek a temporary restraining order in court, as 
apparently it has done in other cases. Pending some judicial word on 
the subject, however, state officials can only enforce the law as it is 
written. 

Consequently, pursuant to the above discussion, it is my opinion that 
the Commissioner of Insurance does not have the authority to delay pay- 
ment of unclaimed funds over to the state treasurer pending decisions 
by the United States Supreme Court. Rather, the Commissioner must 
demand that such payment over be made on or before September 1, 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



An application for a certificate of registration for a "mobile" barber shop 
cannot be rejected for alleged inability to properly supervise such 



a shop. 



Sept. 6, 1963. 



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

Dear Mrs. Sullivan: — You have asked for my opinion as to whether 
the Board of Registration of Barbers would have the power and be 
within their rights to reject an application for a mobile barber shop. 
The basis for their rejection of such an application would be the inabil- 
ity of their inspectors to properly supervise such a shop. 

The applicable section of the Mass. General Laws, c. 112, § 87H, states 
in part: 

"Any person desiring to obtain a certificate of registration shall make 
application to the board therefor, pay to the secretary thereof a fee of 
fifteen dollars and furnish to the board a certificate of a registered phy- 
sician as to the freedom of the applicant from infectious and contagious 
diseases, and shall present himself at the next regular meeting of the 
board for the examination of applicants, or at a later meeting of the 
board if it so votes, and thereupon, if he shows that he has studied and 
practiced the occupation of barbering for two years as an apprentice 
under one or more registered barbers, or for at least six months in a 
properly equipped and conducted barber school or barber college under 
the instruction of a registered barber and eighteen months as an appren- 
tice under a registered barber, or practiced such occupation for at least 
two years in this and /or other states, and that he is possessed of the requi- 
site skill in such occupation to perform properly all the duties thereof, 
including the preparation of the tools, shaving, haircutting and all the 
duties and services incident thereto, and has sufficient knowledge con- 



P.D. 12 115 

cerning diseases of the face and skin to avoid the aggravation and spread- 
ing of such diseases in the practice of such occupation, the board shall 
issue to him a certificate of registration, signed by the chairman and 
the secretary and attested by its seal. Such certificate shall be evidence 
that the person to whom it is issued shall, subject to section eighty-seven 
J, be entitled to follow the practice of the occupation referred to therein. 

". . . Before any registered barber opens a barber shop, or moves his 
barber shop to a new location, or operates a barber shop previously 
approved for a prior owner, he shall apply to the board for an inspection 
and approval thereof, and the board shall receive a fee of fifteen dollars 
for each inspection, and, upon the approval of such barber shop, the 
board shall issue a certificate of registration for such barber shop, which 
shall without further fee be in force, unless sooner cancelled, suspended 
or revoked, until June thirtieth of the year following the year of its issu- 
ance. . . ." 

Your letter recites that the inability of the inspectors to properly su- 
pervise such a shop stems from that provision in the section which re- 
quires the barber to apply to the Board for an inspection and approval 
before such barber "opens a new barber shop, or moves his barber shop 
to a new location, or operates a barber shop previously approved for a 
prior owner". The Board, placing emphasis on the word "moves", inter- 
prets this provision to require new certification every time the mobile 
shop drives to a new location. 

The vital question is what the Legislature intended by use of the phrase 
"or moves his barber shop to a new location". It is my opinion that the 
Legislature did not intend to require a mobile barber shop to obtain 
a new certificate every time the shop moves. This conclusion is reached 
after viewing the section in its entirety and ascertaining the object of 
the certification requirement. The Legislature requires such certification 
to protect the health of the citizens which the shop serviced. It is the 
inspection and the certification of the facilities with which the section 
is concerned and it is the changing of the facilities which requires recerti- 
fication. This, I feel is the meaning of the phrase in question. A mobile 
barber shop would require new certification when the barber acquired 
a new vehicle and shop. This would involve a "moving" within the 
meaning of section 87H. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The txoo members of the Board of Registration of Real estate Brokers 
and salesmen, who are designated as "representatives of the public" 
may not be licensed real estate brokers. 

Sept. 12, 1963. 
Mr. John W. McIsaac, Chief Examiner, Board of Registration of Real 
Estate Brokers and Salesmen. 

Dear Sir: — I have received your letter of August 19, 1963 relative 
to the composition of the Board of Registration of Real Estate Brokers 
and Salesmen. You have asked whether the two members of the Real 



116 P.D. 12 

Estate Board who are designated "representatives of the public" may also 
be licensed real estate brokers. 

Appointments to the Board are governed by Mass. G.L. c. 13, § 54, as 
amended, the relevant part of which reads as follows: 

"There shall be a board of registration of real estate brokers and sales- 
men, in this section and in sections fifty-five to fifty-seven, inclusive, called 
the board, to be appointed by the governor, with the advice and consent 
of the council, consisting of five members, citizens of the commonwealth, 
three of whom shall have been actively engaged in the real estate business 
as a full-time occupation for at least seven years prior to their appoint- 
ment and who shall be licensed real estate brokers, and two of whom 
shall be representatives of the public. . . ." 

The question presents a problem in statutory construction. Ordinarily, 
when the Legislature designates that a specific number of individuals 
will, for example, perform a function or — as in the present case — pre- 
sent a particular qualification, it is implied that other persons mentioned 
in the statute will not perform such duties and need not offer such quali- 
fications. It is a standard rule of construction that express mention of 
items or individuals implies exclusion of those items or individuals to 
which reference has not been made. In the present matter the General 
Court has provided that three of the five members of the Board of Reg- 
istration of Real Estate Brokers and Salesmen must have been actively 
engaged full-time in the real estate business for seven years and be licensed 
real estate brokers. No indications to the contrary being present, it must 
be assumed that these three alone may be licensed brokers. 

The apparent intent of the General Court supports this conclusion. 
The Legislature appears to have contemplated dividing the Board be- 
tween representatives of the real estate field and representatives of the 
public. Deliberations of a regulating agency such as the Real Estate 
Board frequentlv have a broader scope when a variety of interests are 
represented rather than simply the interests of practitioners alone. 

Therefore, since it is apparent that the General Court intended that 
the interests of the public at large be represented on the Board by two 
members not practitioners in the real estate field, it is my considered 
opinion that the two individuals designated "representatives of the pub- 
lic" may not be licensed real estate brokers. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Discussion of duties of, and procedures for, superintendent of state for, 
in connection with a request for payment from funds Jield for an 
inmate for an attorney's retainer fee. 

Sept. 13, 1963. 

Honorable George F. McGrath, Commissioner of Correction 

Dear Sir: — You have requested my opinion as to whether the Super- 
intendent of the Massachusetts Correctional Institution at Bridgewater 
(the "state farm", see G.L. c. 125, § 1) must honor an order of an inmate 
of the Bridgewater State Hospital to pay money from funds deposited 



P.D. 12 117 

to ihe inmate's personal account as retainer fee to a lawyer designated 
by the inmate. Such account was created from funds earned by the inmate 
at the hospital, from social security payments, veterans benefits or gilts 
received lor the inmate during his confinement. 

Bridgewater State Hospital as a mental institution, whose inmates are 
committed for treatment by judicial order. See G.L. c. 125, s. 19, and 
references therein. It is, nonetheless, a part of the state farm, G.L. c. 125, 
§ 18, subject to the jurisdiction of the Commissioner of Correction and 
under the control of the superintendent of the state farm. G.L. c. 123, 
§ 22A. 

The superintendent's authority with respect to money earned by an 
inmate for services performed at the institution is set forth in G.L. c. 127, 
§ 48A, which provides in part: 

"The superintendent of any correctional institution may expend one 
half of the money so earned by any inmate on behalf of the inmate; 
provided, however, that in the case of an inmate who is a defective 
delinquent or a sexually dangerous person or who is serving a life term, 
the superintendent may so expend any part or all of such money. The 
remainder of the moneys so earned, after deducting amounts expended 
on behalf of the inmate as aforesaid, shall be accumulated to the credit 
of the inmate and shall be deposited by the superintendent as trustee in 
a bank approved by the state treasurer and paid to the inmate upon his 
release from such institution in such instalments and at such times as 
may be described in . . . rules and regulations." 

The services of an attorney cannot be considered "articles" under any 
reasonable definition of that term. Accordingly, the superintendent has 
no authority to expend any part of an inmate's account which represents 
accumulated deposits of money earned as described in § 48A for the 
payment of lawyer's fees. 

No specific statute, however, defines the superintendent's authority 
over that part of the account which represents accumulated deposits of 
receipts mentioned in your inquiry. Section 3 of c. 127 relates only to 
money or property "found in the possession of prisoners committed" to 
an institution; and no statute vests in the superintendent broad power 
to use an inmate's funds from any source for the benefit of such inmate 
comparable to that given to the Commissioner of Mental Health with 
respect to patients under his supervision. See G.L. c. 123, § 39. In the 
absence of any specific statute, an inmate is entitled to the immediate 
use of the payments you describe: and if the superintendent holds such 
payment or deposits them into his own account, he becomes a debtor 
on demand of the inmate. As such, he must pay any part or all of the 
debt upon the order of the inmate creditor. 

It may be, however, that such an inmate lacks the mental capacity 
either to engage an attorney or to issue an order for the payment of 
funds. The order of commitment itself is not conclusive of his lack of 
such capacity. See Mitchell v. Mitchell, 312 Mass. 165, 168; Leggate v. 
Clark, 111 Mass. 308. Although an inmate may be sufficiently mentally 
ill to justify his commitment for treatment, he may possess, nonetheless, 
sufficient mental capacitv to incur rights and obligations and to dispose 
of his propertv. Whether or not any ostensible agreement between an 
inmate and an attornev is vnlid. voidable or utterly void will depend 



118 p.D. 12 

upon a series of factors relating to the inmate's mental condition, which 
will vary from case to case and none of which you have given me. See, 
e.g., Farnum v. Brooks, 9 Pick. 212; Hallett v. Oakes, 1 Cush. 29G; Allis 
v. Billings, 6 Mete. 415. Obviously, the superintendent ought not to com- 
ply with something which, although resembling an order in form, bears 
none of the real attributes thereof. Furthermore, in such a case, unless 
a lawyer's services amount to a "necessary of life," the lawyer might not 
be entitled even to the fair value of his services. Hallett v. Oakes, supra. 
The dilemma of the superintendent when dealing with funds of in- 
mates of doubtful mental capacity cannot be gainsaid. In die absence 
of statutory amendment, I would advise the superintendent, when pos- 
sible, to procure an indemnity bond or other suitable means of protect- 
ing the Commonwealth and the inmate's estate from improper deple- 
tion, or to request the Department of Mental Health or other person 
referred to in G.L. c. 201, § 6, to petition for appointment as guardian 
of the inmate in question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The provisions of the Fair Employment Practices Act as to discrimina- 
tion on account of age do not affect the operation of the provision 
of the retirement law, restricting benefits to persons becoming em- 
ployed under age sixty. 

Sept. 18, 1963. 

Mr. Walter H. Nolan, Executive Secretary, Commission Against Dis- 
crimination. 

Dear Sir: — I have received your communication on August 28, 1963, 
requesting an opinion relative to the right of certain employees of the 
Boston School System to enjoy membership in the contributory pension 
system administered by the Boston Retirement Board. You have asked 
whether such employees hired after age sixty, are entitled to the advan- 
tages of the contributory pension system on the basis of the Fair Employ- 
ment Practices Law (G.L. c. 151 B) despite the prohibitions of § 3, of 
c. 32, the Retirement Law. 

Section 3 of Chapter 32 (as amended) indicates that employees join- 
ing the services of the Commonwealth after age sixty are not eligible for 
the contributory pension system. 

"(2) Eligibility for membership. 

"00 

" (IV) Any person, except as specifically otherwise provided for in 
sections one to twenty-eight, inclusive, who, while under age sixty, enters 
or re-enters the services as an employee of the commonwealth, a teacher 
as defined in section one, or an employee of any political subdivision 
of the commonwealth for which a system established under the provi- 
sions of such sections, or under corresponding provisions of earlier laws, 
is in operation on the date when he becomes an employee. . . ." 



PJX 12 119 

A teacher in the Boston School System hired alter September 1, 1923 
does iiol conform to the definition oi a "teacher" included in section 
one, but is considered an employee ol a political subdivision lor which 
a pension system has been established. By virtue oi the above statute, 
such an employee hired alter age sixty is excluded from membership 
in the contributory pension system. 

It has been suggested that Chapter 151 B oi" the General Laws conllicts 
with the above section oi the Retirement Law. Section 4 oi c. 15 IB reads, 
in part, as follows: 

"It shall be an unlawiui practice: 

1. For an employer, by himself or his agent, because of the race, 
color, religious creed, national origin, age, or ancestry of any individual, 
to refuse to hire or employ or to bar or to discharge from employment 
such individual or to discriminate against such individual in compen- 
sation or in terms, conditions or privileges of employment, unless based 
upon a bona fide occupational qualification." (Emphasis supplied.) 

If the provision of the Retirement Law cited above is to be considered 
a discrimination by reason of age, a conflict arises with the Fair Employ- 
ment Practices Law. In addition, § 9 of the said Fair Employment Prac- 
tices Law states in part that ". . . . provisions of this chapter shall be 
construed liberally for the accomplishment of the purposes thereof, and 
any law inconsistent with any provision thereof shall not apply. . . ." 

I do not find that the above statutes are inconsistent, nor do I feel 
that the provisions of the Retirement Law must be subordinated to 
those of the Fair Practices Act. Employees hired after age sixty may claim 
that they are denied a privilege of employment (membership in the 
contributory pension system) by reason of age; but such membership is 
a privilege of employment granted by statute, and limited by such statute 
to individuals hired before the age of sixty. The distinction is a reason- 
able one made by the General Court, and cannot be said to be a dis- 
crimination of the type intended to be invalidated by c. 151 B. 

Furthermore, paragraph one of § 4 of c. 15 IB is aimed at the elimi- 
nation of discrimination by employers, and is not intended to be a blanket 
attack upon all distinctions validly in force by legislative enactment. 
An employer does not discriminate by following the law. If the employees 
in question were entitled under the statute to membership in the pension 
svstem, an employer clearly could not deny them the privilege by reason 
of their age. But where the statute itself excludes these people, no "privi- 
lege of employment" of which they can avail themselves exists, and an 
employer is not only entitled but is required to eliminate these par- 
ticular employees from the retirement program. 

Therefore, it is mv considered opinion that the provisions of the Re- 
tirement Law control in this area, and that § 4 of c. 151B is inapplicable. 
Consequently, I advise that pursuant to § 3 of c. 32, employees of polit- 
ical subdivisions hired after age sixty are not to be eligible for the con- 
tributory retirement system. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



120 P.D. 12 

The provisions of the contract of employment of its general manager 
by the Metropolitan Transit Authority entitling him to deferred 
compensation in the event of his removal at pleasure and not for 
cause, are valid and bind the authority. 

Sept. 19, 1963. 

To the Honorable Members of the House of Representatives: 

Gentlemen: — I have received a copy of your Order of September 3, 
1963 requesting the opinion of the Attorney General upon the follow- 
ing questions of law: 

"1. May the trustees of the Metropolitan Transit Authority terminate 
the contract of employment of the general manager? 

"2. If the trustees may terminate the contract of employment of the 
general manager, upon such termination must he be paid the full amount 
due him under the entire contract?" 

The contract referred to is that entered into upon the first day of 
July, 1960 by the present general manager and the Metropolitan Transit 
Authority, acting through its Board of Trustees. This contract was re- 
vised by an agreement between the same parties executed May 11, 1962, 
effective January 1, 1962, which agreement contains provisions relative 
to deferred compensation and additional deferred compensation should 
the general manager be removed pursuant to the statutory authority of 
the trustees and not for cause. 

Briefly, the contract recites the difficulties experienced by the trustees 
in finding an individual suitable for the position of general manager. 
Having determined that a substantial offer would have to be made in 
order to attract a qualified person and to justify his leaving a prior 
position with the resulting forfeiture of associated retirement rights, 
the trustees were prepared "to give as much assurance as the law would 
permit for the individual to retain the position of General Manager for 
a specified term". By contracting for a specified period, the trustees also 
intended that the new general manager should be assured of a sufficient 
time in which to put his administrative skill to use. 

Consequently, it was agreed that the general manager would serve the 
Metropolitan Transit Authority for a term of eleven years or until his 
retirement, subject, however, to removal at the pleasure of the Board of 
Trustees of the Authority, as provided for in § 4 of c. 544 of the Acts of 
1947. The salary for the general manager was set at $30,000 per annum for 
the first six months of the contract term, at $35,000 per annum for the 
subsequent six months, and at S40.000 per annum for the remainder of 
his term. (These figures were altered somewhat at a later time by the 
deferred compensation agreement mentioned above.) 

In the event that the general manager should be discharged from office, 
not for cause, but pursuant to the power of the trustees to remove him at 
pleasure under the provision of § 4 of c. 544 of the Acts of 1947, the 
trustees contracted to pay, as liquidated damages, to the general manager, 
a sum equal to fifty per cent of the salary which would have been paid him 
had his period of employment run its full course. [The deferred compensa- 
tion agreement effective January 1, 1962 provides also for additional 
deferred compensation in the event the general manager is removed 
pursuant to § 4 of c. 544, Acts of 1947.] 



P.D. 12 121 

The general manager's duties and responsibilities were, it was agreed, 
those set forth in the Regulations of the Board of Trustees of the MTA. 
The contract also provided that no member of the Board of Trustees 
should be liable personally by reason of the Agreement, or as a result of 
its breach. 

The employment contract with the general manager was entered into 
by the trustees pursuant to authority granted them by c. 544 of the Acts 
of 1947, which chapter established the Metropolitan Transit Authority. 
The enabling words appear in § 4, as amended: 

"The Trustees may from time to time appoint and at pleasure remove 
a clerk, a treasurer, a general manager and such other officers, agents and 
employees of the Authority as they may deem necessary, and may de- 
termine their duties and their compensation, which shall be paid by the 
Authority 

Viewed as an ordinary business arrangement and without regard for the 
public policy questions which inevitably arise in connection with an 
employment contract executed by a public transit authority like the MTA, 
the contract described above is in my opinion a lawful agreement. The 
inclusion of liquidated damages in the event of removal without cause is 
not unusual and in the present case has a sufficiently close relation to the 
harm which would be done by removal so that the sum to be paid the 
general manager whose services have been terminated could not be invali- 
dated as a penalty. 

The trustees are authorized to appoint a general manager, to remove 
him "at pleasure", and to determine his compensation. A power to 
remove an employee at pleasure obviously differs from the power to 
remove an employee for cause. But whether an absolute power to remove 
an employee "at pleasure" is vested in the trustees or only a power which 
must be exercised with wise discretion is not clear. Examples of cases in 
which the Supreme Judicial Court has dealt with the meaning of the 
phrase "at pleasure" are as follows: 

Stebbins v. Police Com'rs. of Springfield, 

196 Mass. 365 
McCann v. Commonwealth, 213 Mass. 213 
Marrone v. City Manager of Worcester, 
329 Mass. 378 
The language of § 4 of c. 544, Acts of 1947 is susceptible of two interpre- 
tations. The trustees clearly have the power to remove the general manager 
at pleasure but they also have the undoubted authority to set his com- 
pensation, which shall be paid by the Authority. These powers are po- 
tentially contradictory, since by entering into a particular compensation 
agreement the trustees may defeat, or at least impair, their right to remove 
an employee at their pleasure. In the instant case it has been suggested that 
the trustees, by contracting to pay large liquidated damages to the present 
general manager should he be discharged at the trustees' pleasure, have 
limited their power of removal in that the incumbent general manager 
may now be removed only upon payment of a substantial amount of 
money. 

The crucial question which you pose, therefore, is: did the General 
Court in enacting the statute which controls the functioning of the MTA 



122 P.D. 12 

intend that the power vested in the trustees to remove the general manager 
at their pleasure, should remain completely untrammeled? Or may it be 
assumed that the Legislature recognized that the trustees might contract 
in such a way as to affect and limit their power of dismissal, and that such 
a result would not be inimical to the legislative intent? 

In order to reconstruct the intent of the Legislature in passing a statute 
some sixteen years ago, consideration must be given to the situation and 
affairs which then, and now, are being regulated. 

It is my opinion that in view of the need for continuity of management 
of the MTA, and the desirability of having a skilled individual in the po- 
sition of general manager, an arrangement such as the one arrived at by 
the general manager and the trustees is a result reasonably anticipated by 
the Legislature, and is within the authority granted the trustees bv § 4 of 
c. 544 of the Acts of 1947. 

The Legislature must have been aware of the difficulty which is always 
encountered in attracting an eminently qualified individual to such a 
sensitive position. The members of the General Court must have realized 
that an arrangement would have to be made which would give any in- 
cumbent at least some security in the general manager's office. Our legisla- 
tors must have assumed that no competent transportation expert would 
accept the position of general manager without adequate compensation. 

I am not disturbed by the fact that the contract in question operates to 
bind future boards of trustees. The cases which hold that a public official 
may not bind his successors in regard to the former's appointees are clearly 
distinguishable, involving as they do, officials such as the Secretary of the 
Commonwealth and the Commissioner of Insurance. These public officials, 
by the nature of their offices, are entitled to employ agents and employees 
of their choice. They automatically hand over the same privilege to their 
successors. 

Cieri v. Commissioner of Insurance, 

343 Mass. 181 
Hoxuard v. State Board of Retirement, 
325 Mass. 211 

Such is clearly not the case with a public authority such as the MTA 
where continuity of management is essential. Here it is far less important 
that a particular board of trustees deal with a general manager who is 
their personal appointee. 

Your second question relating to the compensation of the general 
manager should the trustees terminate his contract cannot be answered 
without reference to two separate factors. (1) Is the contract terminated 
for cause or (2) at the pleasure of the trustees as provided by the legislative 
enactment? 

If the general manager's contract is terminated for cause, the Authority 
need pay him only for the service he has already rendered since the con- 
tracts involved provide for payment of additional compensation only in 
the event that his contract is terminated at the pleasure of the trustees. 

If the general manager is removed at pleasure, however, and not for 
cause, I am of the opinion that the provisions of the contract cited as 
amended, must be followed. In such cricumstances the general manager 
must receive the sum to which he is entitled under paragraph 3 of the 
revised agreement effective January 1, 1962. This would not be the full 



P.D. 12 123 

amount due him under the contract as your question suggests, but would 
be fifty per cent of the amount which would have been paid had the con- 
tract been completed, including the additional deferred compensation 
provided for in the revised ngreement effective January 1, 1962. 

But should the general manager be removed by the trustees at their 
pleasure, there is a provision of paragraph 3 of the said revised agreement 
which I do find invalid. This provision recites, "For each month of (the 
general manager's) employment by the Authority (the general manager) 
shall be paid by the Authority six hundred twenty-five dollars ($625.00)." 
Payment of the general manager's salary effective under the original con- 
tract entered into as of July 1, 1960 had been made for the first eighteen 
months' employment of the general manager by the Authority. Accord- 
ingly, the provision of paragraph 3 above recited, may only validly relate 
to the period affected by the revised contract commencing January 1, 1962. 

We are concerned in the present matter with the integrity of contracts 
and the credit of the Commonwealth. As I have indicated, the legislative 
enactment (§ 4 c. 544, Acts of 1947) is somewhat vague. But in interpreting 
the contracts entered into by the trustees of the Metropolitan Transit Au- 
thority and its general manager, it is my considered opinion that the 
validity of said contract is well supported by long-range public policy 
arguments. 

To your first question, I answer, "Yes". 

If the trustees terminate the contract of employment of the MTA's 
general manager at their pleasure and not for cause, I also answer your 
second question in the affirmative with the proviso that the amount of 
liquidated damages to be paid the general manager as specified in 
paragraph 3 of the revised agreement effective January 1, 1962, should not 
include that portion of the contract I have herein held invalid. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The provision of St. 1916, c. 718 (Accelerated Highway Act) that the 
Commonwealth may reimburse a public utility for relocation costs 
authorizes the waiver of any provision of an occupancy permit issued 
to the utility putting the burden of the cost of relocation on the 
utility; and reimbursement thereunder is not in violation of contract. 
Clarification of wording of Occupancy Permit Forms, suggested. 
Public Utility reimbursement to, for relocation of facilities of, in 
connection with Acceleration State Highway Program; affect of 
Occupancy Permit Provision. 

Sept. 23, 1963. 

Jack P. Ricciardi, Commissioner, Department of Public Works. 
Re: Reimbursement of Utility Relocation Costs. 

Dear Commissioner: — 1. By letter dated September 10, 1963 you 
have requested my further opinion on this subject in light of a memo- 
randum of S. K. Booth, Deputy General Counsel, Federal Bureau of 
Public Roads, dated August 27, 1963, a copy of which you forwarded 
with said letter. 



124 P.D. 12 

2. In that memorandum Mr. Booth indicated Federal acceptance of 
my opinion on this subject dated May 3, 1963 as, among other things, 
fulfilling the requirement of 23 U.S.C. 123 (a) that reimbursement of 
utility relocation costs be consonant with the law of the State involved 
to permit Federal-aid participation in such expenditures. He then draws 
attention to the fact that 23 U.S.C. 123 (a) imposes a further require- 
ment that payments for utility relocation not violate a legal contract 
between the utility and the State. 

3. Mr. Booth then quoted the following clause from the Occupancy 
Permit Form presently used by the Commonwealth of Massachusetts to 
grant to utilities permission to locate facilities in highway rights-of-way: 

"The Department hereby reserves the right to order the change of 
location or the removal of any structure or structures authorized by this 
permit at any time, said change or removal to be made by and at the 
expense of the Grantee or its/their successors or assigns." 

4. In his August 27, 1963 memorandum Mr. Booth advises that a Fed- 
eral Bureau of Public Roads circular memorandum of September 17, 
1958 considers such occupancy permits granted to public utilities as 
being within the meaning of the word, "contract" as used in 23 U.S.C. 
123 (a). 

5. Mr. Booth further advises that a prerequisite to Federal-aid parti- 
cipation in reimbursement of utility relocation costs is my opinion on 
whether such "contracts" including the clause quoted in the third para- 
graph hereof can be lawfully nullified. 

6. Please be advised that I am not hereby accepting the interpretation 
of the word, "contract", included in the August 27, 1963 memorandum 
or the circular memorandum referred to in paragraph 4 hereof. That 
interpretation is not consistent with the law of this Commonwealth. 
However, resolution of the different interpretations of the word, "con- 
tract", is not necessary to providing my opinion on the questions raised 
in your letter of September 10, 1963. 

7. Chapter 718, Acts of 1956, in paragraph 3 of Section 1 provides in 
part "... that the Commonwealth may reimburse the owner of such 
utility facilities for the 'Cost of Relocation' as such cost is defined in 
said act". (Federal Highway Act of 1956) . 

8. It is my opinion that the payment of utility relocation costs under 
the provisions of Chapter 718, Acts of 1956 as interpreted by Opinions 
of the Attorney General, dated May 3, 1963 and August 14, 1963 does 
not violate the clause quoted in paragraph 3 hereof of the Occupancy 
Permit Form presently used by your Department. In making any such 
payment the Commonwealth would be relinquishing a right it pres- 
ently has. By enacting Chapter 718, Acts of 1956 the General Court 
granted to your Department the discretion to waive that right of the 
Commonwealth and to pay such utility relocation costs. However, the 
General Court did not thereby eliminate that right to require a utility 
permittee to pay relocation costs. Said Chapter 718 in no way alters 
the rights of the permittees. It is my further opinion that the General 
Court has the power and authority so to alter and amend the rights and 
privileges of the Commonwealth provided it does not thereby change 
or damage the contractual rights and privileges of another without 
consent. It is therefore my opinion that the General Court may "nullify" 



P.D. 12 125 

the clause quoted in paragraph 3 hereof and that by enacting Chapter 
718, Acts o£ 1956 it has delegated to your Department discretionary 

authority so to do. In connection with the exercise of that discretion 
your attention is respectfully invited to all of the provisions of my pre- 
vious opinions on this subject of May 3 and August 14, 1963. 

9. You also requested my opinion on whether your Department should 
defer processing permits of the type referred to herein pending re-wording 
of the present Occupancy Permit Form. 

10. Paragraph 8 hereof makes it clear that it is my opinion that the 
Commonwealth is entitled to Federal-aid participation in payment of 
utility relocation costs as the Occupancy Permit Form is presently Avoided. 
It is therefore my further opinion that deferment of processing of addi- 
tional permits of that type is not necessary pending re-wording of the 
present form. 

11. To complete clarification of the issues set forth herein it is re- 
spectfully recommended that the clause of the present Occupancy Per- 
mit Form quoted in paragraph 3 hereof be amended to read as follows: 

"The Department hereby reserves the right to order the change of 
location or the removal of any structure or structures authorized by this 
permit at any time, said change or removal to be made by and at the 
expense of the Grantee or its/ their successors or assigns; provided, how- 
ever, that the Department may in its discretion reimburse the Grantee 
or its /their successors or assigns for the 'Cost of Relocation' as such 
cost is defined in the Federal Highway Act of 1956, enacted by Congress 
as Public Law 1627, as amended." 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The State Department of Public Works has discretion to decide what 
portion of the State Highway System should be cleared of snow and 
ice. 

Sept. 24. 1963. 

Honorable Warren A. Turner, Sixth Berkshire District, House of 

R ep rese ntat ives. 

Re: Plowing of State Highway Within Town of Windsor. 

Dear Representative Turner: — A thorough investigation of the 
problems set forth in your letter of September 3, 1963 on this subject 
has been completed. 

It appears that there is a portion of what was formerly Route 9 within 
the Town of Windsor which continues to be a State Highway although 
a by-pass has been constructed which has resulted in the discontinuance 
of the use of the roadway as a part of Route 9. As you note, there are 
approximately twenty homes on that segment of that State Highway. 

This Department has been advised that the Department of Public 
Works would prefer to abandon the segment of highway in question. 
However, it may not do so under the provisions of Section 12 of Chapter 



126 P.D. 12 

81 of the General Laws unless it obtains concurrence of the County 
Commissioners. That concurrence has not been forthcoming. 

The General Laws quite clearly impose upon the Department of Public 
Works the duty of maintaining the State highways. However, that duty 
does not appear to be controlling in this situation. Your attention is 
respectfully invited to Section 19 of Chapter 81 of the General Laws 
which states: 

"The Commonwealth shall keep such Highways or parts thereof as 
it may select sufficiently clear of snow and ice." 

The emphasis of underlining has been inserted by me to indicate that 
there is no statutory mandate requiring the removal of snow and ice 
from State highways by the Department of Public Works. As a matter 
of fact I am informed that there are many State highways or portions 
thereof which the Department of Public Works does not plow. 

It is my opinion that in view of the language of Section 19 of Chapter 
81 of the General Laws of the Commonwealth the Department of Public 
Works has the discretion to decide what portions of the State Highway 
System it shall plow. 

Careful research has disclosed no legal prohibition against the plow- 
ing of a segment of a State highway by a town. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A proposal specification for State Highway contracts recognizing that 
natural materials specified are often not exact uniformity and qual- 
ity, making the engineer the sole judge of reasonable conformance 
and acceptability and for price adjustments and other determina- 
tions, could not, in view of G.L. c. 29, § 8A, requiring competitive 
bidding in contracts for public works, permit renegotiation or sub- 
stantial changes in the contract, but would authorize changes within 
reasonable limits. G.L. c. 30, § 391, does not permit renegotiation 
of contracts nor substantial changes therein and is not inconsistent 
with prior Attorney General's opinions that such action is not per- 
missible without competitive bidding. 

Sept. 25, 1963. 

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

Dear Sir: — In your letter of August 26, 1963, you quote a draft of 
a proposed AASHO Guide Specification for Highway Construction which 
is as follows: 

"It is the intent that all materials to be incorporated in the work and 
all construction work produced will be in conformity with the plans 
and specifications. It is recognized, however, that most natural materials 
specified for use in highway construction are of a class that precludes 
exact uniformity as to quality or physical characteristics. When such a 
condition is found to exist the engineer shall be the sole judge as to 
whether such materials or the finished products in which such materials 



P.D. 12 127 

are used are in reasonable conformance with the contract and are ac 
ceptable. 

"If tests show that the specification values are not being reasonably 
met, determination will be made by the engineer of the cause (s) for 
such situation. If determination is made that the cause is beyond the 
reasonable control of the contractor, appropriate changes in the contract 
specifications may be ordered by the engineer and an equitable adjust- 
ment made, if necessary, in the contract prices and the time for per- 
formance. 

"In the event the engineer finds the materials, or the finished product 
in which the materials are used, not within reasonable conformance 
with the plans and specifications, he shall then make a determination 
if the work shall be accepted and remain in place, and, if so, the amount 
to be paid for such work, or if the work shall be removed and replaced 
or otherwise corrected in a satisfactory manner by and at the expense 
of the contractor." 

You inquire whether the proposed specification if incorporated into 
your department contract specifications would be permissible under 
existing law. 

I have examined the proposed specification and from its wording I 
would say that it is similar and would have the same effect as many 
articles now contained in your Standard Specifications, namely Articles 
20, 21, 22, 23, 28, et seq. 

General Laws c. 29, § 8A requires that public works contracts of one 
thousand dollars or over be awarded on the basis of free competitive 
bidding. In the Morse, case, 253 Mass. 247, 252, 253, it was said that: 

"Statutes must be interpreted, if reasonably possible, so as to effectuate 
the purpose of the framers." 

And it further said: 

"The terms and purpose of the governing statutes constitute in them- 
selves a restriction of the power to amend and alter a contract once 
made in accordance therewith. It cannot be changed in vital and essen- 
tial particulars without observance of all the formalities prescribed by 
the statutes." 

The Court in the same case made the following observations: 

"The city officers have authority doubtless to add to or change the 
contract within reasonable limits in order to remedy incidental defects 
and to improve the work in minor details." 

If it is the intent of the proposed specification to provide for changes 
of the contract or extra work within reasonable limits, then said speci- 
fication is permissible. If, on the other hand, it should be interpreted 
to provide for the renegotiation so that in effect it is a substantial change 
of the original contract, then the specification would be objectionable 
to this department. 

You also ask whether or not § 39 I of c. 30 of the General Laws, in 
effect, is inconsistent with two prior opinions of my predecessor; namely, 
of November 21, 1961 and August 9, 1961, which concern essentially the 
same subject matter. 



128 P.D. 12 

The reference to deviations of a contract in that section is not a grant 
of power, but is, in itself, a limitation as to the form in which alone 
it can be accomplished where otherwise permissible and authorized under 
the contract provisions and the Standard Specifications. 

In my opinion the purpose and intent of § 39 I is not authority for 
renegotiation of contracts nor permissive legislation for substantial 
changes of a contract. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Permits for the non-military use of an armory or air installation require 
unanimous approval of the adjustment general and the military 
custodian and Unit Commander concerned, and permisison may 
be conditional. 

Sept. 30, 1963. 
Col. Ralph T. Noonan, Mass. ARNG State Qiiartermaster 

Dear Sir: — I have your letter of July 8, 1963, requesting my opinion 
relative to an interpretation of Mass. G.L. c. 33, § 122. Paragraph (b) 
designates the approach to be taken by state military officials to appli- 
cations for non-military uses of armories and air installations. 

" (b) Any armory or air installation may be used for the purposes set 
forth in subsections (c) and (e) in accordance with terms and condi- 
tions prescribed by the commander-in-chief, upon application therefor 
to the adjutant general through the military custodian of the armory 
or air installation. No such application shall be granted unless it is 
approved by the military custodian and the adjutant general and con- 
tains a certificate from each unit commander whose drill or other mili- 
tary duty is to be changed or modified by such use, stating that he 
approves the application and that such change or modification will not 
in any way be detrimental to his unit or to its training, and further 
stating in detail the manner in which said change or modification is to 
be effected. Such applications may, after the lapse of one year from the 
date of their receipt, be destroyed or disposed of by order of their law- 
ful custodian, and any proceeds received in the course of their disposal 
shall be paid to the commonwealth." 

Pursuant to this section, applications must be addressed to the adju- 
tant general, and sent to the adjutant general through the military cus- 
todian. For permission to be validly granted, three parties must concur 
on the decision; the application must be approved by the adjutant gen- 
eral and by the military custodian, and must contain appropriate certifi- 
cates from unit commanders affected. No use may be authorized unless 
such certificates are issued by each unit commander whose unit is affected 
by the desired non-military use indicating that such effects will not be 
harmful to the unit or to its training. 

Decisions of the three parties involved (adjutant general, military 
custodian and unit commander) are to be made independently, and no 
decision of one officer is to be overruled by another. The military cus- 
todian may, for example, approve the use of the armory, yet final per- 



P.D. 12 129 

mission would not be granted if a unit commander determines that the 
proposed use may be harmful to his unit. 

The statute is clear that an application must be approved by all of 
the three parties mentioned above lor permission to issue. Since under 
the law applications are directed to the adjutant general, presumably 
permission to use the particular facility issues from his office. However, 
this in no way indicates that concurrence by the military custodian and 
unit commanders is not necessary, or that the adjutant general may 
overrule decisions made by those officers. The adjutant general may dele- 
gate to the State Quartermaster or to the other officials ministerial func- 
tions connected with the issuance of a permit, but, of course, cannot 
delegate the making of the determination whether or not the applica- 
tion is to be approved. 

I direct your attention to paragraph (e) of the section, which provides 
as follows: 

"Subject to subsection (b) an armorv or air installation may be used 
for: 

" (2) For a period not exceeding three days for any exhibition of the 
products of labor, agriculture or industry, including any automobile 
exhibition conducted by a responsible organization, . . ." (Emphasis 
supplied.) 

If permission is granted for a use specified in this paragraph, the 
adjutant general or military custodian may properly limit the type of 
products to be exhibited. Even when all conditions are satisfactorily 
met, permission to use the armory or installation is not mandatory, and 
the officers in charge mav well insist that certain conditions be met 
before approving an application. In addition, paragraph (b) permits 
the use of the facilities "in accordance with terms and conditions pre- 
scribed by the commander-in-chief". 

I would add a note relative to the responsibilities of the State Quarter- 
master in this area. The State Quartermaster has charge of all State 
military buildings. 

"There shall be one full-time state quartermaster who shall, except 
as otherwise provided in this chapter and in chapter three hundred and 
forty-four of the acts of nineteen hundred and thirty-six, have the care 
and control of all land and buildings held for military purposes and 
all other military property of the commonwealth except such as is by 
law expressly intrusted to the keeping of others. . . ." G.L. c. 33, § 15 (d) . 
(See also G.L. c. 33, § 125.) 

However, care and maintenance of military land and buildings does 
not extend to control of the issuance of permits for non-military use. 
Bv the statutes discussed above, such determinations are to be made by 
the military custodian, adjutant general and appropriate unit com- 
mander. Related clerical work may, of course, be done by the office of 
the State Quartermaster, and ministerial functions relative to the grant- 
ing of permits may be delegated thereto. But control of the use of in- 
stallations under § 122 of c. 33 remains vested in those individuals spe- 
cified by the statute. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



130 P.D. 12 

A railroad company reducing commuter service in operation, or discharg- 
ing employees in service on January 1, 1961 in violation of St. 1961, 
c. 464 forfeits the tax exemption for balance of the three years fixed 
in the act after the violation. 

Oct. 1, 1963. 

Norman Mason, Chairman, Department of Public Utilities. 

Dear Sir: — You have requested an opinion relative to the statutory 
rights of railroad companies in Massachusetts to tax exemptions provided 
for by Chapter 464 of the Acts of 1961. You have asked the following 
questions: 

"1. If a railroad has in fact reduced commuter service on or after 
January 1, 1961, the effective date of this Act, is said railroad en- 
titled to a tax exemption in any one of the following three calen- 
dar years? 

"2. If a railroad has discharged, suspended or laid off any person em- 
ployed on or after January 1, 1961, and within the next three cal- 
endar years, as provided in Sec. 12D of said Act, is said railroad en- 
titled to a tax exemption in any one of the three calendar years 
as prescribed by the Act?" 

Chapter 464 of the Acts of 1961 provides for certain exemptions from 
real estate taxes assessed upon land classified as devoted to railroad use. 
Railroad companies are made eligible for such exemptions under said 
c. 464 for the years 1961, 1962 and 1963. 

"Section 12C. No railroad corporation receiving a tax exemption under 
this act shall reduce any commuter service provided on the effective date 
thereof. Any railroad corporation violating the provisions of this section 
shall forfeit the tax exemption provided by this act. 
"Section 12D. No railroad corporation receiving a tax exemption under 
this act shall discharge, suspend or lay off any person employed on the 
effective date thereof except for just cause and with the consent of a jus- 
tice of the superior court after a hearing. Any railroad corporation vio- 
lating the provisions of this section shall forfeit the tax exemption pro- 
vided by this act. 

"Section 13. This act shall take effect as of January first, nineteen hun- 
dred and sixty-one." 

In order for the railroad corporation to be eligible for the tax exemp- 
tions granted by the statute, commuter service in the Commonwealth may 
not be reduced from the level maintained by the railroad on January 1, 
1961, the effective date of the Act. Likewise, no person employed by the 
railroad in Massachusetts on or before said effective date of the Act may 
be discharged, suspended or laid off except in conformance with the 
statutory requirements — i.e., for just cause and with consent of a Jus- 
tice of the Superior Court given after a hearing. Should these provisions 
be violated at any time during the three-year period, the railroad cor- 
poration taking such action forfeits its rights to the specified tax exemp- 
tions for the remainder of the statutory term. 

With reference to § 12D, it should be mentioned that the restrictions 
upon removal of employees apply only to employees engaged by the 
company on or before January 1, 1961, the effective date of the statute. 
Workers hired after that date apparently may be discharged without fol- 



P.D. 12 131 

lowing the pattern required by § 12D, and without loss of the tax exemp- 
tions provided. In addition, violations of §§ 12C and 12D will result in 
loss of the tax exemptions for the entire three-year period only if such 
violations occur in 1961. Violations occurring in subsequent years re- 
sult in forfeiture solely of those exemptions still to be enjoyed, and in 
no way affect tax payments already made or tax privileges already realized. 
Therefore, in answer to the questions you have posed, a railroad cor- 
poration which reduces commuter service in Massachusetts below the 
level maintained on January 1, 1961, or which discharges, suspends or 
lays off an employee employed by the company for work in this Com- 
monwealth on January 1, 1961 without conforming to the requirements 
specified in the above-mentioned § 12, shall forfeit the tax exemptions 
provided by c. 464 of the Acts of 1961, such forfeiture to apply to the 
period from the date of the violation to December 31, 1963, the conclu- 
sion of the term covered by the statute. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Interview given by Advisory Board of Pardons to a prisoner constituted a 
hearing under G.L., c. 127, § 154. There is no requirement that 
copies of transcripts of hearings be delivered to prosecuting officials. 

Oct. 4, 1963. 

Hon. John J. Droney, District Attorney for Middlesex County. 

Dear Mr. Droney: — I have received your letter of October 1, 1963 
relative to hearings before the Advisory Board of Pardons. You have pre- 
sented the following questions for consideration: 

1) Does the interview given John Joseph Kerrigan by the Advisory 
Board of Pardons on July 19, 1963 constitute a "hearing" under 
par. 4 of § 2 of c. 467 of the Acts of 1961? 

2) Are the Attorney General and the District Attorney involved in the 
particular matter entitled to a copy of the transcript of such inter- 
view or hearing? 

These matters are controlled by Mass. G.L., c. 127, § 154, as recently 
rewritten by St. 1961, c. 467, relevant parts of which read as follows: 

"Within ten weeks of the original receipt of any (pardon) petition, 
the advisory board shall transmit the original petition to the governor, 
together with its conclusions and recommendations and together xuith 
such recommendations as have been received from the above officials; 
except that if the board shall determine that adequate consideration of 
the case requires a hearing on its merits by the board, said board shall 
not be required to submit its recommendations at the end of ten weeks 
but shall notify the governor of its intention to hold a hearing; but such 
hearing shall be held and a report made to the governor within six months 
of the original receipt of the petition by the board. // the board shall 
determine that such hearing shall be held, in the case of a petitioner who 
is confined under sentence for a felony, the attorney general and the dis- 
trict attorney shall be notified of the hearing and they or their representa- 



132 P.D. 12 

fives given the opportunity to appear, examine the petitioner's witnesses 
and be heard. 

". . . in all cases a statement containing the facts of the crime or crimes 
for which a pardon or commutation is sought, the sentence or sentences 
received, together with all conclusions and recommendations shall be 
made public when the report is submitted." (Emphasis supplied.) 

I agree that the interview given the defendant John Joseph Kerrigan 
on July 19, 1963 was a "hearing" held pursuant to paragraph 4 of the 
statute. Consequently, since the petitioner Kerrigan was confined under 
sentence for a felony, both the Attorney General and the District Attor- 
ney should have been informed that such an interview or hearing was 
scheduled to take place. Likewise, the Attorney General and District At- 
torney should have been permitted — if such were their desire — to ap- 
pear at the hearing and to examine witnesses. 

However, in my opinion the statute does not require that copies of the 
transcript of such a hearing be turned over upon request to these offices. 
The controlling section provides only that there be sent to the Governor 
the original pardon petition, conclusions and recommendations of the 
Advisory Board and any recommendations Avhich may have been sub- 
mitted by the officials specified in a prior clause of the statute. The only 
other relevant requirement is that there must be made public at the time 
the report to the Governor is filed a statement containing facts of the 
crime, sentence received and all conclusions and recommendations. Noth- 
ing further having been provided, it must be assumed that the General 
Court did not intend that the Advisory Board be required to turn over 
any other documents (including copies of transcripts) to any public offi- 
cial. 

Therefore, it is my opinion that the interview granted John Joseph 
Kerrigan by the Advisory Board of Pardons did constitute a hearing un- 
der par. 4 of the statute. However, the fact that the Attorney General and 
District Attorney may by right appear at such a hearing does not in and 
of itself entitle them to copies of the transcript. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Massachusetts Rehabilitation Commission has authority to enter into 
contracts for consultant services. 

Oct. 10, 1963. 
Hon. Francis A. Harding, Commissioner of Rehabilitation, Massachusetts 
Rehabilitation Commission. 

Dear Commissioner Harding: — This is to acknowledge receipt of 
your letter of September 26, 1963, together with a photostatic copy of a 
contract signed by the Massachusetts Rehabilitation Commission and 
Hollis M. Leverett Associates, Inc., for consultant services which began 
on July 1, 1963. 

You also state that this contract was approved as to form by this office 
and that you have had similar contracts for similar services which also 
have been approved by this department and which have been approved 



P.D. 12 133 

for payment from federal funds as well as the comptroller of the Com- 
monwealth. 

You inquire whether or not this contract is binding upon the Com- 
monwealth in its present form. The pertinent provision of the General 
Laws on this subject is contained in c. 6, § 75, and reads, in part, as fol- 
lows: "He (commissioner) may establish such divisions and with the ap- 
proval of the Governor and Council may appoint such directors as he 
deems necessary and such assistants and consultants as may from time to 
time be necessary to enable him to perform his duties." See also St. 1956, 
c. 602, § 2. 

I have examined the contract that you have submitted and from the 
above referred to § 75, it is my opinion that your department has the 
authority to enter into this tvpe of contract, that the contract is in proper 
form and binding upon the Commonwealth, and that the Commonwealth 
is obligated for payment under said contract upon proper evidence of 
performance on the part of the consultant. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Directorships of community colleges are within the exemption under St. 
1963, c. 500 (General Appropriation Act) from the in s. 61 of said 
Act, against recruitment (at a rate above the minimum of persons 
xvho have been in the service of the Commonwealth. 

Oct. 11, 1963. 
Kermit C. Morrissey, Chairman, Massachusetts Board of Regional Com- 
munity Colleges. 

Dear Mr. Morrissey: — Your letter of of October 7, 1963 to the At- 
torney General relative to the appointment of directors for community col- 
leges has been received. You have asked whether the Board of Regional 
Community Colleges may lawfully appoint individuals as directors of 
colleges at rates above the minimum despite the fact that such candidates 
have been employed by the Commonwealth during the past year. 

Section 6A of c. 500 of the Acts of 1963 generally prohibits the hiring 
of persons above minimum rates when such persons have -worked in the 
service of the Commonwealth during the year prior to appointment. 
"Notwithstanding the provisions of paragraph (5A) of section forty-six 
of chapter thirty of the General Laws, the director of personnel and stand- 
ardization 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 commonwealth within a twelve-month period prior to the 
date of the proposed recruitment. . . ." 

However, certain positions have been exempted from this restriction 
by the General Court. 

". . . the provisions of this section shall not apply to positions essential 
for the care of patients or inmates in institutions or to positions essen- 
tial for the educational program of the department of education includ- 
ing the University of Massachusetts, the Lowell Technological Institute 
and the regional community colleges. . . ." 



134 P.D. 12 

In view of the clause cited above, it is my opinion that the Legislature 
clearly intended that the regional community colleges need not be bound 
by the restrictions of § 6A upon pay rates, and that the individuals cur- 
rently being considered for appointment to college directorships may be 
hired at rates above the minimum. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Massachusetts Port Authority must pay the full amount of the re- 
tirement benefits on account of accidental death or disability to em- 
ployees formerly in the service of the Mystic Bridge Authority. 

Oct. 17, 1963. 
Hon. John T. Driscoll, Treasurer and Receiver-General, Chairman, 
State Board of Retirement. 

Dear Sir: — I have your request relative to the share of the Massachu- 
setts Port Authority on retirement allowances to employees of the Au- 
thority who had been previously employed by the Mystic River Bridge 
Authority. This reply has been delayed in coming to you since it was 
the understanding of this Department that the question you raised had 
been resolved as the result of informal conferences with the Executive 
Secretary of your Board. 

You recite in your letter that the answers to questions 1 and 2 raised 
therein are clear, inasmuch as my predecessor in this office in his opinion 
of June 21, 1962 resolved these issues, and I concur in said opinion of my 
predecessor. Accordingly, I have directed my reply to the third question 
you raise only. 

You ask in question 3 whether benefits paid to employees or their de- 
pendents under the provisions of §§ 7 or 9 of c. 32 are to be borne "in 
toto" by the Commonwealth, or whether they are to be borne "in toto" 
by the Massachusetts Port Authority, or whether the benefits are to be 
measured on the basis of the period of service of the employee with each 
entity. 

Disability and accidental death benefits are not paid because of length 
of service. They are based upon the premise that the disability claimed 
was incurred as the natural and proximate result of an injury sustained 
while the claimant is in the performance of his duties at some definite 
time or place. The length of service is not a prerequisite to making one 
eligible for these particular benefits, even though the amount of the 
benefit is determined by the annual rate of regular compensation on the 
date such injury was sustained. With reference to Opinion of the Jus- 
tices, 334 Mass. 721, 740, cited in the Attorney General's opinion of June 
21, 1962, the Court said in answer to the question, "May the Common- 
wealth constitutionally undertake to pay retirement allowances of retired 
employees of the (Massachusetts Port) Authority subject to being reim- 
bursed by the Authority as provided in § 22 of the bill?": 
"Since the Authority should be a public corporation we see no reason 
why the Commonwealth cannot undertake these payments which would 
be for a public purpose and should be reimbursed to the Commonwealth." 



P.D. 12 135 

Chapter 465 of the Acts of 1956, which created the Massachusetts Port 
Authority, specifically states that the Authority shall reimburse the Com- 
monwealth for its proportionate share of any amounts expended by the 
Commonwealth under the provisions of c. 32 for retirement allowances to 
or on account of employees. This section obviously refers only to super- 
annuation retirement and is specifically silent as to benefits under §§ 7 or 
9, as they apply to the state retirement system. 

It is my opinion, therefore, that in the case of accidental death retire- 
ment benefits or disability benefits, said benefits are not to be prorated and 
are to be paid in full by the agency in whose employ the claimant is at 
the time of such accidental or disability retirement. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The inclusion in contracts of the Department of Public Works, of the 
prohibition against the restriction of assignment of accounts receiva- 
ble contained in s. 9-314 (4) of the U.C.C. shall be of no force or 
effect. 

Oct. 22, 1963. 
Hon. Jack P. Ricciardi, Commissioner of Public Works. 

Dear Sir: — In your letter of October 21, 1963 you have requested an 
opinion relative to the power of a contractor to assign accounts receiva- 
ble despite the prohibition contained in Article 65 of the Mass. Standard 
Specifications for Highways and Bridges (1953). 

Traditionally, this Article, which prohibits the assignment of monies 
due from the Commonwealth without the latter's consent, has been in- 
cluded in construction contracts entered into by the Department of Public 
Works. 

"Article 65. Prosecution and Progress. The contractor shall give his per- 
sonal attention constantly to the faithful prosecution of the work, shall 
keep the same under his personal control, and shall not assign by power 
of attorney, or otherwise, or sublet the work, or any part thereof without 
the previous written consent of the Party of the First Part and shall not, 
either legally or equitably, assign any of the moneys payable under this 
agreement, or his claim thereto, unless by and with the like consent of 
the Party of the First Part. He shall be responsible for the acts and omis- 
sions of his subcontractors, if any, and of all persons directly or indirectly 
employed by him or them in connection with the work." 

Such an assignment of accounts receivable is under the Massachusetts 
Standard Specifications considered to be a breach of the construction con- 
tract and grounds for annulment. 

"Article 76. Annulment of Contract. If the Contractor shall be adjudged 
a bankrupt, or if he shall make a general assignment for the benefit of his 
creditors ... or if the contract or any claim thereunder shall be assigned 
by the Contractor otherwise than as herein specified, or if the Engineer 
shall be of the opinion, and shall so certify in writing to the Party of the 
First Part . . . that the Contractor has violated any of the provisions of 



136 P.D. 12 

the contract, the Party of the First Part may notify the Contractor to dis- 
continue all work, or any part thereof. . . ." 

Prior to 1958, such provisions could validly be incorporated into con- 
struction contracts, whether such contracts had been granted by the Com- 
monwealth or by a private individual or corporation. With the passage 
of the Uniform Commercial Code, however, the power of an account 
debtor to insist upon the non-assignability of accounts receivable was af- 
fected. Massachusetts G.L., c. 106, § 9-318(4) provides: 
"A term in any contract between an account debtor and an assignor which 
prohibits assignment of an account or contract right to which they are 
parties is ineffective. " 

Although the Supreme Judicial Court has yet to render a decision ex- 
pressly interpreting the UCC section at issue, the Court has indicated 
parenthetically in cases decided under the old law that determinations 
under the UCC would uphold the right to assign accounts receivable. 
McLaughlin v. N. E. Tel. & Tel. Co., 

188 N.E. 2d 552 (1963) 

Security National Bank v. G. M. Corp., 

187 N.E. 2d 820 (1963) 

However, these cases involved private account debtors only, shedding 
no light upon the effect of the statute should the Commonwealth be the 
party granting the contract. Consequently, it must be determined whether 
§ 9-318(4) of the Uniform Commercial Code applies to the Common- 
wealth so as to enable a contractor to assign accounts receivable despite 
the specifications incorporated into the contract. 

Since the Commonwealth is not specifically referred to in § 9-318(4), 
it is not clear on the face of the statute whether or not the Common- 
wealth was intended to be affected. But this problem is settled by the 
Definitions sections of the Uniform Commercial Code, which clearly in- 
dicate that the Commonwealth is bound by the provision. "Account 
debtor", the term used in § 9-318 (4), is defined by § 9-105 (a) as "the per- 
son who is obligated on an account, chattel paper, contract right or gen- 
eral intangible". The word "person" includes an individual or an organi- 
zation. Referring then to § 1-201 (28): 

" 'Organization' includes a corporation, government or governmental sub- 
division or agency. . . ." 

It follows that since "account debtor" includes the government or a gov- 
ernmental agency the new prohibition against restriction of the assign- 
ment of accounts receivable must be taken to apply to the Commonwealth 
as well as to any private account debtor. 

It has been suggested that despite the illegality of a provision prohibit- 
ing assignment of accounts such an agreement remains effective as to the 
contracting parties and that violation would constitute breach of con- 
tract. This manifestly is what the statute is designed to avoid. Had the 
statute been Avorded in such a way as to indicate merely that account 
receivable financing was lawful, then conceivably the parties could con- 
tract as they pleased, permitting such financing or not as they desired. 
But the statute is not so phrased; rather, it contains a clear mandate that 
prohibition of such financing shall be unlawful. This being the case, the 
parties have no power to contract in violation of the statutory provision, 
and any attempt to do so would be void. 



P.D. 12 137 

Even apart from the Definitions sections of the UCC, it should be 
concluded that the Commonwealth was intended to be affected by § 9- 
518(4). The general purpose of the USS is to adjust the laws governing 
commerce to the practical facts of business life. Over the past generation, 
financing by use of accounts receivable as security has become an impor- 
tant part of commercial practice. The fact that the Commonwealth is 
the account debtor does not mitigate the importance to the potenial as- 
signor of the capacity to use the accounts due as security. A statute that 
regulates particular commercial transactions, in which transactions the 
Commonwealth frequently takes part, should not be construed to be in- 
applicable to the Commonwealth without some clear indication that such 
was the legislative intention. 

It is my opinion that an interpretation which exempted contracts of 
the Commonwealth from the provision at issue would be a serious defeat 
of the intentions of the drafters of the UCC. Therefore, I advise that the 
prohibition against restriction of assignment of accounts receivable con- 
tained in § 9-318(4) applies to the Commonwealth, and that the inclu- 
sion in contracts of such restrictions shall be of no force or effect. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Department of Public Works can order the owner of the fee in prop- 
erty described in deeds of easement to uncover drainage outlets con- 
structed as a result of the grouting of that easement to insure proper 
operation of the drainage system in regards to state highways. 

Oct. 28, 1963. 

Commissioner Jack P. Pucciardi, Department of Public Works. 

Re: State Highway Route 1A — Drainage on Enon Street, Beverly. 

Dear Commissioner Ricciardi: — On August 21, 1963 you advised me 
that flooding has been noted on State Highway Route 1A in Beverly be- 
cause a drainage outlet has been covered and a parking area for a restau- 
rant has been constructed over it. In response to the request of this De- 
partment dated September 6. 1963 a copy of the applicable Deed of Ease- 
ment was forwarded to this department by letter of October 15, 1963. 

You have requested my opinion on whether the Department of Public 
Works can order the present owner of the property on which the drainage 
outlet is located to uncover that outlet to insure proper operation of 
State Highway drainage svstems. 

The pertinent sections of the General Laws are: 

Chapter 83 Section 4. "The Department of Public Works . . . may con- 
struct ditches or drains for the purpose of properly draining any high- 
way, and may carry away from any highway and over and through any 
land as they may deem necessary for public convenience or for the proper 
care or construction of such highway and may purchase or take by emi- 
nent domain, under Chapter seventy-nine, on behalf of the Common- 
wealth . . . such land or interest therein as may be necessary therefor. 



138 P.D. 12 

"Such ditches and drains shall be under the control of said officials, 
who may enter upon any land for the purpose of constructing, repairing, 
or maintaining the same. ..." 

Chapter 83 Section 9. "Whoever by himself, his agent, or servants, de- 
posits in or along any ditch or drain constructed under Section four any 
material which will obstruct the flow of water therein shall be punished 
by a fine of ten ($10.00) dollars, and shall be liable in tort to the Com- 
monwealth . . . for all damages caused thereby, for the cost and expense 
of removing the obstructing material and of restoring the ditch or drain 
to its former condition." 

The Deed of Easement, given to the Commonwealth by predecessors in 
title of the present owners of the property involved, was properly signed, 
acknowledged and recorded in the Essex County Registry of Deeds for the 
Southern District in Book 2920, Page 319 on July 2, 1932. That instru- 
ment gave the Commonwealth a perpetual easement to "construct a 
drain . . . and to discharge water from said drainage system upon the 
said land, to carry water away from said highway and over and through 
our land . . . and to enter upon our land at any time for the purpose of 
constructing, repairing, and maintaining said drainage system, drain and 
an outlet thereof under Section four of Chapter 83 as shown on plan 
dated May 19, 1932, drawn by A. W. Dean . . . and recorded herewith." 

Section 4 of Chapter 83 states, "the Department . . . who have taken 
an easement under this section may discontinue or abandon the same by 
filing for record in the Registry of Deeds a suitable instrument." 

It is my understanding that the Department of Public Works has not 
discontinued or abandoned the said easement. 

It is my opinion that the Department of Public Works can order the 
present owner of the fee in the property described in the Deed of Ease- 
ment referred to herein to uncover the drainage outlet constructed as a 
result of the granting of that easement to insure proper operation of the 
drainage system of the State Highway. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Metropolitan District Commission may properly convey land in ex- 
change for land of equal value pursuant to G.L., c. 92, § 85 which 
permits the sale of land or interest therein acquired for park or 
boulevard purposes. 

Oct. 31, 1963. 

Hon. John F. Haggerty, Acting Commissioner, Metropolitan District 

Commission. 

Dear Sir: — I have received your letter of October 9, 1963 relative to 
the power of the Metropolitan District Commission to convey land ac- 
quired for park or boulevard purposes. You have asked whether section 
85 of Chapter 92 of the General Laws authorizes the Commission to con- 
vey such lands in exchange for lands of equal value. 



P.D. 12 139 

Mass. G.L., c. 92, § 85 permits the sale of land or interests therein ac- 
quired for park or boulevard purposes, and reads in part as follows: 

"The commission, with the concurrence of the park commissioners, if 
any, in the town where the property is situated, may sell at public or pri- 
vate sale any portion of the lands or rights in land the title to which has 
been taken or received or acquired and paid for by it for the purposes set 
forth in sections thirty-three and thirty-five, and may, with the concur- 
rence of such park commissioners, execute a deed thereof, with or with- 
out covenants of title and warranty, all in the name and behalf of the 
commonwealth, to the purchaser, his heirs and assigns, and deposit said 
deed with the state treasurer, together with a certificate of the terms of 
sale and price paid or agreed to be paid at said sale, and, upon receipt of 
said price and upon the terms agreed in said deed, he shall deliver the 
deed to said purchaser. . . ." 

Clearly, authority is vested in the Metropolitan District Commission to 
sell lands that qualify under the section, assuming that all requirements 
are met. The question arises, however, whether or not the granting of 
power to sell necessarily implies that the Commission shall also have the 
right to exchange lands for lands of equal value. 

Although the word "sell" frequently connotes the transfer of a par- 
ticular property for cash, its meaning may expand according to context. 
A sale necessitates consideration, which consideration need not be cash 
but may be goods or other property. Land of equal value wovdd without 
doubt be valid consideration for the transfer of other land. 

It is apparent that the statute regulating these particular transactions 
by the Metropolitan District Commission should not be construed so 
narrowly as to limit transfers of land to those in which cash is the sole 
consideration. The purpose of c. 92, § 85 is to give the Commission power 
to convey certain real property. The factor that is of consequence is that 
the Commission may properly divest itself of land; what the considera- 
tion may be, be it cash or land of equal value, is — in my opinion — of no 
importance. 

I am aware of the fact that c. 92, § 83, which section authorizes the 
Commission to convey lands not needed for water systems, specifically in- 
cludes the power to "exchange", whereas c. 92, § 85 does not. However, 
the present c. 92 is a collection of prior statutes taken from a variety of 
areas, and it is likely that perfect adjustments in language were not made. 
Since practicality dictates otherwise, I feel that the absence of the word 
"exchange" in § 85 should not defeat what is apparently the intention of 
the General Court. 

Therefore, assuming that the requirements of the section relative to 
the type of land which may be conveyed are met, and that the necessary 
approval by the Park Commissioners or by the Governor and Council 
is obtained, it is my opinion that the Metropolitan District Commission 
may properly convey land in exchange for land of equal value pursuant to 
the provisions of c. 92, § 85. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



140 P.D. 12 

The Department of Natural Resources is not affected by the language of 
budget item 8064-03 of the 1963 Capital Outlay Act in regards to the 
Department's municipal reimbursement program administered under 
c. 132A, § 11 and consequently the department may properly con- 
tinue expenditures under its 1962 program, and continue the 1963 
program. 

Nov. 8, 1964. 

Hon. Charles H. W. Foster, Commissioner of Natural Resources. 

Dear Mr. Foster: — I have received your letter of October 9, 1963 
relative to the municipal reimbursement program administered by the 
Department of Natural Resources pursuant to Mass. G.L., c. 132A, § 11 
(as amended). You have asked whether the Department may properly 
continue its program of financial aid to cities and towns in light of the 
wording of budget item 8064-03 of c. 648 of the Acts of 1963, the Capital 
Outlay Act. 

Massachusetts G.L., c. 132A, § 3 (as amended) provides in part as fol- 
lows: 

"The commissioner may, from time to time within the limits of appropria- 
tions made therefor, acquire for the commonwealth . . . any lands suita- 
ble for purposes of conservation or recreation lying outside of the metro- 
politan parks district, and may lay out and maintain such lands for such 
purposes and erect and maintain such structures and other facilities there- 
on as may be necessary to render such lands reasonably available and 
accessible therefor. . . ." 

Funds appropriated for the purposes set forth in § 3 may be used in 
order partially to reimburse cities and towns for conservation and recrea- 
tion expenditures. 

"The commissioner shall establish a program to assist the cities and 
towns ... in acquiring lands and in planning or designing suitable pub- 
lic outdoor facilities. ... He may, from funds appropriated to carry out 
the provisions of section three, reimburse any such city or town for any 
money expended by it in establishing an approved project under said 
program in such amount as he shall determine to be equitable in consid- 
eration of anticipated benefits from such project, but in no event shall 
the amount of such reimbursement exceed fifty per cent of the cost of 
such project. . . ." 

Mass. G.L., c. 132A, § 11 (as amended). 

Budget item 8063-02 of c. 705 of the Acts of 1962 provided the sum of 
$500,000 for the purposes of § 3 of c. 132A, a part of which has been 
used by the Department for reimbursement of cities and towns under 
§ 11. However, the 1963 appropriation provision is couched in language 
that is somewhat different from that used in 1962. |1,000,000 is appropri- 
ated: 

"For the development and improvement of recreational facilities on land 
owned or controlled by the department, as authorized by section three of 
chapter one hundred and thirty-two A of the General Laws. . . ." 

St. 1963, c. 648, § 2, par. 8064-03. 

The question has arisen whether or not the inclusion of the phrase "on 
land owned or controlled by the department" indicates that the General 



P.D. 12 141 

Court intended that no further funds be employed lor reimbursement 
of cities and towns. 

Despite the fact that the appropriation for purposes of § 3 is specif- 
ically directed for use on lands owned or controlled by the Department 
of Natural Resources, and not for lands belonging to cities and towns, 
ii is my opinion that funds may still be used for reimbursement under 
§ 11. Money used for such reimbursement comes, as set forth in § 11, 
"from funds appropriated to carry out the provisions of section three". 
Consequently, unless otherwise provided, allotments for cities and towns 
may be made by the Commissioner as provided in § 11 of c. 132A, ir- 
respective of the language used in legislative appropriations enacted un- 
der the authority of § 3. 

It is apparent that the phrase "on land owned or controlled by the 
department" used in the appropriation section was meant by the General 
Court to apply only to expenditures for the purposes of § 3, and was 
not intended in any way to affect reimbursement procedures carried on 
under §11. Had the Legislature wished to discontinue the practice of 
reimbursement of municipalities, it is to be expected that it would have 
spoken in definite terms either by amending § 11 of c. 132A in some way 
or by expressly stating in the appropriation provision that the funds 
therein provided were not to be earmarked for municipal use. 

In the absence of such express indication that the prior practice of re- 
imbursement of cities and towns is to be discontinued, I am of the opin- 
ion that the language of budget item 8064-03 of the 1963 Capital Outlay 
Act does not affect the Department's municipal reimbursement program 
administered under c. 132A, § 11. Consequently, the Department may 
properly continue expenditures begun under its 1962 program, and may 
administer a 1963 program using this year's appropriation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Application of St. 1963, c. 336, (as to grants of authority to blind persons 
for vending stands or public property), to proposals limited by the 
Department of Corporations & Taxation for automatic vending ma- 
chines and. mobile food carts, stated 

Nov. 18, 1963. 

Hon. Leo E. Diehl, Commissioner of Corporations and Taxation. 

Dear Commissioner Diehl: — I have received your letter of October 31, 
1963 relative to the effect of St. 1962, c. 336 upon proposals submitted 
for the privilege of operating vending machines and mobile food carts 
upon the premises of the Department of Corporations and Taxation. You 
have requested responses to the following questions: 

"1. Is the proposal submitted bv the Division of the Blind on behalf of 
a person to be selected by it a valid and proper one and entitled 
to consideration? 
2. Does Chapter 336 of the Acts of 1962 apply to a proposal sub- 
mitted by the Division of the Blind rather than by a blind person 
duly licensed by such Division? 



142 P.D. 12 

3. Does Chapter 336 o£ the Acts of 1962 or any other provision of 
law require that the proposal submitted by the Division of the 
Blind be accepted and that all others be excluded from consider- 
ation? 

4. Must the proposal submitted by the Division of the Blind be ac- 
cepted even though it is determined that such proposal does not 
comply with the requirements and specifications as set forth in the 
invitation to bidders?" 

Chapter 336 of the Acts of 1962 provides as follows: 

"The officer, board or other authority in charge of any buliding or prop- 
erty of the commonwealth, or any county, city or town thereof, shall 
grant to a blind person, duly licensed therefor by the division of the blind, 
authority to operate in such building or on such property a stand for the 
vending of newspapers, periodicals, confections, tobacco products and 
such other articles as such officer, board or other authority provides wher- 
ever a vending stand may be properly and satisfactorily operated by a 
blind person." (Emphasis supplied.) 

I am aware that mandatory language has been used in the quoted 
statute, and that blind persons must be given an opportunity to operate 
vending stands in appropriate places within public buildings. However, 
St. 1962, c. 336 was by no means intended to require that all vending 
services in buildings belonging to the Commonwealth or to political sub- 
visions thereof be operated by blind persons, and the language of the 
statute does not support such a construction. 

The statute uses the word "stand" twice, and avoids reference to any 
other type of vending apparatus. Clearly, use of the word was deliberate, 
and intended to indicate that the statute had no application to vending 
operations of a different character. Were this statute to be given an all- 
inclusive construction, no vending equipment could be installed which 
could not be operated by a blind person, thus eliminating many types 
of cafeteria service, as well as preventing the use of many automatic ma- 
chines which do not need the presence of an attendant. The purpose of 
c. 336 is to ensure the availability to blind persons of positions which 
they may appropriately fill. The statute is not intended to force a re- 
duction of vending services so that all equipment may be operated by the 
blind. 

Consequently, the proposal submitted by the Division of the Blind 
should not receive absolute priority, but need only be considered on the 
same footing as other bids that have been submitted. I find that the fact 
that the proposal has been submitted by the Division of the Blind on be- 
half of a blind person whom they are to select, rather than by the blind 
individual himself, should not in and of itself relieve the Department 
from the responsibility of considering the bid. 

However, it is clear that the proposal does not conform to the specifi- 
cations of the Department of Corporations and Taxation. Although the 
Department has clearly requested sixteen automatic vending machines, 
the bid in question offers to provide only a vending stand and two mobile 
food carts. In addition, it appears that the Division of the Blind does not 
contemplate the payment of any commission to the Commonwealth. 

Even had the proposal conformed to specifications of the Department, 
it is my opinion that it need only have been considered in comparison 



P.D. 12 143 

with competing bids. Chapter 336 of the Acts of 1962 is limited in its ap- 
plication to "vending stands", and does not aitect a si/able operation such 
as that contemplated by the Department of Corporations and Taxation. 

Therefore, my responses are as follows: 

I answer Question #1 in the negative. 

1 answer Question #2 in the affirmative. 

I answer Question #3 in the negative. 

1 answer Question #4 in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Application of G.L., c. 29, § 9B as to expenditures of certain funds for 
highway construction. 

Nov. 26, 1963. 

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

Dear Commissioner: — You have asked my opinion as to whether 
G.L., c. 29, § 9B is applicable to the following acts relating to authori- 
zations to spend certain funds for the purpose of highway construction: 

Chapter 685 Acts of 1950 Bond Issue 

Chapter 556 Acts of 1952 Bond Issue 

Chapter 403 Acts of 1954 Bond Issue 

Chapter 718 Acts of 1956 Bond Issue 

Chapter 32 Acts of 1958 Highway Program 

Chapter 782 Acts of 1962 Highway Program 

Earlier opinions of this Department had established that the funds to 
be expended for the accelerated highway program provided under c. 306 
of the Acts of 1949 were not applicable to the provisions of G.L., c. 29, 
§ 9B. I concur with these opinions. The expenditures here under con- 
sideration are for the same purpose and are of the same type as those au- 
thorized under c. 306, Acts of 1949. 

It is my opinion that G.L., c. 29, § 9B is not applicable to the above- 
enumerated acts. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



144 P.D. 12 

The Department of Public Works is authorized under G.L. c. 31, § 43 (h) 
to pay any employee meeting the requirements for reimbursement 
of legal services rendered him in his defense and is to be paid from 
the same account as the employee's salary. 

Dec. 2, 1963. 
Hon. Jack P. Ricciardi, Commissioner of Public Works 

Dear Commissioner Ricciardi: — I have received your letter of Oc- 
tober 25, 1963, relative to the bill for legal services presented to your 
Department by Mr. Thomas P. Sterczala. You have requested an opinion 
as to whether or not the bill should be honored, and — it payment is 
deemed proper — to what account the fee should be charged. 

The bill in question is for attorney's fees relative to the securing of 
the reinstatement of Mr. Sterczala as a laborer in the Department of 
Public Works. Payment of such amounts is governed by Mass. G.L. c. 31, 
§ 43 (h) , as amended, which provides in part as follows: 

"Any person holding office of employment under permanent appoint- 
ment in the official or labor services of the commonwealth, or any county, 
city, town or district thereof, who has incurred expense in defending 
himself against unwarranted discharge, removal, suspension, laying off, 
transfer, lowering in rank or compensation, or abolition of his position, 
shall, if he engages an attorney for such defense, be reimbursed for such 
expense. . . . 

"Any such person shall, upon written application made to his appoint- 
ing authority within thirty days from final disposition of his case, be 
reimbursed from the same source from which his salary is paid. . . ." 

The statute further provides that in no event shall such reimburse- 
ment exceed the sum of $900. There are also set forth the portions of 
such maximum amount that are to be paid for representation at differ- 
ent hearings and for particular expenses. 

The effect of the statute is clear. If the employee meets the require- 
ments of the section, he is entitled to be reimbursed for legal services 
rendered him in connection with his defense, such reimbursement to 
conform to the payment scale specified in the statute and to be charged 
to the account from which the said employee's salary would ordinarily 
be paid. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Chapter 32, § 90B of the G. L. allows a pensioner to lawfully waive the 
entire amount of a retirement allowance. 

Dec. 2, 1963. 
Hon. George H. Burrows, Acting Director, Civil Defense Agency 

Dear Mr. Burrows: — I have received your letter of October 31, 1963, 
wherein you suggest that you may desire to waive the retirement allow- 
ance payable to you from the Commonwealth. You have asked whether, 
pursuant to § 90B of c. 32 of the General Laws, the total amount of a 
retirement allowance may lawfully be waived. 



P.D. 12 145 

Chapter 32, § 90B reads in relevant part as follows: 

"Any person retired from the service of the commonwealth, or any of 
its political subdivisions, . . . may waive and renounce for himself, his 
heirs and legal representatives any portion of the pension or retirement 
allowance payable to him from the commonwealth, or any of its political 
subdivisions, for such period as he may specify in such waiver and renun- 
ciation. . . ." (Emphasis supplied.) 

The statute thus authorizes the pensioner to waive "any portion" of 
his retirement allowance, and the question arises whether such language 
indicates that waiver of the entire amount may be permitted. 

I am aware of the fact that the word "portion" ordinarily refers to a 
part that is less than the whole. However, in the present case "portion" 
is preceded by the word "any", and — considering the context in which 
it appears — in my opinion impliedly includes the whole. In common 
usage, the granting of control over any part or portion of a sum of money 
to, for example, a trustee, gives the trustee power, if he chooses, to use 
or dispose of any percentage of the fund, up to and including one hun- 
dred per cent. (See Boy den v. Stevens, 285 Mass. 176, 179 (1934) .) There 
is no practical basis for insisting that a pensioner who desires to waive 
his retirement allowance be required to retain some infinitesimal amount 
in order that the entire sum owed him not be released. 

Your request was limited in scope, referring only to the question of 
waiver of the total amount of a retirement allowance. No related issues 
having been raised, nothing further is treated herein. Therefore, ad- 
dressing my response solely to the single inquiry presented in your re- 
quest, and treating no related issue, I advise you that pursuant to G.L. 
c. 32, § 90 B the total amount of a retirement allowance may lawfully 
be waived. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The issuance of trading stamps to one's own customers, and redemption 
of same, do not by themselves constitute the operation of a trading 
stamp company, G.L. c. 93, § 14 (1) . 

Dec. 9, 1963. 
Hon. George F. Killgoar, Deputy State Treasurer 

Dear Mr. Killgoar: — I have your letter of November 13, 1963 rela- 
tive to interpretation of the Trading Stamp Law (c. 632 of the Acts of 
1958). You have asked whether Collamati's Super Markets, Inc. comes 
within the definition of "trading stamp company" contained in this 
statute. I understand that Collamati's operates one store in the Com- 
monwealth, and gives trading stamps to its own customers exclusively. 
It does not distribute stamps to other retailers and does not redeem 
stamps for other retailers. 

The definition of "trading stamp company" contained in § 1 of St. 
1958, c. 632 (now Mass. G.L. c. 93, § 14L) provides: 



146 P.D. 12 

" 'Trading stamp company', any person engaged in distributing stamps 
for retail issuance by others, or in redeeming trading stamps for retailers, 
in any way or under any guise." 

Upon the facts it is clear that Collamati's does not conform to the 
definition. Collamati stamps are issued to no other retailers, and the 
firm is not engaged in the business of redeeming trading stamps for other 
concerns. The issuance of trading stamps to one's own customers, and 
redemption of the same, do not by themselves constitute the operation 
of a trading stamp company. 

The words "in any way or under any guise" which conclude the para- 
graph are not intended to expand the definition. They simply modify 
the conditions contained in the section, so that companies actually 
within the confines of the definition will not be able to distribute or 
redeem stamps in a way that might avoid the operation of the Trading 
Stamp Law. The phrase is not meant to include a firm which otherwise 
does not conform to the definition. 

Therefore, as set forth above, I advise you that the business in ques- 
tion does not come within the definition contained in St. 1958, c. 632, 
and, consequently, is not required to comply with the provisions of the 
Trading Stamp Law. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The property of any debtor in reorganization in the Federal Bankruptcy 
Act should be administered by the Department of Public Works, or 
by any agency of the Commonzvealth, as would be the taking by 
eminent domain of the property of any citizen of the Common- 
wealth. 

Dec. 10, 1963. 
Commissioner Jack P. Ricciardi, Commissioner of Public Works 
Re: Taking by Eminent Domain of Property of Railroad Corporation 
in U.S. Bankruptcy Reorganization. 

Dear Commissioner: — By letter of November 14, 1963, you advised 
me that present plans for the construction of Interstate Route 91 in the 
City of Springfield requires the Commonwealth to acquire a consider- 
able portion of the yards and appurtenances of the New York, New 
Haven and Hartford Railroad Company, and the relocation of certain 
railroad facilities. At the same time you wrote that title to the property 
of the railroad is now held by Trustees in Reorganization appointed by 
the United States District Court in New Haven, Connecticut. In view 
of the present ownership of the property you requested my opinion on 
proper procedures to effect the taking of the necessary property. 

Your attention is respectfully invited to letter on this same subject 
from the Chief of the Eminent Domain Division, Department of the 
Attorney General, dated August 12, 1963, addressed to the Secretary of 
the Department of Public Works. 

It is my opinion that the constitutional requirements and statutory 
procedures for the compensation of a citizen whose property is taken 



P.D. 12 147 

by eminent domain by the Commonwealth provide all the protection 
for a debtor in reorganization that is necessary under the provisions of 
the Federal Bankruptcy Act. Chapter 79 of the Ceneral Laws permits 
a debtor in reorganization to recover damages arising from the taking 
of its property. Proceedings thereunder would substitute money for prop- 
erty taken. The amount of damages would make whole the debtor in 
reorganization and thereby preclude any frustration of the purposes of 
the Bankruptcy Act or the particular reorganization proceedings. 

In Palmer v. Massachusetts, 308 U.S. 79 (1939) the Supreme Court 
of the United States considered the basic issue of the relationship be- 
tween the power of the Federal Bankruptcy Court over the property of 
an insolvent railroad and the power of the Commonwealth so to regu- 
late the operation of the railroad. That power of the Commonwealth 
so to regulate was described by the Court as ". . . this old and familiar 
power . . ." and ". . . the traditional power of the states to regulate . . .". 

The Court found that the grant by Congress to Federal Bankruptcy 
Courts of "exclusive jurisdiction over the debtor and its property", 11 
U.S.C.A. 205, did not authorize those Courts to impose restrictions on 
the power of the Commonwealth to regulate local transportation. 

The power of the Commonwealth, as a sovereign, to take property by 
eminent domain for public use is inherent in the very existence of gov- 
ernment. Kohl v. U.S., 91 U.S. 367, U.S. v. Jones, 109 U.S. 513, Nichols, 
On Eminent Domain, Volume I, Section 1.14. It is created simultane- 
ously with the establishment of government. It is subject only to those 
restrictions imposed upon it by the sovereign itself. It is more "old", 
more "familiar", and more "traditional" than the power of the Com- 
monwealth considered and upheld in identical legal circumstances by 
the U.S. Supreme Court in Palmer v. Massachusetts, supra. It is also 
evident that the taking of property by eminent domain for the purpose 
of construction of highways would be included in the broad meaning 
of the regulation of local transportation. 

Conferences have been held with the representatives of the Trustees 
in Reorganization and of the Law Department of the New York, New 
Haven, and Hartford Railroad Company. As a result of diese confer- 
ences, certain procedural suggestions were agreed between the represen- 
tatives of the railroad and the Chief of the Eminent Domain Division, 
Department of the Attorney General. It is my recommendation that 
when a railroad is in reorganization, the taking authority make every 
possible effort to obtain through negotiation the willing cooperation of 
the condemnee through the conveyance by deed or taking by eminent 
domain of the property required to carry out the intended public project, 
wherever it may be located. In the event that such negotiation proves 
to be unsuccessful, it is my opinion that the property of any debtor in 
reorganization in the Federal Bankruptcy Act should be administered 
by the Department of Public Works, or by any agency of the Common- 
wealth, as would be the taking by eminent domain of the property of 
any citizen of the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



148 P.D. 12 

The standard which must guide disposition of firearms by any state de- 
partment or the state Purchasing Agent is the best interests of the 
Commonwealth. 

Dec. 17, 1963. 

Honorable Alfred C. Holland, Purchasing Agent, Executive Office 
for Administration and Finance. 

Dear Mr. Holland: — I have received your letter of October 11, 1963 
in which you refer to the disposition of firearms confiscated by the De- 
partment of Natural Resources. You have requested an opinion as to 
whether firearms confiscated pursuant to §§ 7 and 51 of c. 131 of the 
General Laws may properly be sold to the general public. I understand 
that it has been customary heretofore to transfer such weapons to the 
Department of Public Safety so that they may be destroyed. 

Section 7 provides for confiscation of firearms used or possessed by 
a minor who is not licensed; likewise, § 51 authorizes the taking of such 
weapons from unlicensed aliens. Section 7 provides in part as follows: 

"... Any firearm whether discharged by air, mechanical action or 
otherwise, used or possessed by any minor who is not licensed, or who 
is not accompanied as provided in this section, or which is used in vio- 
lation of this section, shall be confiscated by any officer empowered to 
enforce this section, and shall be disposed of by the director of law en- 
forcement for the best interest of the commonwealth, after a hearing, 
due notice of which has been given." (Emphasis supplied.) 

Section 51 provides that "any firearm owned by an alien or in his pos- 
session or under his control in violation of this section shall be forfeited 
to the commonwealth". Such weapons are to be disposed of by the De- 
partment "for the best interests of the commonwealth", as is the case 
with firearms taken from minors. 

Although disposition of the weapons is the responsibility in the first 
instance of the Department of Natural Resources, the Department may 
properly transfer them to the State Purchasing Agent, since the Purchas- 
ing Agent is charged with "Disposal of obsolete, excess and unsuitable 
supplies, salvage and waste material and other property and the transfer 
of same to other departments, offices and commission". [Mass. G.L. c. 7, 
§ 22(12).] Presumably, disposition by the Purchasing Agent will like- 
wise be carried out with the best interests of the Commonwealth in mind. 

I am aware of the fact that the list of firearms presently in the custody 
of the Department of Natural Resources has an estimated value of from 
1 1200 to $1500. A possible solution is sale of the weapons so that their 
value could be realized in revenue to the State. It is assumed the pro- 
ceeds from an auction sale would be less than the market value of the 
weapons. 

However, the standard which must guide disposition by either the 
Department or the State Purchasing Agent is the best interests of the 
Commonwealth. Keeping this in mind, it becomes clear that considera- 
tions other than monetary become of consequence. 

The problems posed by unauthorized and improper use of firearms 
are already acute. From a public safety point of view, I would question 
the wisdom of offering weapons to the public by means of an auction 



P.D. 12 149 

or sale of any kind. Monetary considerations notwithstanding, the best 
interests of the Commonwealth might well persuade the officials involved 
to exercise their discretion in such a way as to avoid placing a large 
number of firearms on the open market. These weapons may of course 
still be destroyed, or, if it is preferred, could perhaps be employed by 
the Department of Public Safety for the use of its law enforcement officers. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Secretary of State may lawfully certify on appointment made by 
the Commissioner of Public Works to a special Commission estab- 
lished by c. 156 of the Resolves of 1963 which is in line with the 
well-established rule of law which militates against the creation of 
an agency. 

Dec. 17, 1963. 
Hon. Kevin H. White, Secretary of the Commonivealth 

Dear Sir: — In your letter of December 2, 1963 you have asked my 
opinion whether the Secretary of the Commonwealth may lawfully cer- 
tify an appointment made by the Commissioner of Public Works to a 
special commission established by c. 156 of the Resolves of 1963. 

The present incumbent in the office of Commissioner of Public Works 
was appointed by the authority of Mass. G.L. c. 16, § 2 (as amended 
by St. 1956, c. 717) . By St. 1963, c. 821, c. 16 of the General Laws was 
further amended by striking out the whole of former Mass. G.L. c. 16 
and inserting in place thereof a whole new c. 16. Under the provisions 
of the 1963 legislation a new Public Works Commissioner and four Asso- 
ciate Commissioners are to be appointed by the Governor. 

St. 1963, c. 821, § 1 provides: 

"There shall be a department of public works, in this chapter called 
the department, which shall be under the supervision and control of a 
public works commission, in this chapter called the commission. Said 
commission shall consist of five members, not more than three of whom 
shall be of the same political party, who shall be appointed by the gov- 
ernor, with the advice and consent of the council . . . The governor 
shall from time to time designate a member of the commission as the 
commissioner of public works, in this chapter called the commissioner, 
and the other four members shall be associate commissioners. The com- 
missioner shall be the chairman of the commission. . . ." 

This statute was signed and approved by the Governor of the Com- 
monwealth on November 15, 1963. On the same day a letter was sent 
to the Secretary of the Commonwealth by the Governor under the pro- 
visions of Article XLVIII of the Amendments to the Constitution, the 
Referendum II, declaring this statute to be an emergency law. By virtue 
of this executive act, the statute as a whole became effective on Novem- 
ber 15, 1963. 

In this connection, you have called my attention specifically to § 2 of 
c. 821 of the statutes of 1963. This section provides that the old Com- 



150 P.D. 12 

mission of Public Works consisting of the Commissioner and two Asso- 
ciate Commissioners was abolished as of the effective date of this statute. 

St. 1963, c. 821, § 2. 

"The commission of public works, consisting of the commissioner of 
public works and two associate commissioners, in existence on the effec- 
tive date of this act, and the office of director of the division of water- 
ways as so existing, are hereby abolished, and their respective powers 
and duties are hereby transferred to the public works commission, and 
the chairman of said commission, established by section one of chapter 
sixteen of the General Laws, as appearing in section one of this act." 

When interpreting a section of a statute, the statute must be construed 
in its entirety. A part cannot be separated from the whole. This is in 
line with well-established rules of construction which require that a 
statute be read as a whole. 

"The legislative intent is to be ascertained from the statute as a whole, 
giving to every section, clause and word such force and effect as are 
reasonably practical to the end that, as far as possible, the statute will 
constitute a consistent and harmonious whole, capable of producing a 
rational result consonant with common sense and sound judgment. . . ." 
[Haines v. Town Manager of Mansfield, 320 Mass. 140, 142 (1946) .] 

The present statute provides for a sweeping reorganization of the 
Department of Public Works. This department is closely allied with 
the day-to-day needs of the Commonwealth. It must provide continu- 
ing services unhampered by a change of personnel. The transition envi- 
sioned by this statute cannot be made overnight. There are practical 
difficulties involved. The Legislature was not unaware of these diffi- 
culties. This statute provides for the period of transition. SECTION 2 
should be read in consonance with the statute as a whole and especially 
with SECTION 4. 

St. 1963, c. 821, § 4. 

"The tenure of the present commissioner of public works shall cease 
upon the qualification of his successor appointed under the provisions 
of section one of this act. The tenure of the present associate commis- 
sioners shall cease upon the qualification of two associate commissioners 
appointed under the provisions of section one of this act." 

This section provides not only for the practical necessities of continu- 
ous public service but is in line with the well-established rule of law 
which militates against the creation of a vacancy. 

67 C.J.S. Officers § 50 (1950) . 

"The law abhors vacancies in public offices, and courts generally in- 
dulge in a strong presumption against a legislative intent to create, by 
statute, a condition which may result in an executive or administrative 
office becoming, for any period of time, wholly vacant and unoccupied 
by one lawfully authorized to exercise its functions. . . ." 

In light of the action taken by the Legislature, it is my opinion that 
the Secretary of the Commonwealth may lawfully certify the appoint- 
ment by the present Commissioner of Public Works made under the 
authority of c. 156 of the Resolves of 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 151 

All decisions of the Registrar of Motor Vehicles are subject to appeal 
under c. 90, § 28, though no action or decision shall be stayed pend- 
ing such appeal with exception of appeals from cancellation of 
motor vehicle liability policies which shall remain in full force and 
effect pending appeal. 

Dec. 18, 1963. 
Hon. James R. Lawton, Registrar of Motor Vehicles. 

Dear Registrar Lawton: — I have received your letter of October 4, 
1963 relative to the rights of appeal of persons aggrieved by rules or 
decisions of the Registrar of Motor Vehicles. You have requested my 
opinion as to the nature of decisions which may be appealed, and as to 
whether such appeal operates to stay action by the Registrar pursuant 
to the decision being reviewed. 

Appeals from decisions of the Registrar are governed by Mass. G.L. 
c. 90, § 28, which provides in part as follows: 

"Any person aggrieved by a ruling or decision of the registrar may, 
within ten days thereafter, appeal from such ruling or decision to the 
board of appeal on motor vehicle liability policies and bonds . . . , which 
board may, after a hearing, order such ruling or decision to be affirmed, 
modified or annulled; but no such appeal shall operate to stay any rul- 
ing or decision of the registrar. . . ." (Emphasis supplied.) 

Nothing in the cited section indicates that appeals are meant to be 
available only from discretionary rulings, and not from so-called man- 
datory decisions rendered by the Registrar. Language in the case of 
Ullian v. Registrar of Motor Vehicles, 325 Mass. 197, 199, suggests that 
the scope of appeal should not be so limited. 

"The word 'appeal' as appearing in the statute, G.L. (Ter. Ed.) c. 90, 
§ 28, comprehends all rulings and decisions of the registrar by which 
the holder of the license claims to be aggrieved." 

Even where the Registrar is apparently required by statute to issue 
a particular ruling or take certain action, the decisions by the Registrar 
on factual matters and on the applicability of given statutes may still 
be questioned. Since nothing in the section governing appeals indicates 
that such cases should be excluded from the section's provisions, it would 
appear that all actions or decisions by the Registrar — whether manda- 
tory or discretionary — are subject to review under § 28. The language 
of the statute is clear that the taking of such appeals does not operate 
to stay the ruling or decision that is to be reviewed. 

Appellate procedure operates somewhat differently where cancellation 
of motor vehicle liability insurance is involved. In such a case, action 
by the insurer rather than by the Registrar is to be specifically reviewed, 
and appeals are governed by Mass. G.L. c. 175, § 11 3D (as amended). 
The section provides for appeal to the Board of Appeal on Motor Vehicle 
Liability Policies and Bonds: the decision of the Board may be appealed 
to a Justice of the Superior Court, whose ruling shall be final. 

However, contrary to appeals brought under c. 90, § 28, the taking of 
an appeal under c. 175, § 11 3D does operate to stay cancellation of the 
policy. 



152 P.D. 12 

"If the complaint relates to the cancellation of such a policy or 
bond, the filing of the complaint shall operate to continue the policy 
or bond in full force and effect, but not beyond its date of expiration in 
any case, pending the finding and order of the board, and pending the 
decree of the superior court or a justice thereof if an appeal from such 

finding and order is taken " 

Therefore, I advise you that all decisions of the Registrar are subject 
to appeal under c. 90, § 28, though no action or decision shall be stayed 
pending such appeal. On the other hand, appeals from cancellations of 
motor vehicle liability policies shall be taken pursuant to c. 175, § 11 3D, 
and the taking of such appeals shall operate to continue the policy in 
full force and effect. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The trustees of the Lowell Technological Institute are bound to another 
year's extension of the contract with Gordon Linen Service because 
of their failure to send the required registered mail notice in ac- 
cordance with the terms of the contract. 

Dec. 18, 1963. 

Mr. Everett V. Olsen, Assistant to the President, Lowell Technological 

Institute. 

Dear Mr. Olsen: — You have requested my opinion relative to the 
laundry service contract entered into by the Board of Trustees of the 
Lowell Technological Institute. In your letter, you posed the following 
questions: 

"1. Must the Institute grant the Gordon Linen Service a one-year 
contract inasmuch as a written registered mail notice was not sent to 
them specifically stating that the Trustees desire to terminate this con- 
tract? 

2. If a new contract were to be drawn with another contractor what 
is the earliest possible date that this contract would legally take effect? 

3. If it is your opinion that the proper notice has not been given 
to the contractor to terminate the contract would it be proper at this 
time for the Board of Trustees to approve an extension of the contract 
with Gordon Linen Service?" 

It is my understanding that the Board of Trustees, as of September, 
1958, entered into a contract with Gordon Linen Service, which contract 
has been extended from year to year, and — at least up to September, 
1963 — was still in effect. The contract contains the following clause: 

"Further, unless otherwise terminated as hereinafter provided, this 
contract shall be automatically renewed for the same length of term 
unless either party, 30 days before the end of the original or extended 
term shall give to the other a written, registered mail, notice of its desire 
to terminate this contract at the end of said term." 



P.D. 12 153 

It is a fundamental proposition of contract law that notice to termi- 
nate a contract must be reasonable, clear and unequivocal, and in ac- 
cordance with the terms of the contract. Since the contract entered into 
with Gordon Linen Service specifics that there shall be automatic re- 
newal unless written notice to the contrary is given by registered mail, 
the Trustees are bound to comply with the notice requirement, and 
must do so in order to terminate the agreement. Having failed to send 
the required registered mail notice thirty days prior to the end of the 
extended term, the Trustees are bound to another year's extension of 
the contract with Gordon Linen Service. 

Since they are bound as set forth above, the Trustees have no choice 
but to deal with Gordon Linen Service during the present year. So far 
as future years may be concerned, there is nothing to prevent further 
extensions of this contract, since I am aware of no provisions which 
would require the Trustees to submit the matter of laundry service to 
public bidding. Since it is clear that the Gordon Linen contract must 
continue in effect throughout this year, I have not treated with your 
second question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Eastern Massachusetts Bridge Association's tournament does not 
have chance as a significant element in its game and can therefore 
he issued a license to conduct its tournament on Sunday providing 
it does not commence prior to one o'clock in the afternoon. 

Dec. 26, 1963. 

Honorable Frank S. Giles, Commissioner of Public Safety. 

Dear Commissioner Giles: — I have received your request for an 
opinion relative to the legality of the holding of a national bridge tourna- 
ment by the Eastern Massachusetts Bridge Association in the City of 
Boston. You have posed the following questions: 

1. Can such a tournament legally be conducted under a license issued 
by the City of Boston and approved by the Commissioner of Public 
Safety pursuant to Mass. G.L. c. 136? 

2. Would this game in and of itself constitute a lottery? 

3. Would the game constitute a lottery when the entire proceeds are 
not exclusively and wholly donated to charitable, civic, educational, fra- 
ternal or religious purposes? 

In order to reply fully to your inquiries it has been necessary to inves- 
tigate the manner in which the proposed tournament is to be conducted. 
It appears that the tournament is decided wholly on the basis of the 
skill of the participants, with the element of chance quite remote. In 
fact, I have discovered that die hands to be played are prearranged so 
that even the element of chance that would be created by the dealing 
of cards is eliminated. 



154 P.D. 12 

You have referred in your letter to G.L. c. 271, § 22A, which provides: 

"Nothing in this chapter shall authorize the prosecution, arrest or 
conviction of any person for conducting or promoting, or for allowing 
to be conducted or promoted, a game of cards commonly called whist 
or bridge, in connection with which prizes are offered to be won by 
chance; provided, that the entire proceeds of the charges for admission 
to such game are donated solely to charitable, civic, educational, fraternal 
or religious purposes." (Emphasis supplied.) 

Likewise, G.L. c. 271, § 7, which section governs lotteries and disposal 
of property by chance, is relevant. 

"Whoever sets up or promotes a lottery for money or other property 
of value . . . with intent to make the disposal thereof dependent upon 
or connected with chance by lot, dice, numbers, game, hazard or other 
gambling device, whereby such chance or device is made an additional 
inducement to the disposal or sale of said property . . . , shall be pun- 
ished by a fine of not more than two thousand dollars or by imprison- 
ment for not more than one year." 

It is clear that it is the attention to the element of chance which is 
significant in these two statutory sections. What is prohibited under § 7 
is gaming which is dependent primarily upon chance, and for which 
prizes are given. Section 22A permits the holding of bridge games in 
which chance is an element, provided that proceeds of admission charges 
are donated to one or more of the specified uses. Thus it is implied that 
bridge games based on chance in which the proceeds are not so devoted 
shall not be held. However, investigation indicates that the tournament 
to be sponsored by the Eastern Massachusetts Bridge Association is not 
of a type in which chance is a significant element. Therefore, I advise 
you that this tournament does not come within the explicit prohibition 
of § 7 or the implied prohibition of § 22A. 

My response to your first questoin relative to licensing of the tourna- 
ment is governed by G.L. c. 136, § 4(1), as amended, which provides 
in part: 

"The mayor of a city or the selectmen of a town . . . may grant . . . 
a license to hold on Sunday . . . any game, sport, fair, exposition, play, 
entertainment or public diversion for which a charge in the form of 
payment or collection of money or other valuable consideration is made 
for the privilege of being present thereat or engaging therein, . . . ; 
provided, . . . that such application, except an application to conduct 
an athletic game or sport, shall be approved by the commissioner of 
public safety. . . ." 

Pursuant to this section, therefore, a license may be issued so that the 
proposed tournament can be conducted on a Sunday, provided that 
activities do not commence before one o'clock in the afternoon, and 
provided further that the license application is approved by the Com- 
missioner of Public Safety. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 155 

The Attorney General advises the Department of Public Works, Metro- 
politan District Commission, and the Massachusetts Turnpike Au- 
thority as to necessary reforms in their land-taking procedures. 

Dec. 27, 1963. 
Jack P. Ricciardi, Commissioner, Department of Public Works. 

Re: Land-Taking Procedures Department of Public Works. 

Dear Sir: — With your support and that of the Federal Bureau of 
Public Roads the Eminent Domain Division of this Department was 
authorized to establish a new section for the analysis and codification 
of the laws of the Commonwealth relating to all aspects of its highways. 
For many months the initial review of those laws has been in progress 
during the course of which the existing law and procedures in connec- 
tion with the taking of property by eminent domain by the Common- 
wealth have been considered. One product of that work has been the 
filing with the General Court of a legislative program by me. If enacted, 
it will improve the law and procedures governing the exercise of that 
sovereign power of eminent domain by protecting more promptly and 
equitably the rights of the individual citizen. 

During the study of present practices it became apparent that the 
Department of Public Works continues to employ some land-taking pro- 
cedures, established by your predecessors, which do not comply with the 
existing law. The purpose of this letter is to call your attention to those 
land-taking practices of that Department which are in urgent need of 
change. One is the award at the time land is taken of only nominal 
damages in the amount of one dollar without regard to the severity of 
the damage actually caused. Another is the failure of the Department in 
many instances to give written notice of the taking to the owner of the 
land taken. Finallv, the delay in processing damage claims by the De- 
partment is such that the landowner must wait many months and often 
years before any compensation is received. 

Those three practices impose hardships on landowners whose prop- 
erty is taken. Many of them feel compelled to bring costly lawsuits against 
the Commonwealth in order to get fair compensation. That adds to the 
congestion in the courts and creates a significant demand on the staff 
and financial resources of both the Department and the Attorney Gen- 
eral and the Department of Public Works. Meanwhile the interest to 
be paid by the Commonwealth accrues with each month that damage 
claims remain unpaid. On November 6, 1963 the rate of interest on such 
claims was increased by the General Court by half from four to six per 
cent (St. 1963, c. 793, § 1). 

Under normal circumstances these problems and their solution would 
have been brought to your attention many weeks ago with full confidence 
that you would take prompt remedial action. However, passage .of— the 
Department of Public Works Reorganization Act argued for postpone- 
ment of this letter until it could be addressed to the members of the 
newly created Public Works Commission. The delay in the appointment 
of the new Commissioners was not anticipated or expected by me in 
view of the emergency preamble inserted in the Reorganization Act by 
the Governor on November 15, 1963, declaring that postponement would 
"defeat its purpose which is to reorganize the Department of Public 
Works immediately in order that the important highway programs of 



156 P.D. 12 

the Commonwealth may be undertaken without delay." (St. 1963, c. 821.) 
However, it is not now clear when the appointment and confirmation 
of the new Public Works Commissioners will be accomplished. In any 
case, I am certain that they would agree that any possible administrative 
convenience to them is greatly outweighed by the benefit to citizens of 
the Commonwealth which will accrue from immediate implementation 
of this letter. 

I am aware of the difficulties confronting the Department of Public 
Works in attempting at this time to act on a problem of this scope. The 
active management group of that Department may soon be faced with 
removal. Through no fault of the present Commissioners several key 
positions are not presently staffed. However, the matters to which this 
letter refers cannot wait any longer. Whatever view one might take of 
the merits and urgency of the Reorganization Act, it is clear that these 
problems constitute at present a genuine emergency. 

The present basic administrative problem appears to be the fact that 
appraisals and title examinations are not completed by the Depart- 
ment of Public Works until long after property is taken by eminent 
domain. There is now no determination of damages at the time they 
should be awarded. There is now no determination of ownership at the 
time the owners should be notified. Title and appraisal information are 
not adequate under present procedures at the time payment should be 
made to the property owners. 

I must therefore advise you that compliance with existing law requires 
the following immediate reforms in the land-taking procedures of the 
Department of Public Works. 

(1) All Department apprasials and title searches relative to land taken 
shall be completed before the adoption of the order of taking. 

(2) Realistic awards of damages, based upon accepted appraisal prin- 
ciples, shall be made upon the adoption of any order of taking. In this 
connection it is incumbent upon the Department to vote immediately" 
such awards for takings for which orders have already been issued but 
for which payment has not been made. 

(3) Notice of any taking shall be sent promptly thereafter to all 
owners including all mortgagees of record. 

(4) All administrative preliminaries to the payment of damages 
within the control of the Department shall be completed at a sufficiently 
early stage to permit issuance of damage checks within a short time 
after a taking has been made. 

(5) No further land takings shall be made by the Department until 
compliance with the above requirements can be achieved. 

The first two of these reforms are based on the statutory requirements 
that damages be awarded to persons whose land is taken "at the time 
when the order of taking is adopted." (G. L. c. 79, § 6.) The Supreme 
Judicial Court of Massachusetts has condemned the practices of making 
nominal awards when damages are plainly serious as "an obvious dis- 
regard of the legislative purpose ... to obtain an award of just compen- 
sation by fair initial administrative action." (Newton Girl Scout Council 
v. Massachusetts Turnpike Authority, 335 Mass. 189, 190, note 2.) Obvi- 
ously, no such fair award of damages can be made until completion of 
an adequate title search and appraisal. 



P.D. 12 177 

Written notice to all owners and mortgagees is expressly required by 
the eminent domain statute. (G.L. c. 79, § 8) . Compliance with this 
requirement means that the Department must "use reasonable diligence 
to ascertain the owners of the land taken." (7 Op. Atty. Gen. 57, 59 
1923) .) 

The fourth of the above reforms concerning prompt payment proce- 
dures is required by the Massachusetts Constitution. The Supreme Judi- 
cial Court has construed the constitutional guarantee of reasonable com- 
pensation for property taken as compelling payment of such compensa- 
tion without "unreasonable delay." (Haverhill Bridge Proprietors v. 
County Commissioners of Essex, 103 Mass. 120, 125). While there is no 
set rule as to when a delay becomes "unreasonable", it is my opinion 
that the delays caused by the present procedures of the Department in 
payment of damages fall within that category. 

This letter is not intended to and does not cast doubt on the integ- 
rity and good faith of the management or personnel of the Department 
of Public Works. On the contrary, it appears that the practices with 
which it deals began under your predecessors. Unfortunately the prop- 
erty owner has no effective remedy against most of the violations referred 
to herein however serious they may be. I therefore feel that this Depart- 
ment and the Department of Public Works have a special responsibility 
to invoke every available means to assure their discontinuance. Accord- 
ingly, I urge you to take immediate steps to bring the landtaking pro- 
cedures of the Department into conformity with the law, as outlined 
in this letter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Dec. 27, 1963. 
Honorable Endicottt Peabodv, Governor, Commonwealth of Massa- 
chusetts. 

Your Excellency: — Enclosed is a copy of a letter to the Commis- 
sioner of Public Works, calling his attention to certain urgently needed 
changes in the landtaking procedures of his Department. 

The unfortunate consequences to the public of the practices referred 
to in the enclosed letter are reason enough for reform. It is my opinion, 
morover, that they are also in violation of law. It is therefore my duty 
not merely to recommend such reform, but to insist upon it. 

Primary responsibility for instituting the necessary changes, of course, 
lies with the Commissioner of Public Works and his staff. However, 
Chapter 821 of the Acts of 1963, reorganizing the Department of Public 
"Works, has since November 15 of this year vested broad control over 
that Department in the Office of the Governor. The problems created 
by the dilution of the powers of the Commissioner which has necessarily 
accompanied this shift in ultimate control are particularly acute at this 
time, because the impending changes in the personnel and organization 
of the Department of Public Works make it exceedingly difficult for its 
existing management to take effective action. For that reason I had in- 



158 p.D. 12 

tended to defer writing the enclosed letter until the new Commission 
of Public Works had assumed office in accordance with the reorganiza- 
tion act. However, I did not anticipate the delay in the appointment 
and confirmation of the new Commissioners. 

It is my hope that you will agree that the effect on citizens whose 
property has been taken by the Commonwealth far outweighs any con- 
ceivable administrative convenience to the new Commissioners which 
further delay might provide. 

These important reforms cannot be effected without the full co-oper- 
ation of the Office of the Governor with this Department and with the 
Commissioner of Public Works. I trust that such cooperation will be 
immediately forthcoming. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Dec. 27, 1963. 
William F. Callahan, Chairman, Massachusetts Turnpike Authority. 

Dear Mr. Chairman: — I have been advised that the land-taking pro- 
cedures employed by the Massachusetts Turnpike Authority are very 
similar to those used by the Department of Public Works. Enclosed for 
your information is a copy of a letter delivered today to the Depart- 
ment of Public Works stating in detail my opinion of its present admin- 
istration of the taking of land by eminent domain and listing the neces- 
sary corrective action. 

The continuing review of the law governing the many aspects of the 
construction, use and maintenance of the highways of the Common- 
wealth has resulted in the conclusion that Massachusetts Turnpike Au- 
thority is required to comply with the provisions of Chapter 79 of the 
General Laws and the Constitution of the Commonwealth. 

It is my opinion that the present land-taking procedures of the Massa- 
chusetts Turnpike Authority violate the law in the same manner as the 
Department of Public Works as set forth on page 2 of the enclosure 
herewith. Those violations have imposed serious hardships on those 
whose property has been taken by the Massachusetts Turnpike Authority. 

It is my further opinion that the following administrative action must 
be taken immediately by the Massachusetts Turnpike Authority in order 
to conform its practice and procedures to the laws of the Commonwealth: 

(1) All appraisals and title searches relative to land taken by the 
Massachusetts Turnpike Authority shall henceforth be completed before 
the adoption of an order of taking. 

(2) Realistic awards of damages, based upon accepted appraisal prin- 
ciples, shall be made upon the adoption of any order of taking. In this 
connection it is incumbent upon the Turnpike Authority to vote imme- 
diately such awards for takings for which orders have already been issued 
but for which payment has not been made. 

(3) Notice of any takings shall be sent promptly to all owners includ- 
ing all mortgagees of record. 



P.D. 12 159 

(4) All administrative preliminaries necessary to the payment of 
damages shall be completed promptly after the taking to permit the 
issuance and delivery of damage checks without unreasonable delay. 

(5) No further land takings shall be made by the Massachusetts Turn- 
pike Authority until compliance with the above requirements has been 
achieved. 

It is my hope that as a result of this letter and enclosure you will im- 
mediately direct the commencement of the administrative reforms set 
forth herein. It would be greatly appreciated if you would advise me 
in writing within thirty days of the date of this letter of the action 
taken or to be taken in order to carry out the provisions of this opinion. 
Of particular, but not exclusive, interest at this time will be the action 
taken under the second procedural reform listed above. To avoid any 
misunderstanding, it would be appreciated if you would immediately 
direct the appropriate member of your staff to forward a list to this office 
of the property and former owners thereof which will be affected by 
procedural reform number two because payment has not yet been made 
in accordance with the law which requires that administrative change. 

I trust that this Department will be the recipient of the prompt and 
wholehearted cooperation of your entire staff as evidence of your desire 
to provide to all citizens of the Commonwealth prompt and equitable 
protection of their rights which may be affected by any action taken by 
the Massachusetts Turnpike Authority. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

(A letter embodying the same comments, suggestions, and instructions 
as the above, has this day been sent to Mr. Robert F. Murphy, Chairman 
of the Metropolitan District Commission, 20 Somerset Street, Boston.) 



The Department of Public Works may purchase, rent or lease equipment 
for the performance of the engineering services, excluding traffic 
studies, and other technical and expert services in connection with 
the projects authorized and forced by said statutes. 

Jan. 2, 1964. 

Commissioner James F. Fitzgerald, Jr., Department of Public Works. 

Re: Bond Issue Accounts, Authority to Purchase, Rent or Lease Equip- 
ment. 

Dear Commissioner: — Reference is made to my opinion on this sub- 
ject addressed to your predecessor, dated September 3, 1963, and two let- 
ters dated December 4 and December 20, 1963 from your Department re- 
questing my opinion on whether the Department of Public Works can 
purchase, rent or lease office equipment for Sections and Divisions of that 
Department for which such equipment is needed as a result of the increase 
in the amount of work in connection with projects authorized under Bond 
Issue Accounts. 



160 P.D. 12 

On September 3, 1963 I informed your predecessor of my opinion that 
the Department of Public Works can purchase, rent or lease equipment 
for the use of the Contract Division and the Eminent Domain Division 
of the Department of the Attorney General and charge the cost thereof 
to an appropriate Bond Issue Account. I also rendered the opinion that 
the cost of transportation of personnel of the Department of Public Works 
whose activities are directly connected with projects financed from Bond 
Issue Accounts can be paid from the funds in said accounts. 

Chapter 306 of the Acts and Resolves of the General Court of 1949, 
Chapter 685 of the Acts and Resolves of 1950, Chapter 556 of the Acts and 
Resolves of 1952, Chapter 403 of the Acts and Resolves of 1954, and Chap- 
ter 718 of the Acts and Resolves of 1956 authorize the issue and sale of 
bonds to meet expenditures necessary to execute the accelerated highway 
program. Included in each of those laws is the following language: 
"The cost of the work authorized . . . shall include all project payments, 
property damages, expenses for consultants and engineering services, in- 
cluding traffic studies, and for all legal and other technical and expert 
services, and incidental expenses in connection with the projects herein 
authorized." 

The language quoted above from the Acts authorizing the various high- 
way bond issues makes it clear that the General Court intended that all 
expenses for engineering services, including traffic studies, and other tech- 
nical and expert services and incidental expenses in connection with the 
authorized projects should be included in the cost of the work to be paid 
from the proceeds from the sales of the bonds which were authorized 
and subsequently issued in accordance with said Acts. 

In the third paragraph of the letter of the Chief Engineer of the De- 
partment of Public Works of December 4, 1963, addressed to me on this 
subject it is stated that an IBM Computer System is rented for the exclu- 
sive purpose of making engineering computations and that more than 
90% of the work being performed by that Computer System is for proj- 
ects authorized under the various Bond Issues. It was further stated 
therein that such use of the IBM Computer System makes possible the 
release of engineers for other professional activities. 

It is my opinion that under the provisions of the various Acts cited 
in the third paragraph hereof, authorizing the issuance and sale of bonds 
to implement the accelerated highway program, the Department of Public 
Works may purchase, rent or lease equipment for the performance of the 
engineering services, including traffic studies, and other technical and ex- 
pert services in connection with the projects authorized and financed by 
said statutes. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.U. 12 161 

The decision of the Commissioner of Veterans' Services is binding and in 
full force and efject concerning the issues involved subject only to an 
appeal of the decision or determination to the Governor and Coun- 
cil as provided by statute. 

Jan. 0, 1964. 

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

Dear Commissioner Collatos: — 1 have your request relative to the 
dispute between the cities of Brockton and Quincy on the subject of 
William H. G. Elder, VB #71767. 

You ha\e set forth therein numerous facts which led you to determine 
that the veteran involved retained his Quincy settlement. 

Chapter 115, § 2 provides: 

"He (the Commissioner) shall decide all controversies between towns 
relative to the settlement of applicants for veterans' benefits, and, sub- 
ject to the approval of the attorney general, his decisions shall be final. 
He shall decide all controversies between any applicant and a veterans' 
agent relative to the validity or amount of a claim for such benefits, and, 
upon the complaint of any person that the city or town in which such 
person resides is granting such benefits contrary to the provisions of this 
chapter, shall forthwith make an investigation of such complaint, and a 
determination of the amount of such benefits, if any, to be granted. 
A final appeal from such decision or determination may be taken by such 
claimant, veterans' agent or resident, within ten days after his receipt of 
notice of the same, to the governor and council. The committee of the 
council to which any such appeal is referred shall, if requested, hold a 
public hearing thereon and make a report of its recommendations in 
writing to the governor and council. . . ." (Emphasis supplied.) 

It is clear from a reading of this provision that the approval of the At- 
torney General required thereunder does not relate to factual matters 
nor to a determination of the policy of your department. The approval 
of the Attorney General relates only to the form and legal sufficiency of 
your factual determination. 

The legislative enactment providing for an appeal to the Governor 
and Council by a person aggrieved of your decision is an exclusive remedy 
and must be followed. 

Accordingly, it is my opinion that your decision is binding and in full 
force and effect concerning the issues involved subject only to an appeal 
of your decision or determination to the Governor and Council as pro- 
vided by the statute cited. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



162 P.D. 12 

Under the providing statutes the Wachusett Mountain State Reservation 
Commission does not have the right to enter into a lease. 

Jan. 6, 1964. 

Charles B. Campbell, Chairman, Wachusett Mountain State Reservation 

Commission. 

Dear Mr. Campbell: — I have received your letter of November 15, 
1963 relative to the Wachusett Mountain State Reservation ski area au- 
thorized by St. 1960, c. 679. You have indicated that you wish to lease 
the ski facilities for operation by private parties, and have posed five 
questions with regard to such an arrangement. 

I will not treat with your specific questions herein because I find no 
authorization for the Commission to enter into this type of leasing ar- 
rangement. Chapter 679 of the Acts of 1960 provides that the Commis- 
sion is "authorized and directed to construct, maintain, operate or lease 
on Wachusett mountain, a ski area with facilities appurtenant thereto". 
In the absence of language in the act to the contrary, this reference to a 
lease refers to the right of the Commission to acquire facilities by lease, 
and does not imply that the Commission may itself lease the facilities to 
others. 

Chapter 679 clearly sets forth the way in which the business of the ski 
area is to be managed. Section 3 authorizes the Commission to charge rea- 
sonable fees for use of the facilities, and directs what disposition is to be 
made of income that exceeds expenses. Section 4 provides that where ex- 
penses exceed funds derived from use of the facilities, the necessary funds 
shall be assessed and collected as are county taxes. Under § 5, the County 
Treasurer holds ail sums raised by taxation for the ski area, as well as 
all other sums given or bequeathed for that purpose. A leasing arrange- 
ment which would relieve the Commission of these problems of income 
and expenses is clearly not contemplated. Leasing of the facilities to pri- 
vate parties would make the careful provisions of c. 679 unnecessary, and 
should not be considered without specific authorization. 

Furthermore, when the General Court has felt it desirable to permit a 
leasing arrangement it has said so. Chapter 755 of the Acts of 1957 au- 
thorizes the Commission to lease certain land in the State Reservation. 
Had the Legislature envisaged leasing of the ski facilities, it could have 
provided for it in the same manner. I am aware of the fact that other States 
do permit the leasing of State ski areas, and that such is frequently most 
practical from a business point of view. However, absent specific au- 
thorization by statute, I must advise you that the Commission does not 
have the right to enter into the proposed lease. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 163 

Warrants for probation violators were not intended to be affected by 
c. 277 § 72 A. 

Jan. 9, 1964. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Commissioner McGrath: — I have received your letter of 
December 3, 1963 in which you request an interpretation of Mass. G.L., 
c. 277, § 72A, recently added by c. 486 of the Acts of 1963. You have asked 
whether the new section applies to inmates who have had lodged against 
them a warrant charging violation of probation, with or without a sus- 
pended sentence. 

As you point out, the statute refers to untried indictments, informations 
or complaints. 

"The commissioner of correction shall, upon learning that an untried 
indictment, information or complaint is pending in any court in the com- 
monwealth against any prisoner serving a term of imprisonment in a cor- 
rectional institution of the commonwealth, notify such prisoner in writ- 
ing thereof, stating its contents, including the court in which it is pend- 
ing, and that such prisoner has the right to apply, as hereinafter provided, 
to such court for prompt trial or other disposition thereof. 

"Any such prisoner shall, within six months after such application is re- 
ceived by the court, be brought into court for trial or other disposition of 
any such indictment, information or complaint, unless the court shall 
otherwise order." (Emphasis supplied.) 

The statute further specifies what information is to be transmitted to the 
Court by the Commissioner of Correction, and provides for notification 
to the appropriate District Attorney. 

I understand that your Department has treated the statute as inap- 
plicable to warrants for probation violations. In my opinion, this inter- 
pretation of the law is entirely justified. The statute expressly applies 
to indictments, informations and complaints, and presumably is not in- 
tended to affect proceedings that are not so categorized. The section would 
appear to be directed toward disposition of those criminal matters that 
demand trial on the merits, with consequent findings of guilt or inno- 
cence of the accused. Warrants for probation violations do not require 
such trials; the presiding justice need only determine whether sentence 
should be imposed (in cases where the probationer has yet to be sen- 
tenced) or whether sentence should be enforced (where sentence has been 
imposed but suspended). 

Under warrants for violations of probation the guilt of the accused is 
no longer an issue. The only question is treatment of the offender. In 
cases where the offender is already confined, speedy disposition of the 
warrant is obviously unnecessary. However, pursuant to the new § 72A, 
prisoners do have the right to have questions of actual guilt or inno- 
cence speedily determined. 

Consequently, it is my opinion that warrants for probation violations 
were not intended to be affected by c. 277, § 72A, and that the practice 



164 P.D. 12 

of the Department of Correction, in so far as it has confined the operation 
of the statute to untried indictments, informations and complaints, may 
properly be continued. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The granting of taxicab stands upon public highways is a justified exer- 
cise of the poiuer to regulate traffic and the highways in general. 

Jan. 15, 1964. 

Hon. James F. Fitzgerald, Commissioner of Public Works. 

Dear Commissioner Fitzgerald: — I have the request of former Com- 
missioner Ricciardi dated November 19, 1963 relative to the validity of 
using portions of public highways for taxi stands. The former commis- 
sioner enclosed with his request a photostat of a letter from Mr. Arthur W. 
Marchant directed to the Bureau of Public Roads. Mr. Marchant's letter 
deals with the propriety of the licensing of taxi stands by municipalities. 
I will therefore treat the matter solely from the standpoint of the rights 
of cities and towns to issue such licenses. 

The regulation by municipalities of vehicles for hire has been held to be 
authorized by Mass. G.L., c. 40, § 22, which provides in part as follows: 

"... a city or town may make ordinances or by-laws . . . for the regu- 
lation of carriages and vehicles used therein, with penalties for the vio- 
lation thereof not exceeding twenty dollars for each offence. . . ." 
Under this section, cities and towns are authorized to enact regulations 
prescribing routes, stands, and movements of all vehicles for hire. The 
assignment of taxicabs to stands set apart on the public highways is a 
sensible control of traffic which prevents disorder and danger, and is 
therefore a reasonable regulation. 

"No right of any citizen is impaired by an ordinance which prohibits the 
parking of vehicles at a place in a public street or highway where such 
person has no legal title to the land occupied by the street or highway 
and has no interest in such greater than an easement of travel which 
is held in common with all citizens." Commonwealth v. Rice, 261 Mass. 
340, 345 (1927). 

Therefore, I find that the granting of taxicab stands upon public high- 
ways is a justified exercise of the power to regulate traffic and the high- 
ways in general, and should be permitted to continue. Contrary to Mr. 
Marchant's position, I find in such exercise no element of discrimination 
in favor of any private interest. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 165 

TJie Department of Public Health may with propriety, promulgate ap- 
propriate rules and regulations to effect those practices and policies 
necessary arid proper to further the law. 

Jan. 15, 1964. 

Hon. Alfred L. Frechette, Commissioner of Public Health. 

Dear Commissioner Frechette: — I have received your letter of 
October 21, 1963 relative to the manufacture and sale of bedding, up- 
holstered furniture and related products. In said letter you requested my 
opinion 

"as to whether or not the process of labeling of bedding and upholstered 
furniture is for consumer protection in the first instance, and in the or- 
derly regulation of the industry in the second instance. If your answer 
to the above inquiry is in the affirmative, would it be within the scope of 
the law to expect a retailer to display the mattress he is selling in such a 
way, so that the consumer could conveniently examine the label?" 

It is my opinion that c. 94, §§ 270 through 277 were enacted for con- 
sumer protection and the orderly regulation of the industry. 

Chapter 94, §§ 271 and 273, require the licensing of everyone engaged 
in the manufacture, wholesale, processing, repair, sale, renovation, and 
sterilization of filling materials or fabrics for bedding or upholstered fur- 
niture. 

Chapter 94, § 272 requires the labeling of every article of bedding or of 
upholstered furniture or of any filling material. Said label shall state the 
contents, whether new or old, its source, relative percentages of different 
materials, whether sterilized, and the manufacturer's serial number. 

Section 272 further provides: 
"Such labels shall be fixed in such position that they may be conveniently 
examined. 

"Every person, except the purchaser for his own use, or an inspector in 
the performance of his duties under this law, who attempts to remove, 
or does remove, deface, alter, or causes to be removed, the label or any 
mark or statement placed upon any upholstered furniture or bedding 
under the provisions of this law shall be guilty of a violation of this 
law." 

You have asked whether or not the practice of placing mattresses ad- 
jacent to the headboard and placing beds closely together violates c. 94, 
§ 272. par. 4, which provides: 

"AH labels required by this law shall be securely attached to the article 
during the process of manufacture at the factory. Such labels shall be fixed 
in such position that they may be conveniently examined. . . ." 

Chapter 94, § 272 was intended to enable a prospective purchaser to 
know the contents and quality of what he is buying. The requirement 
that labels be placed so as to be conveniently examined would obviously 
preclude the placing of a label in the center portion of one of the sur- 
faces of a mattress, and then placing that side to the bottom. 

In enacting this law, the Legislature realized that it could not de- 
lineate every factor necessary for the licensing, labeling and inspection 
of bedding and upholstery materials. It, therefore, granted the Depart- 
ment of Public Health, in numerous parts of the statute, authority to 
promulgate regulations to implement the law. 



166 P.D. 12 

Chapter 94, § 272 contains four such explicit references. Paragraph 1 
provides: 

". . . unless such article is plainly labeled as provided in this law, and 
prescribed by the department." 

Paragraph 2 is of similar import. 

Paragraph 4 requires that: 
". . . Such labels shall be fixed in such position that they may be con- 
veniently examined and shall be in accordance with rules and regulations 
pertaining to labeling promulgated under authority of this law." 

Paragraph 7 provides: 
"The department is hereby authorized to prescribe the wording, form 
style, size, material, lettering, tolerances, requirements, or any changes 
on labels in order to carry out the provision of this law." 

Chapter 94, § 274 specifically authorizes the department: 
". . . to establish and promulgate all rules and regulations, including 
those pertaining to labeling and sterilization, necessary to carry out the 
provisions of sections two hundred and seventy to two hundred and 
seventy-six, inclusive. . . ." (Emphasis supplied.) 

To remove all doubt concerning the legality of the practice referred to, 
the Department of Public Health may, with propriety, under the enabling 
aforementioned sections, promulgate appropriate rules and regulations 
to effect those practices and policies necessary and proper to further the 
purpose of the law. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Executive approval is not a condition precedent to inclusion of accounts 
and demands on the comptroller's warrant. 

Jan. 20, 1964. 

Joseph Alecks, Comptroller, Commission on Administration and Finance. 

Dear Mr. Alecks: — I have your letter dated December 9, 1963 wherein 
you refer to thirteen general laws and one special act which require that 
certain accounts and demands be approved by the Governor and Council. 
Apparently, under the present practice of the Comptroller's Bureau, 
these accounts and demands must be submitted for approval by the Gov- 
ernor and Council prior to their inclusion on a warrant. If such ap- 
proval is given, a warrant for the amount owed is then made up. You have 
requested my opinion as to whether under any or all of the laws you 
have specified executive approval is a condition precedent to the inclu- 
sion of such accounts and demands on a warrant prepared by the Comp- 
troller. 

The duties of the Comptroller with respect to these accounts and de- 
mands are specified by Mass. G.L., c. 7, § 13. 

"The comptroller shall examine all accounts and demands against the 
commonwealth excepting those for the salaries of the governor and of the 



P.D. 12 167 

justices of the supreme judicial court, for the pay rolls of the executive 
council and members of the general court, and those due on account of 
the principal or interest of a public debt. . . . The comptroller shall 
make a certificate specifying the amount due and allowed on each account 
or demand so examined, the name of the person to whom such amount is 
payable, and the account to which it is chargeable; and if it appears to him 
that there are improper charges in said accounts or demands he shall re- 
port the same to the governor and council, with a separate certificate 
therefor. He shall keep copies of all such certificates and transmit the 
originals to the governor, who, with the advice and consent of the coun- 
cil, may issue his warrant to the state treasurer for the amount therein 
specified as due." 

The Comptroller may also require the submission of affidavits relative 
to the accounts or charges in question. 

The effect of the present requirement is that accounts and demands 
which must receive executive approval are actually being approved twice. 
Initial approval is given upon submission of the vouchers to the Governor 
and Council prior to their inclusion on a warrant. After a warrant is 
drawn, which warrant contains the Comptroller's certificate described in 
c. 7, § 13, it must be signed by the Governor. Thus, in effect, the matter 
in the warrant is approved once again before it is transmitted to the 
Treasurer as an authorization for payment. 

I find nothing in c. 7, § 13, or in any of the statutes specified in your 
letter, which requires such double approval. The certificate provided for 
in c. 7, § 13 is not a separate document; it is placed directly upon the 
warrant itself. Therefore, if the certificate is to be submitted to the Gov- 
ernor and Council, it follows that the warrant on which the certificate is 
to appear must be in existence. If approval is forthcoming, it is then a 
simple matter for the Governor to sign the warrant, and for payment to 
be made. 

Nothing indicates that executive approval must precede preparation 
of the warrant. Such a requirement is not necessary in order to ascertain 
the validity of the charge since the Comptroller is authorized to require 
the submission of affidavits. Only delay results from postponing the war- 
rant's preparation. Therefore, it is my opinion that executive approval 
is not a condition precedent to inclusion of accounts and demands on the 
Comptroller's warrant. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Land-taking Procedures of the Massachusetts Turnpike Authority. 

Jan. 28, 1964. 
William S. Callahan, Chairman, Massachusetts Turnpike Authority. 

Re: Land-Taking Procedures — Massachusetts Turnpike Authority. 

Dear Chairman Callahan: — The Chief of the Eminent Domain Divi- 
sion of this Department has informed me that representatives of the Mas- 
sachusetts Turnpike Authority have met with him and a member of his 
staff in response to my letter to you of December 27, 1963 on the above 
subject. 

As a result of that conference, it has been concluded that certain of 
the administrative procedures of the present land-taking routine of the 



168 P.D. 12 

Massachusetts Turnpike Authority appear to be in compliance with exist- 
ing law. However, at the same conference it became evident that present 
interpretations by members of the legal staff of the Authority of Sec- 
tions 6 and 8A of Chapter 79 of the General Laws of the Commonwealth 
are not consistent with the opinions of this Department. It is my under- 
standing that requests for formal opinions concerning the specific appli- 
cation to the present procedures of the Authority of those sections of 
Chapter 79 will be forthcoming shortly. The issue in connection with 
Section 6 of Chapter 79 is the relationship which the language thereof 
has to the common law of trespass. Clarification of certain specific lan- 
guage of Section 8A appears to be necessary to bring a portion of the 
land-taking procedures of the Authority into conformity with the law. 

Your representatives have informed this Department that it is the 
practice of the Authority to base all pro tanto payments upon the local 
assessment of the property by local authorities for real estate tax purposes. 
When the amounts of pro tanto payments are being established, no recog- 
nition apparently is given to the appraisals made on behalf of the Au- 
thority to determine fair market value at the time that property is taken 
by eminent domain. If that information is correct, the Authority must, 
as the taking agency, determine if the local assessment does in fact equal 
the fair market value of the property. When it exercises the sovereign 
power of eminent domain it is not appropriate for the Authority in any 
administrative acts connected with such a taking and compensation there- 
for to rely upon the valuation placed upon the same property by another 
local agency for local tax purposes. It is my opinion that such conduct 
does not fulfill the requirement set forth in Paragraph (2) of the ad- 
ministrative action set forth in my letter to you of December 27, 1963. 
In short, pro tanto payments by the Massachusetts Turnpike Authority 
should be based upon a realistic award of damages determined by ac- 
cepted appraisal principles. I trust that appropriate administrative action 
will be taken immediately to make certain that this opinion is reflected 
in the disposition of all presently-pending and future requests for pro 
tanto payments by property owners from the Massachusetts Turnpike Au- 
thority. 

It had been expected by this Department that the requests for opinions 
concerning the interpretations of Sections 6 and 8A of Chapter 79 re- 
ferred to above would have been received at a much earlier date. How- 
ever, in order to expedite the revision of the land-taking procedures of 
the Massachusetts Turnpike Authority with the existing laws of the Com- 
monwealth, this letter is being written to you in the expectation that ap- 
propritae responses will be forthcoming promptly. In that connection, 
your attention is respectfully invited to the fact that as yet there has 
been no compliance by your staff with the following sentence in the fifth 
paragraph on page 2 of my letter of December 27, 1963: "To avoid any 
misunderstanding, it would be appreciated if you would immediately di- 
rect the appropriate member of your staff to forward a list to this office 
of the property and former owners thereof which will be affected by pro- 
cedural reform number two because payment has not yet been made in 
accordance with the law which requires that administrative change." 

Very truly yours, 

Edward W. Brookf, Attorney General. 



P.D. 12 169 

Code 100:906 of the Rides and Regulations of the Group Insurance 
Comm. does not conform, with the intent of the Legislature in adopt- 
ing section 9 of Chapter 30 A. 

Jan. 30, 1964. 

Theodore W. Fabisak, Chairman, Group Insurance Commission. 

Dear Mr. Fabisak: — In your letter of January 8, 1964, you have asked 

m\ opinion as to whether Code 100:906 of the Rules and Regulations of 
the Group Insurance Commission satisfies the requirements of Chapter 
30A, section 9? 

Along with your letter you have forwarded to this office a copy of the 
Rules and Regulations as adopted by the Group Insurance Commission. 
Code 100:906 appears on page sixty of this publication and is quoted here 
in the form which it appears there. 

Code 100:906 Where an employee challenges the decision of the Com- 
mission, he may file an appeal to the Commission for 
a review in accordance with the Administrative Proce- 
dure Act. (c. 30A of G.L.) 

Chapter 30A, section 9 of the General Laws provides that "each agency 
shall adopt regulations governing the procedures prescribed by this chap- 
ter". The meaning of this provision is that each administrative tribunal 
must adopt parliamentary rules for conducting hearings under this chap- 
ter. It Avould, for example, be proper to adopt appropriate rules such as 
are found in Roberts' Rules of Order. 

Any rules or regulations must, however, be complete and clear. They 
may not merely paraphrase the provisions of this chapter. This was clearly 
pointed out by Mr. Justice Whittemore speaking for the court in Harris v. 
Board of Registration in Chiropody, 343 Mass. 536 (1962). 

The regulations adopted do little more than paraphrase the require- 
ments of G.L., c. 30A, §11. They appear scarcely adequate to serve the 
purposes contemplated by the statute. It does not appear, however, that 
Harris was deprived of any right, or was prejudiced, because of their in- 
significance. [343 Mass. 536 at 539] 

It is the purpose of these rules to supplement but not to conflict with the 
provisions of Chapter 30A. 

By the adoption of the Administrative Procedure Act and the incor- 
poration of this statute into the General Laws of the Commonwealth, the 
Legislature provided a concrete and knowledgable procedural guide for 
both agency and litigant to follow. A litigant, however, would be less ac- 
quainted with those supplementary rules adopted by an agency in accord- 
ance with G.L. c. 30A, § 9. It is only fair that he be apprised of these 
rules. For this reason the rules must be set down and properly promul- 
gated under section 3 of Chapter 30A. 

Once a party has had a hearing before an administrative agency, 
the appellate procedure to be followed in review of that proceeding is 
specifically outlined in G.L., c. 30A, § 14. Under the provisions of this 
section an aggrieved party makes his appeal to the judiciary. Any appel- 
late jurisdiction enjoyed by an administrative agency would be found un- 
der the authority of the statute establishing that agency. No agency has 
been given additional appellate jurisdiction by the adoption of the Ad- 
ministrative Procedure Act. 



170 P.D. 12 

In light of what has been stated in this opinion, I am sure that the 
Group Insurance Commission will be able to adopt a set of rules and 
regulations in accordance with G.L., c. 30A, § 9. For this purpose I am 
enclosing a copy of some rules which you might consider. As Code 100: 
906 presently stands, it is my opinion that it does not conform with the 
intent of the Legislature in adopting section 9 of Chapter 30A. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A person having a full and complete pardon, having previously been 
convicted and sentenced for certain felonies is legally entitled to con- 
sideration for the position of police officer. 

Jan. 31, 1964. 

Hon. W. Henry Finnegan, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether or not the pro- 
visions of G.L., c. 41, § 96A, wherein it is provided that, 
"No person who has been convicted of any felony shall be appointed as a 
police officer of a city, town or district", 

is applicable to the case of one Cornelius J. O'Handley who you state re- 
ceived a full and complete pardon on August 20, 1958, having previously 
been convicted and sentenced for certain felonies as outlined in your 
letter. 

It is my opinion that the clause to which you refer in Article VIII of the 
Constitution of Massachusetts, to wit: 

". . . if the offence is a felony the general court shall have power to pre- 
scribe the terms and conditions upon which a pardon may be granted; 
but no character of pardon, granted by the governor, with advice of the 
council before conviction, shall avoid the party pleading the same, not- 
withstanding any general or particular expressions contained therein, de- 
scriptive of the offence or offences intended to be pardoned." 
is not applicable in this instance. 

An examination of the Constitution of Massachusetts reflects that this 
additional proviso referred to above was adopted in 1944 and permits the 
General Court to prescribe the terms and conditions upon which a par- 
don may be granted by the governor. However, it is obvious that as to 
the pardon granted to Mr. O'Handley no terms or conditions were im- 
posed by the Legislature in the pardon which Mr. O'Handley received. 

It has been held in the case of ///. Central Railroad v. Boszoorth, 133 
U.S. 83, 103: 

"In the opinion of the court in the case of Ex parte Garland. 4 Wall. 
333, 380, the effect of a pardon is stated as follows, to wit: 'A pardon 
reaches both the punishment prescribed for the offence and the quilt of 
the offender; and. when the pardon is full, it releases the punishment and 
blots out of existence the quilt, so that in the eye of the laic the offender 
is as innocent as if he had never committed the offence. If granted before 
conviction, it prevents any of the penalties and disablities consequent 
upon conviction from attaching; if granted after conviction, it removes 



P.D. 12 171 

the penalties and disabilities, and restores him to all his civil rights; it 
makes him as it were a new man, and gives him a new credit and capacity. 
There is only this limitation to its operation: it does not restore offices 
forfeited, or property or interests vested in others in consequence of the 
conviction and judgment.' " (Emphasis supplied.) 

Accordingly, it is my opinion that Mr. O'Handley is legally entitled to 
consideration for the position of police officer. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Parole Board does not have the authority to continue under supervision 
an individual whose original commitment is invalid. 

Jan. 31, 1964. 

Cornelius J. Twomey, Chairman, Parole Board. 

Dear Sir: — You have asked my opinion as to whether or not the Pa- 
role Board has the authority to continue under supervision the case of 
one John W. Glynn, whom you state was committed as a sexually dan- 
gerous person to the then branch treatment center at Walpole on Decem- 
ber 20, 1957, for the crimes of unnatural act and indecent assault and 
battery. You have further stated that the Parole Board, having received 
a recommendation by Dr. Leon Shapiro that said person was "sexually 
dangerous" but not physically dangerous, granted a parole permit on the 
term sentence from the branch treatment center. 

In view of the decision of the Supreme Judicial Court in the case of 
Commonwealth v. Page, 339 Mass. 313, wherein it was held that the 
commitment of a person to a penal institution was invalid where it ap- 
peared that the treatment center had not actually been established, it 
is my opinion that the original commitment of John W. Glynn is in- 
valid under the reasoning of said decision and that the Parole Board 
does not have the authority to continue supervision over said John W. 
Glynn. It necessarily follows that the permit granted by your Board is 
invalid and, therefore, your Board is powerless to effect the same so as to 
return the person to a branch treatment center. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Feb. 3, 1964. 

The Right Reverend Monseigneur Francis J. Lally, Chairman, Boston 
Redevelopment Authority. 

Dear Mr. Chairman: — Enclosed for your information is a copy of 
a letter recently sent to the Massachusetts Department of Public Works 
concerning certain aspects of its procedures for the taking of land by 
eminent domain and outlining the necessary corrective action. 



172 P.D. 12 

Since this office does not represent the Boston Redevelopment Author- 
ity, I have little first-hand knowledge of its administrative procedures. 
I have been advised, however, that these procedures are similar in some 
respects to those of the Department of Public Works. 

Land takings made by the Boston Redevelopment Authority are, of 
course, subject to the requirements of Chapter 79 of the General Laws 
and of the Constitution of the Commonwealth to the same extent as 
takings made by state agencies. The scale on which the Authority oper- 
ates is obviously such that any non-compliance with the land-taking laws 
on its part could work a hardship on a substantial number of people. 

It is therefore respectfully requested that you review the procedures 
of the Authority in terms of the enclosed letter in order to determine 
whether or not these procedures are in compliance with the law as stated 
therein. Please have particular attention directed to the following aspects 
of those land-taking procedures of the Authority: 

(1) Are all appraisals and title searches regarding land taken by the 
Authority completed before the adoption of an order of taking? 

(2) Is a realistic award of damages, based upon accepted appraisal 
principals, made upon the adoption of each order of taking? 

(3) Is notice of any taking sent promptly to all owners of the prop- 
erty taken, including all mortgages of record? 

(4) Are all administrative preliminaries necessary to the payment of 
damages completed promptly after the taking to permit the issuance and 
delivery of damage checks without unreasonable delay? 

As stated in the enclosed letter, an affirmative answer to these ques- 
tions is, in my opinion, the minimal requirement, for compliance with 
the law. To the extent that any of them cannot now be answered in the 
affirmative, it is my hope that you will immediately direct the commence- 
ment of appropriate administrative reform and that all land takings by 
the Boston Redevelopment Authority be suspended until such reform 
has been completed. 

It would be greatly appreciated if you would furnish me within thirty 
days of the date of this letter the answers to the questions set out above. 
At the same time, please advise me of any administrative action taken 
or to be taken which those answers may indicate to be necessary. 

I am certain that you share my desire to assure full protection of the 
rights of all citizens affected by any action taken by the Boston Redevel- 
opment Authority. To that end I am confident that I can depend on 
the prompt and wholehearted cooperation of you and your staff. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Feb. 3, 1964. 
Robert F. Murphy, Commissioner, Metropolitan District Commission. 
Re: Land-Taking Procedures, Metropolitan District Commission. 

Dear Sir: — Your letter of January 27, 1964 on the land-taking proce- 
dures of the Metropolitan District Commission was apparently based on 
a misunderstanding of my previous letter to you on the same subject 
dated December 27, 1963. The purpose of the earlier letter was to call 



P.D. 12 173 

your attention to certain violations of law in the land-taking procedures 
of the Commission so that prompt corrective action could be taken. Your 
reply appears to omit any reference to action taken or to be taken and 
denies that any such action is necessary. However, please be assured that 
serious legal problems do exist in land-taking procedures of the Com- 
mission. Denial of their existence appears to serve no useful purpose. 

In your letter of January 27, 1961 you wrote: ". . . that none of the 
land-taking procedures of the Commission violates the law in any man- 
ner". Were that my opinion, of course my letter of December 27, 1963 on 
this subject would not have been written. 

Your letter goes on to state that the Commission must comply with 
any legislative mandate to make land takings and that "no department 
can abrogate the dictates of the Legislature." With that opinion I agree. 
However, if you intended to imply that the measures outlined in my 
letter of December 27, 1963 are somehow in derogation of any legislative 
mandate, misunderstanding has again arisen. The Legislature has pre- 
scribed certain procedures for the taking of land by eminent domain in 
Chapter 79 of the General Laws. The opinions expressed in my letter 
were based on said Chapter 79 and on the Constitution of the Common- 
weal ih as interpreted by our Courts. Far from abrogating any legislative 
direction the letter of December 27, 1963 was written to assist you in 
executing that mandate. One of the principle duties of the Department 
of the Attorney General is to advise on and assure compliance with the 
laws of the Commonwealth by the departments and agencies of the Com- 
monwealth. 

Your letter of January 27, 1964 also suggests that the land-taking pro- 
cedures of the Commission are not actually as represented in my previous 
letter. Your attention is respectfully invited to the matters of record in 
support of my letter of December 27, 1963. An examination of all orders 
of taking filed by the Commission during 1963 in the Registries of Deeds 
for Suffolk County and for the Southern District of Middlesex County, 
involving well over 200 parcels of land, discloses that damages in every 
case were awarded in the sum of $1.00. As stated in my letter of Decem- 
ber 27, this practice of making nominal awards is, in my opinion, a clear 
violation of Section 6 of Chapter 79. You wrote on January 27, 1964 
that in no instance have the courts indicated that this violates the law. 
However, the Supreme Judicial Court of the Commonwealth has de- 
scribed it as ". . . an obvious disregard of the legislative purpose ... to 
obtain an award of just compensation by fair initial administrative ac- 
tion." (Newton Girl Scout Council v. Mass. Turnpike Authority, 335 
Mass. 189 at 190, note 2.) 

The experience of this Department has also been that the Commission 
rarely if ever makes its appraisals until after land has been taken. Since 
an appraisal is essential to a realistic award of damages, it follows that 
an appraisal must be made before a taking if Section 6 of Chapter 79 
is to be observed. Hence, the Commission violates the law whenever it 
fails to do this. I am mindful of the difficulties involved in appraising 
takings of temporary and permanent easements noted in your letter. The 
Legislature has decreed, however, that damages must be awarded upon 
adoption of an order of taking. 

Of the parcels of land described in the orders of taking recorded by 
the Commission in 1963, the owner is listed as "unknown" in over 15 



174 P.D. 12 

per cent of the cases. Your statement, ". . . notices have been sent prompt- 
ly . . ." in all instances appears to be in error. The root of the trouble, 
of course, is the fact that the Commission does not make its title searches 
until after a taking. It is inevitable under such a procedure that the 
owners of many interests in land taken, particularly mortgagees, will 
remain undisclosed until well after they should be notified of the taking 
— even in cases where ownership of the underlying fee is known. Such 
failure to notify all owners, including all mortgagees of record, is a vio- 
lation of the plain language of Section 8 of Chapter 79 of the General 
Laws. 

Finally, it has been our experience that long delays in the payment of 
land damages by the Commission are the rule rather than the exception. 
This doubtless results from the Commission's failure to make timely 
appraisals and title searches. I might add that even after completion of 
the Commission's title searches, many of them have been found to contain 
serious discrepancies, with the result that damage payments have been 
delayed still further. The Constitution of the Commonwealth, and per- 
haps even that of the United States, require reasonably prompt compen- 
sation for land taken. It can hardly be denied that the delay in payments 
by the Commission for land taken is, at least in some cases, unreasonable 
and therefore in violation of this Constitutional mandate. 

Thus, it is clear that the Metropolitan District Commission, though 
doubtless with the best of intentions, has in fact been violating the law. 
If you are correct in your belief that no one has questioned the validity 
of takings so made, perhaps the reason is that the landowner, as a prac- 
tical matter, has no effective means of doing so. To the extent that this 
is true it is even more important that the Attorney General invoke such 
remedies as are available to him to assure compliance with the land-taking 
laws by all public agencies. 

However, the question of a previous challenge of these practices is not 
relevant. The point is that certain of the Commission's practices do not 
comply with the law and that something must be done about it. While 
there are obvious difficulties involved in making the necessary revisions 
in the Commission's procedures, I trust that these difficulties involved 
will ultimately be surmounted and compliance with the law obtained. 
Until this occurs, I must respectfully insist, as I did on December 27, 
that the Commission make no further takings of land. 

In addition, I respectfully renew by request that you advise me at once 
of the action taken or to be taken to carry out the provisions of this letter 
and that of December 27, 1963, and that you direct a member of your 
staff to forward to this office the list of properties and owners referred to 
on page 2 of my earlier letter. To that end, I suggest that a representa- 
tive of the Commission arrange an appointment with the Chief of the 
Eminent Domain Division of this Department to discuss this matter in 
full. Representatives of the other state agencies have already done that. 
Those conferences have, I believe, been fruitful in all cases. You may 
be assured of prompt and full cooperation by this Department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 175 

Work having been done by a contractor in accordance with the instruc- 
tions of the D.P.W. and there being no negligence, no liability would 
rest with him. However, if a company was negligent it is responsible 
for damages suffered as a result. 

Feb. 6, 1964. 

James D. Fitzgerald, Commissioner, Department of Public Works. 

Dear Commissioner: — You request my opinion, by letter of January 
2, 1964, as to who is liable and responsible due to an error made in lay- 
ing out the control for bridge construction of Robin Hill Road on the 
Berlin-Hudson-Marlboro project. You state that the bridge was con- 
structed using incorrect lines which were furnished to the contractor from 
information prepared by a survey party under separate contract. It is 
estimated that it will cost about $25,000 to correct this error. 

From your communication there seems to be no doubt that the error 
was committed by the survey party and that there was no apparent neg- 
ligence on the part of the contractor. 

A contractor who adheres to the contract specifications and directions 
of the engineer is not liable for errors or damages, but rather is entitled 
to compensation for the cost of correcting the error. See Campanella & 
Cardi Construction v. Commonwealth, 239 Mass. 231. In this case a resi- 
dent engineer had improperly staked out an area to be excavated. By 
the time the error was discovered it cost the contractor $5,000 extra to 
do additional excavating. The court held that the contractor was entitled 
to an extra for this work. 

"It was a misconstruction of the contract which the contractor on the 
facts found was bound to accept. . . . The right of an engineer to alter 
the work does not mean that an interpretation binding on the contractor 
can be changed with impunity after the contractor has acted on the 
interpretation supplied." Campanella, Supra, at p. 236. 

In the case of New England Foundation Co., Inc. v. Commonwealth, 
327 Mass. 587 the Supreme Judicial Court held that a contractor who 
drove a number of piles at the direction of the engineer of the awarding 
authority according to an approved, contract-specified formula was enti- 
tled to collect as an extra for additional piles ordered by the authority 
when it discovered that the prescribed formula did not produce the proper 
result of 20 tons per pile. The court used the following language in its 
finding: 

"The construction of a written instrument to be adopted is the one 
which appears to be in accord with justice and common sense and the 
probable intention of the parties. . . . The courts always avoid, if pos- 
sible, any construction of a contract that is unreasonable or inequitable." 
N. E. Foundation, p. 596. 

In the case of M. DeMatteo Construction Co. v. Commonwealth, 338 
Mass. 568, the court ruled that the contractor was entitled to the cost 
of repairing a span which fell because of improper design. 

"The petitioner was required to follow strictly and without deviation, 
unless expressly authorized, the plans and specifications submitted to it 
by the respondent. It was obligated to accept the plans, any redesigns 
of them, any new plans, and any alterations of existing plans, and to do 
the work 'under the direction, supervision, and general control of the 



176 P-D. 12 

respondent's officers'. The petitioner built the viaduct under the direc- 
tion, supervision, and general control of the respondent in compliance 
with every requirement set forth in the plans and specifications. It did 
so skillfully, proficiently, and competently. No lack of skill, inattention, 
incompetence, or negligence in the performance of the work can be 
attributed to the petitioner. The collapse of span 15 was attributable, 
not to the quality of the work of the petitioner or to the materials fur- 
nished by it, but to the instability of the structure due to an error in its 
design. There was negligence on the part of the consulting engineers 
acting on behalf of the respondent. . . ." (Emphasis supplied.) 

M. DeMaitco Construction Co. v. Commonwealth, 338 Mass. 568, 574. 
See also Benjamin Foster Co. v. Commonwealth, 318 Mass. 190. 

A contractor who, without negligence, followed specifications and di- 
rections of the engineer is not liable even to third parties. Murray Realty 
Inc. v. Berke Moore Company, 175 N. E. 2d 366; Opinion of Attorney 
General to Department of Public Works, dated October 27, 1949. 

From the decisions in the above-referred to cases, which are analogous 
to the question you propose, it is my opinion that the work having been 
done by the contractor in accordance with the instructions of your de- 
partment, and there being no negligence on behalf of the contractor in 
the performance of his work, no liability would rest upon him. 

Concerning your second question, whether or not the private survey 
company should be held liable for the cost due to this error, the same 
principles apply as discussed above. If the survey company was negligent 
or actually has committed an error as you state, then it is responsible 
for any damage suffered or to be suffered by the Commonwealth and 
should be so notified. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



In light of action of the Legislature a local Housing Authority could 
not legally accept the provisions of the "Veterans Retirement Law". 
(G.L. c. 32, §§ 56-60.) 

Feb. 7, 1964. 

Mr. Robert M. DeGregorio, Temporary Chairman, State Housing 

Board. 

Dear Sir: — In your letter of January 14, 1964, you have asked my 
opinion as to whether a local Housing Authority could legally accept 
the provisions of G.L. c. 32, §§ 56 through 60, more commonly known 
as the "Veterans Retirement Law". You have further asked my opinion 
concerning questions raised by a local Housing Authority pertaining to 
the interpretation of these sections. 

By St. 1946, c. 574, § 1 the Legislature enacted a comprehensive "Hous- 
ing Law" for the purpose of eliminating blighted areas and to provide 
vitally needed low cost housing. Under this statute, now G.L. c. 121, 
S8 261 to 26NN, the administration of this project is shared by the State 
Housing Board and the local Housing Authorities. 



P.D. 12 177 

The State Housing Board is an agency of the Commonwealth created 
by authority of G.L. c. 6, § 64. The local Housing Authorities are formed 
under the "Housing Law" and are defined in G.L. c. 121, § 26 J as "a 
public body politic and corporate created pursuant to section twenty- 
six K or corresponding provisions of earlier laws". 

The formation of the local Housing Authority is dependent not upon 
a state agency but is left to the judgment of the local community. In 
making this determination the cities and towns must appraise their own 
situation and arrive at a decision which is best suited to their own needs. 
Once having decided that a local Authority is necessary, appropriate 
action must be taken by the council and mayor of a city or in a town 
by the town meeting. 

General Laws c. 121, § 26 K provides: 

"Whenever the city council of a city, with the approval of the mayor, 
or a town, at an annual meeting or a special town meeting called there- 
for, determines that a housing authority is needed therein for the purpose 
of the clearance of sub-standard, decadent or blighted open areas or the 
provision of housing for families or elderly persons of low income or 
engaging in a land assembly and redevelopment project, it may by vote 
provide for the organization of such an authority. On determining the 
need for a housing authority, the city council or the town shall take into 
consideration the need for relieving congestion of population, the exist- 
ence of sub-standard, decadent or blighted open areas or unsanitary or 
unsafe inhabited dwellings, and the shortage of safe or sanitary dwell- 
ings available for families or elderly persons of low income at rentals 
which they can afford." 

The membership of the Authority reflects the legislative intent that 
the local Housing Authorities be closely allied to the community in 
which it functions. Four of the members of the Authority must be ap- 
pointed and can only be removed by the local community. Onlv one of 
the members is appointed by the State Board. (G.L. c. 121, §§ 26L, 26M.) 

Having selected the members of the local Authority, certain other 
employees may become necessary for the efficient operation of the local 
Authority. The local Housing Authority is authorized by statute to 
emplov personnel essential to the needs of the Authority. Where possible, 
however, the Authority is to make full use of the services available to it 
in the city or town in which it is located. 

General Laws, c. 121, § 26N provides: 

"A housing authority shall elect from among its members a chairman 
and a vice-chairman, and may employ counsel, an executive director who 
shall be ex-officio secretary of the housing authority, a treasurer who 
may be a member of the authority and such other officers, agents and 
employees as it deems necessary or proper, and shall determine their 
qualifications, duties and compensation, and may delegate to one or 
more of its members, agents or employees such powers and duties as it 
deems necessary or proper for the carrying out of any action determined 
upon by it. So far as practicable, a housing authority shall make use of 
the services of the agencies, officers and employees of the city or town 
in which such an authority is organized and such city or town shall, if 
requested, make available such services." 



178 P.D. 12 

Once acting in the capacity of a local Housing Authority, the Author- 
ity and its employees are, though closely allied with the city or town 
where located, not agents or employees of that city or town. Nor are 
they employees of the Commonwealth. They are members or employees 
of the corporate entity established under G.L. c. 121, § 26K and desig- 
nated as the local Housing Authority. Any rights which they may enjoy 
arise from their relationship to the local Housing Authority. 

"The statutes establishing housing authorities make it plain that such 
an authority, although organized by and in each city and town in coop- 
eration with the State, is nevertheless, when organized, a complete cor- 
porate entity in itself, distinct from the municipal corporation within 
whose territory it is set up, and exercising its powers in its own independ- 
ent right ... It is an instrumentality of government, but it is also a 
corporation having the contracting powers of a corporation and suable as 
such 'in the same manner as a private corporation'." [Johnson-Foster 
Company v. D'Amore Construction Co., 314 Mass. 416, 419 (1943) fol- 
lowed in Clinton Housing Authority v. Finance Committee of Clinton, 
329 Mass. 495, 499 (1952)0 

Chapter 32, §§ 1 through 28 of the General Laws provide for certain 
persons a comprehensive contributory retirement system. The coverage 
of these sections is extended only to those public bodies designated in 
§ 28 and similar to the "Housing Law", only after they have signified 
their acceptance of these provisions. 

Under § 28 of c. 32, Housing authorities are authorized to accept only 
those benefits included within §§ 1 through 28 of this chapter, and only 
then after fulfilling certain formal requirements. 

General Laws c. 32, § 28 provides: 

" (5) (a) Any housing authority established under the provisions of 
section twenty-six L of chapter one hundred and twenty-one, and any 
redevelopment authority established under the provisions of section 
twenty-six QQ of said chapter, may provide retirement benefits for its 
employees if such authority by a vote duly recorded shall accept sections 
one to twenty-eight, inclusive, as far as applicable. A duly attested copy 
of such vote shall be filed by the clerk of the authority, or other person 
performing like duties, in the office of the commissioner of insurance 
within thirty days after such vote. The commissioner of insurance shall, 
within fifteen days after the receipt of such attested copy, issue a cer- 
tificate to be sent to such clerk or person in such authority, to the effect 
that such sections shall become operative for the employees of such au- 
thority on the first day of January or on the first day of Julv, whichever 
first occurs, next following the expiration of three months after the 
date of such certificate; provided, however, that in the case of a redevel- 
opment authority established in a city or town having a housing authority 
which has accepted the provisions of sections one to twenty-eight, inclu- 
sive, said certificate shall be to the effect that such sections shall become 
operative for the employees of such redevelopment authority upon the 
receipt of such certificate. The commissioner shall also notify the county 
commissioners, the mayor or the board of selectmen, and the retirement 
board of such county, city or town, as the case may be, within which 
such authority lies, of the acceptance of such sections by the authority 



P.D. 12 179 

and of the date as of which such sections will become operative for its 
employees." 

No authorization is given under this section to accept any other pro- 
visions of the "Retirement Law". Nor can any such authority be found 
in those provisions of the "Retirement Law" more familiarly known as 
the "Veterans Retirement Law". 

The "Veterans Retirement Law" is the popular name for §§ 56 through 
60 of c. 32. These sections provide certain added benefits for some but 
not all veterans of the Spanish and World Wars. Those towns, munici- 
palities, and other governmental units empowered to accept the provi- 
sions of the "Veterans Retirement Law" are set forth in G.L. c. 32, § 60: 

"Sections fifty-six to fifty-nine, inclusive, shall, notwithstanding the 
provisions of any general or special law relating to retirement allow- 
ances, be in effect in any county, city, town or district which accepted 
them or accepted corresponding provisions of law prior to January first, 
nineteen hundred and forty-six, by the retiring authority. 

"No veteran whose employment first begins after June thirtieth, nine- 
teen hundred and thirty-nine, shall be subject to the provisions of sections 
fifty-six to fifty-nine, inclusive; nor shall any veteran whose employment 
first began on or before said June thirtieth be subject to said provisions 
unless at the time of his retirement the total period of his creditable 
service is at least equal to twice the time he was not in the employ of 
the commonwealth or of a county, city, town or district subsequent to 
the date when his employment by the commonwealth or by a county, 
city, town or district first began." 

In drafting this section the Legislature employed the same technique 
as that used in drafting G.L. c. 32, § 28. Those authorized to accept the 
various provisions of the "Retirement Law" are specifically named. Un- 
like G.L. c. 32, § 28, however, Housing Authorities are not included 
within G.L. c. 32, § 60 and are not authorized to accept the provisions 
of the "Veterans Retirement Law". Any purported acceptance of these 
provisions of the "Retirement Law" by a Housing Authority would be 
without statutory authority and by necessity a nullity. 

Recently the Legislature reviewed the provisions of G.L. c. 32, § 60. 
By St. 1961, c. 297 the Legislature revised the provisions of this section. 
This revision, however, did not enlarge the category of those empowered 
to accept the provisions of the "Veterans Retirement Law". The same 
categories were maintained. The amendment merely extended the time 
in which a community already authorized might accept this law. 

St. 1961, c. 297: 

"Notwithstanding the limitation contained in the first paragraph of 
section sixty of chapter thirty-two of the General Laws, sections fifty-six 
to fifty-nine, inclusive, of said chapter thirty-two shall be in effect in 
any county, city, town or district which accepts said sections prior to 
January first, nineteen hundred and sixty-three, by majority vote of the 
county commissioners, by the mayor, by majority vote of the selectmen, 
or by majority vote of the prudential committee, as the case may be." 

It cannot be assumed that the Legislature was mistaken in drafting 
these statutes in this manner. Such an assumption would be without legal 
basis. On the contrary, the legislative purpose was well planned and 
succinctly stated in G.L. c. 121, 1 26P. 



180 P-D. 12 

"A housing authority shall have all the powers necessary or convenient 
to carry out and effectuate the purposes and provisions of the Housing 
Authority Law, including clearing sub-standard, decadent or blighted 
open areas, engaging in land assembly and redevelopment projects and 
providing housing for families of low income. . . ." 

The local Housing Authorities, its members and employees, are en- 
trusted with the duty of carrying out this purpose. Funds appropriated 
by the Legislature under this statute are to be used to eliminate sub- 
standard areas and to provide low cost housing. Any other use of these 
monies would materially deviate from this purpose. 

In light of the action taken by the Legislature, it is my opinion that a 
local Housing Authority could not legally accept the provisions of the 
"Veterans Retirement Law" (G.L. c. 32, §§ 56-60). This being the case, 
any questions of interpretation arising under these sections which have 
been raised by a local Housing Authority would be inappropriate at 
this time. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Department of Education may seek information concerning the color 
of students to the extent the questions relate to education and are 
relevant to the duties of the Commissioner. 

Feb. 10, 1964. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have requested my opinion on certain matters, which 
I shall set forth and answer seriatim. 

1. Under Chapter 72, section 2 of the General Laws of Massachusetts 
or any other section, may the Department seek information concerning 
color of students between five and sixteen and all other minors over six- 
teen who do not meet the requirements for the completion of the sixth 
grade of public schools of the towns where they reside? 

Unlike the Fair Housing and Fair Employment Practices Laws, G. L. 
c. 15 IB, §§ 4 (3), 4 (6), the Fair Educational Practices Law, G. L. c. 15 1C, 
§ 2, does not prohibit the making of a record of the color of a student 
"in connection with" his enrollment. Section 2 (c) of the Fair Educational 
Practices Law prescribes only the making of inquiries concerning color 
of persons "seeking admission". Students in the public school system are 
not "seeking admission" within the meaning of the statute. A child has 
a right to an education through high school, and the town has the obli- 
gation to furnish such an education. See G. L. c. 71, §§ 1, 4, 6; c. 76, 
§§ 5-15. Unlike private institutions, the public schools have no discre- 
tion in their admission policies. No subtle forms of discrimination in the 
processing of applications, which § 2 (c) attempts to eliminate, can be 
effected by the public school through the type of inquiry which ques- 
tion 1 suggests. If, however, such information were used by the Depart- 
ment or School Committee to segregate or discriminate, then such action 
would be illegal and unconstitutional. See G. L. c. 71, § 5; Brown v. 
Board of Education, 347 U. S. 483. 



P.D. 12 181 

It then becomes necessary to determine whether the Department or 
the Commissioner has the power to insist that such information be re- 
quested. Section 2 of chapter 72 provides, as follows: 

"The school committee of each town shall ascertain and record the 
names, ages and such other information as may be required by the de- 
partment of education, of all minors residing therein between five and 
sixteen, and of all minors over sixteen who do not meet the require- 
ments for the completion of the sixth grade of the public schools of the 
town where he resides. Whoever, in control of any such minor, withholds 
information sought by a school committee or its agents under this section 
or makes a false statement relative thereto, shall be punished by a fine 
of not more than fifty dollars. Supervisors of attendance, under the direc- 
tion of the committee and superintendent of schools, shall have charge 
of the records required by this section, shall be responsible for their 
completeness and accuracy, and shall receive the cooperation of prin- 
cipals, teachers and supervisory officers in the discharge of their duties 
hereunder. A card, as prescribed by the department, shall be kept for 
every child whose name is recorded hereunder. Supervisors of attendance 
shall compare the names of children enrolled in the public and private 
schools with the names of those recorded as required herein, and examine 
carefully into all cases where children of school age are not enrolled in, 
and attending school, as required by section one of chapter seventy-six. 

"The annual school committee report shall set forth the number of 
children recorded as herein required, classified by ages, together with the 
number attending public or private schools, and the number not attend- 
ing school, in any given year. 

"The supervisory officers of all private schools shall, within thirty days 
after the enrolment or registration of any child of compulsory school 
age, report his name, age and residence to the superintendent of schools 
of the town where the child resides; and whenever a child withdraws 
from a private school, such officers shall, within ten days, notify said 
superintendent." 

The primary purposes of section 2 are to provide a means of deter- 
mining the extent to which there has been compliance with the com- 
pulsory school attendance laws, G. L. c. 76, § 1, and to determine the 
relative percentages of children of customary school age who attend 
public, private or no schools. Records are kept of all residents within 
the specified age limits, whether they attend public school, private school 
or no school. The statute allows the Department latitude to require addi- 
tional information, but the scope of the Department's power in this 
regard could not be broader than is the policy of section 2. Accordingly, 
were the information to be acquired reasonably related to a study of 
school attendance, within the limits of the policies of section 2, then 
the Department may properly insist that it be collected and submitted. 
This might be the case, for example, if information were requested by 
which the Department could determine the relative degrees of compliance 
of the various racial groups with the school attendance laws, or by which 
it could determine the extent to which various groups utilized the public 
school system, or pursued courses leading to higher education. 

Substantially greater latitude to elicit such information is granted the 
Commissioner under section 3. This section deals with school returns 



182 P.D. 12 

and reports. Its scope is much greater than is that of section 2. Its pur- 
pose is to assist the Commissioner in the performance of his duties "in 
accordance with section one of chapter sixty-nine", and the Commissioner 
may require any relevant information to that end. Under that section 
the Commissioner is charged with the general responsibility to evaluate 
and collect knowledge of the public and other educational systems, and 
to promote the best interests of education in the Commonwealth, with 
both public and private groups: 

"The commissioner of education shall have supervision of all educa- 
tional work supported in whole or in part by the commonwealth. He 
shall collect and distribute information as to the condition and effi- 
ciency of the public schools and other means of popular education and 
the best methods of instruction; shall suggest improvements in the present 
system of public schools to the general court; shall visit as often as 
practicable different parts of the commonwealth for the purpose of arous- 
ing and guiding public sentiment in relation to the practical interests 
of education; shall collect in his office such school books, apparatus, maps 
and charts as may be desirable; shall receive and arrange in his office 
the reports and returns of the school committees; and shall receive, pre- 
serve or distribute the state documents relative to the public school 
system. He shall give sufficient notice of and attend such meetings, con- 
ferences and conventions of teachers of public schools as may be held 
under his direction, and meetings of members of school committees and 
of friends of education generally, and shall collect information relative 
to the condition of the public schools, the performance of their duties 
by school committees, and the condition of the towns in regard to teachers, 
pupils, books, apparatus and methods of education." 

The Commissioner has the usual wide latitude of administrative dis- 
cretion to effectuate these vague, enormously difficult but equally impor- 
tant objectives. Accordingly, to the extent the information requested will 
be of assistance to the Commissioner in the discharge of his duties, it 
must be furnished. 

2. If the answer is in the affirmative, would the earliest time which 
this could be accomplished be as of October 1, 1964, with the information 
to be collected during the first two weeks of said October and with the 
superintendent of schools transmitting the information to this Depart- 
ment on or before July 31, 1965, as contained in Chapter 72, section 3 
of the General Laws? 

The information may be requested, subject to the qualification set 
forth below, at any time prior to July 1, when the forms for the school 
returns must be furnished under section 1. The Commissioner could not, 
of course, request the information at such time or under such circum- 
stances that the Superintendent could not comply by July 31, the time 
at which the returns are due under section 3. The requirement of sub- 
section first of section 3, however, that certain statistics be compiled in 
the first two weeks of October, does not preclude collection at a later 
date of the information to which your request refers. The purposes of 
subsection First and of your request in no sense are parallel or mutually 
exclusive. Similarly, there is no prohibition in section 2 to the collection 
of such information aTany time during the year when it may be obtained. 



P.D. 12 183 

3. If this information can be requested immediately or at an earlier 
date, is there any legal obligation on the part of the school committee 
to submit said information other than specied in Chapter 72, sections 2 
and 3? 

I have set forth in the previous answers the circumstances under which 
the Committee or Superintendent, as the case may be, is obligated to 
supply such information. 

4. If a question on color may be asked, may it be asked of those stu- 
dents who have reached the age of sixteen and have completed the re- 
quirements of the sixth grade; and if it may be asked, is there any legal 
obligation for the local school committees to submit this information? 

Questions concerning such persons cannot be requested under section 
2, which is expressly limited in applicability. To the extent the questions 
relate to education and are relevant to the jurisdiction and duties of 
the Commissioner under section 1 of chapter 69, as set forth above, they 
may be asked and must be answered. 

5. If it is legal to seek information as to color of the students, should 
the information be acquired by having the students bring home a form 
to be completed or may it be done by head count by each teacher? 

It is the duty of the Superintendent or School Committee to collect the 
requested information. These agencies would necessarily have substantial 
discretion to determine the best way to gather the data. I would not pre- 
sume to express an opinion on how that discretion ought to be exercised. 
Undoubtedly, the means ultimately selected will depend upon the precise 
questions submitted. To the extent such information is requested under 
section 2, persons in control of minors are subject to criminal liability 
for withholding or giving false information. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



In regards to the boycott of public schools in Massachusetts on Febru- 
ary 26, 1964, the absence from school is unlawful, if not excused as 
a necessary one and it is the responsibility of the local school com- 
mittee to formulate and enforce programs to effectuate school at- 
tendance laws. 

Feb. 10. 1964. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have propounded to me the following questions: 

"In connection with the proposed boycott of public schools in Massa- 
chusetts on February 26, 1964, or any other regularly scheduled school 
day, I would appreciate being advised on the following questions: 

1. Is it lawful for a child to be absent from public school on such 
a day? 

2. If the answer is in the negative, what legal remedies are available 
to enforce compliance with the statutes? 



184 P.D. 12 

3. Upon whom does the responsibility rest to enforce such legal rem- 
edies?" 

The so-called "boycott" to which you refer is a plan by which parents 
on the day in question will keep their children absent from public schools 
as a form of protest against alleged injustices in one or more local school 
systems, and against alleged inadequacy in the methods by which those 
public officials with jurisdiction to do so have undertaken to remedy the 
said injustices. 

For the purposes of this opinion, I assume that the absentee children 
to whom the questions relate would otherwise attend school, will remain 
absent solely for the reasons set forth above, and are between the ages of 
7 and 16. 

The school attendance laws constitute an important part of a statutory 
scheme designed to implement and effectuate the principles enunciated 
in Part 2, Chapter 5, Section 2 of the Constitution, which reads as follows: 

Wisdom and knowledge, as well as virtue, diffused generally among 
the body of the people, being necessary for the preservation of their 
rights and liberties; and as these depend on spreading the opportunities 
and advantages of education in the various parts of the country, and 
among the different orders of the people, it shall be the duty of legisla- 
tures and magistrates, in all future periods of this commonwealth, to 
cherish the interests of literature and the sciences, and all seminaries of 
them; especially the university at Cambridge, public schools and gram- 
mar schools in the towns; to encourage private societies and public 
institutions, rewards and immunities, for the promotion of agriculture, 
arts, sciences, commerce, trades, manufactures, and a natural history of 
the country; to countenance and inculcate the principles of humanity 
and general benevolences, public and private charity, industry and fru- 
gality, honesty and punctuality in their dealings; sincerity, good humor, 
and all social affections, and generous sentiments among the people. 

The antecedents of this constitutional provision reach back to the earli- 
est days of the Massachusetts Bay Colony. "The colonial act of 1647 re- 
quired each town containing fifty householders to maintain a school in 
which the children should be taught to read and write, and each town 
containing one hundred householders to set up a grammar school, with 
a master able to instruct youth so far that they might be fitted for the 
university. . . . Thus they laid the foundation of a system which . . . 
has always retained its fundamental character and purpose. It provided 
free education in the elementary branches of learning to the children 
of every town. . . ." Jenkins v. Andover, 103 Mass. 94, 97; see also Cush- 
i?ig v. Nexvbnryport, 10 Mete. 508, 511. 

The dependence of a free and vital society upon an aware, concerned 
populace, and the importance of universal education to the creation and 
maintenance of such a popidace, cannot be gainsaid. The fact that uni- 
versal education was espoused in the Constitution illustrates its impor- 
tance to the organizers of the constitutional government. By the enact- 
men of section 2, universal education was established as a permanent 
aspiration of society. 

Chapters 76 and 77 are designed to assure that this aspiration be real- 
ized. Section 1 of chapter 76 provides in part as follows: 

"Every child between seven and sixteen (except children between four- 
teen and sixteen who meet certain requirements) . . . shall, subjet to 



P.D. 12 185 

section 15, attend a public day school in said town, or some other day 
school approved by the school committee, during the entire time the 
public schools are in session . . . but such attendance shall not be re- 
quired of a child whose physical or mental condition is such as to render 
attendance inexpedient or impracticable or of a child granted an em- 
ployment permit by the superintendent of schools when such superin- 
tendent determines that the welfare of such child will be better served 
through the granting of such permit, or of a child who is being other- 
wise instructed in a manner improved in advance by the superintendent 
or the school committee. The superintendent, or teachers in so far as 
authorized by him or by the school committee, may excuse cases of neces- 
sary absence for other causes not exceeding seven day sessions or four- 
teen half day sessions in any period of six months. Absences may also 
be permitted for religious education at such times as the school com- 
mittee may establish." 

The basic policy which the section clearly and unequivocally sets forth 
is that all children must attend an approved school for a specified period 
of time. The Legislature was not content merely to make public educa- 
tional facilities available to those who might desire to use them. Be- 
cause of the inextricable relationship between the child's education and 
his whole social, cultural and intellectual development and of the impor- 
tance of a sound development to the Commonwealth, then notwithstand- 
ing the intimate concern of the parent with the upbringing of his child, 
even conscientious religious objections to the public school curriculum 
will not justify the parent's ignoring the mandate of section 1. Common- 
wealth v. Renfrew, 332 Mass. 492. Similarly, the parent whose child is 
refused admission to school under section 15 because he has not been 
vaccinated, cannot defend against a criminal prosecution under section 2 
on the basis of religious objections to vaccination. Commonwealth v. 
Childs, 299 Mass. 367; Commonwealth v. Green, 268 Mass. 585. The 
General Court has withdrawn from the parent all discretion to raise 
his child without a public education or one approved by the school 
committee. 

The exceptions which are set forth in the statute fortify, rather than 
extenuate, the rigor of this primary policy. Many situations, some fore- 
seeable, but many not, must inevitably arise to cause pupils to be absent 
from school. Yet the statute sets forth only one cause, physical or mental 
impairment, which can justify absence as a matter of right, and even 
when the child is so excused, the parent must take all reasonable steps 
to correct the condition or provide alternate education. 

"No physical or mental condition capable of correction, or rendering 
the child a fit subject for special instruction at public charge in institu- 
tions other than public day schools, shall avail as a defence unless it 
appears that the defendant has employed all reasonable measures for 
the correction of the condition and the suitable instruction of the child." 
G. L. c. 76, § 2. 

The supervision and control of all other absences which can be author- 
ized under the statute, is vested in the local school administrators. Thus 
employment permits may be granted only with the permission of the 
superintendent; private education must be approved by the superintend- 
ent or school committee; and such released time for religious training 
as is allowable under the statute is nonetheless subject to the approval 



186 P.D. 12 

of the school committee. The only provision in the statute authorizing 
absence other than for a specified reason is for "necessary" causes. The 
local administrators have the jurisdiction to determine both what is a 
"necessary" absence, and when such an absence ought to be excused. 

The statute recognizes that if parents were given the discretion to 
remove their children from school for reasons deemed by them to be 
adequate, there could be no uniform policy governing absences. The 
administrators would lose a great deal of the control over the opera- 
tions of the schools which they now possess. Ultimately such a system 
would seriously devitalize the basic statutory policy to which I have 
referred: that the education of youth does not depend upon the pleasure 
of the parent, but is required by command of the Commonwealth. Ac- 
cordingly, the grant of total discretion in the public school officials was 
deliberately done in order to assure uniformity in policy and adminis- 
tration of the school attendance laws. 

The policy of section 1 admits of no construction which would author- 
ize the absences to which you refer, if not excused as a necessary absence 
by the local authorities. Nor does section 2, which reads in relevant part 
as follows, provide to the contrary: 

"Every person in control of a child described in the preceding section 
shall cause him to attend school as therein required, and, if he fails so 
to do for seven days session or fourteen half day sessions within any 
period of six months, he shall, on complaint by a supervisor of attend- 
ance, be punished by a fine of not more than twenty dollars. . . . The 
Boston juvenile court shall have jurisdiction, concurrent with the munici- 
pal court of the city of Boston, of complaints hereunder. Complaints 
hereunder brought in other district courts shall be heard in the juvenile 
sessions thereof." 

The first part of the sentence defines the duty of the parent. The 
second only sets forth the circumstances under which the parent will 
be criminally liable. The criminal law is but one weapon in the legal 
armory; and is reserved only to punish those whose conduct offends 
minimal social standards. The General Court simply determined that 
the person in loco parentis (but not the interloper, see section 4) ought 
not be held criminally responsible for keeping out his child for a short 
period of time. This does not vitiate his duty to comply with section 1, 
and his failure to do so is an appropriate subject for inquiry by the 
supervisor of attendance. See G. L. c. 77, § 13. 

Accordingly, it is my considered judgment that the absence to which 
your question relates is unlawful, if not excused as a necessary absence 
in the manner specified in section 1. 

The final two questions may be answered together. As I mentioned 
above, the primary responsibility for the formulation of uniform policies 
under section 1 rests with the local school committee. Indeed, section 1 
is merely a part of the whole statutory scheme which vests the school 
committee with plenary administrative responsibility for the conduct of 
the local school system. See, e.g., G. L. c. 71, § 37; Barnard v. Shelburne, 
216 Mass. 19. The administrative and executive functions of section 1 
are so inextricably intertwined, that it is not surprising that the General 
Court explicitly mandated that both be under the jurisdiction of the 
same agency — the local school committee. After setting forth the sub- 
stantive provisions referred to above, section 1 continues: 



P.D. 12 187 

"The school committee of each town will provide for and enforce the 
school attendance of all children actually residing therein in accordance 
herewith." 

In addition to the administrative powers thereby conferred, chapter 77, 
section 12 requires the school committee to "appoint, make regulations 
governing and fix the compensation of one or more supervisors of attend- 
ance." The supervisors of attendance must inquire into all cases arising 
under section 1 of chapter 76, may "apprehend and take to school without 
a warrant any truants or absentees found wandering in the streets or 
public places," and may serve process issued by the juvenile or district 
court which has judicial jurisdiction over all offenses under section 1 
of chapter 76. G. L. c. 77, §§ 11, 13. 

To the extent that absenteeism is a problem involving the youth or his 
parent, it deserves to be handled by an agency with substantial flexibility 
and expertise, which can fashion and enforce a highly individualized 
remedy. The statute seeks to have these problems treated in the first 
instance by the school committee, which has the closest, continuing rela- 
tionship with the problem and the pupils, and then by the juvenile 
court, and district courts, which have special competence in problems 
relating to juveniles. G. L. c. 76, § 2; c. 77, § 11. It is, therefore, my 
considered judgment that the statutes confer upon the school committee 
the primary power, responsibility, and means by which to formulate 
and enforce programs to effectuate the school attendance laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



An appointing authority would not be compelled to reemploy the same 
employee if his name is again submitted to fill the same position 
he had, been properly discharged from. 

Feb. 13, 1964. 
Alfred L. Frechette, M.D., Commissioner of Public Health, Department 

of Public Health. 

Dear Commissioner Frechette: — In your letter of January 28, 1964, 
you have asked my opinion concerning whether an appointing author- 
ity after dismissing an employee under G.L. c. 31, § 20D is compelled 
to reemploy that same employee if his name is again submitted by the 
Director of the Department of Civil Service to fill the same or a similar 
position. 

The Legislature has specifically provided that there shall be a pro- 
bationary period of six months before an employee of the Commonwealth 
becomes a permanent member of the Civil Service. 

G.L. c. 31, § 20D 

Except as otherwise expressly provided in this chapter or in section 
thirty-six of chapter forty-eight, no person shall be regarded as holding 
office or employment until he has been appointed to a permanent posi- 
tion in the official or labor service and has actually performed the duties 
of the office or position thereof for a probationary period of six months. 
There shall be no increase in pay or change in duties of any such office 



188 P.D. 12 

or position during such a period without the approval of the director. 
If any such increase in pay or change in duties is made during such a 
period without such approval, the director may cancel and declare void 
the certification under which the appointment was made, and thereupon 
the employment of the person so appointed shall cease. 

If the conduct or capacity of a person serving a probationary period 
under an appointment in the official service or labor service, or the char- 
acter or quality of the work performed by him, is not satisfactory to 
the appointing authority, he may, at any time after such person has 
served thirty days and prior to the end of such probationary period, 
give such person a written notice to that effect, stating in detail the 
particulars where in his conduct or capacity or the character or quality 
of his work is not satisfactory, whereupon his service shall terminate. 
The appointing authority shall at the same time send a copy of such 
notice to the director. In default of such a notice, the appointment of 
such person shall become permanent upon the termination of such period. 

The purpose of this provision is to provide a period in which the 
appointing authority shall at the same time send a copy of such notice 
to the director. In default of such a notice, the appointment of such 
person shall become permanent upon the termination of such period. 

The purpose of this provision is to provide a period in which the 
appointing authority may observe whether the employee is qualified 
to perform those duties assigned to him. After demonstrating his com- 
petence during this probationary period, the employee then enjoys those 
privileges and benefits consonant with Civil Service status. 

If, however, during the probationary period, the employee performs 
his duties in an unsatisfactory manner and demonstrates that he lacks 
the requisite qualifications for the position to which he has been assigned, 
the appointing authority may discharge him immediately. The appoint- 
ing authority does not have to follow the procedure outlined in G.L. 
c. 31, § 43 for the dismissal of a permanent member of the Civil Service. 

Section 20D superseded Rule 18 of the civil service rules, which read, 
"no person appointed in the official or labor division shall be regarded 
as holding office or employment in the classified public service until he 
has served a probationary period of six months." This was a valid rule 
under the statute (G.L. [Ter. Ed.] c. 31, § 3, as amended), and during 
the period of probation established by it the appointee might be dis- 
charged otherwise required by G.L. (Ter. Ed.) c. 31, § 43, as amended. 
Scott v. Manager of State Airport, Hanscom Field, 336 Mass. 372, 375. 
376 (1957). 

This does not mean that the former appointee's employment relation- 
ship as a prospective permanent member of the Civil Service is com- 
pletely severed. The Civil Service Rules provide that, after the employee 
is discharged during the probationary period, his name may be again 
placed on the eligible list from which he was originally selected by the 
appointing authority. 

Civil Service Rules Rule 10 

2. Any person whose appointment has been legally made or author- 
ized from the eligible list under the civil service rules, and whose service 
has been terminated without fault or delinquency on his part during 
the probationary period, may, upon his request, made at any time during 



P.D. 12 189 

which the eligible list from which he was appointed is in existence, have 
his name restored to the said eligible list for the remainder of the period 
of the eligibility of the list. 

It is conceivable that when the discharged employee is returned to the 
eligible list, his would be the only name appearing on that list. When 
the appointing authority makes a new requisition for a list from which 
to make a new appointment to the vacancy, he would find that the only 
person appearing on that list was the appointee he had just discharged. 

A similar situation would occur when the employee discharged was 
the only disabled veteran on the list. Under the provisions of G.L. c. 31, 
§ 23 a disabled veteran enjoys preference over any other person appear- 
ing on that list. 

G.L. c. 31, § 23 

The names of persons who pass examinations for appointment to any 
position classified under the civil service shall be placed upon the eligible 
lists in the following order: 

(1) Disabled veterans as defined in section twenty-three A, in the order 
of their respective standing. ... A disabled veteran shall be appointed 
and employed in preference to all other persons, including veterans. 

In both these situations the appointing authority would be faced with 
the possibility of having to reemploy an appointee whom he had found 
during the prior probationary period to have been unsatisfactory. This 
would be disruptive of departmental efficiency and morale. Further, it 
would lead to an intolerable impasse where reappointment would lead 
to subsequent discharge and reassignment to the eligible list. 

It was certainly not the intent of the Legislature to allow the Civil 
Service Law and Rules to be used to create and perpetuate such an im- 
possible situation. Such would be the case, however, if it were incumbent 
upon the appointing authority to reemploy an appointee after he had 
demonstrated his incapacity to do his assigned duties. 

It is the purpose of the Civil Service Law and Rules to facilitate the 
orderly and systematic administration of government. To achieve this 
purpose the Civil Service provisions must be read as a harmonious whole 
without giving unmerited emphasis to any one section. 

The legislative intent is to be ascertained from the statutes as a whole, 
giving to every section, clause and word such force and effect as are 
reasonably practical to the end that, as far as possible, the statute will 
constitute a consistent and harmonious whole, capable of producing a 
rational result consonant with common sense and sound judgment. . . . 
Haines v. Town Manager of Mansfield, 320 Mass. 140, 142 (1946). 

Only in this way can this purpose be implemented in the daily oper- 
ations of government. 

Having this in mind, it is my opinion that an appointing authority 
would not, under the circumstances discussed in this opinion, be com- 
pelled to reemploy the same employee if his name is again submitted 
by the Director of the Department of Civil Service to fill the same or a 
similar position after he had been properly discharged under the provi- 
sions of G.L. c. 31, § 20D. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



190 P.D. 12 

It is the duty of the Trustees of the Chelsea Soldiers' Home to adopt 
rules and regulations governing admissions to the home, however, 
any rule not reasonable or related to services which the Home is 
equipped to give would be void. 

Feb. 14, 1964. 

John L. Quigley, Commandant, Soldiers' Home. 

Dear Sir: — You have asked my opinion whether the Trustees of the 
Soldiers' Home may properly deny admission to a veteran who refuses, 
because of religious convictions, to consent in advance to blood trans- 
fusions in connection with surgery for which he seeks admission. 

As a general rule, a veteran who is domiciled in the Commonwealth 
is entitled to admission to the Soldiers' Home. G. L. c. 115A, § 1. The 
Trustees do have, however, the power to adopt "reasonable rules and 
regulations governing . . . admission to" the Home and governing exclu- 
sion therefrom of persons for whose ailment or conditions there are not 
proper facilities at the Home. G. L. c. 115A, § 5. 

It may be that the success of a given type of surgery is so dependent 
on blood transfusions that refusal to consent to the transfusion for all 
practical purposes deprives the Home of "adequate facilities" to treat 
the ailment. It may also be that the quality of care which can be given 
to a veteran who consents to transfusions may be sufficiently superior to 
that which can be given to one who does not so consent to justify a rule 
or regulation giving preference in admission to the former. On the other 
hand, a rule providing that mere refusal of a veteran to sign a consent 
form, in and of itself, and in all circumstances precludes admission to 
the Home would be arbitrary and beyond the power of the Trustees 
to promulgate. 

It is my considered opinion that it is the function and duty of the 
Trustees to adopt rules and regulations, based upon reasonable stand- 
ards, governing admissions to the Home. The proper discharge of this 
duty will result in the rendition of the optimum treatment for which 
the Home was established to those eligible therefor. Any rule or regu- 
lation, however, which is not reasonable or related to the dispensation 
of those medical services which the Home is equipped to give would 
exceed the rule-making power of the Trustees and accordingly would 
be void. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Local school committees are responsible for the assignment and distri- 
bution of pupils and it is inappropriate to speculate on legal reme- 
dies available against parents, or boycott leaders causing absences 
under a hypothetical situation. 

Feb. 19, 1964. 
Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Sir: — You have propounded four additional questions on the 
proposed so-called "school boycott", for the definition of which I refer 
to my opinion to you of February 10, 1964 (hereinafter referred to as 



P.D. 12 191 

the prior opinion). You will recall that in the prior opinion I expressed 
the views (a) that pupils' absences from school in order to take part 
in the school boycott were not authorized, if not excused in the manner 
specified in G.L. c. 76, § 1; and (b) that the school committee has pri- 
mary power, responsibility and means by which to formulate and enforce 
the school attendance laws. 

The first question reads as follows: 

"Whose responsibility is it to assign and distribute pupils through- 
out the Boston school system?" 

The school committees of the various cities and towns have broad dis- 
cretionary powers under c. 71, § 37 of the General Laws, to effectuate 
the purposes of the General Laws relating to public education. See gen- 
erally, Doxrd v. Dover, 334 Mass. 23; Davis v. School Committee of Som- 
erville, 307 Mass. 354; Rinaldo v. Dreyer, 294 Mass. 167; Carr v. Dighton, 
229 Mass. 304. Under § 37, the School Committee is specifically author- 
ized to "make regulations as to attendance" in the public schools. See 
also G. L. c. 76, § 5. The assignment of pupils in the various schools 
throughout the city clearly is essential to the proper functioning of the 
school system. Over a hundred years ago, the Supreme Judicial Court, 
through Chief Justice Shaw, held: "The power of general superintend- 
ence vests a plenary authority in the committee to arrange, classify, and 
distribute pupils, in such a manner as they (the school committee) think 
best adapted to their general proficiency and welfare." Roberts v. Boston, 
5 Cush. 198, 208. Although there are now limitations on the scope of 
the committee's discretion which did not exist at the time Roberts was 
decided, see G. L. c. 76, § 5; Brown v. Board of Education, 347 U.S. 483, 
it is my considered judgment that subject to these limitations, the School 
Committee of the City of Boston is responsible for the assignment and 
distribution of pupils throughout the Boston School System. 

In the next three questions, you ask what legal action, if any, may 
be taken against children who remain absent from school pursuant to 
the boycott, their parents who authorize such absences, and the "leaders" 
of the boycott. 

In the prior opinion, I pointed out that the Legislature had vested 
in the school committee the basic responsibility for formulating and 
executing policies for the enforcement of the school attendance laws. 
G.L. c. 76, § 1. The Committee is the agency with the flexibility neces- 
sary for the task; and it is the agency with continuing responsibility for 
the conduct of all phases of the school system. The whole spectrum of 
administrative remedies, including that which would require the pupil 
to make up the work which he missed by virtue of his absence, is avail- 
able to the committee. Heavy reliance, in my judgment, was placed by 
the General Court, on the resourceful and imaginative exercise of such 
remedies by the school committee. Pupils who might become distracted 
on the way to school and are "wandering in the streets or public places" 
are not to be taken by police to court; they are to be taken by school 
committee employees to school. G.L. c. 77, § 13. It should be fairly obvious 
that these employees must be sure that those whom they so apprehend 
in fact were trviant and must be taken to the appropriate school. To be 
sure, § 1 1 of c. 77 vests jurisdiction of "offences arising under section one 
of chapter seventy-six" in the district courts and Boston Juvenile Court. 
I think it unnecessary for the purposes of this opinion for me to deter- 



192 P.D. 12 

mine whether an absence pursuant to the boycott would constitute an 
"offence" within the meaning of § 11 under one or more of the various 
fact situations which could arise in that context. Resort to the courts 
against a child ought to be the last resort, after all available adminis- 
trative remedies have failed. All reported expressions from those public 
officials who are concerned with the boycott have disclaimed any dispo- 
sition to institute such court proceedings; and there is no indication that 
the arsenal of administrative remedies is in any way inadequate to cope 
with the problem. It would therefore be inappropriate for me to speculate 
on what legal remedies might be available or utilized against any child 
in a hypothetical situation. 

Under § 2 of c. 76, a person in control of a child is required affirma- 
tively to insure the child's attendance in school. Such a person must do 
more than merely refrain from encouraging truancy; he must "cause him 
(the child) to attend school" as required in § 1. Myriad reasons could 
cause an occasional parental failure to discharge this duty. Administra- 
tive remedies can be invoked which would require the pupil to make up 
the studies which he missed during his absence. The General Court 
determined that the parent ought not be held criminally liable for an 
isolated default in the requirements of section 2. Persistent failure to 
enforce such attendance, however, indicates a serious disregard by the 
parent of his legal responsibilites, justifying the imposition of criminal 
sanctions. The General Court determined that there was not such a 
disregard until the child has missed seven days or fourteen half-day 
sessions in a six month period. Section 2 of c. 76 provides in part as follows: 

"Every person in control of a child described in the preceding section 
shall cause him to attend school as therein required, and, if he fails so 
to do for seven days session or fourteen half-day sessions within any period 
of six months, he shall, on complaint by a supervisor of attendance, be 
punished by a fine of not more than twenty dollars." 

A person who is not in control of such a child should be and is treated 
separately by our statutes. Such a person has no primary duties com- 
parable to those set forth in § 2. He has no responsibility for the child's 
development comparable in any way to that of the person in control. 
The person in loco parentis, must accommodate himself for about ten 
years to a compulsory school year of at least 160 days, in which he has 
minimal discretion over absences of his child. G.L. c. 71, § 1; c. 76, §§ 1, 2. 
This fact, as I pointed out in the prior opinion, illustrates the esteem 
in which education is held in the Commonwealth. The third person is 
under no comparable compulsion. 

Section 4 of c. 76 of the General Laws provides as follows: 

"Whoever induces or attempts to induce a minor to absent himself 
unlawfully from school, or unlawfully employs him or harbors a minor 
who, while school is in session, is absent unlawfully therefrom, shall be 
punished by a fine of not more than fifty dollars." 

It could be argued that § 2 punishes only parental failures of diligence; 
and that § 4, which proscribes the affirmative act of inducement, applies 
as well to parents as to others. The word "induce", however, is not appro- 
priate to describe the actions of a parent toward his child. Further, the 
prohibitions against attempting to induce, harboring and employing, 
all in § 4, indicates that that section was designed to deal with others 



P.D. 12 193 

than the persons in control of the child. Accordingly, although the an- 
swer is not free from doubt and will not be so until the Supreme Judi- 
cial Court considers the question, it is my considered judgment that § 2 
contains the exclusive criminal remedies against the parents for violations 
of § 1. 

I have but briefly directed your attention to some applicable statutes, 
and have given summary attention to the principles upon which they 
rest. Because of the possibility that private citizens may rely upon this 
opinion as a basis of action — a possibility indicated by your reference 
to the fact that your request was prompted by a like request to you by 
interested citizens — I think it important to set forth some qualifications. 
No dogmatic or categoric answer can be given to the question of what 
legal action may be taken against those to whom you refer. A complete 
answer would require an analysis of all possible fact situations, and of 
the applicability thereof to all civil and criminal actions. Factors for 
consideration would vary widely from case to case. An analysis of the 
availability of advance injunctive relief, for example, would be almost 
completely different from one of the availability of the criminal law 
after the fact. 

The words "induces" and "harbors" are not mathematically precise. 
No definition could be devised to answer simply and mechanically all 
the problems which might arise in litigations under § 4. The attempt 
to invoke § 4 of c. 76 against persons who might have talked directly to 
pupils would raise problems different from those which would be raised 
if the communications were not direct, but were by means of mass com- 
munication; and these problems would be different from those which 
would be raised if the communication was directed only to the parents. 
Whether the "leaders" of the boycott to whom your question relates 
include those who advocate a "boycott" in principle but do not partici- 
pate in its organization or execution is unclear; and whether such per- 
sons, to the extent in its organization or execution is unclear; and whether 
such persons, to the extent they do not advocate positive action, are 
"inducers", and if so, whether they are protected by the doctrine of 
Yates v. United States, 354 U.S. 298, could only be determined on a par- 
ticular set of facts. Similarly, the applicability of the recently enunciated 
doctrines in Peterson v. Greenville, 373 U.S. 244, and Shuttlesworth v. 
Birmingham, 373 U.S. 262, as defenses to any civil or criminal action 
could be determined only upon an established set of facts. 

Illustrations could be multiplied ad infinitum. Suffice it to say that the 
law is life; and all the subtleties and nuances of life are necessary to 
give content to the general principles of behavior prescribed or pro- 
scribed by the statute. Without a recitation of the particular facts of 
each case, any attempt to predict how such facts might be developed 
and what a court might decide on the basis thereof would inevitably 
be incomplete and misleading. 

I think it is important to clarify one further point. Both §§ 2 and 4 
of c. 76 describe misdemeanors. The maximum penalty under § 2 is $20., 
and under § 4, $50. G.L. c. 274, § 1. Neither section provides that vio- 
lators may be arrested without a warrant. Under long and established 
Massachusetts law, in the absence of specific statutory authority, a peace 
officer may not arrest without warrant one who has committed a mis- 
demeanor except for a misdemeanor involving a breach of the peace 



194 P.D. 12 

committed in the presence of the officer. E.g., Muniz v. Mehlman, 327 
Mass. 353. Accordingly, if no breach of the peace were being committed 
in his presence, a peace officer could not arrest without a warrant. Fur- 
ther, since the penalties for violation of both §§ 2 and 4 are fines only, 
the justice may issue a summons instead of a warrant if there is reason 
to believe the defendant will appear on the summons. G.L. c. 276, § 24. 

Very truly yours, 

Edward W. Brooke, Attorney General. 
By Edward T. Martin, 

Deputy Attorney General. 



Commissioner James D. Fitzgerald, Department of Public Works. 
Re: Riparian Rights, Northampton L.O. 5160 

March 6, 1964. 

Dear Commissioner Fitzgerald: — There has been brought to my 
attention a letter dated December 11, 1963 from your predecessor Jack 
P. Ricciardi. There is no indication on that letter that it had been 
received or processed in accordance with the routine of this Department. 
Apparently the unusual method of delivery and receipt of the letter 
resulted in it being misplaced. In any event, attached hereto is a photo 
copy of that letter. 

It is to be noted that the letter of your predecessor asks my opinion 
on the following questions: 

1. Is the Department of Public Works liable for damages to persons 
from whom no land was taken by eminent domain but who are affected 
by the construction of an equalizing culvert for the Oxbow? 

2. Should the question of the loss of use of the waters of the Oxbow 
by remaining land be taken into consideration in appraising damages 
for partial takings of land along the perimeter of the Oxbow? 

The courts of the Commonwealth of Massachusetts have declined to 
recognize the existence of any private rights in the public domain and have 
denied compensation for impairment of access resulting from the erection 
of a public work in the bed of a public stream. Thayer v. New Bedford 
Railroad, 125 Mass. 253; Home for Aged Women v. Commonwealth of 
Massachusetts, 202 Mass. 422; U.S. Gypsum Co. v. Mystic River Bridge 
Authority, 329 Mass. 130. The right of access to public waters is limited 
to access in front of upland to which that right is appurtenant. In 
states such as Massachusetts where public rights are paramount if the 
Legislature authorizes construction across the stream, riparian owners 
who are cut off from the outside world have no redress. Davidson v. 
B & M Railroad, 3 Cash 91; Blackwell v. Old Colony Railroad, 122 Mass. 
1; Thayer v. New Bedford Railroad, op cit. 

In the recent case of Michaelson v. Silver Beach Improvement Associ- 
ation, Inc., 342 Mass. 251, the Supreme Judicial Court stated in footnote 
number one at page 350: ". . nothing here is meant to impair the 
established principle that an interference with free navigation affecting 
the public as well as a particular littoral owner does not entitle the 



P.D. 12 195 

littoral owner to any individual damages because he suffers from it only 
as one of the general public, for his suffering is the same in kind as that of 
the public, although greater in degree by reason of proximity of his 
property." 

It is my opinion that the Department of Public Works is not liable 
for damages to persons from whom no land was taken by eminent domain 
but who are affected by the construction of an equalizing culvert for the 
Oxbow. 

It has been recognized that the Legislature is not limited to providing 
compensation for damages to property which an owner is entitled to re- 
ceive as a matter of Constitutional right. It may extend compensation 
to situations where the use of the power of eminent domain results in a 
real hardship to the owner of property if he were deprived of compen- 
sation. U.S. Gypsum v. Mystic River Bridge Authority, op cit; Burr v. 
Leicester, 121 Mass. 241; Watuppa Reservoir Company v. Fall River, 
134 Mass. 267. 

Section 7 of Chapter 81 of the General Laws of the Commonwealth 
provides that an owner of real estate injured by the laying out or alter- 
ation of a state highway may receive compensation for damages from the 
Commonwealth under the provisions of Chapter 79 of the General Laws. 
Section 12 of said Chapter 79 provides in part: ". . . in case only part 
of a parcel of land is taken there shall be included damages for all injury 
to the part not taken caused by the taking or by the public improvement 
for which the taking is made. . ." It is well settled in Massachusetts that 
when a part of an entire parcel is taken evidence may be introduced of 
expenses accruing from adapting the petitioner's remaining land to the 
condition in which it was left by the taking. That evidence is admissible 
not as a particular item of damage but as evidence tending to show the 
difference between the market values before and after the taking. 
Valentino v. Commonwealth, 329 Mass. 367. 

It is my opinion that the loss of use of the waters of the Oxbow by 
remaining land should be taken into consideration in appraising damages 
for partial takings of land along the perimeter of the Oxbow. 

Very truly yours, 

Edward W. Brooke, Attorney General. 
By: Edward T. Martin 

Deputy Attorney General 

Interest on damages arising from takings made under chapter 79 and on 
refunds thereof is payable at the rate of 6% per year only in cases 
where the order of taking was adopted on or after November 6, 1963, 
prior to November 6, 1963 interest shall be at 4% per year. 

March 9, 1964. 

James D. Fitzgerald, Commissioner, Department of Public Works. 

Re: Eminent Domain — Rate of Interest on Damage Awards. 

Dear Sir: — By letter dated March 6, 1964, you have requested my 
opinion on the effect of the amendments to Sections 37 and 8A of Chapter 
79 of the General Laws contained in Chapter 793 of the Acts of 1963, 



196 P.D. 12 

whereby the rate of interest payable on damages arising from takings by 
eminent domain and on refunds thereof was increased from four to six 
per cent per year. You have directed my attention specifically to the 
question of whether or not such damages and refunds subject to a four 
per cent interest rate prior to November 6, 1963, are affected by these 
amendments. 

Section 3 of said Chapter 793 provides: 

"Notwithstanding any provisions to the contrary of section thirty- 
seven of chapter seventy-nine of the General Laws as amended by section 
one of this act or of section eight A of said chapter seventy-nine as 
amended by section two of this act the provisions of said sections thirty- 
seven and eight A in effect immediately prior to the effective date of this 
act shall remain in effect with respect to interest on damages or on refunds 
thereof by reason of takings made prior to said effective date." 

It is clear from this language that the increased rate of interest does 
not apply to damages or to refunds thereof "by reason of takings made 
prior to" the effective date of the Chapter 793. Chapter 793 contains an 
emergency preamble. It was approved by the Governor on November 
6, 1963, and became effective on that date. 

There remains the question of when a "taking" occurs for purposes 
of Section 3 of Chapter 793. It is my opinion that the word "taking" as 
used in Chapter 793 means adoption of the order of taking. The word 
"taking" is used in this sense elsewhere in Chapter 79. Section 1 of said 
Chapter 79 begins: 

"The taking of real estate or of any interest therein by right of eminent 
domain may be effected in the following manner." (Emphasis added.) 
This sentence is followed by a description of how an order of taking is 
adopted. No reference is made in Section 1 of said Chapter 79 to record- 
ing, vesting of title or any of the other steps which follow adoption of 
the order. It is my opinion that under the provisions of Section 1 of 
Chapter 79 of the General Laws a "taking" is accomplished by the 
adoption of an order of taking. 

Section 7 of Chapter 79 of the General Laws of the Commonwealth 
refers to "the date when the taking is recorded". There is a distinction 
between "taking" and "recording" which designates them clearly as two 
separate and consecutive acts. 

It is my opinion that for the purposes of Chapter 793 of the Acts of 
1963 Chapter 79 of the General Laws in Section 1 and 7 establishes that 
a "taking" is accomplished by the adoption of the order of taking. 

It is my opinion that interest on damages arising from takings made 
under Chapter 79 and on refunds thereof is payable at the rate of six 
per cent per year only in cases where the order of taking was adopted on 
or after November 6, 1963, and that interest in cases where the order of 
taking was adopted prior to November 6, 1963, shall accrue and be 
computed at the rate of four per cent per annum. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 197 

Funds made available to municipalities under § 5 of C. 822 of the Acts 
of 1963 can be used for the erection of traffic lights on any road. 

March 19, 1964. 
Commissioner James D. Fitzgerald, Department of Public Works. 
Re: Chapter 822, Acts of 1963. 

Dear Commissioner Fitzgerald: — In a letter dated March 2, 1964, 
you requested my opinion on the following question: 

"Can funds available under Chapter 822 of the Acts of 1963 be used 
for the erection of traffic lights on non-Chapter 90 roads under Sections 
1 and 5 of Chapter 822?" 

Basic to the consideration of this question is Section 4 of Amendment 
LXII to the Massachusetts Constitution. 

"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." 

Sections 1 and 5 of Chapter 822 of the Acts of 1963 are those which are 
pertinent to the opinion sought by your letter. 

Said Section 1 lists the projects covered by the Act: ". . . layout, con- 
struction, reconstruction, resurfacing, relocation or improvement of high- 
ways, parkways, bridges, grade crossing eliminations and alterations of 
crossings other than grade, and for construction of needed improvements 
on other through routes not designated as state highways and without 
acceptance by the Commonwealth of responsibility for maintenance; pro- 
vided, that any portion of the sum authorized herein may be used in 
conjunction with county, city or town funds, and for traffic safety devices 
on state highways, parkways and on roads constructed under the pro- 
visions of section thirty-four of chapter ninety of the General Laws, and 
for traffic studies." 

The language of Section 1 defines the projects which the Department 
may perform as a contracting party or in conjunction with the funds of 
the municipalities. Section 4 of Amendment LXII to the Massachusetts 
Constitution limits the uses to only those which are specifically authorized 
in said Section 1. The absence of words indicating that the Department 
of Public Works may use bond issue funds for the purpose in your 
question is a vital omission and renders illegal its contracting for the 
erection of traffic lights on non-Chapter 90 roads. 

Section 5 of Chapter 822 of the Acts of 1963 authorizes the apportion- 
ment of funds among the several cities and towns. It also limits the 
uses to which the municipalities may apply those sums. It does not 
lend to any extension or enlargement of the projects, mentioned in Section 
1, which might be undertaken by the Department of Public Works as 
the contracting agency. In stating, "The sums received by each city and 
town hereunder shall be used only . . . for the erection or maintenance 
of traffic lights . . ." said Section 5 indicates permission for a particular 
use in clear, unambiguous words. Such language authorizes the munici- 
pality to expend apportioned funds for the erection or maintenance of 
traffic lights on non-Chapter 90 roads. 

It has been argued that Chapter 247 of the Acts of 1963, which amended 
Chapter 782 of the Acts of 1962 extended and enlarged the enumerated 
projects of Section 1 of that act. Careful study and analysis force the 



198 P.D. 12 

conclusion that Chapter 247 of the Acts of 1963 merely added two specific 
uses to which the municipalities might apply apportioned sums under 
Section 782. It had no reference to Section 1 of said Chapter 782 of the 
Acts of 1963. In that legislation the General Court removed all remaining 
doubt concerning payment for the erection of traffic lights on non-Chapter 
90 roads by placing such activity among the permissive uses of apportioned 
funds by the municipalities. 

It is my opinion that funds made available to municipalities under 
Section 5 of Chapter 822 of the Acts of 1963 can be used for the erection 
of traffic lights on any road. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Rule 2 of the Rulings Interpretative of the Fair Employment Practice 
Law is proper in so far as it relates to age, but is otherwise unlawful. 

March 18,1964. 
Mr. Walter H. Nolan, Executive Secretary, Massachusetts Commission. 

Dear Sir: — You have requested my opinion of the legality of Ruling 
No. 2 of the Rulings Interpretative of the Fair Employment Practice 
Law, which provides as follows: 

"Inquiries, answers to which would directly or indirectly disclose a 
person's race, color, religious creed, national origin, age or ancestry, are 
designated as unlawful practices when such inquiries are made PRIOR 
to employment unless based upon a bona fide occupational qualification. 
No restriction is placed on inquiries made AFTER employment provided 
the information obtained is not used for purposes of discrimination." 

The Commission is authorized by G. L. c. 15 IB, §§ 2, 3 (5) to promul- 
gate regulations which effectuate the policies of the chapter. The answer 
to your request depends upon whether Ruling No. 2 does effectuate any 
such policy. 

The Fair Practices Laws consider the problem of inquiries in four 
places. In three of these, relating to fair practices in bonding and insur- 
ance, housing and education, inquiries into certain matters are prohibited 
only when asked of applicants. It is, accordingly, unlawful: 

"For any person engaged in the insurance or bonding business, or his 
agent, to make any inquiry or record of any person seeking a bond or 
surety bond conditioned upon the faithful performance of his duties or 
to use any form of application, in connection with the furnishing of such 
bond, which seeks information relative to the race, color, religious creed, 
national origin or ancestry of the person to be bonded." G. L. c. 151B, 
§4 (3 A): 
for a person covered by the fair housing practices law: 

"to cause to be made any written or oral inquiry or record concerning 
the race, creed, color, national origin or national ancestry of the person 
seeking to rent or lease or buy any such accommodation or land . . . ." 
G. L. c. 151B, § 4 (7); see also id. § 4 (6): 
or for an educational institution: 



P.D. 12 199 

"To cause to be made any written or oral inquiry concerning the race, 
religion, color or national origin of a person seeking admission . . . ." 
G. L. c. 151C, §2(c). 

The Fair Employment Practice Law, however, contains broader 
language. It is an unfair employment practice: 

"For any employer or employment agency to print or circulate or cause 
to be printed or circulated any statement, advertisement or publication, 
or to use any form of application for employment or to make any inquiry 
or record in connection with employment, which expresses, directly or 
indirectly, any limitation, specification or discrimination as to race, color, 
religious creed, national origin, age or ancestry, or any intent to make 
any such limitation, specification or discrimination, or to discriminate in 
any way on the ground of race, color, religious creed, national origin, 
age, or ancestry, unless based upon a bona fide occupational qualification." 
G. L. c. 151B, §4(3). 

The use cf the language, 'in connection with employment" rather than 
"in connection with the furnishing . . ." or "seeking . . ." which are used 
in the other quoted sections cannot be assumed to have been accidental. 
It must be remembered that an inquiry of the type proscribed need not 
necessarily be discriminatory. Indeed, there are circumstances under 
which dynamic social progress requires that records be made which 
distinguish between various racial or religious groups or the like, and 
there must be inquiries to achieve this goal. The legislative prohibition 
on inquiries and records must reflect determinations that such inquiries 
themselves often evoke consciousness of difference for reasons which the 
statute's basic policy opposes; and that the dangers that those whose 
propensities are discriminatory would utilize information derived from 
the inquiries or records to work discrimination in ways too subtle easily 
to detect exceed any good which might on occasion result. It is perfectly 
within the legislative province to determine that the relative importance 
of the factors will vary among the several areas of human activity which 
are covered by the Fair Practice Laws. In my considered judgment, 
§ 4 (3) is based upon a finding, which seems credible in the light of human 
experience, that the employer-employee relationship, as opposed to those 
others to which the statutes relate, is such that the inquiries or record- 
keeping described in § 4 (3), at any time create excessive dangers and ought 
to be proscribed. 

Records concerning age are treated separately by the statutes. Sections 
24A-24J of c. 149 are not repealed by c. 151B. G. L. c. 151B, § 9. Section 
24D of c. 149 requires employers to keep "records of the ages of all 
persons employed by him." Reading together G. L. c. 151B, § 4(3) and 
G. L. c. 149, § 24D, the employer is prohibited by § 4 (3) from making 
inquiries or keeping records of the ages of applicants; but must keep 
such records of actual employees. 

For the foregoing reasons, it is my considered judgment that Rule 2 is 
a proper rule in so far as it relates to age; but is otherwise unlawful. 

Very truly yours, 

Edward W. Brooke 



200 P.D. 12 

U rider the laiu of eminent domain the Mass. Turnpike Authority has 
the power to enter upon private property for the purpose of making 
appraisals prior to the taking the practice of the Mass. Turnpike 
Authority in making pro-tonto offers does not violate the lata. 

March 19,1964. 
William F. Callahan, Chairman, Alassachusetts Turnpike Authority. 
Re: Land-Taking Procedures — Massachusetts Turnpike Authority. 

Dear Sir: — You have requested my opinion on two questions of law 
relating to the procedures followed by the Massachusetts Turnpike Au- 
thority in its exercise of the power of eminent domain: 

Question 1: "In the absence of permission being granted by the owner 
of premises, does this Authority have the right to enter upon privately 
owned land and to enter into privately owned homes, buildings and other 
structures for the purpose of making appraisals prior to the time that 
such land, homes, buildings or structures have been taken by this Au- 
thority under the law of eminent domain?" 

Question 2: "In situations where one or more owners, but less than 
all owners listed in an order of taking, request pro tanto payments, does 
the practice of this Authority in making pro tanto offers to all the owners 
listed in such order of taking violate any provision of law?" 

Any right of the Authority to enter privately owned land and buildings 
is to be found, if at all, in Chapter 354 of the Acts of 1952, creating the 
Massachusetts Turnpike Authority (Hereinafter referred to as the Turn- 
pike Act). Section 7 of the Turnpike Act, as amended by Chapter 384 
of the Acts of 1958, confers various powers on the Authority. The follow- 
ing fourth paragraph of Section 7 is pertinent to the first question you 
have raised: 

"In addition to the foregoing powers the Authority and its authorized 
agents and employees may enter upon any lands, waters and premises 
in the Commonwealth for the purpose of making surveys, soundings, 
drillings and examinations as they may deem necessary or convenient for 
the purposes of this act, and such entry shall not be deemed a trespass, 
nor shall an entry for such purposes be deemed an entry under any 
condemnation proceedings which may be then pending. The Authority 
shall make reimbursement for any actual damage resulting to such lands, 
waters and premises as a result of such activities." 

It is clear from that provision that representatives of the Authority 
have a right to "enter upon any lands, waters and premises in the 
Commonwealth" for the described purposes. It is evident that privately 
owned property is subject to that right of entry from the inclusion of the 
paragraph in the statute and particularly from the clause declaring that 
"such entry shall not be deemed a trespass." 

The acts permitted upon land so entered include the making of 
"surveys, soundings, drillings and examinations." The second sentence of 
the paragraph requiring reimbursement for damages makes it clear that 
such acts are permited even where they cause "actual damage" to the 
property. 

An appraisal is essentially an examination. It may at times involve 
surveys, soundings and drillings as well. It is difficult, if not impossible, 



P.D. 12 201 

to conceive of an appraisal requiring any act to be performed on the land 
to be taken which does not fall within one or more of those terms. 

Agents and employees of the Authority therefore have the right to 
enter private property for the purpose of making appraisals "as they 
may deem necessary or convenient for the purposes of this act." The 
"act" referred to, of course, is the Turnpike Act. Section 5 (k) thereof 
authorizes the Authority to acquire property "by the exercise of the 
power of eminent domain in accordance with the provisions of chapter 
seventy-nine of the General Laws." An appraisal is a customary condition 
precedent to awarding compensation for property taken under Chapter 
79. Such an appraisal of land to be taken or damaged by a taking is 
"necessary or convenient" to the performance of one of the lawful func- 
tions of the Authority. 

By the express terms of the statute representatives of the Authority 
may therefore enter privately owned "lands" for the purposes of making 
appraisals. 

You have also requested my opinion as to whether or not they may enter 
"privately owned homes, buildings and other structures" for the purpose 
of making appraisals. 

The authority of a public agency to enter a dwelling house without the 
consent of the owner for any purpose is an extraordinary power. It may 
not be lightly inferred. Section 7 of the Turnpike Act names three 
categories of real estate upon which such an entry may be made: "lands, 
waters and premises." That language indicates that the word "premises" 
refers to something other than mere land. The intended meaning of the 
word "premises" as used in Section 7 of the Turnpike Act must therefore 
be determined. 

While the Turnpike Act itself sheds no light on this definition except 
to establish a distinction between "premises" and "lands", other Massa- 
chusetts statutes are pertinent and helpful. Chapter 165 of the General 
Laws in Sections 10-1 ID, confers a right upon employees of water com- 
panies to enter "premises" for purposes of reading, testing and removing 
water meters. There are no reported cases construing the word as used 
in these Sections. However, it is a matter of common knowledge that 
water meters are almost invariably located inside buildings. The right 
conferred by those sections would therefore be virtually nonexistent 
unless homes and other buildings were included within the meaning of the 
w r ord "premises." 

On a number of occasions the Supreme Judicial Court has reached a 
similar conclusion about the meaning of the word "premises" as used 
in a variety of other statutes. In Doherty's Case, 294 Mass. 363, 366, the 
Court interpreted "premises" as referring to "lands or buildings" for the 
purposes of Section 18 of Chapter 152 of the General Laws relating to the 
location of injuries covered by workmen's compensation. In Attorney 
General v. /. P. Cox Advertising Agency, 298 Mass. 383, the Court as- 
sumed the same meaning for the word as used in Section 30 of Chapter 
93 of the General Laws regulating the use of outdoor advertising. In 
DePrizio v. F. W. Woolworth Co., 291 Mass. 143, 146-147, the Court held 
that liability under Section 21 of Chapter 84 of the General Laws for 
injury due to snow and ice on "premises" applied to "both land and 
buildings" and "to all snow and ice made the basis of action, whether 
inside or outside the building." 



202 P.D. 12 

Still more conclusive evidence of the intended meaning of the word 
"premises" in the Turnpike Act is found in statutes conferring a similar 
right of entry upon other agencies. The Department of Public Works is 
given such a right by Section 7F of Chapter 81 of the General Laws as 
are County Commissioners by Section 11A of Chapter 82 of the General 
Laws. In both statutes representatives of the agency are authorized to 
perform acts similar to those enumerated in Section 7 of the Turnpike 
Act. The right of entry in both applies to "lands, waters and premises." 
It is most significant, however, that in those statutes the word "premises" 
is immediately followed by the phrase, "not including buildings." The 
conclusion is inescapable that the word "premises" as used in those 
analogous statutes would have included buildings but for the specific ex- 
emption thereof. The absence of such an exemption in the fourth 
paragraph of Section 7 of the Turnpike Act must therefore be interpreted 
as an expression of a legislative intent to include homes and other build- 
ings within the scope of the word "premises." 

For the foregoing reasons it is my opinion that the answer to the first 
question you have asked is in the affirmative. 

Opinion on Question 2. 

Payments pro tanto in eminent domain procedings are governed by 
Section 8A of Chapter 79 of the General Laws. That Section provides 
in part as follows: 

"A board of officers who have made a taking under this chapter may 
at any time after the right to damages for such taking has become vested, 
and if so requested by a person entitled to damages at any time after the 
right to damages has become vested, shall before the expiration of nine 
months after the right to damages vested or, in the case of a request 
made more than three months after the right to damages vested, before 
the expiration of six months after such request, offer in writing to every 
person entitled to damages on account of such taking a reasonable amount 
which such board is willing to pay either in settlement under section 
thirty-nine of all damages for such taking, with interest thereon and tax- 
able costs, if any, or as a payment pro tanto which may be accepted and 
collected forthwith without prejudice to or waiver or surrender of any 
right to claim a larger sum by proceeding before an appropriate tribunal, 
but subject to the obligation imposed by this section to refund an 
amount equal to the difference between such payment and the damages 
subsequently assessed by such tribunal if such offer is accepted as a pay- 
ment pro tanto and such payment shall prove to be in excess of the 
damages subsequently assessed by such tribunal. At the election of the 
person accepting such offer, acceptance thereof may be either in settle- 
ment as aforesaid or such payment pro tanto . . ." 

As indicated above said Section 8 A provides that the Authority "may 
at any time after the right to damages . . . has become vested . . . offer 
in writing to every person entitled to damages ... a reasonable amount 
... in settlement ... or as a payment pro tanto. . . ." This gives the Au- 
thority broad power to make an offer pro tanto to every owner injured 
by a taking, whether or not that owner or any other owner has requested 
such an offer. Only two conditions must be met for the exercise of this 
power. 



P.D. 12 203 

The first of these conditions is that the right to damages of the owner 
to whom the offer is made "has become vested". In the case of a taking 
for highway or highway drainage purposes the right to damages for the 
taking vests when entry is made thereon. General Laws, Chapter 79, 
Section 3. To the extent that takings by the Authority are made for 
these purposes no offer of a payment pro tanto may be made to a former 
owner until entry. Such entry need not be made upon the specific land 
taken from a particular owner in order for his right to damages to become 
vested. It is sufficient that entry be made upon any part of any of the 
land included within the order of taking covering the land involved 
in a payment pro tanto. Mahan v. Town of Rockport, 287 Mass. 34, 38. 

The second condition which must be met by the Authority in order 
to comply with said Section 8A of Chapter 79 is that the offer be in "a 
reasonable amount." On the third page of your March 3, 1964 request 
for this opinion you wrote that the offers of settlement made by the Au- 
thority have been made "at figures realistically determined, consistent 
with accepted appraisal principles and practices." Offers so made fully 
comply with the requirement of "a reasonable amount." Your letter 
does not indicate, however, whether or not offers of payments pro tanto 
are made on the same basis. 

It is to be noted that the word "either" in the first sentence of said 
Section 8A of Chapter 79 follows the phrase "a reasonable amount." That 
language makes the requirement of reasonableness applicable to the offer 
pro tanto as well as the offer of settlement. The second sentence of said 
Section 8A confers upon the former owner the right to elect whether 
the amount offered shall be accepted in settlement or as an award pro 
tanto. Said Section 8A requires that the Authority shall make an offer 
in "a reasonable amount," and that the former owner may at his election 
and without in any way affecting the amount thereof accept it either in 
settlement or as an award pro tanto. 

The legality of the practice of making payments prot tanto to all 
owners listed in an order of taking upon the request of only one such 
owner therefor turns on the observance of two requirements: (1) that 
the right to damages has vested in each such owner, and (2) that each 
such payment be in "a reasonable amount." Subject to these two require- 
ments it is my opinion that the answer to your second question of March 
3, 1964 is in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The sale of advertising space in program books distributed in conjunction 
with political fund raising functions is not prohibited under Chapter 
55, §§ 6 and 7. 

March 21, 1964. 
The Honorable Francis X. Bellotti, Lieutenant Governor. 

Dear Mr. Bellotti: — I have received your letter of March 6, 1964 
relative to the effect of the so-called Corrupt Practices Act on sales of 
advertising space in program books distributed at political fund-raising 
functions. You have requested my opinion on the following question: 



204 P.D. 12 

Is the sale of advertising space in a program book to be distributed 
in conjunction with a fund-raising function, which sale would be separate 
and distinct from the sale of admission tickets to said affair, a violation of 
General Laws, Chapter 55, §§ 6 and 7? 

Massachusetts General Laws, Chapter 55, § 6 regulates receipts and 
disbursements by political comittees and political contributions by indi- 
viduals. The statute provides in part as follows: 

A political committee or a person acting under the authority or on 
behalf of such a committee may receive money or its equivalent, or expend 
or disburse or promise to expend or disburse the same for the purpose 
of aiding or promoting the success or defeat of a candidate at a primary 
or election or a political party or principle in a public election or favoring 
or opposing the adoption or rejection of a question submitted to the 
voters, and for other purposes expressly authorized by this chapter sub- 
ject, however, to the provisions thereof. Any individual may make cam- 
paign contributions to candidates or non-elected political committees 
organized on behalf of candidates; provided, that the aggregate of all 
such contributions for the benefit of any one candidate and the non- 
elected political committees organized on such candidate's behalf shall 
not exceed in any one calendar year the sum of three thousand dollars — . 
(Emphasis supplied.) 

The statute further provides that individuals may make additional 
contributions to elected political committees, non-elected committees 
organized on behalf of a political party and non-elected committees not 
organized on behalf of a candidate or political party. Any candidate may 
of course contribute as he pleases to his own campaign, as well as to non- 
elected political committees organized on his behalf. 

Massachusetts General Laws, Chapter 55, § 7 forbids most corporations 
from making political contributions, providing in part: 

... no business corporation incorporated under the laws of or doing 
business in the commonwealth and no officer or agent acting in behalf 
of any corporation mentioned in this section, shall directly or indirectly 
give, pay, expend or contribute, or promise to give, pay, expend or 
contribute, any money or other valuable thing for the purpose of aiding, 
promoting or preventing the nomination or election of any person to 
public office, or aiding, promoting or antagonizing the interests of any 
political party, or influencing or affecting the vote on any question sub- 
mitted to the voters, other than one materially affecting any of the 
property, business or assets of the corporation. . . . 

Corporations shall not be solicited to make such political contributions. 
The statute provides for the imposition of criminal penalties for vio- 
lations, as does § 6. 

It is clearly § 7 which poses the greatest challenge to the validity of 
use of an advertising program book at a political fund-raising function, 
since much, if not all, of such advertising would be purchased by busi- 
ness corporations. There is no decision of the Supreme Judicial Court 
that is helpful on the subject. Section 1 of Chapter 55 does, however, 
provide a definition of "campaign contributions" which may be of some 
assistance. The term "campaign contributions" includes, among other 
things, all "purchases from a candidate, whether through the device of 
tickets or otherwise, to the extent that the purchase price exceeds the 
fair value of the goods sold or services rendered." Apparently, therefore, 



P.D. 12 205 

candidates and political committees may lawfully accept money or other 
things of value from corporations in return for providing such corpo- 
rations with goods or services of equivalent value, including, presumably, 
advertising. 

The only other relevant authority is provided by the taxation field, 
and supports the conclusion that money paid by a corporation for goods 
or services is not to be considered a campaign contribution. In Denise 
Coal Co., 29 T. C. 528 (1957), the Tax Court considered an advertise- 
ment placed by a coal company in the program of the 1918 Philadelphia 
Democratic convention. The Internal Revenue Service claimed that this 
was in effect a political contribution, since the president of the company 
was a significant figure in Pennsylvania politics and since the advertise- 
ment itself concentrated upon the virtues of the Democratic Party rather 
than upon those of the coal company. Nevertheless, the Tax Court ruled 
that the company could properly deduct the cost of the advertisement 
as an "ordinary and necessary business expense." 

Following this decision, the Internal Revenue Service issued Revenue 
Ruling 56 — 343, which incorporates the holding of the Denise case that 
the cost of advertising in an official political program may lawfully be 
deducted. Although this Revenue Ruling is by its terms applicable only 
to national political conventions, the standards therein established are 
helpful in determining whether money has actually been spent for 
advertising as distinguished from being handed over as a campaign 
contribution. Fundamentally, the Ruling demands that the money be 
spent for business as opposed to political purposes. Value in advertising 
should be received for the amount of money paid. Admittedly, adver- 
tising value is virtually impossible to measure; but at least payments 
which are grossly disproportionate to the advertising received are elimi- 
nated. In addition, the advertising should bear a direct relation to the 
business being advertised, and should be reasonable in amount con- 
sidering the size and nature of the business, and its ordinary advertising 
practices and requirements. Likewise, the opinion in Denise suggests 
two other guidelines. It is helpful if the corporation in question or its 
agents are not identified with the candidate or his political party; and the 
advertisement should present the product being advertised rather than 
the candidate or his party. 

In light of the above, the purchase by corporations of advertising in 
political program books cannot be prohibited under Chapter 55, § 7. 
This section is a criminal statute; construction of it must be strict, and its 
effect cannot be extended by implication. 

Peabody v. Campbell, 286 Mass. 295, 304 (1934). 

Libby v. Neiu York, New Haven and Hartford Railroad, 273 Mass. 
522, 525 (1930). 

However, each case must be examined on its facts, and the standards 
set forth above should serve as guides to determine whether payments 
by corporations are to be considered as advertising expenses or as cam- 
paign contributions. 

Section 6 of the Corrupt Practices Act poses no problem if advertising 
is really being purchased, since individuals may advertise their businesses 
as readily as corporations. Individuals, however, may of course make 



206 



P.D. 12 



political contributions also, assuming that the monetary limitations 
imposed by Chapter 55, § 6 are not exceeded. 

Consequently, it is my opinion that the sale of advertising space in 
program books distributed in conjunction with political fund-raising 
functions is not prohibited under the provisions of Chapter 55, §§ 6 and 
7. If the money is truly paid for legitimate advertising, with the pur- 
chasers receiving reasonably equivalent advertising value, it is not ap- 
propriate to question the wisdom of the purchaser's selection of a political 
program book as an advertising medium. Such purchases of legitimate 
advertising cannot be said to be campaign contributions. 

Very truly yours, 

Edward W. Brooke 



The President of Lowell Technological Institute and his assistant may 
be employed by the Lowell Institute's Building Authority providing 
they devote a full work day in their present position. 

March 24,1964. 
Homer W. Bourgeois, Chairman, Lowell Technological Institute 

Building Authority 

Dear Mr. Bourgeois: — I have received your letter of February 13, 
1964 relative to the proposed employment of the President of the Institute 
and his Assistant by the Lowell Technological Institute Building Au- 
thority. You have requested an opinion relative to the legality and 
propriety of such employment. 

The President and his Assistant have served the Authority in the 
capacities of Secretary-Treasurer and Assistant Secretary-Treasurer. The 
Authority now desires to retain the services of these individuals at annual 
stipends for advisory and consulting purposes. The Authority may enter 
such employment agreements pursuant to the provisions of § 4 (k) of c. 
557 of the Acts of 1961, as amended by c. 685 of the Acts of 1963: 

"In furtherance of the purposes for which it is created, the Authority 
is hereby authorized and empowered: . . . To employ architects, consulting 
engineers, attorneys, construction, financial and other experts, superin- 
tendents, managers, and such other employees and agents as may be neces- 
sary in its judgment, and to fix their compensation; provided, that all such 
expenses shall be payable solely from funds provided under the authority 
of this act. . . ." (Emphasis supplied.) 

You have referred me to G. L. c. 75A, § 12, as amended by St. 1963, c. 
801, § 76, which provides in part that, "[t]he president shall be paid a 
salary of eighteen thousand dollars, and shall devote his full time during 
business hours to the duties of his office." Presumably, the Assistant to 
the President is subject to a similar requirement that he devote full time 
to his duties during business hours. The question arises whether this 
provision in any way limits the right of the Authority to hire the Presi- 
dent and his Assistant under St. 1961, c. 557, § 4 (k). 

That part of § 12 of c. 75 A which is at issue requires the President to 
devote full time during business hours. Presumably, the term "business 
hours" refers to an ordinary working day, perhaps from nine in the 



P.D. 12 207 

morning to five at night. There is no indication that the Legislature 
wished to restrict the President's activities at other times; had the General 
Court such a thought in mind, it would have expressed it in the statute. 
In fact, the very reference to "business hours" implies that the President 
need not devote all his energies to his statutory duties at other times. 

You have advised me that the services to be rendered the Authority 
by the President and his Assistant are to be performed outside the busi- 
ness hours of the Lowell Technological Institute. If such is the case, I find 
nothing that would prevent these officers from accepting the employment 
that has been offered them by the Lowell Technological Institute 
Building Authority. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Constitutional impedients aside there appears to be nothing in either 
Chapter 565, nor the Assurances authorizing the Commonwealth to 
exercise its right of eminent domain to purchase land or easements 
for the relocation of displaced transmission lines. A ulitity company 
may be compensated if it possesses a property right in public land. 

Malcolm E. Graf, Director and Chief Engineer Water Resources 

Commission. 

March 26 1964. 

Re: New Bedford — Fairhaven Hurricane Barrier Project Utility Re- 
locations. 

Dear Sir: — In your letter of March 11, 1964, you requested my opinion 
on the following questions arising out of the relocation of a utility trans- 
mission line: 

1) May the Commonwealth purchase an easement for the New Bedford 
Gas and Edison Light Company in the name of the Town of Fairhaven 
for relocation of a transmission line? 

2) May the Town legally turn this easement over to the New Bedford 
Gas Company? 

3) In the event that the utility company purchases the easement, may 
the Commonwealth reimburse the company for all its costs incurred in 
accordance with the project agreement between the Commonwealth and 
Corps of Engineers? 

The answer to the first question is that the Commonwealth may not 
purchase the easement in question. It appears clear that Chapter 565 of 
the Acts of 1962 and the Assurances given to the U.S. Army Corps of 
Engineers dated August 21, 1962 give the Commonwealth the authority 
to acquire all lands and easements necessary to carry out the project. 
Constitutional impediments aside there appears to be nothing in either 
said Chapter 565 nor the Assurances authorizing the Commonwealth to 
exercise its right of eminent domain to purchase land or easements for the 
purpose of relocating the transmission lines displaced. 

The answer to the first question makes it unnecessary to answer the 
second question. 



208 P.D. 12 

For the purposes of answering the third question, it is assumed that 
the land on which the utility company now has an easement is privately 
owned. It is further assumed that the existing easement is not merely a 
license or permit, but creates a property right in the utility company. 

Based on the assumptions set forth in the next preceeding paragraph, 
the answer to the third question is that the Commonwealth may reimburse 
the utility company for damages arising from the taking of the existing 
easement. One element of those damages is the cost of relocation of its 
transmission line. Payment of those damages would be in accordance 
with the project agreement with the Corps of Engineers. Your attention 
is respectfully invited to the Opinions of the Attorney General dated 
July 15, 1954, reaffirmed by the Opinion of the Attorney General dated 
February 15, 1963, copies of which are attached. 

The Opinion of the Attorney General dated July 15, 1954, is concerned 
with relocation of utility facilities which exist on public lands. The dis- 
tinction made is that the utility may be compensated if it possesses a 
property right in the public land but may not be compensated if it 
possesses only a license or permit. The same reasoning is applicable to 
the instant case where the utility line is located on private property. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Questions of the Department of Corporations and Taxation relative to 
their authority on assessment practices by city and toiun assessors. 

March 27, 1964. 
Hon. Leo H. Diehl, Commissioner of Corporations and Taxation. 

Dear Commissioner Diehl: — I have your request of December 23, 
1963, wherein you submit five questions relative to your authority on 
assessment practices by city and town assessors. 

The five specific questions are as follows: 

"1. Does the Commissioner of Corporations and Taxation have the 
authority under the General Laws of the Commonwealth to overrule a 
decision of the board of assessors of a city or town of the Commonwealth 
with respect to the assessment of an individual parcel of real estate or 
item of personal property by directing that said board of assessors assess 
such property at an amount determined by him to be the full and fair 
cash value of such property in substitution for the amount determined 
and assessed by said board of assessors upon such property? For example, 
if a board of assessors assesses a particular residential property at $5,000 
and the Commissioner of Corporations and Taxation determines that the 
full and fair cash value of such property is $15,000, does he have the au- 
thority to order said board of assessors to assess such property at $15,000? 

"2. Does the Commissioner of Corporations and Taxation have the 
authority under the General Laws of the Commonwealth to overrule a 
decision of the board of assessors of a city or town of the Commonwealth 
with respect to the total valuation of property subject to taxation in such 
city or town by directing that said board of assessors assess such aggregate 
property at an amount determined by him to be the full and fair cash 



P.D. 12 209 

value of such aggregate property in substitution for the amount de- 
termined and assessed by said board of assessors upon such aggregate 
property? For example, if through a comparison and other investigations, 
the Commissioner of Corporations and Taxation determines that a board 
of assessors is assessing the aggregate property subject to local taxation 
of a city or town at 40% of its full and fair cash value, does he have the 
authority to order said board of assessors to increase all assessments in 
that city or town two and one-half times? 

"3. What mandatory duties are imposed upon the Commissioner of 
Corporations and Taxation under the General Laws of the Common- 
wealth where he determines that a board of assessors of any city or town 
of the Commonwealth is not assessing property subject to local taxation 
of its full and fair cash value? 

"4. What powers does the Commissioner of Corporations and Taxation 
possess under the General Laws of the Commonwealth and exercisable 
in his discretion where he determines that a board of assessors of any city 
or town of the Commonwealth is not assessing property subject to local 
taxation at its full and fair cash value? 

"5. If the Commissioner of Corporations and Taxation has the au- 
thority to order or direct a board of assessors to take action in pursuance 
of his determination, what procedures or remedies are available to him if 
such board of assessors refuses to comply with such an order or direction?" 

In general, the subject of your inquiry was discussed at great length 
by the Supreme Judicial Court in Hobart v. Commissioner of Corpo- 
rations and Taxation, 311 Mass. 341, 344, where the Court said: 

"The respondent assessors are not subordinates of the respondent com- 
missioner in the sense that they are members, either as subordinate 
officers or employees, of the department of corporations and taxation, 
which is under the supervision and control of the commissioner. The 
assessors are not his agents. They are public officers selected by the mu- 
nicipalities of the Commonwealth charged by statute with the perform- 
ance of certain specified duties, and are not state officers in the ordinary 
sense of the term. . . . But in the performance of their statutory duties, 
the assessors act under the direction of the commissioner only so far as 
the power of direction is conferred upon him by statute." 

And again, at page 345, in further discussing the powers of the Com- 
missioner with regard to a letter written to the assessors the Court said: 

"At most, the duty of the commissioner with respect to matters referred 
to in this letter was to 'give his opinion' to assessors upon any question 
arising under any statute relating to the assessment and collection of 
taxes'. We assume in favor of the petitioners . . . that the advice given 
by the commissioner to the assessors by letter was given in pursuance of 
his duty to 'give his opinion'. In any event the advice so given cannot 
be regarded as in the nature of a direction to the assessors or anything 
more than an expression of his opinion upon a matter with respect to 
which the responsibility for action was on the assessors." 

The general powers of the Tax Commissioner are set forth in G. L. c. 
58, § 1, wherein he: 



210 P.D. 12 

1. May visit any town, inspect the work of the assessors, for the purpose 
of giving such information or require of them such action as will produce 
uniformity in valuation and assessments. 

2. Shall prepare such instructions to the assessors as will guide them 
in carrying out such purpose. 

3. May cause an assessor to be prosecuted for any violation of law 
relative to assessment of taxes for which a penalty is imposed. (Emphasis 
supplied.) 

4. May appear before any court or board sitting for the abatement of 
taxes. 

5. Shall give his opinion upon any question relating to the assessment 
and collection of taxes. 

The Court has held that under this section, requiring the Taxation 
Commissioner to give his opinion to a city assessor on any question re- 
lating to assessment and collection of taxes, the Commissioner's opinion 
is not an "order" or "adjudication", but it is an exercise of discretion and 
judgment. Hobart v. Commissioner of Corporations and Taxation, 311 
Mass. 341. In no way then is this to be interpreted as permitting the 
Commissioner to substitute his judgment for that of the local assessors. 
The city and town assessors, in performing their statutory duties, act 
under the direction of the Commissioner only so far as the power of 
direction is conferred on the Commissioner by statute. 

In addition to the general powers outlined in c. 58, § 1, the Tax Com- 
missioner shall provide the local assessors all the information relating to 
assessment and valuation that has come into possession of his department 
and give them any further instruction and supervision as to their duties 
as is needed to insure uniformity and equalization (§ 3); if the Tax 
Commissioner finds that property is not valued in accordance with the 
law and that such failure is due to inadequate methods of valuation, he 
shall direct the local assessors to adopt proper methods and if there is no 
compliance with these directions, he shall notify the mayor or selectmen 
with any recommendations he deems necessary or expedient (§ 4). You, 
of course, have other specific duties under c. 58 not pertinent to the 
subject of your inquiry. 

The above-cited sections of the statutes and court decisions impel the 
conclusion that the relationship between the Commissioner and local 
assessors is one of an advisory or supervisory nature without the power of 
direction except in certain "limited" situations. The assessors are inde- 
pendent public officials responsible to their respective municipal authori- 
ties and are neither subordinate to nor subject to the control of the 
Commissioner. 

The assessors, on the other hand, are subject to certain penalties: 
Failure to take oath of office (G. L. c. 41, § 29); knowingly fixing an im- 
proper valuation (G. L. c. 41, § 10); failure to keep proper valuation 
books (G. L. c. 59, §§ 46, 96); failure to compile table of aggregates and 
file same with the Tax Commissioner (G. L. c. 59, §§ 47, 94); failure to 
report facts as to omitted assessments to the Tax Commissioner (G. L. c. 
59, §8 48, 94); failure to deposit with the Commissioner a statement of 
the reasons for a diminution in aggregate valuation (G. L. c. 59, §§ 84, 
94); and failure to assess certain taxes as required by law (G. L. c. 59, 
§ 93). If the assessors fail to perform their duties under the law, the Tax 



P.D. 12 211 

Commissioner has authority to replace them. (G. L. c. 41, § 27). In none 
of these sections is the Commissioner granted the authority to enforce 
the fair and full cash value requirement of the General Laws. His powers 
are limited to the area of advice, supervision and administration. He has 
no right to substitute his judgment for that of the assessors. 

In view of the foregoing, my opinion on your five specific questions is 
as follows: 

1. The Tax Commissioner has no authority to overrule a decision of 
the board of assessors of a city or town with respect to a particular parcel 
of property, his duty being to see to it that uniformity in methods and 
procedures in valuation is maintained. 

2. For the reasons set forth in the answer to Question #1 above, the 
Commissioner does not have the authority to overrule a decision of the 
board of assessors of a city or town with respect to the total valuation of 
property within that community. However, in respect to the example 
you have submitted relative to a city or town assessing property in the 
aggregate at 40% of its full and fair cash value; it is my opinion that you 
do have the authority, and it is incumbent upon you, to direct the assessors 
to make the necessary adjustment in aggregate valuation. Upon the 
failure of the local assessors to follow your directive, you may then make 
the appropriate recommendation to the mayor or selectmen as provided 
in § 4 of c. 58 of the General Laws. 

3. When the Tax Commissioner determines that the local assessors are 
not assessing property at its full and fair cash value, and such failure is 
due to inadequate methods of record keeping concerning valuation or 
ownership of property, or due to improper use of information furnished 
them by his (Tax Commissioner's) office under the provisions of G. L. c. 
58, he shall notify them to adopt proper methods of valuation and make 
proper use of information furnished to them. Additionally, you may 
notify the mayor and/or the selectmen of the given community of such 
failure. 

4. The Tax Commissioner has the power, where he determines that 
the local assessors are not assessing property at its full and fair cash value, 
to appear before any local board sitting for the abatement of taxes. He 
also has the power to give his opinion to the local assessors or request 
the opinion of the Attorney General on any question arising out of the 
assessment and collection of taxes. 

5. If the local assessors refuse to comply with any directive of the Tax 
Commissioner, he shall notify the mayor or selectmen of such failure, with 
any recommendations which he deems expedient and necessary, or cause 
the local assessors to be prosecuted for any violation for which a penalty 
is imposed. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



212 P.D. 12 

The Governor under § 59, c. 30 of the General Laws has the power to 
suspend the Commissioner of Public Safety only if one or more of 
the counts of indictment relate to offenses involving the office of 
Commissioner. 

March 30, 1964. 

His Excellency Endicott Peabody, Governor of the Commonwealth. 

Dear Governor Peabody: — I have received your letter of March 27, 
1964, relative to the effect of G.L. C. 30, § 59, (the so-called Perry Law), 
upon Commissioner of Public Safety Frank S. Giles. You have requested 
my opinion on the following questions: 

(1) Do I have the power to suspend Commissioner Giles under Sec. 59, 
Chap. 30 of the General Laws, as amended by Chap. 829 of the Acts of 
1963, by reason of the pendency of any one or more of the count contained 
therein; and if not under said statute, do I alone or with the concurrence 
of any other body have such power by virtue of any law or statute? 

(2) May Commissioner Giles by his sole act take a voluntary leave of 
absence without pay for any extended period of time, or would such 
action to be effective require the approval of any other authority, and if 
so, which authority or authorities? 

(3) If your answer to question (1) is in the affirmative, may I exercise 
such power of suspension while Commissioner Giles is on such voluntary 
leave of absence? 

G. L. C. 30, § 59, as inserted by St. 1962, c. 798, and amended by St. 
1963, c. 829, provides in part as follows: 

An officer or employee of the Commonwealth, or of any department, 
board, commission or agency thereof, or of any Authority created by the 
General Court, may, during any period such officer or employee is under 
indictment for misconduct in such office or employment, if he was ap- 
pointed by the governor, be suspended by the governor, whether or not 
such appointment was subject to the advice or consent of the council or, 
if he was appointed by some other appointing authority, be suspended 
by such authority. (Emphasis supplied.) 

The statute further provides that the suspended official or employee is 
to receive no salary during the period of his suspension, nor is such period 
to be included in computations of sick leave, vacation benefits or seniority 
rights. The appointing authority may fill the vacated position on a 
temporary basis. If, however, criminal proceedings are terminated with- 
out a finding or verdict of guilty, the suspension is automatically removed 
and the official or employee is entitled to receive all compensation and 
bentfits that have previously been withheld. 

The statute deals with misconduct by an appointed official who is em- 
ployed by the Commonwealth. It is clearly inapplicable to elected 
officials. Likewise, it is by its terms inapplicable to offenses that have 
no relation to the office or position held by the indicted individual at the 
time the criminal acts in question allegedly were committed. The statute 
specifies misconduct in such office or employment, thus indicating it 
cannot simply be applied indiscriminately to all offenses committed by 
an individual while he is an official, or employed by the Commonwealth. 

Consequently, the provisions of the above quoted Section 59 become 
applicable for the purpose of suspending the present Commissioner of 



P.D. 12 213 

Public Safety only if one or more of the counts of the recently returned 
indictments relate to offenses involving the offi.ee of Commissioner. The 
subject matters of the indictments range in time from 1958 to 1962, before 
and during Mr. Giles' tenure as Commissioner. Indictments have been 
returned for violations of law which were committed during Mr. Giles' 
tenure as Commissioner of Public Safety, (c. 268, § 10) which section 
declares it to be a criminal offense for members of State departments to 
have an interest in Commonwealth contracts. 

Commission of the acts that have been proscribed by c. 268, § 10 
would, in my opinion, constitute misconduct by Mr. Giles while he was 
Commissioner of Public Safety. Had Mr. Giles not been an official, his 
interest in the contracts in question would clearly not have been un- 
lawful. The General Court has indicated by enacting c. 268, § 10 that 
certain behavior by public officials is improper and unlawful. Accord- 
ingly, the commission of such acts by an official such as the Commissioner 
of Public Safety must be considered misconduct involving his office. 

Therefore, in answer to your first question, I advise you that you do 
have the authority to suspend Commissioner Giles pursuant to Section 
59 of Chapter 30 of the General Laws. 

You have also asked whether Commissioner Giles could, by his sole 
act, take a voluntary leave of absence without pay — in effect a "voluntary 
suspension" — for an extended period of time. "Voluntary suspension" 
has no particular legal significance in relation to Section 59 of Chapter 30. 
Under Section 59 the determination to suspend or not to suspend lies 
with the appointing authority, in this instance with you as Governor of 
the Commonwealth. A voluntary leave of absence without pay would not 
conclusively change the status of the official here involved. Such a leave 
of absence is not contemplated by the statute. It is my opinion that you 
must consider the Commissioner's status within the express framework 
of the statute here in question. (Chapter 30, Section 59.) 

Accordingly, in answer to your second inquiry, I advise you that a 
voluntary leave of absence has no legal consequence in relation to your 
authority to suspend the Commissioner, as set forth in my answer to the 
first question you pose. It is apparent from the above that I need not 
answer the third question you pose. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



If the Metropolitan District Commission is convinced that work has actu- 
ally been performed for, or materials furnished to, prior to October 
1, 1960, they may properly certify the amounts to be paid despite the 
fact of nonconformance with competitive bidding latvs. 

March 30,1964. 

Hon. Robert F. Murphy, Commissioner, Metropolitan District 

Commission. 

Dear Commissioner Murphy: — I have received your letter of February 
7, 1964 relative to the discharging of certain moral obligations of the 
Commonwealth pursuant to c. 131 of the Resolves of 1962. You have 
requested my opinion on the following questions: 



214 P.D. 12 

"1. What is the legal definition and meaning of the words 'discharging 
certain moral obligations' under the provisions of Chapter 131? 

"2. Should certification follow if the Commission is convinced that 
there was nonconformance with the competitive bidding laws, even 
though it is convinced that the work was performed and/or the materials 
furnished as set forth in the various vouchers?" 

Apparently in several cases work has been performed or materials 
furnished without compliance with relevant competitive bidding statutes. 
Payment for such work and materials is now sought under the authority 
of the above-cited Resolve. 

Ordinarily, State construction contracts involving one thousand dollars 
or more are subject to G. L. c. 29, § 8A (as amended), which provides 
in part: 

"No officer having charge of any office, department or undertaking 
which receives a periodic appropriation from the commonwealth shall 
award any contract for the construction, reconstruction, alteration, repair 
or development at public expense of any building, road, bridge or other 
physical property if the amount involved therein is one thousand dollars 
or over, unless a notice inviting proposals therefor shall have been 
posted. . . ." 

However, certain contracts have been awarded without competitive bids 
having been invited; the work agreed upon has been completed, to the 
benefit of the Commonwealth. So that the contractors could be compen- 
sated for services rendered, the General Court enacted c. 131 of the 
Resolves of 1962. 

The Resolve in question, passed "for the purpose of discharging certain 
moral obligations of the commonwealth", authorizes payment for services 
rendered prior to October 1, 1960 after certification by the Chairman of 
the Metropolitan District Commission and examination by the State 
Auditor. 

"RESOLVED, That, for the purpose of discharging certain moral obli- 
gations of the commonwealth and subject to appropriation, there shall 
be allowed and paid out of the state treasury, for services rendered prior 
to October first, nineteen hundred and sixty, as shown by vouchers or 
claims on file with the metropolitan district commission, such amounts 
as may be certified by the chairman of the metropolitan district commis- 
sion and verified after examination by the state auditor to be the amounts 
determined to be due for said services, or work performed, or for materials 
furnished in connection with said work. . . ." 

It would be a difficult matter, and unnecessary for purposes of this 
opinion, to provide a definition of the term "moral obligation" that would 
be applicable to all situations. As the expression is used in the present 
case, "moral obligations" would appear to refer to amounts which the 
Commonwealth should pay in order to avoid unjust enrichment, yet 
which cannot be recovered by creditors by judicial proceeding. 

It is clear that the General Court intended "moral obligations", as it 
is used in c. 131 of the Resolves of 1962, to refer to the amounts owed 
contractors for work done despite failure by the Commonwealth to invite 
competitive bidding upon such projects. The Commonwealth has re- 
ceived value and the contractors have yet to be paid. I am aware that 
the bidding statute (c. 29, § 8A) has been violated, and that the con- 



P.D. 12 215 

tractors in question are legally on notice as to limitations upon the power 
of State agents to contract. However, it is apparent that the Legislature 
intended this Resolve to cure such defects. Had there been no defects 
in the contractual arrangements, a special Resolve would not have been 
necessary to ensure payment to the contractors. Under ordinary circum- 
stances, with no violations of statutory provisions, the money would 
clearly be owed, and the Commonwealth would be subject to suit. It is 
the very existence of defects in the arangements that have made the Re- 
solve necessary to authorize payment for the services and materials that 
have been provided. 

The bidding statute was enacted by the General Court, and presumably 
may be limited by that body, assuming, of course, that the Legislature 
does not simply arbitrarily suspend it for the benefit of some and not 
for others. The Resolve is directed generally to all such obligations 
incurred prior to October 1, 1960, and so could not be challenged as 
discriminatory. Consequently, should you be convinced that work has 
actually been performed for, or materials furnished to, the Metropolitan 
District Commission prior to the date specified as a cut-off in the Resolve, 
you may properly certify the amounts to be paid despite the fact of non- 
conformance with the competitive bidding laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Application of G.L., c. 127 , § 133 may be continued by the Parole Board 
in accordance with its customary practice. 

April 2, 1964. 
Mr. Cornelius J. Twomey, Chairman, Parole Board. 

Dear Mr. Twomey: — I have your letter of February 27, 1964 relative 
to the administration by the Parole Board of G.L., c. 127, § 133, which 
section governs eligibility for parole. You have informed me that the 
practice of the Parole Board is first to reduce the prisoner's sentence by 
deducting from the minimum sentence good conduct credits calculated 
pursuant to c. 127, § 129, and then to declare the prisoner eligible for 
parole after two-thirds of such reduced minimum sentence has been 
served. You have requested my opinion as to whether the method em- 
ployed by the Parole Board to compute parole eligibility is correct. 

The granting of parole permits is governed by c. 127, § 133, which 
reads as follows: 

"Parole permits may be granted by the parole board to prisoners sub- 
ject to its jurisdiction at such times as the board in each case may deter- 
mine; provided, that no prisoner held under a sentence containing a 
minimum sentence shall receive a parole permit until he shall have served 
two thirds of such minimum sentence, but in any event not less than one 
year, or, if he has two or more sentences to be served otherwise than con- 
currently, two thirds of the aggregate of the minimum terms of such sev- 
eral sentences, but in any event not less than one year from each such 
sentence. Such minimum term shall be computed after allowing for de- 
ductions for good conduct as provided in section one hundred and, twenty- 
nine of this chapter." (Emphasis supplied.) 



216 P.D. 12 

The concluding sentence of the statute quoted above is subject to dif- 
fering and contradictory interpretations, and has resulted in substantial 
confusion in the areas of parole eligibility. No judicial decisions are availa- 
ble to shed light on the problem. It is provided that the minimum term 
of a sentence shall be computed after the allowance of the good conduct 
deductions specified in § 129. The good conduct credits provided for in 
§ 129 are, of course, deducted from maximum rather than from minimum 
sentences. Should all the requirements of § 129 be followed, the Parole 
Board would be forced to deduct good conduct credits from maximum 
sentences, as does the Department of Correction. 

However, a contrary construction of the sentence in question is per- 
missible. Reference in § 133 to § 129 may well have been made for the 
limited purpose of determining the amount of time to be deducted, i.e., 
upon a sentence of four years or more, twelve and one half days for each 
month, etc. The requirements of § 129 that the maximum rather than 
minimum sentence be reduced would, pursuant to such a construction, 
be inapplicable, and the Parole Board could justifiably deduct good con- 
duct credits from minimum sentences, as has been its practice. 

Lacking court decisions which indicate which construction should be 
adopted, a determination must be made on the basis of legislative intent 
and with due consideration for practical administration of the parole laws. 
Because of apparent legislative intent to reduce periods of confinement 
and to liberalize parole requirements, it is my opinion that the reference 
to § 129 is made for the purpose of determining the amount of time to be 
deducted only, and does not carry over the requirement that maximum 
rather than minimum sentences be reduced. Consequently, although de- 
ductions for good conduct must be made from maximum sentences under 
§ 129 when parole is not an issue, such deductions may properly be made 
from minimum sentences for purposes of parole under § 133. 

On January 25, 1955, Governor Christian A. Herter appointed a Com- 
mittee to Study the Massachusetts Correctional System, informally known 
as the Wessell Committee. The Committee recommended that parole re- 
quirements be liberalized. By § 69 of c. 770 of the Acts of 1955, the Gen- 
eral Court added the last sentence to c. 127, § 133, the construction of 
which is now in question. A comment that appears at page 72 of the Com- 
mittee's report is relevant: 

"Good-time credits are now granted only as deductions from the maxi- 
mum term for which the prisoner was sentenced. They do not affect the 
time of parole eligibility. 

"Basically, the good-time allowance should be applicable to time spent 
within the institution. Therefore, it should be utilized to reduce the time 
of eligibility for parole. It should be credited against the minimum sen- 
tence. If thereafter the prisoner continues in the institution, he should 
continue to receive credit for the good-time allowance, thus having it 
reduce the maximum term to be served." 

Crediting the deductions against the minimum sentence results in reduc- 
tion of the time that must be served prior to eligibility for parole, which, 
according to the Wessell Committee, was the purpose of St. 1955, c. 770, 
§ 69. On the other hand, reducing the maximum sentence generally would 
not enable the prisoner to become eligible for parole at an earlier date, 



P.D. 12 217 

and the inclusion of good conduct deductions in § 133 would accomplish 
nothing, a result which should be avoided. 

I should point out that irrespective of the time at which a particular 
prisoner becomes eligible for parole, the actual granting or withholding 
of a parole permit is a matter that is confided to the discretion of the 
Parole Board. Chapter 127, § 133 provides that parole permits may be 
granted "at such time as the board in each case may determine". There- 
fore, the date at which a prisoner becomes eligible for parole represents 
merely the earliest time at which such a permit may be issued; the de- 
cision whether or not to issue a permit, and at what time, remains to 
be made by the Parole Board. 

Therefore, it is my opinion that the intent of the General Court in 
enacting the final sentence of c. 127, § 133 was to reduce the amount of 
time to be served by a prisoner prior to his eligibility for parole, and that, 
accordingly, the present practice of the Parole Board is correct. To the 
extent that certain language appearing in the opinion of the Attorney 
General of January 15, 1964 to the Commissioner of Correction indicates 
otherwise, such language is hereby withdrawn. The opinion of January 15, 
1964 is, however, valid as it pertains to the Department of Correction. 
Where parole is not an issue, good conduct credits must still be deducted 
from the maximum sentence. For purposes of parole, however, such good 
conduct deductions should be made from minimum sentences, and the 
Parole Board may properly continue to administer c. 127, § 133 in ac- 
cordance with its customary practice. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



An absolute pardon would serve to eradicate the existence of a crime en- 
tirely, and c. 125 § 9, would not bar the appointment of a pardoned 
applicant to a position involving personal contact with prisoners. 

April 3, 1964. 

Hon. George F. McGrath, Commissioner of Correction. 

Dear Commissioner McGrath: — I have received your letter of Feb- 
ruary 5, 1964 relative to the effect of an absolute pardon upon individuals 
with criminal records w r ho seek appointments to certain positions within 
the Department of Correction. You have requested my opinion as to 
whether absolute pardons enable such persons to be appointed to positions 
which involve personal and direct contact with prisoners. 

Appointment of persons with criminal records to positions in the De- 
partment cf Correction is governed by G.L., c. 125, § 9, as amended by 
St. 1961, c. 90, which provides in part as follows: 

"Notwithstanding any provision of law to the contrary, but subject, 
however, to the provisions of section sixty of chapter one hundred and 
nineteen, no person who has been convicted of a felony, or who has been 
confined in any jail or house of correction, shall be appointed to any 
position in the department of correction the duties of which involve per- 
sonal and direct contact with prisoners." 

The statute admittedly represents a legislative determination that indi- 
viduals with certain criminal histories (i.e., felony convictions or confine- 



218 P.D. 12 

ment in a jail or house of correction) generally are not desirable to fill 
positions which require substantial contact with prisoners. 

However, the apparent legislative intent notwithstanding, the grant- 
ing of an absolute pardon for such felony conviction or for the crime 
for which the applicant for appointment was confined in a jail or house 
of correction would eradicate the fact that such crime had ever been com- 
mitted and would render the above statute inapplicable. Power to pardon 
most criminal offenses is vested in the Governor by the Constitution of 
the Commonwealth. 

"The power of pardoning offences, except such as persons may be con- 
victed of before the senate by an impeachment of the house, shall be in 
the governor, by and with the advice of council; provided, that if the 
offense is a felony the General Court shall have power to prescribe the 
terms and conditions upon xuhich a pardon may be granted: but no char- 
ter of pardon, granted by the governor, with advice of the council before 
conviction, shall avail the party pleading the same, notwithstanding any 
general or particular expressions contained therein, descriptive of the 
offence or offences intended to be pardoned." (Emphasis supplied.) 

A full pardon has the effect of eradicating the fact that a crime has 
ever been committed. For a recent analysis of this problem, I would refer 
you to the opinion rendered by the Attorney General to the Director of 
Civil Service on January 31, 1964. The United States Supreme Court has 
commented that an absolute pardon "blots out of existence the guilt, so 
that in the eye of the law the offender is as innocent as if he had never 
committed the offence." 

"In the opinion of the court in the case of Ex parte Garland, 4 Wall. 
333, 380, the effect of a pardon is stated as follows, to wit: 'A pardon 
reaches both the punishment prescribed for the offences and the quilt of 
the offender; and, when the pardon is full, it releases the punishment and 
blots out of existence the guilt, so that in the eye of the law the offender 
is as innocent as if he had never committed the offence. If granted before 
conviction, it prevents any of the penalties and disabilities consequent 
upon conviction from attaching; if granted after conviction, it removes 
the penalties and disabilities, and restores him to all his civil rights; it 
makes him as it were a new man, and gives him a new credit and capacity. 
There is only this limitation to its operation: it does not restore offices 
forfeited, or property or interests vested in others in consequence of the 
conviction and judgment.' " (Emphasis supplied.) 

Illinois Central Railroad v. Bosworth, 
133 U.S. 83, 103 

Consequently, since in the eyes of the law the pardoned applicant's 
crime has never been committed, c. 125, § 9 would not prevent appoint- 
ment of such an individual. Admittedly, if a felony has been committed, 
the General Court has the power to prescribe the terms and conditions 
upon which a pardon therefore may be granted. But the Legislature has 
not done this. Chapter 125, § 9 is not specifically directed at the pardon- 
ing power; it is applicable only to individuals whose offences have not 
been pardoned, and whose crimes, therefore, are still legally in existence. 
It is reasonable to assume that had the Legislature intended to limit the 
constitutional pardoning power of the Governor it would have indicated 



P.D. 12 219 

tnat such was its object. Absent such indication, c. 125, § 9 cannot be 
construed as an exercise by the Legislature of the right to prescribe the 
terms and conditions upon which a pardon may be granted. Therefore, 
an absolute pardon would serve to eradicate the existence of a crime en- 
tirely, and c. 125, § 9 would not bar the appointment of a pardoned ap- 
plicant to a position involving personal contact with prisoners. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Commanding Officer of a State Armory may impose such restrictions 
on the ability to buy and sell liquor in the armory which he deems 
necessary and proper. 

April 6, 1964. 

Colonel Ralph T. Noonan, State Quartermaster, Mass. ARNG. 

Dear Colonel Noonan: — In your letter of March 3, 1964 you have 
requested my opinion on the following questions: 

"May liquor be sold in State Armories by organizations who rent the 
facilities, under the provisions of Section 122? 

"If the ruling is favorable, what form of license should the Military 
Division request before permitting such sale?" 

General Laws c. 138, § 28 provides that one who holds a license under 
§§ 18 (wholesalers and importers) and 19 (manufacturers) of said chap- 
ter may 

". . . sell and deliver such beverages to any person on any federal or 
state military or naval reservation authorized by the commanding officer 
thereof to purchase and receive the same." (Emphasis supplied.) 

The answer to your first question thus depends upon whether an ar- 
mory is a military or naval reservation. It is my opinion that the reso- 
lution of this question depends upon military considerations and defini- 
tions and therefore must be made by a military officer, such as yourself. 
The term "military reservation" 

"is a term unknown to the law and means nothing, except that it may 
have been intended for a fort, magazine, arsenal, camp, post, or other 
military use." 

United States v. Tichenor, 12 Fed. 415, 424 

In the event that the answer to the above question is in the affirmative, 
and (a) if the organization is properly qualified (c. 33, § 122) and re- 
ceives the approval of the commander-in-chief to rent the armory and 
(b) also receives authorization (pursuant to c. 138, _§ 28) to purchase liq- 
uor by the commanding officer, liquor may then be sold to an organiza- 
tion for consumption within an armory. 

Since state armories are state property, and therefore not subject to 
licensing by municipalities, no license as such would be required by a 
qualified organization in order to purchase liquor to be sold in an armory. 
The commanding officer, however, by designating an individual to pur- 
chase liquor in behalf of the organization, may impose such restrictions 
on the ability to buy and sell liquor in the armory which he deems neces- 
sary and proper. 



220 P.D. 12 

Having in mind that the use of state armories is in the first and primary 
instance a military consideration, and with further emphasis on the pro- 
visions of § 28 above quoted that the commanding officer must authorize 
the proposed use, it is my opinion that the commanding officer may au- 
thorize such use only when he deems the activity necessary and proper. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Massachusetts Commission Against Discrimination is not required 
to order every respondent who has been found to have discriminated 
against a complainant to offer a housing accommodation to such 
complainant. 

April 17, 1964. 

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

Dear Madam: — You have requested my opinion of whether the com- 
mission is required to order every respondent who has been found to have 
discriminated against a complainant in violation of G.L., c. 15 IB, §§ 4 (6) 
or 4 (7) to offer a housing accommodation (if available) to such com- 
plainant, irrespective of any other circumstances which may exist. 

As you know, when society became highly complex, traditional proce- 
dures for the development and enforcement of certain legislative policies 
became inadequate. The administrative agency, of which the commis- 
sion is an example, evolved to meet the needs thereby created, not only 
because of its capacity to act swiftly, but also because of its intimate ac- 
quaintance with the problems and its institutional capacity to deal with 
them flexibly. In my opinion to Commissioner Batson dated April 3, 1964, 
I sought to show that the basic duty of the Commission is to administer 
the Fair Practices Laws creatively, imaginatively and dynamically. 

Surely a most important area for creative development of the law lies 
in the method for the treatment of violations. The General Court has 
vested in the commission substantial latitude to select the most appro- 
priate remedy for each particular case. General Laws, c. 151B, § 5 pro- 
vides in part that if the commission has determined that an unfair prac- 
tice has been committed, it "shall issue ... an order requiring such re- 
spondent to cease and desist from such unlawful practice . . . and to 
take such affirmative action ... as, in the judgment of the commission, 
will effectuate the purposes of this chapter. . . ." See also G.L., c. 30A, 
§ 14(8); Alassachusetts Commission Against Discrimination v. Colangelo, 
344 Mass. 387, 398-401. 

Frequently, if not generally, the operation of the cease and desist order, 
without more, will break the unlawful barriers to admission theretofore 
imposed. Furthermore, in many cases the commission may properly de- 
cide that the purposes of the statute will best be served by fashioning a 
remedy requiring the respondent to offer an accommodation to the com- 
plainant. The statutes have not granted to each complainant, however, 
the unqualified right to receive such a remedy from the commission to 
redress the respondent's breach of duty done to the complainant. The 
qualification is that the remedy effectuate the purposes of the law, a de- 



P.D. 12 221 

cision which the commission must make in each case, in the first in- 
stance, and in view of the facts of the particular case. 

The incidence of cases in which such a personal remedy will not effec- 
tuate the purposes of the Act is, I understand, small. Were this fact to 
harden into a rule prohibiting the commission from inquiring into mat- 
ters which, although not relevant to the issue of an unfair practice, di- 
rectly relate to the commission's duty to fashion a remedy which effec- 
tuates the purposes of the act, then the commission could not properly 
perform its duty. Were it to harden into a rule depriving the commis- 
sion in any case of its choice of the whole arsenal of remedies which the 
General Court has authorized, then the flexibility so integral a part of 
the commission would be impaired. It is, of course, not for me to specu- 
late on what circumstances might cause the commission to grant or with- 
hold such a personal remedy nor even on how the issue might be raised. 
It is sufficient to note that the area is open for consideration by the com- 
mission, and that it may deal with it appropriately. 

It is, accordingly, my considered judgment that the commission is not 
required to order every respondent who has been found to have dis- 
criminated against a complainant in violation of G.L., c. 15 IB, §§ 4(6) 
and 4 (7) to offer a housing accommodation (if available) to such com- 
plainant, irrespective of any other circumstances which may exist. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Re: Chapter 90 Highways — Expenditures for Engineers and Consultants. 

April 21, 1964. 
John D. Warner, Associate Commissioner, Department of Public Works. 

Dear Sir: — By letter dated March 27, 1964, you requested answers to 
the following questions: 

(1) Is it permissible for cities and towns to hire outside engineers and 
consultants to perform the survey and layout work, under the supervision 
of the Department of Public Works, and include the cost as an accepta- 
ble expenditure under the Chapter 90 appropriation? 

(2) Is it permissible to have the plans of the proposed improvement pre- 
pared by outside engineers or consultants, subject to Department ap- 
proval, and to include the cost as an acceptable expenditure under the 
Chapter 90 appropriation? 

For the purpose of this letter it is assumed that the survey and layout 
work referred to in the first question and the planning work referred to in 
the second question would be done in connection with maintaining, re- 
pairing, improving and constructing town and county highways. 

Chapter 90 of the General Laws in Section 34 (a) provides in part: 
"The balance [of the Highway Fund] . . . shall be used . . . 
" (a) For expenditure, under the direction of said department [of public 
works], for maintaining, repairing, improving and constructing town and 
county highways . . ." 

" (d) For expenditure, under the direction of said department [of public 
works], for engineering services and expenses . . . incidental to the pur- 
poses specified in subdivisions (a) . . . of this clause;" 



222 P.D. 12 

It appears that said Chapter 90 in Section 34 (2) (a) and (d) dictates 
affirmative answers to both of your questions, having in mind that the 
words, ". . . under the supervision of the Department of Public Works 

. . .", as used in the questions, must be considered to have the meaning 
as the words, ". . . under the directions of said department . . ." as used 
in Section 34 (2) (a) and (d) in said Chapter 90. 

This letter is not intended to express any opinion on whether it is wiser 
administration to enlarge the appropriate staff in the Department of Pub- 
lic Works rather than to retain outside engineers and consultants to per- 
form the services contemplated herein. If the Commissioners determine 
the latter to be the better policy it is respectfully recommended that they 
designate and approve in advance of their employment any and all out- 
side engineers and consultants whom they consider qualified and the rates 
of their compensation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

By: 

John S. Bottomly, 
Assistant Attorney General 
Chief, Eminent Domain Division. 



Application of Chapter 844 of the Acts of 1963, specifically the term "fi- 
nancial interest." 

April 22, 1964. 
Joseph Alecks, Comptroller, Commission on Administration and Finance. 

Dear Sir: — I have received your letter of January 28, 1964 relative 
to the extent of the application of c. 844 of the Acts of 1963. You have 
requested a definition of the term "financial interest" as it is used in the 
statute. 

You have provided a proposed definition of "financial interest" as 
". . . any person who, in some direct manner, will benefit financially 
from a given contractual relationship with the Commonwealth". I be- 
lieve that in general such a definition will be satisfactory. However, I 
would point out the problems involved in drafting a definition that is 
sufficiently all-inclusive that it would be applicable no matter what the 
factual situation. Therefore, since it is impossible at this time to predict 
exactly what situation will arise, no definition should be offered which 
implies that its provisions are never to be varied. 

I would advise that the proposed definition be amended to indicate 
that the meaning of "financial interest" must be flexible depending upon 
the given factual situation. Because of the practical necessity of judging 
each case on its own facts, I do not think it wise to address myself to the 
questions relating to particular individuals and positions raised in para- 
graph (1) of your letter. A given person may well have a "financial in- 
terest" under c. 844 in one situation, and lack such an interest should a 
different set of facts arise. 



P.D. 12 223 

In paragraph (2) of your letter you refer to individuals contracting 
with the Commonwealth for their own benefit rather than in behalf of 
other parties. Chapter 844 provides: 

"No contract to provide consultant services shall be awarded by the com- 
monwealth, or by any department, board, commission or other agency 
acting in its behalf, unless the person signing such contract on behalf of 
the party contracting to provide such services files with the comptroller a 
statement. . . ." (Emphasis supplied.) 

Clearly, the object of the provision is the identification of parties finan- 
cially interested in the contract who otherwise might remain anonymous. 
Consequently, an individual contracting solely in his own behalf would 
not be affected by this statute. Such a person would still, of course, be 
required to disclose whatever financial interest his partners might have 
in the transaction. And where an agreement exists for the payment of an 
agent's fee or commission in connection with the contract, disclosure of 
this fact would be necessary. 

Chapter 844 limits the term "financial interest", in so far as corporations 
are concerned, to persons holding more than one per cent of the corpora- 
tion's capital stock. You have inquired whether the General Court in- 
tended this provision to apply to a large corporation with a complex 
financial structure and stock which may be actively traded in the open 
market. 

The Act in question makes no distinction between large public cor- 
porations whose stock is actively traded and smaller corporations with 
fewer and more easily identifiable shareholders. The statute exempts only 
those shareholders whose financial interest consists of one per cent or less 
of the capital stock of the contracting corporation, without regard to the 
size or complexity of the corporation involved. Despite the fact that sup- 
plying names and addresses of shareholders of record will be difficult for 
a large business, it appears to be the legislative intent that such informa- 
tion must still be provided in order to comply with the requirements of 
c. 844. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Dept. of Mental Health may take, hold and administer in trust for 
the Commonwealth grants for the use of persons in state hospitals. 

April 23, 1964. 
Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Commissioner Solomon: — I have your request of April 21, 1964 
seeking my opinion as to whether the Department of Mental Health is 
authorized to accept Federal grants. 

Chapter 123, § 6 of our General Laws provides: 

"The department shall be a corporation for the purpose of taking, hold- 
ing and administering in trust for the commonwealth any grant, devise, 
gift or bequest made either to the commonwealth or to it, for the use of 
persons under its control in any state hospital, or, if the acceptance of 
such trust is approved by the governor and council, for expenditure upon 
any work which the department is authorized to undertake." 



224 P.D. 12 

The statute clearly sets forth that the department may take, hold and 
administer in trust for the Commonwealth grants for the use of persons 
in state hospitals. 

Should the grant be made for other work, the department is authorized 
to undertake acceptance of such grant which must be approved by the 
Governor and council. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Re: Mass. Comm. Against Discrimination versus Halper — No. Pr. HV- 

1-5 R-C. 

April 28, 1964. 
Mr. Walter H. Nolan, Executive Secretary, Massachusetts Commission 
Against Discrimination. 

Dear Sir: — The hearing commissioners have requested my opinion of 
whether the facts of this case disclose a violation by respondent Halper 
of the Fair Housing Practices Law, G.L., c. 151B, § 4 (7) or of the Public 
Accommodations Law, G.L., c. 272, §§ 92A, 98. The facts, as found by 
the hearing commissioners, are set forth in the Appendix to this opinion. 

Throughout their long and sometimes uneven history, the Massachu- 
setts fair practices laws have consistently excluded from their reach cer- 
tain kinds of human activities. The authority of religious institutions to 
give preference to their own adherents, for example, has not been im- 
paired by such laws. See G.L., c. 272, § 92A; G.L., c. 15 IB, § 4, G.L., c. 
151C, § 1. 

The other major type of activity which has been exempt from the cov- 
erage of the fair practices acts may be characterized as "private" or "per- 
sonal." For these purposes, the "private" transaction, in general, is one 
which is isolated and which does not involve a public offering or solici- 
tation. The "personal" relationship, on the other hand, is one which de- 
pends in large measure for its success on the agreeable interplay of the 
personalities of the actors involved. 

The two concepts, although not synonymous, are closely related. The 
expression which they find in the legislation, not unexpectedly, varies. 
The original public accommodations law, St. 1865, c. 277, § 1, for exam- 
ple, defines that which is covered so as to exclude what is private or per- 
sonal: 

"No distinction, discrimination or restriction on account of color or race 
shall be lawful in any licensed inn, in any public place of amusement 
or public meeting in this Commonwealth." 

The same type of limitation maintains today in the fair practices in bond- 
ing and mortgage lending acts, which apply only to those "in the busi- 
ness." G.L., c. 151B, §§ 4(3A), 4 (3B). 

Although the public accommodations law has vastly increased its scope 
in its century-long lifetime, the current statute still applies only to a 
business "which is open to and accepts or solicits the patronage of the 
general public. . . ." G.L., c. 272, § 92A. It is significant to note that in 
addition to this general limitation, the current statute specifically excludes 
a place "which is owned or operated by a club or institution whose prod- 



P.D. 12 225 

ucts or facilities or services are available only to its members and their 
guests." Ibid. Such a place, although not meeting the definition of "pri- 
vate" given above, involves those types of "personal" relationships which 
the Legislature held were not proper subjects for regulation. 

In the Fair Educational Practices Law, these exclusionary policies ap- 
pear to merge. In general, the statute applies to "any institution for in- 
struction or training . . . which accepts applications for admission from 
the public generally" and thus includes privately financed schools. The 
statute specifically excepts from the general rule, however, an institution 
which is "in its nature distinctly private. . . ." G.L., c. 151C, § 1 (b). 

The major concern of the Fair Employment Practices Act in this area 
is naturally with the personal relationship. Thus the principal direction 
of the law is to the larger, commercial employer. 

"The term 'employer' does not include a club exclusively social, or a fra- 
ternal, charitable, educational or religious association or corporation, if 
such club, association or corporation is not organized for private profit, 
nor does it include any employer with fewer than six persons in his em- 
ploy. . . ." G.L., c. 151B, § 1 (5). 

Similarly, a person "in the domestic service of any person" as well as one 
employed by his parent, spouse or child, is not classified as an employee. 
G.L., c. 151 B, § 1 (6). 

Before analyzing the place of the Fair Housing Practices Law in the con- 
text of the laws referred to above, it is appropriate to make some observa- 
tions on the facts found by the Commission. These facts appear to dis- 
close a contemplated relationship, at least as close as that which exists 
between master and servant, and probably closer than most or all of 
those which would not be covered by the other fair practices laws adverted 
to above. Substantially all the facilities of the respondent's household 
woidd, by necessity, be shared. Only one bathroom services all bedrooms. 
The bedrooms which would be occupied by respondent and his tenant 
are "back-to-back." A single, common hallway leads from both bedrooms 
to the other areas of the house. There is one kitchen only to prepare the 
food to be eaten in a single dining room. There is one living room only. 
In the most intimate setting of the home, it might well be held that there 
is, for both landlord and tenant, for all practical purposes, "no place to 
hide"; that the relationship which the respondent sought to create could 
not practically be maintained on a "business" basis; that neither party 
could realistically hope to be able to avoid establishing a personal rela- 
tionship with the other which would be extraneous and irrelevant to any 
profit motive or business consideration. Under such conditions, the inti- 
macy of the living quarters themselves may require that landlord and 
tenant be personally compatible, lest the arrangement be intolerable for 
both. Yet this intimacy and requirement of personal compatibility is pre- 
cisely what distinguishes domestic servants from other employees, clubs 
from business establishments and some small employers from large em- 
ployers. It therefore becomes necessary to determine whether the Fair 
Housing Practices Law departs from the other Fair Practices Laws in its 
treatment of this type of relationship. 

Superficially, it would appear that the Fair Housing Practices Laws do 
not exclude the type of personal relationship which is involved in the 
Halper case. Section 1 (13) of c. 15 IB limits the types of accommoda-' 
tions covered to those involving a "public offering", and thereby exempts 



226 P.D. 12 

the private, negotiated sale or lease. This exemption embodies the tradi- 
tional exclusion for "private" transactions from the fair practices laws. 
Furthermore, the leasing of an apartment in a two-family house by the 
owner who resides in the other apartment is specifically exempt from the 
law under § 7 (C). Thus the Legislature has acted to exclude traditional 
"personal" type of relationship from the fair housing law. It cannot, 
therefore, be said that the problem of exclusions was not considered by 
the General Court. The exemption of § 7 (C) is, in effect, the legislative 
embodiment of a roughly-hewn rule of thumb by which one common 
type of problem can be disposed of. It is the fair housing analogy to the 
exclusion from the fair employment practices laws of employers with less 
than six employees. There is no specific exclusion, however, written into 
the housing law, comparable to the "domestic servant" exclusion of the 
employment law. 

It could, therefore, be argued with considerable force that the difference 
between the two laws was deliberate and that the policy of housing law 
admits of no exclusions other than those specified. The Fair Housing Prac- 
tices Law, however, did not emerge fully-bloomed, as a completely inte- 
grated statutory scheme. It developed piecemeal. An analysis of the law 
and of its development, in my considered judgment, discloses that, in this 
regard, no radical differences in fundamental policy exist between the 
Fair Housing and the Fair Employment Practices Laws. 

If the exemption of § 7 (C) were to preempt the field of exclusions of 
its type, then it would become itself anomolous. The relationship we are 
considering here is far more personal than are those described in § 7 (C). 
Section 7 (C) is a rule — simply definable and mechanically applicable. 
It is not a statement of policy. Unless it is only a part of an inclusive, if 
unexpressed policy, it becomes an island, unattained to the principal body 
of law which the Legislature has announced. There are, of course, many 
cases in which the Legislature singles out for special treatment only the 
most obvious or easily recognizable factual situations. This is not gen- 
erally the case, however, nor ought it be, when enforcement of the law is 
vested in an administrative agency. Characteristically, laws so enforced 
are imprecise, simply because the problems likely to arise under them are 
so unpredictable, and cover a multitude of possible factual situations. Ad- 
ministrative agencies are generally given substantial discretion to develop 
the broad policies of the statutes under their jurisdiction. The Massachu- 
setts Commission Against Discrimination is no exception to this rule. It 
would be consistent with the role of the commission under the statute to 
hold that the exclusion in § 7 (C) is a rule which only covers specifically 
the most common situation in which the problem arises, but nonetheless 
does not supersede or vitiate the basic, underlying policy from which it 
derives. In this way the Commission can administer and develop the pol- 
icy of the law, in the customary and usual manner of "inclusion and ex- 
clusion," as it appears to the multitudes of fact situations which might 
arise under the law. It would be inconsistent with the role of the com- 
missioner under the statute to require it to enforce the policy of the law 
in the most common situation to which it relates, but to prevent it from 
developing this policy in other situations which, although they may arise 
less frequently, nonetheless involve identical considerations. 

The first entry of the Legislature into the specific field of discrimina- 
tion in housing occurred in 1950, when the commission was vested with 



P.D. 12 227 

the responsibility to enforce the prohibitions against discrimination or 
segregation in public housing, St. 1950, §§ 4, 5, amending G.L., c. 221, 
§ 26FF (e). The problem of intimate relations between landlord and 
tenant was obviously not presented at that time. Nor was it presented in 
1957, when the Legislature next acted in the area by subjecting the sales 
or leasing of publicly assisted housing and multiple dwellings to the 
provisions of c. 15 IB. Dwellings with less than three separate units were 
not considered "multiple dwellings." St. 1957, c. 426, § 1. The problem 
which is posed in the Halper case first became latent in 1954, when con- 
tiguously located housing was put into chapter 15 IB. St. 1957, c. 239, § 1. 
Such housing included that "which is offered for sale, lease or rental and 
which at any time was one of ten or more lots of a tract whose plan has 
been submitted to a planning board as required by the subdivision con- 
trol law. . . ." Ibid. Thus, the regulatory scheme was ostensibly deter- 
mined by the character of the land, rather than by the nature of the trans- 
action. The statute in terms is not limited to "public offerings" of the type 
described in § 1 (13). Section 4 (6) of the statute was amended at the same 
time to apply to those in control of contiguously located housing the same 
rules against discrimination which had theretofore applied to those in 
control of multiple dwellings. 

It was in this statutory setting that the Supreme Judicial Court con- 
sidered Massachusetts Commission Against Discrimination v. Colangelo, 
344 Mass. 387. The Court there, in holding § 4 (6) constitutional as ap- 
plied to multiple dwellings, observed: 

"Section 4, subsection 6, is really aimed at preventing discrimination in 
the business of housing. . . . The statute is in pattern with anti-discrim- 
ination legislation. General Laws c. 272, § 92A . . . and § 98 apply in 
'A place of public accommodation, resort or amusement . . . (which) 
shall be deemed to include any place whether licensed or unlicensed, 
which is open to and solicits the patronage of the general public." 344 
Mass. at 398. 

Thus the Court considered that the fair housing laws were merely an 
extension of established legislative policies, although a procrustean ap- 
plication of § 1 (12) would even then have required that tribunal to hold 
that the Legislature had enacted a significant change in these policies by 
the inclusion of all strictly private sales of contiguously located housing. 

At the legislative committee hearing on the bills, which became G.L., 
c. 15 IB, §§ 1 (13) and 7, which hearing was held after the Colangelo de- 
cision, this office sought to articulate the "place of the proposed legisla- 
tion in i he existing pattern of our fair practices law." We opened our 
discussion with the following blunt remark: 

"The basic purpose of § 350 (enacted as St. 1963, c. 197) is not to legis- 
late new principles of law; nor is it to extend the existing principles into 
areas not related to those now covered by existing laws. The purpose is 
to perfect the existing Fair Housing Act by remedying anomolies which 
have been uncovered by experience and by extending its reach to areas 
which are not logically distinguishable from it." 

During the course of the discussion, we had occasion to analyze these 
established principles of law. 

"The fundamental distinction between that which can be regulated and 
that which cannot or should not be regulated is not the magnitude of the 



228 P.D. 12 

transaction involved. The smallest shop as well as the biggest department 
store is subject to the public accommodations law. Nor is the distinction 
to be found in the degree of the business involvement between the parties. 
The twenty-year mortgage, the lease for a term of years and the issuance 
of performance bonds are no less covered by the Act than is the cash-and- 
carry, isolated sale. The basic distinction is between the business trans- 
action -and the personal transaction, between the public offering and the 
private offering. 

We sought to justify the extension of the law by showing that the types 
of transactions to be covered would be generally no different from those 
already covered by their existing legislation. 

"A nonresident landlord of a single or two-family dwelling has a rela- 
tion to his tenant identical in character to that existing between an apart- 
ment house owner and his tenants. Similarly, the nature of a sale of a 
residence does not vary whether it is an isolated sale, or one of many sales. 
Indeed, in all these cases, the direct contacts between seller and buyer, 
or landlord and tenant, are generally minimal and often nonexistent. 
Frequently, the lawyers and brokers or agents handle the entire transac- 
tion., and the parties never even meet." 

Thus the legislative history shows that no dramatic departures from 
the policies consistently enunciated by the Legislature, as confirmed by 
the Court in Colangelo, were enacted in the recent housing law. For the 
foregoing reasons, it is my considered judgment that there is a residue of 
closely-knit, highly personalized relationships of the type which the fair 
practices laws have always excluded and which, although not specifically 
described, are nonetheless not covered by the Fair Housing Practices Law. 

Most social and business intercourse is, of course, made more comforta- 
ble and fruitful when the actors are friendly. Yet most relationships can 
exist and continue without personal involvement; whereas others cannot. 
The human mind is not so g*oss as to be unable to distinguish between 
such relationships. It is, however, important that in separating that which 
can from that which cannot, be so regulated, no categorical imperatives 
be employed. All the factors of each case must be considered and evalu- 
ated. 

I have frequently stated that as a matter of basic policy, the Commis- 
sion ought in the first instance, to set forth its view of whether, apply- 
ing the policies of the statutes, the facts found do or do not constitute 
an unfair pracice. In this way, the Commonwealth can be assured of the 
full exercise by the agency of the powers vested in it; and any reviewing 
court will have the benefits to be derived by a full exploration of the prob- 
lem by that branch of government most intimately involved with the en- 
forcement of the applicable policies. See, e.g., my opinions to Commis- 
sioner Batson and to Chairman Mahoney of recent date. The Legislature 
has established the policies which I have set forth above. Whatever might 
be my personal opinion of the significance of the facts and of how they 
ought to be evaluated, in light of these policies, I defer expressing them 
at least pending the exhaustion of the administrative proceedings. Ac- 
cordingly, I can only remand the case back to the Commission for dis- 
position in light of the policies expressed above. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 229 

The plumbing in the New State Office Building is subject to the provi- 
sions of c. 112, § 21 of our General Laws. 

April 28, 1964. 
Mrs. Helen C. Sullivan, Director of Registration, Department of Civil 
Service and Registration. 

Dear Mrs. Sullivan: — I have your letter of April 15, 1964 requesting 
my opinion on the following: 

"Is the new State Office Building, being constructed by the Government 
Center Commission, subject to the rules and regulations relative to plumb- 
ing formulated under authority of Section 21 of Chapter 142, G.L.?" 
'ion 21 of c. 142 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 depart- 
ment of public health, and all plans for plumbing in such buildings shall 
be subject to the approval of the examiners." 

Chapter 635 of the Acts of 1960, which established the Commission au- 
thorized to construct the State Office Building, provides in part: 
". . . all other general and special laws, or parts thereof, prohibiting, re- 
stricting, limiting or regulating the height, bulk, location and use of build- 
ings, and the provisions of the Boston Building Code and of ordinances 
of the city of Boston shall not be applicable to any building, structure, 
tunnel or facility constructed under the provisions of this act." 

The last quoted provision of c. 635 exempts the buildings, structures, 
tunnels or facilities constructed by the Commission from general and spe- 
cial laws regulating the height, bulk, location and use of buildings and 
from the Boston Building Code and City ordinances. 

I find nothing in the said c. 635 exempting the State Office Building 
from the provisions of the General Laws relating to the supervision of 
plumbing. 

In the case of Boston Elevated Railway Company v. Commonwealth, 
310 Mass. 528, 556, the Court quoted Mr. Justice Holmes in Pennsylvania 
Coal Co. v. Mahon, 260 U.S. 393, in stating: 

" 'As long recognized, some values are enjoyed under an implied limi- 
tation and must yield to the police power. But obviously the implied limi- 
tation must have its limits, or the contract and due process clauses are 
gone. . . . We are in danger of forgetting that a strong public desire to 
improve the public condition is not enough to warrant achieving the de- 
sire by a shorter cut than the constitutional way of paying for the 
change.' " 

It is clear that had the Legislature intended to exempt the State Office 
Building from plumbing rules and regulations it could very easily have 
said so. Xor may such exemption be implied in the above-quoted pro- 
visions of c. 635. 

Accordingly, it is my opinion that the plumbing in the new State 
Office Building is subject to the provisions of § 21 of c. 142 of our Gen- 
eral Laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



230 P.D. 12 

A National Guard officer may be promoted without interfering with his 
activity under c. 33, § 18a of the General Laws. 

May 1, 1964. 
Major General Thomas J. Donnelly, The Adjutant General. 

Dear Sir: — I have your letter of March 24, 1964 relative to the status of 
National Guard officers who have been ordered to active duty in division 
headquarters under the provisions of G. L. c. 33, § 18 (a), and who become 
subject to the retirement provisions of the Reserve Officers Personnel 
Act. I understand from your letter that a particular lieutenant colonel, 
currently on active duty under the said c. 33, § 18 (a), is about to have his 
federal recognition withdrawn. You have asked whether any change in 
the status of this officer, either by promotion or by loss of federal recog- 
nition under the provisions of ROPA, would require the termination of 
his employment. 

General Laws c. 33, § 18 (a) authorizes the Adjutant General to order 
three officers to active duty in division headquarters. Such officers receive 
pay that is equivalent to that received by regular army officers of corres- 
ponding grade and length of service; such pay, however, cannot exceed 
that received by a colonel, lieutenant colonel and major, respectively. 

"To be eligible for duty as aforesaid, such officers shall have federal recog- 
nition for both their grade and positions." (Emphasis supplied.) 

The statute leaves no room for doubt that federal recognition of the 
grade and position of the officer in question is required before such 
officer can be considered eligible for duty under c. 33, § 18(a). Should 
federal recognition be lost for some reason, the officer whose recognition 
is withdrawn cannot continue to perform his duties. In the present case, 
an officer is about to reach the retirement age specified in the Reserve 
Officers Personnel Act. Upon such occurrence, federal recognition will 
automatically terminate, and the officer will no longer be eligible for duty 
under c. 33, § 18(a). 

You imply in your letter that promtion to the rank of colonel may 
relieve the officer in question from the necessity of immediate retirement 
under the provisions of the Reserve Officers Personnel Act. An individual 
may, of course, be promoted without interfering with his activity under c. 
33, § 18(a). However, I should point out that the statute authorizes 
only one colonel among the three officers that may be selected. Conse- 
quently, should there already be a colonel on active duty in division head- 
quarters under this program, and should a lieutenant colonel in the 
program be promoted, the services of both officers could not lawfully be 
retained under c. 33, § 18(a). 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 231 

c. Ill , § 70 G. L. applies only to institutions which are licensed by the 
Department of Public Health. The showing of records of mental 
health institutions is controlled entirely by c. 123, except those with 
licenses which come under c. Ill , § 70. 

May 4, 1964. 

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

Dear Doctor Solomon: — I have received your letter requesting my 
opinion on the subject of inspection of records pursuant to G. L. c. Ill, 
§ 70 and c. 66, § 10. You have posed the following questions: 

"1) Does Section 70 of Chapter 111, General Laws, apply to the State 
Hospitals and Clinics operated in whole or in part by the Department of 
Mental Health, and to the private hospitals and schools licensed by the 
Department of Mental Health, particularly that part which pertains to 
inspection of records by the patient to whom they relate or by his attorney? 

"2) If the answer to the foregoing is negative, then are the records of 
the institutions operated by or licensed by the Department of Mental 
Health subject to Section 10 of Chapter 66, General Laws? 

"3) If the answer to question #2 is affirmative, then until such time as 
we can seek remedial legislation, have we any legal means to prevent our 
patients' records being viewed by anyone who wishes to see them? 

"4) If the answer to question #2 is negative, under what circumstances 
may our patients' records be made available to persons who wish to see 
them? 

The questions submitted require interpretation of G. L. c. Ill, § 70, 
which regulates the keeping and inspection of certain hospital records, 
and which provides in part as follows: 

"Hospitals, dispensaries or clinics, and sanatoria licensed by the de- 
partment of public health shall keep records of the treatment of the cases 
under their care and the medical history of the same .... Section ten of 
chapter sixty-six shall not apply to such records; provided, that such 
records and similar records kept by the licensee may be inspected by the 
patient to whom they relate or by his attorney upon delivery of a written 
authorization from the said patient, and a copy shall be furnished upon 
his request and a payment of a reasonable fee; and provided, further, 
that upon proper judicial order, whether in connection with pending 
judicial proceedings or otherwise, or, except in the case of records of 
hospitals under the control of the department of mental health, upon 
order of the head of the state department which issues the license and in 
compliance with the terms of said order, such records may be inspected 
and copies furnished on payment of a reasonable fee. (Emphasis sup- 
plied.) 

The statute in question admittedly is far from clear, and an attempt 
must be made to determine the intent of the General Court. Prior to 
1956, c. Ill, § 70 referred to "hospitals supported in whole or in part by 
contributions from the Commonwealth", thus clearly applying to all 
public institutions, with no distinction made between hospitals which 
treated physical ailments and those that concentrated upon mental illness. 
By c. 203 of the Acts of 1956, the Legislature extended the applicability 
of § 70 to private institutions by changing the first clause to refer to 



232 P.D. 12 

"hospitals licensed by the department of public health". At present, the 
the statute refers to "hospitals, dispensaries or clinics, and sanatoriums 
licensed by the department of public health". 

Accordingly, the history of c. Ill, § 70 indicates that the intention of 
the General Court was to limit the effect of the statute to public health 
institutions only, while generally exempting mental health facilities from 
its operation. The 1956 amendment which revised the first clause by 
inserting the reference to the Department of Public Health is a persuasive 
indication that the Legislature sought to relieve mental health institutions 
of the necessity of exhibiting records to patients. 

From a practical point of view, there is a clear distinction between 
records of a public health institution and those of a mental hospital. 
Although a patient being treated for some physical infirmity may well 
be entitled to information relating to his illness and treatment, yet a 
mental patient may be severely harmed by exposure to records pertaining 
to his difficulty. The rationale of the distinction has been discussed in 
the Twenty-Second Report of the Judicial Council of Massachusetts, 
when, in 1947, consideration was being given to proposed changes in § 70. 

"As we understand House 63, which we are asked to report upon under 
Resolve 14 of 1946, the bill is designed to exclude from the operation of 
this law hospitals under the control of the department (of mental health). 
It is readily understandable that in many cases it would be extremely 
inadvisable to allow a mental patient to inspect his record or allow him 
to have a copy of it." 

I am aware of the fact that c. Ill, § 70 makes reference in one clause 
to "records of hospitals under the control of the department of mental 
health". This does not mean, however, that all mental health institutions 
are subject to the section. There are in the Commonwealth a few hos- 
pitals which, though licensed by the Department of Public Health, are still 
operated and controlled by the Department of Mental Health. Since 
such institutions receive Public Health licenses, they become subject to 
the provisions of § 70; facilities licensed by the Department of Mental 
Health remain unaffected by the section, as do State Hospitals and Clinics 
under the control of the said Department. Accordingly, in answer to 
your first question, I advise you that c. Ill, § 70 applies only to insti- 
tutions which are licensed by the Department of Public Health. 

I will, therefore, address myself to your other questions. "Public 
records" are defined by G. L. c. 4, § 7 as records required to be kept by 
law or required to be received for filing, and G. L. c. 66, § 10 provides 
that "public records" must be open to reasonable inspection. However, 
these sections must be construed in conjunction with other provisions of 
the General Laws. 

Chapter 123, which governs the operations of the Department of 
Mental Health, provides for the keeping of certain records. Thus, there 
must be maintained a registry of mental defectives (§ 13); records of trans- 
fers (§ 20); records of commitments and admissions (§ 24); etc. Since such 
records must be maintained by law, they admittedly conform to the defi- 
nition of "public records". Llowever, this does not necessarily mean that 
they need be shown indiscriminately. Chapter 123 itself imposes re- 
strictions upon the showing of certain records. For example, c. 123, § 13 
provides that the records which constitute the required registry of mental 
defectives shall not be open to public inspection. Such provisions for 



P.D. 12 233 

disposition of particular records supersede c. 66, § 10, which statute 
applies only in the absence of other, more specific methods of handling 
the records in question. Of course, mental health records not required 
to be kept by law would not be considered public records in any event, 
and would not have to be shown. 

Where the showing of records is specifically treated in c. 123, hospital 
personnel may not go beyond the statute and make records available to 
unauthorized individuals. Likewise, a court would have no authority to 
order the showing of such records to persons not legally entitled to ex- 
amine them. Accordingly, it is my opinion that the showing of records 
of mental health institutions is controlled entirely by the provisions of 
c. 123, with the exception of records of those few facilities which, though 
controlled by the Department of Mental Health, have Public Health 
licenses, ami are, consequently, subject to c. Ill, § 70. Where records 
are not required to be kept, they may presumably be made available or 
withheld at the discretion of those in charge of the particular patient's 
treatment. Because of the negative response to question #2, I have not 
treated with your third inquiry. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



So long as a licensed firearm, whether it be issued for hunting or any other 
purposes, is under the direct control of the licensee when carried in 
a vehicle, no law is violated. 

March 4, 1964. 
Mr. Clayton L. Havev, Acting Commissioner, Department of Public 

Safety. 

Dear Sir: — I have your request of April 13, 1964 in which you ask 
the following questions: 

"1. Would a license issued to a person under the provisions of c. 140, 
s. 131, of the G. L. be valid if the person takes up residence in another 
state? 

"2. Would a license issued to a person for hunting cover him when 
carrying a loaded pistol in his car, or would it just cover him while 
hunting?" 

The aforesaid c. 140, § 131 provides, in part: 

"The chief of police or the board or officer having control of the police 
in a city or town, . . . after an investigation, may, upon the application of 
any person, . . . residing or having a place of business within their re- 
spective jurisdiction, . . . issue a license to such applicant to carry firearms 
in the commonwealth or to possess therein a machine gun, if it appears 
diat he is a suitable person to be so licensed, . . . ." (Emphasis supplied.) 

The quoted provision of § 131 expresses a clear requirement that an 
applicant for a license to carry a pistol must reside or have a place of busi- 
ness within the jurisdiction from which he seeks the said license. It is 
apparent from this requirement and a reading of the section as a whole 
that the intent of the General Court is to have local licensing authorities 
employ every conceivable means of preventing deadly weapons in the 



234 P.D. 12 

form of firearms coming into the hands of evildoers. The legislation 
should be construed with that thought in mind. Viewed in this light 
the requirement of residence is most important. 

Law enforcing agencies must be in a position to keep a constant check 
on those to whom it has granted licenses. The fact that a licensee be- 
comes a non-resident makes it virtually impossible to check on violations 
by the said licensee. It must be concluded that a license granted to a 
person who later resides in another state becomes inoperative. 

This position is further buttressed by the fact that the Legislature pro- 
vided different qualifications for the issuance of permits to non-residents 
in § 131F of c. 140. 

A clear implication of this section is that a non-resident is within a 
wholly different status and as such must comply with the requirements 
of § 13 IF. Consequently, a licensee who becomes a non-resident of 
Massachusetts would no longer fall within the jurisdiction of local licens- 
ing authorities and § 131 would no longer apply. 

It is my opinion, therefore, that the answer to your question (1) must 
be in the negative. 

Question (2) is answered by c. 140, § 131C, which states: 

"No person carrying a firearm or firearms under a license issued under 
section one hundred and thirty-one shall carry the same in a vehicle 
unless such firearm or firearms while so carried therein is under the direct 
control of such person, and whoever violates the foregoing shall be 
punished by a fine of not more than one hundred dollars. A conviction 
of a violation of this section shall be reported forthwith by the court 
or magistrate to the authority who issued the license who shall immedi- 
ately revoke the license of the person so convicted. No new license under 
said section shall be issued to any such person until one year after the 
date of revocation." 

In conclusion, so long as a licensed firearm, whether it be issued for 
hunting or any other proper purpose, is under the direct control of the 
licensee when carried in a vehicle, no law is violated. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Under c. 54, § 12, the selectmen must exhaust all qualified names on the 
list before appointing any individuals whose names have not been 
submitted by town committee chairman for election officers. 

May 6, 1964. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Sir: — I have received your letter of April 1, 1964 relative to the 
effect of G. L. c. 54, § 12, upon the appointment of election officers in 
towns. You have inquired whether pursuant to this section it is man- 
datory for selectmen to appoint qualified individuals from the lists fur- 
nished by town committee chairmen before they appoint persons whose 
names do not appear on such lists. 

G. L. c. 54, § 12 provides that the selectmen of every town shall an- 
nually appoint a specified number of election officers. For the purpose 
of providing names of interested individuals, the chairman of the town 



P.D. 12 235 

committee of each political party is authorized to file with the selectmen 
a list of enrolled party members who desire appointment. Supplemental 
lists may be filed in order to fill vacancies occurring on the original lists; 
but the names on original lists must be exhausted before appointments 
may be made from supplemental lists. 

The selectmen may conduct examinations to determine whether par- 
ticular individuals are qualified to be election officers. The statute 
further provides: 

. . . upon the expiration of fifteen days after notice given in writing 
prior to June fifteenth in any year by the selectmen to the chairman of 
any political committee who has not filed original or supplemental lists, 
the selectmen may appoint as election officers enrolled members of the 
party who, in the opinion of the selectmen, are qualified to act as such. 

When making the eventual selections, the selectmen must, under Sec- 
tion 13 of said Chapter 54, ensure that the two leading political parties 
are equally represented. 

The statute leaves no room for doubt that qualified people on the 
lists filed by the town committee chairmen must be chosen before the 
selectmen may appoint persons whose names have not been submitted. 
The Legislature has carefully provided for the submission of names of 
persons who are interested in appointment. But the statutory framework 
would be of little consequence were the selectmen authorized to ignore 
the lists filed by the town committee chairmen. It does not appear to 
be the purpose of the statute to establish a selection system that would 
be followed only when the selectmen involved desired. 

In fact, the very language of the statute limits the right of the selectmen 
to choose individuals whose names do not appear on the lists. Under c. 
54, § 12, the selectmen must, prior to June fifteenth, give notice in writing 
to the chairman of any political committee who has not submitted lists. 
Fifteen days after the giving of such notice, the selectmen may then "ap- 
point as election officers enrolled members of the party who, in the opinion 
of the selectmen, are qualified to act as such". The implication is clear 
that the selectmen must choose names from properly filed lists unless 
such lists are unavailable. Accordingly, it is my opinion that under c. 54, 
§ 12, the selectmen must exhaust all qualified names on the lists before 
appointing any individuals whose names have not been submitted by 
town committee chairmen. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Should the State Ballot Law Commission find that the Board of Regis- 
tration of any town did not certify the signatures as required it would 
be within the jurisdiction of the Board to find that the petition in 
question does not contain the signatures of "qualified voters." 

May 12,1964. 

Mr. Robert J. O'Hayre, Chairman, State Ballot Law Commission. 

Dear Mr. O'Hayre: — On behalf of the State Ballot Law Commission 
you have requested my opinion as to the applicability of Chapter 53, 
section 22 A to the following facts: 



236 P.D. 12 

You write that the Commission has evidence that some Boards of 
Registrars or Election Commissions have failed to comply with the Act by 
not issuing or receiving receipts as required thereby. You ask "what 
credence, if any, should be given to petitions where no receipts were given 
to petitioners when the petitions were filed for certification and no original 
receipts were obtained from the petitioners when they collected the certi- 
fied petitions?" 

Before considering the precise question asked, the jurisdiction of the 
State Ballot Law Commission with respect to Initiative and Referendum 
Petitions must be considered. The jurisdiction with respect to such 
matters is fixed by G. L. c. 53, section 22A. Section 22A provides as 
follows: 

"The provisions of law relative to the signing of nomination papers of 
candidates for state office, and to the identification and certification of 
names thereon and submission to the registrars therefor, shall apply, so 
far as apt, to the signing of initiative and referendum petitions and to 
the identification and certification of names thereon, and, except as other- 
wise provided, to the time of their submission to the registrars. Regis- 
trars shall receipt in writing for each initiative or referendum petition 
submitted to and received by them, and shall deliver such petitions only 
on receiving written receipts therefor. Objections that signatures ap- 
pearing on an initiative or referendum petition have been forged or 
placed thereon by fraud and that in consequence thereof the petition 
has not been signed by a sufficient number of qualified voters actually 
supporting such petition, as required by the constitution, may be filed 
with the state secretary not later than five o'clock in the afternoon on 
the thirtieth week day succeeding the last day for filing such petition. 
The state secretary shall refer the same, to the state ballot law commission, 
which shall investigate the same, and for such purpose may exercise all 
the powers conferred upon it relative to objections to nominations for 
state offices, and if it shall appear to said commission that the objections 
have been sustained it shall forthwith reject the petition as not in con- 
formity with the constitution and shall notify the state secretary of its 
action." 

From the above it is clear that the jurisdiction of the State Ballot Law 
Commission is limited to "objections that signatures appearing on an 
Initiative or Referendum Petition have been forged or placed thereon by 
fraud and that in consequence thereof the petition had not been signed 
by a sufficient number of qualified voters actually supporting such peti- 
tion, as required by the Constitution", forwarded to the Commission by 
the Secretary of the Commonwealth. Compton vs. State Ballot Law 
Commission, 311 Mass. 643, 653. Morrissey vs. State Ballot Law Com- 
mission, 312 Mass. 121 139. 

The statute further provides that with respect to such objections the 
Commission may exercise all the powers conferred upon it relative to 
objections to nominations for state offices. However, as stated by the 
Court in Compton vs. State Ballot Law Commission, supra, p. 653, "what- 
ever may be the scope of the objections to nominations that are within 
the jurisdiction of the State Ballot Law Commission, this broad language 
does not extend to the jurisdiction of the Commission with respect to 
objections to Initiative Petitions beyond the scope of the objections specifi- 
cally described in G. L. (Ter. Ed.) c. 53, section 22A as amended." The 



P.D. 12 237 

provisions of said section 22 A incorporating matters relating to nomina- 
tion papers, "so far as apt," do not apply where it is "otherwise provided," 
and it is "otherwise provided" with respect to objections to Initiative 
and Referendum Petitions by the express language of said section 22A 
limiting objections within the jurisdiction of the State Ballot Law Com- 
mission to objections of the two classes therein described. 

The provision of c. 53, about which the Commission specifically in- 
quires provides that registrars shall receipt in writing for each Initiative 
or Referendum Petition submitted to and received by them, and shall 
deliver such petitions only on receiving written receipts therefor. 

Obviously, the above provision of section 22A was drafted, in part, to 
insure that the submission of such petitions to the people should not be 
accomplished by means of signatures "placed" upon a Referendum Peti- 
tion "by fraud". It is my opinion that it would be beyond the jurisdiction 
of the Commission under section 22A to reject a Referendum Petition 
solely by reason of the failure of Registrars to provide or ask for receipts 
as required. However, insofar as such omission is relevant and material 
to the question of whether said signatures were placed upon the document 
by fraud then evidence of the same might be received and considered by 
the Commission for whatever probative value it might have in this con- 
nection. The hearings convened by the State Ballot Law Commission 
to hear objections to the legislative pay raise Referendum are limited by 
statute as set forth above and there is no statutory basis for them to 
expand this jurisdiction. Compton vs. State Ballot Law Commission, 
supra. 

Your letter of April 16, 1964 contains yet another inquiry pertaining 
to the hearings you conducted in relation to objections filed to the 
Referendum Petitions concerning the legislative pay raise. 

You write that a petition containing 47 certified names has been filed 
from the Town of Hancock and is before the Commission. Evidence has 
been received by the Commission Avhich states that no petition on the 
pay raise was received or certified by the Board of Registration in the 
Town of Hancock. 

Article 48 of the Amendments to the Constitution of the Common- 
wealth of Massachusetts provides that provision "shall be made by law 
for the proper identification and certification of signatures to Referendum 
Petitions." It should be noted that the requirement of certification in 
the General Laws does not change the constitutional qualifications for 
signing a Referendum Petition but merely provides a statutory method 
of insuring that such qualifications by a person may be ascertained. It 
is my opinion that evidence that a petition has not been certified as re- 
quired by law may properly be considered by the State Ballot Law Com- 
mission insofar as it has relevancy to the ultimate question before the 
Commission as to whether the petition "fails to bear a sufficient number 
of signatures of qualified voters as required by the Constitution." Mor- 
rissey vs. State Ballot Law Commission, 312 Mass. 121, 134. 

G. L. (Ter. Ed.) c. 53, section 7, which is applicable to nomination 
papers, and is "apt" (See section 22A set forth above) with respect to 
Referendum Petitions, providing for the checking and certification of 
signatures, provides that "only names so checked shall be deemed to be 
names of qualified voters for the purposes of nomination." Compton vs. 
State Ballot Law Commission, supra, p. 658. 



238 P.D. 12 

Thus, should the Commission find that the Board of Registration of 
any town, in fact, did not certify the signatures as required, it is my 
opinion that it would be within the jurisdiction of the Board to find 
that the petition in question does not contain the signatures of "qualified 
voters". 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The project contemplated by the Regional Rehabilitation Research and 
Demonstration Center of Northeastern University would violate the 
General Laws, 5/15/64 c. 6, § 84 and should not be permitted. 

May 15, 1964. 

Hon. Francis A. Harding, Commissioner of Rehabilitation. 

Dear Commissioner Harding: — I have your letter of March 13, 1964 
relative to examination of records of the Massachusetts Rehabilitation 
Commission. You state that the Regional Rehabilitation Research and 
Demonstration Center of Northeastern University wishes to conduct a 
research program based upon material accumulated by the Commission. 
Such a program would necessitate examination of the records of certain 
individuals currently being served. You have requested my opinion as to 
whether you as Commissioner may, in light of the restrictions contained 
in G. L. c. 6, § 84, permit the staff of the Research and Demonstration 
Center to review Commission records. 

General Laws c. 6, § 84 provides that information and records of 
applicants for vocational rehabilitation shall be confidential. 

"Information or records concerning any applicant for vocational re- 
habilitation shall be confidential and for the exclusive use and infor- 
mation of the commission in the discharge of its duties. Such information 
or records shall not be open to the public, notwithstanding the provisions 
of section ten of chapter sixty-six or other provisions of law, and shall not 
be admissible in any action or proceeding unless the commission is party 
to such action or proceeding. . . . Whoever, except with the authority of 
the commissioner or pursuant to his rules and regulations, or as otherwise 
required or authorized by law, shall disclose such information shall be 
punished by a fine of not more than one hundred dollars or by imprison- 
ment for not more than six months, or both." 

It is clear that under most circumstances the records of the Massa- 
chusetts Rehabilitation Commission must be used only for the purpose 
of discharging the actual duties of the Commission itself. Such records 
are not considered public, and must be protected from general scrutiny. 
Without such assurance of confidential treatment, prospective applicants 
might well be discouraged from availing themselves of the Commission's 
services. The seriousness of the legislative determination that applicants' 
records remain confidential is demonstrated by the criminal penalty im- 
posed for improper disclosure. 

The statute does designate three exceptions to the requirement that 
Commission records must not be made public. The applicant or his 
attorney is entitled to information concerning the applicant's record 



P.D. 12 239 

"which is necessary to him in his relations with the commission". Such 
information may be supplied to persons or Commonwealth departments, 
divisions or subdivisions directly concerned with the applicant's voca- 
tional rehabilitation. Finally, the Commission itself may publish such 
information in statistical form, so long as the identities of individuals 
whose records have been used are not disclosed. 

The conclusion is inescapable that the above are the sole exemptions 
contemplated by the General Court. By enumerating three occasions 
vipon which the general requirement that Commission records are to be 
confidential is to be suspended, the Legislature clearly implies that the 
requirement shall be in effect at all other times. The project that is 
contemplated by the Northeastern University group does not fall within 
any of the exempted categories. The project does not relate to voca- 
tional rehabilitation of an individual applicant, and the material gathered 
would be compiled and published by the Research and Demonstration 
Center rather than by the Commission itself. 

The fact that federal grants from the Vocational Rehabilitation Ad- 
ministration in Washington support both the Commission and the Re- 
search and Demonstration Center cannot change the effect of the statute. 
I am aware that the statute's criminal provision applies to individuals 
who disclose confidential information "except with the authority of the 
commissioner or pursuant to his rules and regulations". This language 
simply limits the application of the criminal provision; it in no way ex- 
pands the authority of the Commissioner beyond what is granted by the 
remainder of the section. Consequently, it is my opinion that the 
project contemplated by the Regional Rehabilitation Research and 
Demonstration Center of Northeastern University would violate the pro- 
visions of G. L. c. 6, §84 and should not be permitted. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Registry of Motor Vehicles should continue to exempt cities and 
toxvns from the requirement of furnishing compulsory insurance cer- 
tificates as a condition to registering municipally - owned vehicles. 

May 18,1964. 

Hon. James R. Lawton, Registrar fo Motor Vehicles. 

Dear Registrar Lawton: — I have received your letter relative to 
compulsory insurance certificates in connection with vehicles owned by 
the Commonwealth or by a political subdivision thereof. You have 
pointed out that G. L. c. 90, § 1A, which requires the furnishing of 
compulsory insurance certificates as a condition to registration exempts 
such state, county or municipal vehicles. On the other hand, the con- 
cluding sentence of the first paragraph provides that "motor vehicles and 
trailers used by the fire or police department of any city or town or park 
board solely for the official business of such department or board shall 
not be subject to the requirements of this section". In the light of this 
apparent ambiguity, you have asked whether the Registry should exempt 
all municipally-owned vehicles from the compulsory insurance certificate 
requirement, or only those vehicles that are used by the fire or police 
departments or park boards solely for official business. 



240 P.D. 12 

It is my opinion that the current Registry practice of exempting all 
municipally-owned vehicles is correct and should be continued. It should 
be noted that the first sentence of the statute in question refers to vehicles 
owned by the Commonwealth or its political subdivisions, and relieves 
all such vehicles of the compulsory insurance certificate requirement. 
The final sentence of the first paragraph, however, is not limited to 
vehicles owned by the specified departments and boards, but relates to 
vehicles used by such bodies for official business. Conseqently, the cate- 
gory of exempted municipal vehicles is expanded to include those vehicles 
which, although not actually owned by the city or town in question, yet 
are used exclusively for certain municipal purposes. 

The history of the statute supports the above interpretation. Prior to 
amendment of the law in 1950, the last sentence of the first paragraph read 
as follows: 

"Ambulances, fire engines and apparatus, police patrol wagons and 
other vehicles used by the police department of any city or town or park 
board solely for the official business of such department or board (whether 
or not owned as aforesaid) shall not be subject to the requirements of 
this section." (Emphasis supplied.) 

There have been changes in wording, but the general sense of the 
statute remains the same. 

Therefore, on the basis of the opening sentence of the statute, the 
Registry should continue to exempt cities and towns from the require- 
ment of furnishing compulsory insurance certificates as a condition to 
registering municipally-owned vehicles. In addition, vehicles used by fire 
and police departments and park boards solely for official business should 
be granted the same exemption, whether or not such vehicles are actually 
owned by the city or town in question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The determination of whether so-called "garden crypts" fall within the 
general classification of "community mausoleums" is a question of 
fact for determination by the Department of Public Health. 

May 20,1964. 

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

Dear Sir: — I have your communication wherein you request my 
opinion concerning whether so-called "garden crypts" fall within the 
general classification of "community mausoleums" under G. L. c. 114, §§ 
43B and 43D through 43N, copies of which are enclosed. 

The intent of G. L. c. 114 is to insure that structures containing dead 
bodies, 

1. are properly located and controlled. 

Section 43A — who may own, maintain or operate cemeteries, 
Section 43B — forbidden sales or conveyances, and 
Section 43D — community mausoleum, crematory, etc., to be located 
within cemetery; 

2. are properly constructed. 

Section 43E — prerequisites to erection of community mausoleum, etc., 



P.D. 12 241 

Section 43F — supervisory control of Department of Public Health, 

inspector, 

Section 43G — prerequisites to use of community mausoleum, 
Section 43H — completes prerequisites of sale of crypt in community 

mausoleum; and 

3. are properly maintained. 

Section 43M — permanent disposition of dead bodies or remains, 
Section 431 — remains of dead bodies constituting menace to health, 
Section 43J — fund for care, maintenance and improvement of com- 
munity mausoleum, and 

Section 43L — abating or enjoining nuisance; abating or enjoining 
nuisance; 

4. are adequately protected with funded reserves. 

Section 43J — fund for care, maintenance and improvement of com- 
munity mausoleum, and 

Section 43K — custody, administration and enforcement of fund. 

General Laws, c. 114, § 43N establishes penalties for those failing to 
comply with these sections. In addition, § 43G specifically provides cer- 
tain prerequisites for use, namely: "No community mausoleum, crypt or 
structure erected as aforesaid shall be used for the purpose of depositing 
therein the remains of any dead body until such mausoleum, crypt or 
structure, or a component section thereof, is fully completed, and the 
permanent care and improvement fund required by section forty-three 
J has been established," and in § 43H, prerequisites to the sale of crypts, 
namely: "No crypt in a community mausoleum shall be sold or offered 
for sale before said structure, or a component section thereof, is fully 
completed." 

In making a determination, the department must decide whether or 
not a proposed project is one of the following: 

(1) A structure containing crypts intended to hold or contain the 
bodies of the dead permanently, a mausoleum. 

(2) A structure containing niches for cinerary urns or other containers 
for the ashes or cremated bodies, a columbarium. 

(3) An excavation in the earth for use as a place of burial, a grave. 

(4) A tomb on private land for the exclusive use of the family of the 
owner (see § 43). 

(5) A structure containing crypts erected or controlled by a church 
or a religious society and used only as a repository for the remains of 
the clergy or dignitaries of such church or religious society (see § 43D). 

The requirements of G. L. c. 114, §§ 43B and 43D through 43N apply 
if the proposed project falls under the first classification, namely, a 
structure containing crypts intended to hold or contain the bodies of the 
dead permanently. 

It is my opinion that this matter involves a question of fact for de- 
termination in each instance by your department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



242 P.D. 12 

The fact that the Town of North Attleboro keeps it books on the cash 
basis does not prevent transfer of accounts receivable of the Mu- 
nicipal Lighting Plant for the purpose of reducing the general tax 
levy. 

May 21, 1964. 

Mr. Norman Mason, Chairman, Department of Public Utilities. 

Dear Mr. Mason: — I have received your letters of March 6 and 
April 1, 1964, relative to accounting practices of the Municipal Lighting 
Board of the Town of North Attleboro. You have informed me that the 
Municipal Lighting Plant in question has, pursuant to G. L. c. 164, § 63 
and regulations enacted thereunder by the Department of Public Utilities, 
adopted the accrual accounting method. The Town of North Attleboro, 
however, keeps its records on a cash receipts basis, as required bv G. L. 
c. 44, § 56. 

At the close of 1963, the Municipal Lighting Plant had available the 
sum of $55,037.85 as surplus after expenditures for capital purchases. 
This figure represented a cash balance of $16,951.80 and accounts re- 
ceivable totaling $39,086.05. The North Attleboro town meeting now 
desires to transfer these amounts to the Town Treasury for the purpose 
of reducing the general tax levy. You have raised the following questions 
in connection with this proposed transaction. 

"1. If the Municipal Lighting Plant over which this Department has 
jurisdiction under the authority of G. L. c. 164, has adopted an accrued 
accounting procedure approved by this Department, and wishes to transfer 
an amount representing unexpended accrued profit for the year, to what 
extent, if any, does the Municipal Finance Act, c. 44 of the General Laws, 
alter this jurisdiction and this method of accounting with specific refer- 
ence to the cash profit or accrued profit remaining at the end of the 
fiscal year? 

"2. If a municipal lighting plant has adopted accrued accounting 
practice in conformance with the uniform system of accounts, what city 
or state department has the authority to determine the amount of surplus 
available for disposition by the local appropriating authorities? 

"3. In a municipality having an electric department, does a Town 
Treasurer without direction or voucher have the authority to change, 
affect or 'reserve' any municipal electric department account concerning a 
lawful and prime reoccurring expense such as purchased power?" 

Section 23 of c. 59 of the General Laws governs the annual assessment 
of local taxes. The assessors must assess taxes to cover all amounts "ap- 
propriated, granted or lawfully expended" by their respective towns since 
the last annual assessment. In addition, the assessment figure must cover 
all amounts required by law to be raised by taxation; all debt and 
interest charges maturing during the year, and not otherwise provided 
for; all amounts necessary to satisfy final judgments against the town; 
and all amounts necessary to cover abatements for previous years in 
excess of the overlay for such years. 

The statute further provides for the deduction of certain amounts from 
the total required to be assessed. 

". . . The assessors shall deduct from the amount required to be 
assessed (a) the amount of all estimated receipts of their respective towns 



P.D. 12 243 

lawfully applicable to the payment of the expenditures of the year, ex- 
cluding sums to be received from the commonwealth or county tor high- 
way purposes and excluding estimated receipts from loans and taxes, but 
including estimated receipts from the excise levied under chapter sixty A 
and receipts estimated by the commission under section twenty-five A of 
chapter fifty-eight, (b) the amount of all appropriations voted from avail- 
able funds for the purpose of deduction, and (c) the amount of all other 
appropriations voted from available funds. . . ." (Emphasis supplied.) 

Deductions on account of estimated receipts, as governed by clause (a), 
need not be approved by the Commissioner of Corporations and Taxation, 
upon the condition that such deductions do "not exceed the aggregate 
amount of actual receipts received during the preceding financial year 
from the same sources". Deductions may, however, exceed the previous 
year's receipts if written approval is obtained from the Commissioner. 

It is clear that neither clause (b) nor clause (c) of the statute authorizes 
the deduction of amounts representing accounts receivable. Each clause 
refers to "appropriations voted from available funds", thereby restricting 
the deductions to sums that are actually available in the Town Treasury. 
But clause (a) is not restrictive in this way. This clause provides for the 
deduction of amounts that the town reasonably expects to receive during 
the year. Accrual accounting procedure is therefore recognized by the 
statute, at least for purposes of tax assessment. Clause (a) authorizes the 
assessors to estimate amounts that the town may expect to receive during 
the year, and to deduct such amounts from the sum that must be raised 
by taxation. I see no reason why accounts receivable of a municipal 
lighting plant (which plant is in effect a municipal department) should 
not be utilized to reduce the tax rate under the authority of clause (a). 
Assuming that the town meeting votes to transfer the accounts receivable 
in question for this purpose, the fact that the town keeps its books on a 
cash receipts accounting basis under the Municipal Finance Act would 
not prevent reduction of the amount to be assessed pursuant to c. 59, § 23. 

If the town meeting votes to transfer the accounts receivable to the 
Municipal Lighting Plant, it then becomes the responsibility of the as- 
sessors to determine what percentage of such accounts should be deducted 
from the amount to be assessed. Chapter 59, § 23 provides that the 
assessor shall make deductions on account of estimated receipts, with 
approval by the Commissioner of Corporations and Taxation necessary 
only if the amount of the deduction in question exceeds actual receipts 
received during the preceding year from the same source. The assessors 
may, of course, confer with other officials; but the eventual decision as 
to the amount available for purposes of reduction of the tax rate must, 
under the statute, be his own. 

Your third question refers to the attempt of the Town Treasurer to set 
aside part of the cash balance of the Municipal Lighting Plant in order to 
create a "reserve" to meet an account payable. Apparently the Light De- 
partment had a cash balance of $74,603.29 at the end of 1963, with an 
account payable on record of $57,651.49 for purchased power. The 
Treasurer, without authorization by either the Selectmen or the Light 
Department, set aside cash equivalent to the amount of the account pay- 
able, and reported only $16,951.80 as the cash balance. 

I find nothing that authorizes the Town Treasurer to take such action. 
The Municipal Lighting Plant keeps its records on an accrual accounting 



244 P- D - 12 

basis, and may properly do business with accounts payable outstanding. 
The Treasurer cannot allocate amounts in the treasury without instruc- 
tions from the Selectmen or from the Municipal Department involved. 
Should the Municipal Lighting Plant accumulate accounts payable un- 
wisely, there are audits and controls prescribed by statute. It is not the 
function of the Town Treasurer to act as financial overseer of a mu- 
nicipal department without direction from the Board of Selectmen. 

Consequently, it is my opinion that the fact that the Town keeps its 
books on the cash receipts accounting basis under G. L. c. 44 does not 
prevent transfer of accounts receivable of the Municipal Lighting Plant 
for the purpose of reducing the general tax levy. Likewise, it does not 
confer authority upon the Town Treasurer to allocate parts of a cash 
balance in order to guarantee the honoring of an account payable by a 
municipal department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Under the laws of Massachusetts, the taking in the name of SpaceRace, 
Inc., was a good taking being against the record owner although 
legal title was vested in the Trustees in Bankruptcy on the date of 
the taking. 

June 1, 1964. 

James D. Fitzgerald, Commissioner, Department of Public Works. 

Re: AMESBURY, L.O. 5377, Parcel 1-8A-2, Taken in name of Space 
Race, Inc. 

Dear Sir: — In reply to your letter of May 15, 1964 on the captioned 
matter, please be advised that it should initially be recognized that all 
non-exempt property of a bankruptcy passes retroactively to the Trustee 
in Bankruptcy as of the date of the filing of the petition upon adjudi- 
cation of bankruptcy and the appointment and qualification of the 
Trustee. 

You have indicated that in this case the petition in bankruptcy was 
filed on July 26, 1963, adjudication was made on September 24, and 
Receiver and Trustee was appointed on September 25th. Therefore, at 
the time of filing of one Order of Taking, October 1, 1963, title was in 
Wilfred H. Smart as Receiver and Trustee of the said Bankrupt subject 
to a trust and second mortgage as set forth in abstractor certification of 
title under date of April 23, 1964. 

The first question in your letter of May 15th, contained in the third 
paragraph thereof is: "Was the taking in the name of Space Race, Inc., 
a good taking, being against the record owner although legal title was 
vested in the Trustee in Bankruptcy on the date of this taking?" 

The answer to the above question must be affirmative under the laws 
of Massachusetts. Under the theory of compulsory sale wherein eminent 
domain is considered as an inherent sovereign power to compel a holder 
of property to yield his title to the sovereign, if title was found to be 
invalid because a mistake had been made in ascertaining the ownership, 
the condemnation would have to be repeated or the public could be 
ousted by the true owner. In those jurisdictions which subscribe to that 



P.D. 12 245 

theory it is held that condemnation proceedings pass nothing more than 
the title to whatever interests were possessed by persons who were made 
party to the proceedings. Nichols on Eminent Domain, 9.1 (2) . In such 
jurisdiction a party not notified is not bound by the award and the sov- 
ereign would fail to acquire a perfect title. 

In Massachusetts it is otherwise. Here the cases hold that the power 
of eminent domain is a proceeding "in rem". Edmunds v. Boston, 100 
Mass. 535; Nichols 1.142. The power acts upon the land itself, not upon 
the title or upon the sum of the titles. Upon recording of the order of 
taking all inconsistent proprietary rights are divested and not only privies, 
but strangers are concluded. Therefore, whoever may have been the 
owner or whatever the character of his estate, the paramount title is in 
the public, not as claiming under him by a statutory grant, but by an 
independent title. The owner is entitled to full compensation according 
to his interest and to the extent of the taking. 

Provided that the order of taking otherwise complied with Section 1 
of Chapter 79 Mass. General Laws, the taking in the name of Space Race, 
Inc., rather than the Trustee in Bankruptcy would not vitiate the taking 
or impair the paramount title of the Commonwealth. 

The second question in your May 15th letter, contained in the fourth 
paragraph thereof is: "From whom should the Commonwealth obtain 
release and with whom should it negotiate a Land Damage Agreement?" 
A legal exposition on this question would be obviated by obtaining 
releases from all parties who had a record or retroactive interest at the 
time of the recording of order of taking: Trustee in Bankruptcy Smart, 
First Mortgagee Provident Institute for Savings, John Briston Sullivan 
et al as Second Mortgagees and the Embassy Acceptance Corporation of 
Westwood. Payment would be made on the basis of an apportionment 
sheet signed by all parties. 

Certain factual aspects of the problem are not clear. In the second 
paragraph of your May 15th letter you wrote that on April 6, 1964 the 
Trustee conveyed the real estate to Embassy Acceptance Corporation. 
The answer herein to the first question in your May 15th letter indicates 
that any such conveyance could not have been effective as to Parcel 
1-8A-T. Any further answer to your second question of May 15th will 
require examination of the complete abstract of title and abstractor 
certification of title. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



In regards to a land taking, loam having been severed from its natural 
state stacked or piled has thereby become personal property. 

June 9, 1964. 
Malcolm E. Graf, Director and Chief Engineer, Water Resources 

Commission. 

Re: SuAsCo Reservoir A-6h-Parcels 303, 303-1. 

Dear Sir: — By letter dated May 13, 1964, you requested my opinion 
on the following question: ". . . is the loam pile which was stacked on 



246 P.D 12 

the property before the taking the personal property of Herman Sparrow 
or part of the real estate that we acquired?" 

It appears that the loam referred to was once a part of the surface of 
the taken property in its natural condition but had been stacked in piles 
before the taking. 

Land, lands and real estate are defined in Section 7, Chapter 4 of the 
General Laws of the Commonwealth as follows: ". . . 'Land', 'lands', and 
'real estate' shall include lands, tenements and hereditaments, and all 
rights thereto and interests therein; ..." 

"The term [real property] covers all that goes to make up the earth 
in its natural condition." (emphasis supplied) 42 Amer-Jur. § 13. 

"Anything detached from the realty becomes personalty instantly. Thus 
when things which in their natural state form part of the freehold are 
severed therefrom and converted into chattels, they belong to the owner 
of the land; and when any part of the freehold, such as coal, minerals, 
sand, gravel, crops, or fixtures are severed from the freehold, they be- 
come personalty." 73 C.J. 2d § 11. 

Analagous to the problem raised by your letter is the question of 
when timber becomes personal property. "Growing trees permanently 
located on land . . . usually described as standing wood and timber 
but including growing shade and ornamental trees are part of the free- 
hold until severed therefrom." Paine v. Board of Assessors of Town of 
Weston, 297 Mass. 173 (emphasis supplied) . Timber becomes personalty 
when it is cut and separated from its natural state. 

It is my opinion that having been severed from its natural state stacked 
or piled loam has thereby become personal property. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Board of State Examiners of Plumbers may forward a request for 
refund of certain deferred renewal charges together with reasons 
therefor to the State Treasurer and that the Treasurer may — if he 
deems the reasons sufficient — return sums in question. 

June 11, 1964. 

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

Dear Mrs. Sullivan: — I have received your letter relative to the 
authority of the Board of State Examiners of Plumbers over the deferred 
renewal fees provided for by G.L. c. 142, § 6. You have asked whether 
the Board has legal authority to decide whether such a deferred fee should 
or should not be imposed. If the imposition of a late charge is discre- 
tionary, you further inquire whether the Board may request the State 
Treasurer to refund late charges that have previously been assessed and 
paid. 

General Laws c. 142 authorizes the Board of State Examiners to issue 
both master plumber and journeyman licenses. Section 6 of said c. 142 
provides in part as follows: 



P.D. 12 247 

". . . Licenses shall be issued for one year and may be renewed annu- 
ally on or before May first, or, in case of absence, sickness or other dis- 
ability of the holder, on or before sucfi later date as the examiners may 
permit, upon payment of the required fee. ... In case of failure to renew 
a license as aforesaid on or before May. first in any year or such later 
date as the examiners may permit as aforesaid, the person named therein 
may, upon payment of the said fee and, at the discretion of the examin- 
ers, a deferred renewal fee of ten dollars, increased by such additional 
fees as would have been payable had such license been continuously 
renewed, receive a deferred renewal thereof which shall expire on the 
ensuing first day of May; provided, that such renewed license shall not 
constitute its holder a licensee for any period preceding its issue." (Em- 
phasis supplied.) 

The statute clearly provides that licenses are to be issued on an annual 
basis, with the first day of May the cut-off date for renewal. However, 
recognizing the fact that extenuating circumstances might cause an una- 
voidable delay in submitting a renewal application, the General Court 
authorized renewal "in case of absence, sickness or other disability of 
the holder, on or before such later date as the examiners may permit." 
Accordingly, it is within the discretion of the State Examiners to extend 
the time for filing a renewal application for the above reasons. 

The question of a "deferred renewal fee" arises only in case of failure 
to renew by May first or by such later date as may be permitted by the 
Board because of absence, sickness or other disability. Under such cir- 
cumstances, renewal of a license may still be obtained upon payment 
of the usual fee "and, at the discretion of the examiners, a deferred 
renewal fee of ten dollars." It is clear that the deferred renewal fee applies 
only to applications filed after anv extension of time that has been granted 
because of illness or other specified cause. In addition, the imposition 
of the ten dollar deferred renewal charge is — by the terms of the statute 
— discretionary Math the Board of State Examiners. Consequently, in 
answer to your first inquiry, the Board does have the legal authority to 
decide whether or not the deferred renewal fee should be charged. The 
Board may properlv decide in individual cases to charge only those fees 
which would have been payable had the license been continuously re- 
newed (which fees must be paid in all cases) and to forego the assess- 
ment of any late charge. 

You have informed me that in certain instances deferred renewal fees 
have alreadv been imposed, and that the Board wishes to refund these 
charges to the particular applicants. You have asked whether the Board 
may properly request the State Treasurer to return these late charges. 
I find nothing in the statutes which regulate the functioning of the State 
Treasurer which would prohibit the Treasurer from complying with such 
a request. In the absence of pertinent sections of the General Laws which 
might control such transactions, it is my opinion that the Board of State 
Examiners may forward a request for refund of certain deferred renewal 
charges together with reasons therefor to the State Treasurer, and that 
the Treasurer may — if he deems the reasons sufficient — return the sums 
in question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



248 P.D. 12 

The Department of Education should distribute funds of the State Aid 
Program to the cities and towns in accordance with the valuations 
appearing in c. 559 of the Acts of 1945. 

June 29, 1964. 
Hon. Owen B. Kiernan, Commission of Education. 

Dear Sir: — I have received your letter of May 6, 1964 relating to the 
State Aid Program authorized by c. 70 of the General Laws. Distribution 
of amounts to the various cities and towns is governed by § 18 of c. 58 
of the General Laws, which section at present provides in part as follows: 
". . . the state treasurer shall on or before April fifteenth in each year 
distribute to the several cities and towns from the taxes on incomes under 
chapter sixty-two theretofore collected by the commonwealth the amounts 
required under chapter seventy to the extent that sufficient funds are then 
available. He shall on or before June fifteenth, October fifteenth and De- 
cember fifteenth in each year, distribute to such cities and towns in pro- 
portion to the amounts of the last preceding state tax imposed on them, 
all such taxes collected before December first of such year and not pre- 
viously distributed. . . ." (Emphasis supplied.) 

The remainder of the section provides for the making of certain deduc- 
tions prior to the authorized distribution. 

Accordingly, State Aid amounts are distributed to the cities and towns 
in proportion to the sums levied upon such communities as taxes. Prior 
to the session of the General Court of 1963, the basis of apportionment 
of state and county taxes was established pursuant to c. 559 of the Acts 
of 1945, which chapter designated the amount of property in each munic- 
ipality in the Commonwealth, and the amount of tax to be paid on each 
thousand dollars worth of such property. The determination of State Aid 
amounts has therefore depended upon the figures specified in the said 
St. 1945, c. 559. 

By c. 660 of the Acts of 1963, the General Court enacted a new appor- 
tionment of state and county taxes, thus superseding St. 1945, c. 539. The 
Legislature specifically indicated that the new apportionment would be 
applicable "for the calendar year nineteen hundred and sixty-five, and 
until another is made and enacted by the general court." (Section 1.) In 
addition, § 18 of c. 58 of the General Laws was amended by deleting the 
words "amounts of the last preceding state tax imposed on them", and 
inserting in place thereof the words "valuations last established by the 
general court as a basis for the apportionment of state and county taxes." 
(Section 7.) This change likewise becomes effective on January 1, 1965. 

The General Court has made it clear that the valuations specified in 
St. 1963, c. 660 are not to take effect prior to 1965. This is true for the 
purposes of determining State Aid amounts as well, since the change made 
in c. 58, § 18 has also been suspended until that year. The effective date 
of the new provisions is of course not altered by times of distribution or 
by the fact that significant changes in valuation may have been made. 
Consequently, since the changes in question are not yet effective, your 
department should proceed on the basis of present law. The forms for 
State Aid for this year should be prepared in accordance with the valua- 
tions appearing in c. 559 of the Acts of 1945. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.U. 12 249 

A Retirement Board in passing upon an application for an accidental 
disability retirement allowance is not bound by the statement of a 
medical panel required by G.L., c. 32, § 6(c), as to whether or not 
the disability is such as might by the nature and proximate result 
of the accident or hazard undergone. Dictum in Kelley v. Contribu- 
tory Retirement Appeal Board, 341 Mass. 611 implying a contrary 
view, questioned. A decision of the State Retirement Board granting 
a retirement application is binding on the State Actuary. 

June 30, 1964. 

Hon. C. Eugene Farnham, Commissioner of Insurance. 

Dear Commissioner Farnham: — I have received your letter of June 5, 
1961 relative to the retirement applications of Joseph F. Moynihan and 
John J. Brennan, State Board of Retirement cases numbered 10634 and 
10740, respectively. You have raised important questions concerning the 
effect of findings of certain medical panels and the scope of the decision- 
making authority of the State Board of Retirement. 

Apparently, in the two instant matters, petitions for accidental dis- 
ability retirement have been filed with the State Board of Retirement 
in accordance with the provisions of G.L., c. 32, § 7. The applicants have 
been examined by the medical panel specified in § 6 (3) of said c. 32. 
This section provides in part that no applicant shall be retired: 
". . . unless a majority of the physicians on such medical panel shall, 
after such examination and after a review of all the pertinent facts in the 
case, certify to the board in writing that such member is mentally or physi- 
cally incapacitated for further duty and that such incapacity is likely to be 
permanent, and, in any case involving a retirement under section seven, 
the panel shall further state whether or not the disability is such as might 
be ike natural and proximate result of the accident or hazard undergone 
on account of which such retirement is claimed under said section. . . ." 
(Emphasis supplied.) 

The medical panel reported in each case that disability was not the nat- 
ural and proximate result of the accident in question. 

Accordingly, you have posed the following seven questions: 

"1. May a Board of Retirement disregard a decision rendered by the 
Medical Panel, pursuant to the requirements set forth in chapter 
32, section 6 (3), if such decision answers in the 'negative' the state- 
ment 'that the disability is such as might be the natural and proxi- 
mate result of the accident or hazard undergone on account of 
which such retirement is claimed'? 

"2. May a Board of Retirement render a decision that the disability 
was the natural and proximate result of the accident or hazard 
undergone on account of which retirement is claimed, even though 
the Medical Panel pursuant to the requirements set forth in chap- 
ter 32, section 6 (3) answers in the 'negative' the statement 'that 
the disability is such as might be the natural and proximate re- 
sult of the accident or hazard undergone on account of which such 
retirement is claimed'? 

"3. Would the fact that the Medical Panel answers in 'negative' the 
inquiry referred to in (1) and (2) above preclude the Board of 



250 P-D. 12 

Retirement from making a contrary decision to the effect that the 
disability was the natural and proximate result of the accident or 
hazard undergone on account of which such retirement is claimed? 

"4. If the Board of Retirement makes a contrary decision, as referred 
to in (3) above, is such a decision an error of law? 

"5. If the Board of Retirement makes a decision as referred to in (3) 
above, does such constitute a violation of law, i.e., sections 6 and 
7 of chapter 32? 

"6. If the Board of Retirement, having made a decision that the dis- 
ability was the natural and proximate result of the accident or 
hazard undergone on account of which such retirement is claimed, 
and the Medical Panel pursuant to the above mentioned section 
6 (3) having answered in the negative the question numbered '3.', 
'Is said disability such as might be the natural and proximate re- 
sult of the accident or hazard undergone on account of which re- 
tirement is claimed?', may the Commissioner of Insurance conclude 
that an error of law occurred, constituting a violation of law which 
requires him to take the action as prescribed in section 24 of chap- 
ter 32? 

"7. If you answer No. 6 in the 'negative', must the Commissioner or 
his Actuary proceed in the instant claims with the calculations as 
prescribed in section 21, (3) (a) of said chapter 32?" 

It is clear that three matters must be passed upon by the Medical Panel 
before disability retirement can be granted under c. 32, § 7. A majority of 
the physicians on the panel must certify in writing that the member who 
has made application is mentally or physically incapacitated for further 
duty. A majority must also certify in writing that such incapacity is likely 
to be permanent. Finally, a statement must be included whether the dis- 
ability might be the natural and proximate result of the accident. 

Affirmative findings of the Medical Panel on the first two questions are 
conditions precedent to consideration of the application by the State 
Board of Retirement. If the panel indicates that no disability exists, or 
that a disability is not likely to be permanent, the Retirement Board can- 
not overrule these findings and grant the member's application unless an 
error of law has been committed by the panel. 

Quincy Retirement Board v. Contributory 
Retirement Appeal Board, 340 Mass. 56, 60 

Of course, affirmative findings do not in and of themselves compel the 
Retirement Board to grant application. 

It is my opinion, however, that the statement by the Medical Panel 
on the question whether disability might be causally connected to the 
accident does not bind the Retirement Board in the same way as the 
findings on the first two questions. The statute provides only that the 
panel shall state whether a causal connection might exist. It in no way 
implies that the Board is to be bound by such a statement, or that the 
Board is ousted of jurisdiction to grant the retirement application if the 
statement is negative. It should be noted that the Legislature has used 
the word "certify" in connection with the first two questions to be an- 



P.D. 12 251 

swered by the panel, but calls only for a statement with respect to the 
third area. Such a statement is intended to be evidence to be considered 
by the Board, but is not meant to be binding. The decision-making au- 
thority of the Retirement Board should not be reduced in this fashion 
without some clear statutory indication that such was the intended re- 
sult. 

You have cited the recent case of Anna L. Kelley v. Contributory Re- 
tirement Appeal Board, 341 Mass. 611, and have suggested that its lan- 
guage might affect the above analysis. The Kelley case held, at page 613, 
that the statement of the medical panel on the question of causal connec- 
tion should not be couched in decisive language, but should simply be a 
statement whether such a causal connection might be found to exist. You 
state in your letter that the Medical Panel must therefore answer either 
that the disability might be the natural and proximate result of the acci- 
dent or that it might not be such a result. 

Such alternatives are only slightly different ways of saying virtually the 
same thing, and I do not believe that the Supreme Judicial Court had 
such a result in mind when considering the Kelley matter. Rather, it is 
for the panel to state either that the disability is such as might be the 
natural and proximate result of the accident, or that it is not such as 
might so have resulted. In this way the Medical Panel can realistically be 
recorded either as believing that under no circumstances could disability 
and accident have been related. 

I am aware that the dictum beginning at page 616 of the Kelley opinion 
implies that the Retirement Board is bound, absent an error of law, by a 
negative determination by the Medical Panel on the subject of causation. 
But the statute does not warrant such an interpretation, and until the 
Supreme judicial Court speaks more definitely upon the subject I see 
no reason to limit the decision-making authority of the Retirement Board. 
It is not clear from the dictum whether the Court is actually addressing 
itself to the question of causation of disability, since the Court cites the 
Quincy Retirement Board case, a case involving substantially different 
problems. In addition, the Court speaks of the panel "certifying" on the 
question of causation, a clear misreading of the language of the statute, 
since the section calls only for a statement and not a certification. 

Therefore, at least until this question is reconsidered by the Supreme 
Judicial Court, I advise you that a negative determination by the Medical 
Panel on the issue of causation is simply some evidence to be considered 
by the Retirement Board, and does not in and of itself prevent the Board 
from granting an accidental disability retirement application. Conse- 
quently, I answer your first two questions in the affirmative, questions 3, 
4, 5 and 6 in the negative, and question 7 in the affirmative. 

I would add one further note about the duties of the actuary as speci- 
fied in c. 32, § 21 (3). The work to be performed by the actuary is set 
forth in this subsection. Among other duties, the actuary "shall check 
the calculation and amount of each annuity, pension or retirement al- 
lowance granted under the provisions of sections one to twenty-eight, 
inclusive, and all such calculations and amounts shall be subject to his 
approval." 



252 P.D. 12 

It is not the business of the actuary to decide whether the Board has 
made an error in granting a retirement application. The actuary must 
of course approve the calculations and amounts arrived at; but he can- 
not refuse to check such calculations and amounts simply because he dis- 
agrees with the Board's determination that an allowance should be 
granted. To allow this would be to establish the actuary as a super-Board 
to review decisions, a situation obviously not contemplated by the statute. 
I advise you, therefore, that once the Board has rendered a decision, the 
actuary must thereupon proceed to check the calculations and amounts 
irrespective of what views the actuary may have as to the merits of the 
determination itself. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



INDEX TO OPINIONS 



PAGE 

Accelerated State Highway Program: 

Use of proceeds of bond issue for. See Highways. 

Accidental Disability Retirement. See Retirement. 

Accommodations. See Mass. Coram. Against Discrimination. . 220 

Act of God. See Contracts. 

Adjutant General. See Armory. 

Adjutant General; may promote an individual without interefering 

with activity under c. 33, § 18a, of the G.L 128 

Administration, Deputy Commissioner of. 

Position to which person promoted to, has reinstatement rights, 
may not be filled permanently 

Administrative Boards: Power of. See Obscene Literature Con- 
trol Commission. 

Administrative Proceeding Act: 

Stay of execution of order of Alcoholic Beverages Control Com- 
mission for suspension of license 82 

Admissions. See Chelsea Soldiers' Home. 

Advertising. See Program Books. 

Air Installation; Non-military use of. See Armory. 

Alcoholic Beverages Control Commission: 

Stay of execution of order suspending license. Suspension of. 82 

Appeals. See Veterans Affairs. 

See Registrar of Motor Vehicles. 

Appointments. See Secretary of State. 

Appropriation; Act fixing compensation of legislators. ... 57 

Appropriations: 

General Acts, exemptions from restrictions of is to paying salaries 
above minimum. See Community Colleges. 

Armories: 

Use of, for dog obedience training classes is permitted. . . 108 

Armory; Permits for non-military use of, require unanimous ap- 
proval of Adjustment General, and military custodian and Unit 
Commander, concerned may be conditional 128 

Assessors. See Corporation and Taxation, Department of. 

Attorney General; Purchase of office equipment for department of, 

proceeds of bond issues for Accelerated State Highway Program 111 
Stipulation of, as to petition for Referendum on emergency law 

for increase in salaries of legislators. 57 

Certification of Initiative petition for correction to amend Con- 
stitution despite doubts 105 

Automatic Vending Machines. On public property, See Blind Per- 
sons. 



254 P.D. 12 

PAGE 

Baccalaureate; Prayers at exercises, in public schools. See Consti- 
tution. 

Barber Shop; Mobile, Application for certificate of registration of, 

May not be rejected by Board 114 

Barrier Project. See Water Resources Commission. 

Beauty Shop. See hairdressers, Board of Registration of. 

Bedding. See Department of Public Health. 

Bible. See Constitution. 

Bible Reading in public schools. See Constitution. 

Bidding. See Competitive Bidding. 

Bidding Laws. See Metropolitan District Commission. 

Blind, Division of. See Blind Persons. 

Blind Persons: 

Application of St. 1963, c. 336, as to grants of authority to, for 
vending stands on public property, to proposals invited by De- 
partment of Corporation & Taxation for automatic vending ma- 
chines and mobile food carts, stated. 141 

Bond Issue Accts. See Department of Public Works. 

Bonds: 

Proceed of, for Accelerated State Highway Proposal, permitted 
uses for. See Highways. 

Boston. See Logan International Airport. 

Boston & Maine Railroad. See Metropolitan Transit Authority. 

Boston Redevelopment Authority. Land taking procedures. . 171 

Boycott. See Education, Department of. 

Bridge Games. See Commission of Public Safety. 

Bridgewater State Hospital: 

Request to superintendent of, by inmate for payment from his 
funds of lawyer's retainer fee 116 

Building, Construction, Bureau of. See Retirement. 

Chapter 90, Highways. See Public Works, Department of. 

Charitable Trust. Land given to Commonwealth for wild-life 
sanctuary. See Constitution. 

Chelsea Soldiers' Home; trustees have duty to adopt rules and regu- 
lations governing admissions 190 

Christmas; Observance of, in public schools. See Constitution. 

Church and State. See Constitution. 

Civil Defense, Acting Director; is allowed to lawfully waive the 

entire amount of a retirement allowance 144 

Civil Service: 

Disabled veteran must be appointed to State position although 

to also hold a municipal position 47 

Suspension of indicted civil servant not reviewable by Commis- 
sion 55 



P.D. 12 255 

PAGE 

Civil Service. See Public Health, Department of. 

Civil Service, Director of; Person having full and complete pardon 

is legally entitled to consideration for position of police officer. . 47 

City Ordinances; Not inconsistent with rules or regulations of De- 
partment of Public Safety as to convalescent, etc., homes are 
valid 99 

Color. See Education, Department of. 

Commission Against Discrimination; Rule 2 is proper as it relates 

to age but is otherwise unlawful 198 

Commissioner of Public Safety: 

May issue a license to the Eastern Massachusetts Bridge Associ- 
ation to conduct its tournament on Sunday providing it does not 
commence before one o'clock in the afternoon. See Governor. 

Commissioner of Public Works. See Secretary of State. 

Community College: 

Directorships of, hiring at rates above raunimum of persons in 

the service of the Commonwealth permissible 133 

Community mausoleums. See Public Health, Department of. 

Competitive Bidding: 

Law for, or contracts for public works, affect of, on proposed 
specifications permitting adjustments where natural materials 
not up to specifications 126 

Comptroller: 

Accounts and demands may be included on the comptroller's 

warrant without executive approval 166 

In order to comply with c. 844 of the Acts of 1963, names and 
addresses of shareholders of record, must be provided. . . 222 

Compulsory Insurance. See Registry of Motor Vehicles. 

Constitution: 

Referendum petition on an emergency law increasing salaries of 
legislators does not impede state treasurer making payments 

thereunder. 71 

Law fixing compensation of legislators is not excluded from the 

referendum 57 

Prohibition of prayers and bible reading in public schools. . 87 
Initiative petition for Constitutional correction to amend, is of 
doubtful validity Certification by Attorney General despite 

doubts 107 

Mandate of, cannot in good conscience be disobeyed by local 
school officials, and other officials should take action if violation 
persists. 84 

Conflict of Interest: 

Meeting of Obscene Literature Control Commission under spon- 
sorship and on premises of private organizations 65 

Contract. See Lowell Technological Institute. 



256 P.D. 12 

PAGE 

Contractor. See Public Works, Department of. 

Contracts: 

Proposed specification for State Highway contracts for adjust- 
ments where natural materials are not in accord with specifi- 
cations; limitation of permissible adjustments by competitive 
bidding statute. G.L. c. 30, § 391 does not permit renegotiation 
or substantial changes in State Highway contracts and is not in- 
consistent with prior opinions requiring competitive bidding. 
Metropolitan District Commission has no duty to pay for unused 
sewer pipe under "unit price" contract, and no right to pay there- 
for as "extra work" or to purchase it, thereunder. . . . 126 
Deposit of material in dredging area by hurricane, Act of God, 
and no unit price compensation for removal 61 

Control; Of employment, of general manager of, See Metropolitan 
Transit Authority. 

Convalescent Home. See Public Safety, Department of. 

Corporation; Sale of all stock in, does not affect beauty or manicure 
shop license held by 96 

Correction Commr. of. See Bridgewater State Hospital. 

Warrants for probation violators not violated by c. 277, § 72A. 

Correction, Department of; an absolute pardon by an applicant 
for a position in the Department of Correction is not affected 
by c. 125, § 9 217 

Corporation and Taxation, Department of. See Blind Persons. 
Position in, to which person promoted to Deputy Commissioner 
of Administration has reinstatement rights, may not be filled 

permanently 98 

Authority of the department relative to their authority on assess- 
ment practices of the city and town assessors. .... 208 
Creditable Service. Under Retirement Law. See Retirement. 
Dancing. On Sunday. See Sunday Laws. 

Deputy State Treasurer; for the purposes of G.L. c. 93, § 14(1) a 
store issuing its own trading stamps and redeeming some, is not 
required to comply with the provisions of the Trading Stamp 
Law 145 

Disability Retirement. See Retirement. 

Disabled Veteran. See Civil Service. 

Discrimination. See Mass. Commission Against Discrimination. 

District Attorney. See Pardons, Advisory Board of. 

Dog; Obedience training classes for. See Armories. 

Domicil. See Voting. 

Dredging Contract. See Contracts. 

Easements. See Public Works, Department of. 

Easter; observance of, in public schools. See Constitution. 

Eastern Massachusetts Bridge Association. See Commr. of Public 
Safety. 



P.D. 12 257 

PAGE 

Education; Religious observances in public schools. See Consti- 
tution. 

Education; Community Colleges, directorships of the Community 

Colleges 133 

Education, Department of; it is the responsibility local school au- 
thorities to formulate and enforce school attendance laws and 
any absence not excused as a necessary one is unlawful. . . 180 

Distribution of school aid funds should be done under c. 559 of 

the Acts of 1945 248 

Assignment and distribution of pupils is up to the local school 
committee and any remedies against persons causing absence are 
undeterminable in a hypothetical situation. 190 

May seek information concerning the color of students so long 
as the questions relate to education and the duties of the Com- 
missioner 180 

Elections. See Voting. 

Election officers. See Secretary of State. 

Emergency Law; May not be suspended on Referendum petition. 
See Referendum. 

Eminent Domain. See Public Works, Department of. 

Entertainments; On Sunday. See Sunday Laws. 

Equipment. See Department of Public Works. 

Ex-officio; Positions of State official suspended because of indict- 
ment. See State Officers and Employees. 

Extra Work. See Contracts. 

Fair Employment Practices Law; Provisions of, as to discrimina- 
tions on account of age, do not affect operation of provisions of 
Retirement Law restricting benefits to persons becoming em- 
ployees under age sixty. See Commission Against Discrimination. 

Fee; For inspection of boiler, See Public Safety, Commissioner of. 
None for permits issued by State Department of Public Works 
where no statute provides for 79 

Legislature may constitutionally require payment of for permits 
issued by State Department of Public Works, under police power, 
or power to tax 114 

Federal Bankruptcy Act. See Public Works, Department of. 

Federal grants. See Mental Health, Department of. 

Financial Interest. See Comptroller. 

Fire Prevention; Rules ordinances, etc., as to, in convalescent, etc. 
homes. See Public Safety, Department of. 

Firearms. See State Purchasing Agent. 
See Public Safety, Department of. 

Garden Crypts. See Public Health, Department of. 

Golf Driving Ranges. See Sunday Laws. 

Good Conduct. See Parole Board. 

Gordon Linen Service. See Lowell Technological Institution. 



258 P.D. 12 

PAGE 

Governor; may suspend the Commissioner of Public Safety under 

c. 30, § 59 of the G.L 212 

Graduation; Prayers at exercises in public schools. See Consti- 
tution. 

Group Ins. Comm.; Code 100:906 of Rules and Regulations vio- 
lates legislative intent 169 

Group Insurance. For pensioned retired municipal employee. 
Hairdressers, Board of Registration of, Sale of all stock in cor- 
porate licensed does not affect beauty or manicure shop license 
held 96 

Halper Case. See M.C.A.D. 

Hearing. See Pardons, Advisory Board of. 

Highways; Use of, a proceeds of bond issues for Accelerated State 
Highway Program for office equipment in Attorney General's 

Department leasing automobiles, etc. permitted Ill 

Reimbursement of public utility for relocation of facilities; effect 

of Occupancy Permit Provisions 123 

State, "veto" power of local officials over projects under Ac- 
celerated State Highway Program 110 

Holidays; with religious overtones. Observance of, in public 
schools. See Constitution. 

Housing Authority. See State Housing Board. 

Husband and Wife. See Voting. 

Indictment; Suspension of State officer because of. See Civil Serv- 
ice. Suspension of State official for. See State Officers and Em- 
ployees. 

Initiative; Petition to amend Constitution. See Constitution. 

Institutions. See Mental Health, Department of. 

Insurance. See Registry of Motor Vehicles. 

Commissioner of, cannot permit life insurance company to delay 
payment of unclaimed funds pending decision by Supreme Court 
of United States as to constitutionality of statute 112 

Interest rates. See Public Works, Department of. 

Land damages. See Public Works, Department of. 

Land taking. See Boston Redevelopment Authority. 
See Public Works, Department of. 
See Mass. Turnpike Authority. 
See Turnpike Authority. 

Law Enforcement. Division of, in Department of Natural Re- 
sources. See Natural Resource. 

Leases. See Wachusett Mountain State Reservation. 

Leave of Absence; No permanent appoint to position, incumbent 

of which is on 98 

Legal Services. See Public Works, Dept. of. 

Legislators; Law fixing compensation of, is subject to Referendum. 57 

Legislature; Salary increase for members of. See Referendum. 



P.D. 12 259 

PAGE 

License; For use of private property for public utility facilities. 
See Public Utility. 
Stay of order for, by Alcoholic Beverages Control Commission. 82 

Licenses; Fees for Entertainment. 

See Fees. 

See Commissioner of Pub. Safety. 

See Sunday Laws. 

See State Armories. 

See Sunday Laws. 

See Mental Health Dept. 
Life; Sentence. See Sentence. 
Liquor. See State Armories. 
Loam. See Public Works, Dept. of. 
Logan International Airport; St. 1963, c. 306, as to operation of 

taxicabs in Boston, applies to 72 

"Lord's Prayer." See Constitution. 

Legislators; Referendum petition on emergency law increasing 

salaries of, does not impede State Treasurer making payments 

thereunder. 71 

Lowell Institute Housing Authority. See Lowell Technological 
Institute. 

Lowell Technological Institute; the President and his Assistant 
may work for the Lowell Institute's Housing Authority providing 
they devote full time to their position 206 

The Trustees are bound by the terms of their contract with 
Gordon Linen Service for another year because of their failure 
to send a written notice to the contrary as called for in the con- 
tract 152 

Manicure Shop. See Hairdressers, Board of Registration of. 

Mass. Commission Against Discrimination: 

Not required to order parties who have discriminated to offer 
housing accommodation to the party discriminated against. . 220 
Halper Case 224 

Mass. Port Authority: 

Must pay full retirement benefits on account of accidental death 

or disability of employees of the former Mystic Bridge Authority. 134 

Mass. Turnpike Authority; Land-taking procedures 167 

Medical Panel. See Retirement. 

Meditation; Pause for silent, in public schools, See Constitution. 

Mental Health, Department of: 

May accept Federal grants in trust for the use of persons in state 

hospital 223 

records of mental institutions are controlled by c. 123, except 
those with licenses, c. Ill, § 70 applies only to those institutions 
licenses by the department 231 



260 P.D. 12 

PAGE 

Metropolitan District Commission; may properly certify amounts 
to be paid despite nonconformance with the bidding laws, if 
they are convinced that work was performed and materials 

furnished 213 

has power to convey land in exchange for land of equal value 
pursuant to G.L. c. 92, § 85 138 

Metropolitan Transit Authority; May take land of Boston & Maine 

Railroad for Reading rapid transit extension 109 

Provisions of contract of employment of general manager for 
deferred compensation if removed for other than cause, are valid. 120 

Military Custodian. See Armory. 

Mobile Barber Shop. See Barber shop. 

Mobile Foods Carts; On public property, See Blind Persons. 

Moral Obligations. See Metropolitan District Commission. 

Motorcycle Racing. See Sunday Laws. 

Municipal Reimbursement. See Natural Resources, Dept. of. 

Muzak. See Sunday Laws. 

Mystic Bridge Authority; former employees must be paid full 
amount of retirement benefits on account of accidental death 
or disability by the Massachusetts Port Authority. . . . 134 

National Guard. See Adjutant General. 
See Armories. 

Natural Resources, Department of: 

Not affected by budget item 8064-03 of 1963 Capital Outlay Act 
in regards to its municipal reimbursement program administered 

under c. 113A, § 11 140 

Police powers of officers in Division of Law Enforcement in. 

See State Purchasing Agent 76 

Negligence. See Public Works, Department of. 

New Bedford Fairhaven Hurricane. See Water Resources Com- 
mission. 

New York, New Haven, Hartford Railroad Co. See Public Works, 
Dept. of. 

North Attleboro. See Public Utilities, Department of. 

Northeastern University. See Rehabilitation, Commissioner of. 

Notice. See Lowell Technological Institute. 

Nursing Home. See Public Safety, Department of. 

Obscene Literature Control Commission. Authority to publicize. 65 

Office. Abolishment of. See Personnel and Standardization, Di- 
rector of. 

Officers. See Adjutant General. 

Pardon. See Correction, Dept. of. 

Pardons. See Civil Service, Director of. 

Pardons, Advisory Board of; Interview by Board with prisoner was 
a "hearing" under G.L. c. 187, § 154, but transcript of, not re- 
quired to be delivered to Dist. Atty. or Atty. Gen'l. . . . 131 



P.D. 12 261 

PAGE 

Parole. See Parole Board. 

Parole Board: 

May continue to apply G.L. c. 127, § 133 215 

Pension. See Group Insurance. 

Permit; For use of private property for public utility facilities. 
See Public Utility. 

Permits. Fees for. See Fees. 

Perry Law. Exofficio appointments of State official suspended 
under. See State Officers and Employees. 
See Governor. 
See Civil Service. 

Personal Property. See Public Works, Department of. 

Personnel and Standardization, Director of. Office abolished and 
incumbent not transferred to specific newly created position 
with same title 48 

Plumbers. See State Examiners of Plumbers, Board of. 

Plumbing. See New State Office Building. 

Police officer. See Civil Service, Director of. 

Police Officers. See Natural Resources. 

Police Power. Imposing license, etc., fees. See Fees. 

Political Ads. See Program Books 203 

Prayer. In public schools, See Constitution. 

Prison Camp. See Prisoners. 

Prisoner: 

Serving sentence committed from life to period of years of life 

may be removed to prison camp 107 

See Pardons, Advisory Board of. 

Prisoners; Funds of inmates, payments from. See Bridgewater 
State Hospital. 

Program books; advertising in political program books is not pro- 
hibited under Chapter 55 § 6 and 7 203 

Pro-tonto. See Turnpike Authority. 

Public Health, Dept. of: 

Authority to promulgate rules and regulations in regard to the 

bedding and upholstering industry 165 

the Departments appointing authority after dismissing an em- 
ployee is not compelled to reemploy that same employee if his 
name is again submitted by the department of Civil Service. 187 
should determine whether "garden crypts" are classified as 
"community mausoleums." 240 

Public Safety, Dept. of: 

City ordinances and town by-laws not inconsistent with rules 
and regulations of the Dept. as to safety and fire in convalescent 
or nursing and rest homes, valid 97 



262 P.D. 12 

PAGE 

firearms must be in control of the licensee when carried in a 
vehicle. 231 

Public Schools. See Schools, Constitution. 

Public Utilities; Tax exemption for railroads. See Railroad. 

Public Utilities, Dept. of: 

North Attleboro may transfer accounts receivable of the Mu- 
nicipal Light Plant to reduce the general tax levy. . . . 242 

Public Utility: 

Compensation relocation of facilities of, on private property 
under Federal Highway Program 82 

Public Works, Dept. of: 

Loam removed from its natural state instantly becomes personal 
property. 245 

contractors negligence or errors resulting in damages, will make 

said contractor liable. 175 

interest rates prior to November 6, 1963, are 4% per annum. 

and after November 6, 1963, are at 6% per annum. . . . 195 

Expenditures for Engineers and Consultants for Chapter 90, 

Highways 221 

Under Massachusetts law a land taking being against the record 
owner, although legal title was vested in the trustees in Bank- 
ruptcy on the date of taking, is good 244 

May pay from an employee's salary account amounts to reim- 
burse employee for legal services rendered in his defense G.L. 
c. 31, § 43 (1) 144 

Prohibition in their contracts against the restrictions of § 9-314 
(4) of the U.C.C. which is against assignment of accounts re- 
ceivable is of no force or effect 159 

the department is not liable for damages from whom no land was 
taken but who are affected by the construction of an equalizing 
culvert. 162 

Public Works, Dept. of: 

can be owner in fee of property to which an easement deed is 
held to uncover drainage outlets constructed as a result of the 
easement deed 126 

Authority to purchase, rent or lease equipment 159 

funds under § 5 of c. 822 of the acts of 1963 can be used for 
traffic lights on any road 199 

should administer the property of any debtor in reorganization 
under the Federal Bankruptcy Act 146 

the assignment of taxicab stands set apart on the public highways 

is a serviceable control of traffic a reasonable regulation. . . 164 

Racing. On Sunday. See Sunday Laws. 

Radio. Purchased, F.M. musical programs. See Sunday Laws. 



P.D. 12 263 

PAGE 

Railroad: 

Forfeiture of tax exemption under St. 1/61 c. 464 for reduction 
of service or discharge of employees of railroad prospective only. 

Rapid Transit. See Metropolitan Transit Authority. 

Real estate brokers. Board of Registration of. 

Members of, designated as, "representatives of the public," may 
not be licensed real estate brokers. 

Referendum. See Constitution. 

Registrar of Motor Vehicles: 

Decisions of the Registrar are subject to appeal and no action 
or decision is stayed pending appeal with the exception of appeals 
from cancellation of motor vehicle liability polices which shall 
remain effective pending appeal 108 

Registration. As voter. See Voting. 

Rehabilitation. See Rehabilitation, Commissioner of. 

Rehabilitation, Commissioner of. 

The Commissioner should not permit a contemplated project at 
Northeastern University as it violates the General Laws. . . 238 

Rehabilitation: 

Massachusetts Commission; has authority to make contracts for 
consultant services 132 

Reimbursement. See Public Works, Dept. of. 

Religion. Bible reading in public schools. See Constitution. 

Relocation; Compensation for, of public utility facilities on private 

property under Federal Highway Program 82 

Of Public Utility facilities, reimbursement for 82 

Renegotiation; of State Highway contracts, without competitive 

bidding is not permissible. 126 

Renewal fees. See State Examiners of Plumbers, Board of. 

"Representatives of the public." See real estate brokers and sales- 
men. 

Rest Home. See Public Safety, Dept. of. 

Retirement: 

A person receiving retirement benefits from the Commonwealth 
cannot be employed and paid by the Bureau of Building Con- 
struction or the Trustees of the Southeastern Massachusetts 

Technological Institute. 101 

Decision of state retirement Board granting retirement advances 

are binding on the state actuary 249 

Widow may make payments for husband's previous non-consec- 
utive service to establish two years of service required for sur- 
vivor's benefits 102 

Accidental disability, statement of medical panel as to causal 
connection between disability and accidental, not binding on 

Retirement Board 249 

Group insurance for retired municipal employee 48 



264 P.D. 12 

PAGE 

Retirement Law. See Fair Employment Practices Law. 
Retirement Allowance. See Civil Defense, Acting Director. 
Riparian rights. See Public Works, Dept. of. 

Safety: 

Rules, Ordinances, etc., as to, of persons, in convalescent etc., 

homes. See Public Safety, Dept. of. 
School Aid. See Education, Dept. of. 
School Attendance. See Education, Department of. 
School census. See Education, Department of. 
Schools. Religious observances in. See Constitution. 

Secretary of State: 

May lawfully certify on appointment made by the Commissioner 

of Public Works to a special commission established by c. 156 

of the Resolves of 1963. 

Selectmen must use all qualified names on the list before using 

others to appoint election officers 234 

Sentence: 

"Life, committed to period of years of life, not as "life" sentence 

with G.L. c. 187, § 83B 215 

Shareholders. See Comptroller. 

Signatures. See State Ballot Law Commission. 

Ski Area. See Constitution. 

Snow and Ice. See Highways. 

Southeastern Massachusetts Technological Institute. See Retire- 
ment. 

State Actuary. See Retirement. 

State Armories; the Commanding Officer controls the use of liquor 

in State Armories 219 

State Ballot Law Commission; has jurisdiction to find that petition 

do not contain the "signature" of qualified voters. . . . 235 

Plumbers Bd. State Examiners of. May request the State Treas- 
urer to refund deferred renewal fees already imposed. . . . 246 

State Highways; Compensation to public utility for relocation of 
facilities in constructing. See Public Utility. 

State Highways; Contact specification for adjustments where nat- 
ural materials not up to specifications 126 

State Housing Board; local Housing Authorities cannot legally 

accept provisions of the "Veterans Retirement Law." . . . 176 

State Officers and Employees: 

Appointee replacing a state official suspended because of induct- 
ment, succeeds to latter's ex officio appointments 64 



P.D. 12 265 

PAGE 

Prohibition of employment of person receiving benefits from 
Commonwealth. See Retirement. 

Only temporary appointments may be made to position, in- 
cumbent of which is on leave of absence 98 

Position in Department of Corporations & Taxation to which 
person-appointed Deputy Commissioner of Administration has 
reinstatement rights should not be filled by permanent appoint- 
ment 98 

Exemptions of directors of Community Colleges from restrictions 
in General Appropriation Act against recruitment at salaries 
above minimum. 

State Purchasing Agent; must be guided by the best interest of the 

Commonwealth is disposing of firearms 148 

State Quartermaster. See Armories. 
See Armory. 

State Secretary. See Referendum. 
See Voting. 

State Treasurer; payment of increased salaries to legislators, under 

emergency law on which Referendum requested 75 

Sunday Laws; Do not require licensing of purchased background 

musical programs transmitted by wire or radio 95 

Activities permitted, required to be licensed or prohibited to be 

licensed, under 1962 Amendments to 66 

Supreme Court of the United States. See Insurance. 

Decisions of. Duties of Public Officials. See Constitution. 
Survivor Benefits. See Retirement. 
Suspension; of indicted State Officer. See Civil Service. 

See Governor of indicted State Official. See State Officers and 

Employees. 
Space Race Inc., See Public Works, Department of. 
Sports. On Sunday. See Sunday Laws. 
Tax Commissioner. See Corporation and taxation, Dept. of. 

Taxation: 

Forfeiture of tax exemption under St. 1/61, c. 464, for reduc- 
tion of service or discharge of employee by railroad is prospective 
only 130 

Requiring fees for permits, etc. See Fees. 
Taxi-cabs. See Logan International Airport. 
Taxi-cab stands. See Public Works, Dept. of. 
Taxes. See Public Utilities, Dept. of. 
Teachers. See schools; Constitution. 
Thanksgiving; Observance of, in public schools. See Constitution. 

Town By-Laws: 

Not inconsistent with rules and regulations of Dept. of Public 
Safety as to convalescent, etc. homes, are valid 99 



266 P.D. 12 

PAGE 

Trading stamps. See Deputy State Treasurer. 

Trading stamp Company. See Deputy State Treasurer. 

Trading Stamp Law. See Deputy State Treasurer. 

Traffic Lights. See Public Works, Dept. of. 

Trust; Charitable, of land given to Commonwealth for wild-life 

sanctuary. See Constitution. 
Trustees in Bankruptcy. See Public Works, Dept. of. 

Turnpike Authority; can enter private property for appraisal pur- 
poses and can make pro-tonto offers 200 

Unclaimed Funds; Of life insurance companies. See insurance. 

Unit Commander. See Armory. 

Unit Price. See Contracts. 

United States; Supreme Court of, decisions. Duties of public offi- 
cials as to. See Constitution. 

Upholstering. See Dept. of Public Health. 

Utility. See Water Resources Commission. 

Vacanies. See Secretary of State. 

Vending Machines. On public property, See Blind Persons. 

Vending Stands. On public property, See Blind Persons. 

Veteran Disabled. See Civil Service. 

Veterans. See Chelsea Soldiers Home. 

Veterans Affairs, Commr. of; Decisions by the Commissioner is 

bonding and has full force and effect 161 

Veterans Retirement Law. See State Housing Board. 
Veto; Power of local officials as to Accelerated State Highway Pro- 
gram project 109 

Voting: 

Women living here with husband who votes by absentee ballot 

in another state, cannot be registered to vote here. 
Wachusetts Mountain State Reservation; Not authorized to enter 

into a lease 162 

Warrants. See Comptroller. 

Warrants. See Commr. of Correction. 

Water Resources Commission; has no eminent domain right to take 

land for displacement of a utility transmission line. . . . 207 
Waterways, Director of. Suspension of indicted. See Civil Service. 
Waterways, Director of Division of. Suspension of. See Civil 

Service. State Officers and Employees. 
Waterways, Division of. Dredging Contract. See Contracts. 
Widow. See Retirement. 
Wild-life Sanctuary. See Constitution.