Public Document No. 12
Ctje Commonloeaiti) o( ^^msactmsms
REPORT
u. ATTORNEY GENERAL
FOR THE ' /
Year ending June 30, 1965
Publication of this Document Appbovbd dt Alpbed C. Holland. State Puechasing Agent.
llOO-S-66-943047 E3TiM4TEn Cost Pes Co^f: $6.2o
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Cije CommontoealtJ) of ^assaci)usett0
December 7, 1965
To f/?e 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, 1965.
Respectfully submitted.
Attorney General
Cf)e Commontuealtl) of ^a00acf)U0ett0
DEPARTMENT OF THE ATTORNEY GENERAL
Attorney General
EDWARD \V. BROOKE
First Assistant and Deputy Attorney General
Edward T. Martin
Richard E. Bachman
James W. Bailey^
AlLEEN H. BeLFORD
Augustus J. Camelio
Levin H. Campbell*^
William L Cowin
Nelson L Crowther,
Samuel W. Gaffer
Benjamin Gargill
Bertha L. Gordon
David W. Hays
Robert L. Hermann
Warren K. Kaplan^
Assistant Attorneys General
JR-
Lee H. Kozol
Carter Lee
Glendora J. McIlwain
Paul F. X. Powers
Theodore Regnante, Sr.
John J. Roche'''
Walter J. Skinner
John E. Sullivan
Edavard M. Swartz^
David A. Thomas^
Herbert F. Travers, Jr.
Herbert E. Tucker, Jr.
David L. Turner
Assistant Attorney General: Director, Division of Public Charities
James J. Kelleher
Assistant Attorneys General assigned to Department of Public Works
Robert A. Belmonte^ Foster Herman
Burton F. Berg Richard A. Hunt
John S. Bottomly Rudolph A. Sacco
Frank H. Freedman John E. Shfehy^
James N. Gabriel Julian Soshnick
Frederic E. Greenman Fred D. Vincent, Jr.
John J. Grigalus Henry G. Weaver
Victor L. Hatem
Assistant Attorneys General assigned to Metropolitan District Commission
Arthur S. Drinkwater John W. Wright
Robert B. Sheiber
Assistant Attorneys General assigned to Division of Employment Security
Joseph S. Ayoub William H. Lewis^
Robert N. Scola^
Assistant Attorney General assigned to Veterans' Division
Roger H. Woodworth
Chief Clerk
Russell F. Landrigan
Head Administrative Assistant
Edward J. White
1 Resigned, July 17, 1964
2 Appointed, November 30, 1964
3 Resigned, December 1, 1964
^ Resigned, December 12, 1964
5 Resigned, January 19, 1965
^ Appointed, January 20, 1965
P.D. 12
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
for the Period July 1, 1964-June 30, 1965
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
$ 20,000.00
644,075.00
18,600.00
100,000.00
8,000.00
5,790.81
$796,465.81
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
$ 20,000.00
633,411.26
18,595.20
100,000.00
8,000.00
4,599.17
$784,605.63
Financial statement verified (under requirements of C. 7, S 19 GL) , April
18, 1966.
By JOSEPH T. O'SHEA.
For the Comptroller
Approved for publishing.
M. JOSEPH STACY,
Comptroller
P.D. 12
Cl)e Commontoealtf) of ^a00acf)U0ett0
Department of the Attorney General
Boston, December 1, 1965
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, 1965, totaling 30,002, are tabulated as follows:
Extradition and intcrestate rendition .....
Land Court Petitions .......
Land Damage cases arising Irom the taking of land:
Department of Public Works .....
Metropolitan District Commission ....
Civil Defense ........
Department of Natural Resources ....
Department of Pul>lic Safety .....
Department of Public Utilities .....
Governnienr Center Commission .....
Lowell Technological Institute .....
Massachusetts Maritime Academy ....
Massachusetts Turnpike Authority ....
Salem Teachers College ......
Southeastern Massachusetts Technological Institute
State Reclamation Board ......
Town of Tewksbury 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 cases for support of persons in State institutions .
Small claims against the Commonwealth ....
Workmen's compensation cases, first reports
Cases in behalf of Employment Security ....
Cases in behalf of Veterans' Division .....
236
133
1,952
69
1
29
1
1
29
1
1
3
1
7
1
1
1
3
15,978
2,182
587
402
6,783
823
777
Introduction
My third Annual Report as Attorney General of the Commonwealth
of Massachusetts, as required by G. L. c. 30, § 32. encompasses the fiscal
year from July 1, 1964, through June 30, 1965.
During the period of this report, the twelve divisions of the Depart-
ment of the Attorney General have handled an unprecedented work load
with efficiency and imagination. Organizing this Department in such a
way that staff members specialize in their own areas of interest has
resulted in expert attention to each matter and has provided the very
best legal services to the Commonwealth.
8 P.D. 12
Since the date of my last report, the Great and General Court passed
two more measures from my 1964 legislative program:
Chapter 730 of the Acts of 1964 An act extending the application
of the provisions of law requiring
open meetings of state boards and
commissions so as to include all
public authorities.
Chapter 718 of the Acts of 1964 An act regulating the solicitation
of charitable contributions from
the public.
This year, the Department proposed 33 new measures for considera-
tion by the legislature. A list of these acts and resolves appears as
Exhibit "A."
EXHIBIT "A"
1965 Legislation Proposed by the Department of The Attorney General
1. An act to increase the authority of the Attorney General to settle
claims against state employees.
2. An act to further define the liability of the Commonv/ealth of
Massachusetts for injuries sustained from defects in boulevards.
3. An act to further define the liability of the Commonwealth of
Massachusetts for injuries sustained from defects in state highways.
4. An act to change the period of time within which petitions founded
upon claims against the Commonwealth of Massachusetts may be
brought.
5. An act relating to proceedings as to the appraisal required for the
taking of real estate and interests therein by Eminent Domain.
6. An act relating to proceedings for the taking of real estate and
interests therein by Eminent Domain.
7. An act to permit defendants to have a stenographer present at
certain hearings,
8. An act providing that execution of sentence in criminal cases shall
be stayed at the discretion of the court,
9. An act providing for the simplification of pleadings in criminal
cases.
10. An act providing for the arrest of violators of certain gaming and
gambling laws without a warrant.
11. An act relating to the regulation of retail installment sales.
12. An act requiring use of a stenographer at State Ballot Law Com-
mission hearings and providing for orders relative to printing of
the ballot when remand to the Commission is impracticable.
13. An act providing for the imposition of criminal penalties for the
violation of zoning by-laws.
14. An act providing for a uniform method of review by the Superior
Court of Decisions made by the Civil Service Commission under
section forty-three of Chapter thirty-one of the General Laws.
15. /Vn act providing for the admissibility as evidence (where competent)
of stenographic transcripts of Administrative Proceedings.
16. An act relating to the classification of municipal employees for the
purposes of preventing Conflicts of Interest.
P.D. 12 9
17. An act relative to reimbursement under the Workmen's Compensa-
tion Law out of the special fund for veterans in the Department of
the State Treasurer.
18. An act relative to the expense of defense against claims for reim-
bursement under the Workmen's Compensation Law out of the
special fund in the Department of the State Treasurer,
19. An act relative to the expenses of prosecution of claims for deposit
and defense against claims for reimbursement under the Work-
men's Compensation Law out of the special fund for veterans in
the Department of the State Treasurer.
20. A resolve providing lor an investigation, study, and the drafting of
appropriate legislation relative to the amendment or complete
revision of the election laws and procedures of this Commonwealth.
21. A resolve providing for an investigation and study by a special com-
mission relative to law enforcement information, investigation and
research.
22. A resolve providing for a commission to investigate, study, and
draft any needed legislation for the establishment of an admin-
istrative agency to review certain police practices.
23. An act authorizing appeals by the Commonwealth on questions of
law under certain conditions in criminal prosecutions.
24. An act providing that the maximum penalty for violation of town
by-laws be increased to one hundred dollars.
25. An act pertaining to filing of official reports of public authorities.
26. An act providing for the removal of public officials who refuse to
testify concerning their official conduct on the grounds of self-
incrimination.
27. An act to provide for the examination by experts of records sub-
poenaed by a Grand Jury.
28. An act to provide for the summonsing of witnesses on behalf of
indigent defendants.
29. An act to authorize the Attorney General and the District Attorneys
to subpoena certain corporate books and records.
30. An act extending the application of certain provisions pertaining
to public contracts to public authorities.
31. An act invalidating certain so-called "tie-in" sale contracts.
32. An act to establish a policy of the Commonv/ealth that a release
executed by a person under arrest is against public policy.
33. An act relative to the filing of schedules of minimum consumer prices.
10 P.D. 12
Administrative Division
The Administrative Division's area of concern is extremely varied and
far-ranging. The members of the Division answer requests for legal
opinions from constitutional officers, state agencies and department heads;
they represent the Commonwealth in civil court proceedings, advise the
Governor upon the constitutionality of pending legislation, approve
town by-laws, and seek to remedy injustices in the anti-trust field.
The stream of requests for opinions of the Attorney General has
continued to increase substantially. And, as it has increased, the burden
of the additional workload has fallen most heavily on the Administrative
Division, the section of the office responsible for the drafting of ninety-
five percent of the opinions issued by the Department and for the re-
viewing and editing of all opinions. A large portion of the time of the
members of the Division is spent in the drafting, researching and pre-
paring of opinions for the Attorney General.
The wide range of subjects covered by the requests which come into
the office is evident from a brief summation of some of the most important
opinions issued by the Department during the past fiscal year.
— The Secretary of State requested an opinion concerning a teen-
ager's nomination papers for a seat in the State Legislature. The Secre-
tary was advised that he cannot refuse to accept the nomination papers
of a candidate because he is under 21 and not qualified to register as a
voter because that fact is not evident on the face of the nomination
papers and the Secretary does not have authority to ask for affidavits.
This office did not rule, however, on the question of whether teen-agers
could, in fact, run for or hold political office. This latter question
became the core of a court case in which the Superior Court held that
yoiuhs under 21 could not run for election to the State Legislature or
hold seats in that body.
— In response to a question posed by the Commissioner of Public
Safety relative to law enforcement problems that arose in connection
with the New Hampshire sweepstakes, a ruling was issued that Massa-
chusetts law was not violated by participation by Massachusetts resi-
dents in the New Hampshire sweepstakes. However, tickets cannot be
sold or exchanged nor may sv/eepstakes agencies be established within
the Commonwealth.
— The November election brought repeal by the voters of the Com-
monwealth of many of the statutory powers of the Governor's Council.
The passage of the petition raised many questions about the remaining
powers of the Council. The first inquiry was made in early December
by the Lieutenant Governor who asked this office to define the remaining
powers and duties of the Governor's Council. A lengthy and exhaustive
opinion was issued in response to this request.
— General Laws c. 30, § 59, the so-called "Perry Law", has raised many
complex and sensitive questions. The wording and meaning of the "Perry
Law" has been carefully examined by the members of this Department
in an effort to assure that our opinions regarding this law would be
helpful in clarifying the true intent of the statute. As a result, this
administration has issued several opinions in the past relative to the
law and its ramifications. This year the Governor requested further
clarification of the effect of the law. The Governor was advised that
P.D. 12 II
temporary officers and employees appointed under the "Perry Law" do
not serve at the pleasure of the Governor or other appointing authority,
and they can be removed only "for cause."
— An important policy question arose in connection with a testi-
monial dinner sponsored by a city committee for the Commissioner of
the Metropolitan District Commission. Interpreting the testimonial din-
ner law, c. 268, § 9, this Department ruled that such dinners may be
held if no tickets are sold or offered for sale and contributions have not
been accepted or solicited for that particular function.
— Indicative of the scope and variety of problems coming to the
attention of the Division is a request by the State Boxing Commission
as to whether closed circuit television performances of boxing matches
are subject to taxation by the Commonwealth. In an opinion drafted
by the Administrative Division, the Attorney General ruled that five
percent and one percent of gross receipts may be collected only from
live boxing matches and not from closed circuit television performances,
according to the provisions of G. L. c. 147, §§ 40 and 40A.
— A final sample of the nature and function of written opinions is
one issued near the close of this fiscal year in an attempt to solve a
dispute between two state agencies. The Department of Public Safety
and the Massachusetts Port Authority disagreed on a matter of police
protection for authority properties, causing the Department of Public
Safety to request a legal opinion from this office. The opinion issued
stated that, because of an agreement entered into by the Department
of Public Safety and the Port Authority, the former must furnish State
Police assistance at the Logan Airport. In addition, the two agencies
may agree to the furnishing of State Police assistance at any other Port
Authority projects. The Authority, however, cannot require State Police
at any place other than Logan Airport if the Department of Public
Safety is not willing to supply the personnel.
The conflict of interest law (G.L. c. 268A), now in operation for two
vears, has been an invaluable boon to the effective administration of
go^ernment. The continuous study and interpretation of this law by
members of the Division has greatly aided the effectiveness of the Act.
During the period covered by this report, ninety-one conflict of interest
opinions have been issued to state employees regarding their status
under the law. Moreover, we have continued our practice of rendering
infoiTnal opinions to, and holding conferences with, members of state
agencies, city solicitors, town counsels and mimicipal officials relative
to the effect of this statute. We have continued to compile a statistical
survey of the classification of municipal employees and the operation
of the statute throughout the State from inform.ation about the operation
of the statute received from every city and tovv'n in an attempt to provide
data to guide the future drafting of amendments to this law. One ex-
tremely sensitive conflict opinion issued during this year was in response
to a request by former Governor Peabody relative to any conflict of
interest problems that might arise from legal services performed by the
Governor after his term in office.
The Administrative Division handles all civil litigation that affects
the constitutional officers or that is "extraordinary" in nature, and also
handles much of the litigation in Avhich state agencies and departments
12 P.D. 12
find themselves involved. Among the matters handled in court by mem-
bers of the Division were cases arising from the hearings of the Ballot
Law Commission; a matter relating to the statutory powers of the Gov-
ernor's Council, Barnes v. Secretary of the Commonwealth; further
proceedings in the case against the book Memoirs of a Woman of Pleas-
ure; a suit against the book Naked Lunch; and a case begun as a result
of the Capitol Police ouster hearings. In addition, a decision was rendered
in the legislative pay raise case, Molesworth v. State Ballot Law
Commission.
The summer of 1964, preceding an election autumn, brought with it
an unusual number of State Ballot Law Commission matters in the
nature of protests filed by persons dissatisfied with the decision of the
Commission for one reason or another. The Administrative Division
was faced with an onslaught of some dozen matters that were contested,
and members of the Division spent a good deal of time in Suffolk Supe-
rior Court arguing these cases in behalf of the State Ballot Law Com-
mission. One of the more noteworthy cases which required court action
was that involving a teen-ager who attempted to run for a seat in the
State Legislature. This case is discussed above.
The election in the fall gave rise to another major case handled by
this Division. Pursuant to Articles 48 and 74 of the amendments to the
Constitution of the Commonwealth, initiative and referendum petitions
must be approved by the Attorney General as to form before they may
appear on the ballot. It is also the duty of this office to write brief
summaries of the measures contained in such petitions for use on the
ballot. A summary provided by this Department became the subject of
the case, Barnes v. Secretary of the Commonwealth. By representing the
Secretary, this office in effect took the position that the question was
appropriate and the sum.mary adequate. A w^it of mandamus was sought
by the petitioners in the Suffolk Superior Court to compel removal of
the question pertaining to the Executive Council from the November
Ballot. But the Superior Court rendered judgment for the respondents
and the question remained on the ballot. An appeal was claimed to the
Full Bench of the Supreme Judicial Court for the February sitting and
the Full Bench affirmed the decision of the Superior Court, saying that
the Attorney General had supplied a proper summary and that the
attacks of the petitioners were withotu foundation. A companion case
ruled upon by the Supreme Judicial Court at the same time was Healey
v. Treasurer and Receiver-General in which the petitioners attacked
both the summary and the constitutionality of the measure that had
been enacted. The case had been reported by the Superior Court to be
heard by the Full Bench together with the Barnes case.
The in rem suit, instituted at the request of the Obscene Literature
Control Commission against John Cleland's Memoirs of a Woman of
Pleasure (commonly known as Fanny Hill) in order to determine whether
the book is obscene, is mentioned in the 1964 Annual Report. It has since
been decided by the Superior Court which ruled that the book was
obscene. This winter it was argued before the Supreme Judicial Court,
Full Bench, which, in a four-to-three decision, upheld the ruling that
the book is obscene. The publisher has since claimed an appeal to the
United States Supreme Court and has filed a jurisdictional statement.
P.D. 12 13
No decision has yet been made by the United States Supreme Court as
to whether it will hear the appeal.
Another suit was instituted by this Department at the request of the
Obscene Literature Control Commission. This case, Attorney General
V. A Book named "Naked Lunch," was heard by a trial judge of the
Suffolk Superior Court in January, 1965. The judge declared the book
obscene. The publishers appealed the ruling to the Full Bench of the
Supreme Judicial Court and the case is on the October list for argument.
This Division represented the Commissioner of Administration in the
appeal of a Superior Court decision in a suit brought against him by
the Chief of the Capitol Police and two patrolmen to restrain the Com-
missioner from conducting further ouster proceedings. The Commis-
sioner was represented by his o^\n attorney in the Superior Court, which
court enjoined the continuation of the proceedings. Briefs have been
filed for both sides and the matter will be heard by the Supreme Judicial
Court sometime in the fall.
The case of Molesworth v. State Ballot Law Commission, (described
in detail in the 1964 Annual Report), which had been reported to the
Supreme Judicial Court by the Superior Court, came to a conclusion
when the Supreme Judicial Court reversed the State Ballot Law Com-
mission and ruled that the question should properly appear on the
November ballot.
These cases are examples of the extraordinary matters that require
the attention of the members of the Division. Much of the routine work
consists of advising and representing in court the numerous boards,
commissions and agencies of the Commonwealth. Requiring an espe-
cially great amount of the time of the members of the Division have
been the Department of Public Utilities, the Consumers' Council, State
Racing Commission, Civil Service Commission, the Board of Real Estate
Brokers and Salesmen and the Engineers', Architects' and Electricians'
Boards.
In addition, we have represented the Consumers' Council in negotia-
tions and court proceedings in the Superior Court and the Federal Court
stemming from the inability of Nationwide Charters and Conventions,
Inc., to repay approximately 1,500 customers. At our request, World
Airlines, Inc., has agreed to provide well over $100,000 in addition to
the customer deposits which it holds and in excess of more than $100,000
from insolvent Nationwide. Together, these sums should permit full
repayment of all customers and repayment of commercial creditors at
the rate of about twenty-five cents on the dollar. A formal plan under
which World Airlines would receive well over $100,000 from the debtor.
Nationwide, and would then repay all customers in full, was filed in the
Federal Bankruptcy Court in a Chapter XI proceeding. A representative
of this office attended the first meeting of creditors and the hearing on
objections to the plan, on both occasions speaking strongly in support of
it. Objections were filed on behalf of several Miami hotels. The referee
in bankruptcy entered a decision approving the plan, however, and
this office conferred and corresponded extensively with the objecting
hotel owners and their counsel, asking them to reconsider their objec-
tions, and not to appeal. As a result, no appeals were filed. Extensive
14 P.D. 12
efforts by this office, together with cooperation by the companies in-
volved, resulted in a satisfactory settlement and protection of the con-
sumer. The Attorney General's office was able to play a unique role
here by watching matters on a day-to-day basis and keeping the situation
from deteriorating.
Working in another area, members of this Division met several times
and corresponded at great length with the Norwood School Committee
and the Norwood Finance Committee over their school budget dispute.
An amicable settlement was arrived at without court action.
Work has been continued by members of this Division in the areas
of anti-trust and approval of town by-laws. The office also passes on
the form and constitutionality of measures prior to signing by the
Governor.
Finally, in connection with our effort to urge State boards to adopt
the necessary regulations and to conform to the Administrative Procedure
Act (G. L. c. 30A), members of this Division and other staff members
have been working over a period of several months on a draft of a
model set of rules to which all agencies may adhere. This set of rules
will be published and distributed to the agencies within the next few
months.
Of course, the members of the Division are constantly called upon
to answer a myriad of legal questions which do not necessitate the draft-
ing of formal opinions. And the discussion of legal problems both in
person and through correspondence with state officials and private citi-
zens further occupies the attention of this Division.
Civil Rights and Liberties Division
In keeping with the policies of this administration of assisting those
responsible for administering state affairs justly and in a manner which
recognizes inviolate the constitutional rights of the citizen, this Division
has continued striving to be professionally competent, nonpartisan and
fair. Such an attitude is especially important in dealing with the sensi-
tive and difficult questions that confront the members of this Division.
The following is a summary of some of the most important matters
relative to clashes between the individual citizen and his government
that have required our attention during the past year.
This Division has appeared before the courts many times as counsel
to the Massachusetts Commission Against Discrimination, the adminis-
tiative agency empowered to enforce the laws against discrimination on
account of race, color, creed, national origin, age or sex. Prior to the
year 1964, only fourteen matters had been brought before the courts
by this Commission during its entire existence. From July 1, 1964 through
June 30, 1965, in comparison, this Division represented that agency in
about fifteen court actions. Most of these actions seek to apply the Com-
mission's power to enjoin the leasing, rental or sale of housing accom-
modations until the termination of Fair Housing proceedings under
that Act. This injunctive power granted the Commission by amendment
in 1961 has become the agency's most effective weapon — not only in
guaranteeing equal opportunity in housing accommodations for minority
groups but also in settling many of such cases at the conciliation stage
P.D. 12 15
of the proceedings. The following is a partial list of such cases and the
results:
Matthews v. Spagnulo — Injunction granted
Stark V. Sachs — Injunction granted
McCane v. Worcester — Injunction granted
Gently v. Baker — Entered and settled prior to hearing
Holland v. DeMello — Injunction granted
Reid V. Hoag and Biscaldi — Injunction denied
Texeira v. Stasinos — Injunction granted
Witt V. Davenport Realty Trust — Stipulation not to rent entered
Ward V. Barclay — Entered and settled prior to hearing
The case of Reid v. Garneau Avas certified for public hearing before the
Commission and heard on November 10, 1964 and a cease and desist
order was entered. The case of Boyd v. Burgess was heard on November
6, 1964 and a cease and desist order was entered.
In addition, this Division has officiated at a number of public hearings
before the Commission and drafted findings thereon.
In addition to the litigation, this Division has rendered several opin-
ions to the Commission and the individual members thereof. These
opinions involve questions raised by the Massachusetts Commission
Against Discrimination:
(1) Whether licensing applications of state boards of registration may
require information regarding national origin, age, derivation of
citizenship.
(2) Whether G. L. c. 31, § 2 A authorizes the Director of Civil Service
to establish age requirements.
Despite the agieement (discussed in the 1963 and 1964 Annual Re-
ports) between the Boston Housing Authority, CORE and the NAACP,
relative to the segregation of Negio tenants in the Boston Public Hous-
ing, complaints against the Housing Authority have been lodged with
the MCAD from time to time. Members of this Division have attended
conferences with the investigating Commissioner and other officials in
order to help clear up these problems.
As a research project during the fiscal year 1965, this Division under-
took a study of Penal Reform. The study consisted of an evaluation of
our penal laws and analyses of the disparity in sentencing procedures,
rehabilitation methods, classification of prisoners and provisions in penal
institutions, among other things. The findings of this study were for-
warded to Governor Volpe.
During the legislative year 1965, members of this Division appeared
at committee hearings on several bills filed by this Department.
A considerable amount of the time of personnel of this Division is
also allotted to the complaints and inquiries of private citizens. This
Division never misses an occasion to fully explain the duties and re-
sponsibilities of this office to state government and its citizens. We deem
the time and effort spent in this kind of educational role, not only of
value in clarifying the responsibilities of public officials to the citizen,
but also in educating the citizen concerning the sanctity of his civil
rights which he must protect through his own vigilance.
16 P.D. 12
Contracts Division
The Contracts Division examines all state contracts and leases for
correctness of legal form, and represents the Commonwealth in all civil
actions brought by or against it as the result of such contracts and leases.
In addition, the Division conducts conferences, engages in legal research,
and prepares briefs, memoranda, and opinions in conjunction with con-
tracts problems presented to the Division.
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
without interruption. During the fiscal year members of the Division
reviewed and approved approximately 1,500 contracts for all state de-
partments and agencies.
In order to forestall later litigation from developing as a result of the
Commonwealth's contracts and leases, the Division has continuously
given advice and guidance to various state officials in the preparation,
drafting, and proper execution of contracts and leases affecting their
departments. Moreover, the Division has investigated the background,
researched the appropriate statutes, and subsequently advised approxi-
mately twenty concerned parties regarding competitive bidding proce-
dures in which their departments or agencies were involved.
Members of the Division have been called upon from time to time to
draft several opinions for the Attorney General in response to inquiries
submitted to him. Some of the major topics covered in these opinions
are listed below:
1. Problems relative to the use of foreign steel in the construction of
the proposed Government Center;
2. Statutes applicable to bidding procedures of the Mystic River Flood
Control Project;
3. Hearings and their scope under General Laws (Ter. Ed.) c. 16,
§ 5b in so far as the Department of Public Works is involved; and
4. Effect of semi-final and final estimates for contracts of the Bureau
of Building Construction.
The Division also furnished a great deal of legal advice and technical
assistance to state agencies on matters not requiring formal opinions.
During the period of this report the Division has compiled over thirty-
five lengthy memoranda at the request of state agencies. Following are
some of the more significant topics upon which research was conducted
and memoranda prepared or technical assistance rendered:
1. Revision of the Metropolitan Transportation Authority's Inter-
Agency Indemnity Agreement as to qualification of contracting
firms applying for state contracts;
2. Alleged price and bidding discrimination in washer-extractor bids
for the Bureau of Building Construction;
3. Potential drug patent infringement situation involving the Purchas-
ing Department of the Commonwealth;
4. Release of tax liens for the Metropolitan District Commission;
5. Proposal for the limitation of liability of landowners who permit
the public to use their property for recreational purposes, sub-
mitted by the Division of Forestry and Parks;
6. Scope of autonomy of the Greater Boston Stadium Authority;
P.D. 12 17
7. Contract breach by contractor working on project of the Waterways
Division of the Department of Public Works;
8. Revision of the terms of the Purchasing Department's contractual
agreements for uniformity; and
9. Applicability of Chapter 90B to a novel type of water ski equipment.
A complete revision of the Specifications Manual, en which all con-
tracts of the Department of Public Works are based, was imdertaken
this year. Members of the staff prepared detailed analyses of critical por-
tions of the specifications and attended an extensive scries of conferences
with officials of the Department of Public Works and the Federal Bureau
(.f Public Roads. Participation of our staff was necessary to assure con-
formity with the statutes and latest decisions and interpretations by the
courts to insure uniformity and simplicity and to protect the interests
of the contractors as well as the interests of the Commonwealth.
The Contracts Division also determines whether state departments
m-ay make direct payments to subcontractors with claims against funds
retained by the Commonwealth under General Laws (Ter. Ed.) c. 30,
§ 39F. The Division issues written authorizations or disapprovals in con-
nection with such claims. During the year some 150 of these determina-
tions were made.
The Division is also consulted for advice on and examination of state
leases. Again this year a great deal of time was devoted to matters relat-
ing to the Board of Regional Community Colleges, including the lease
for the proposed intown Boston campus of the University of Massachu-
setts: At issue here was the fact that the lease was originally drafted as
an owner-type lease and contained several covenants inimical to the
Commonwealth's welfare. The staff held several conferences with Uni-
versity officials and attorneys, and representatives of the Governor. After
many weeks of concentrated work fjy this Division a revised lease was
written, with covenants more consistent with the Commonwealth's inter-
ests. The Governor then re\'iewed the revised lease and presented a special
bill to the Legislature in order to permit the state to enter into a lease
of this nature.
More recently, the Division has been assigned the responsibility of
reviewing the forni of all documents prepared in connection with note
issues and notice of sale of bonds under financial assistance housing
programs for elderly persons and veterans of low income. Written ap-
provals are issued if the review reveals that the form is in proper order.
Files are maintained of the changes in membership of all of the local
housing authorities. Advisory opinions have been prepared, informal
conferences held, and forms developed to effect expeditious handling of
the contracts stemming from the Commonwealth's housing program. The
staff processes some forty note issues per quarter from individual housing
authorities throughout the State.
As was the case last year this Division w^as faced with a heavy load of
litigation. Three of the five attorneys in the Division devoted substan-
tially all of their time to trial work. More than two hundred cases were
handled by the Division during the year. Of these, five are at some stage
of appeal in the Supreme Judicial Court. In two of the appealed cases,
the Commonwealth is the appealing party; in the other three, the Com-
monwealth received favorable judgments in the lower courts, but the
losing party filed an appeal.
18 P.D. 12
Through the use of special pleadings, the Division has achieved favor-
able dismissal for the Commonwealth in more than one hundred cases.
Ultimate success in these cases required conferences, drafting of plead-
ings, preparation of briefs in support of motions, and oral arguments
by the trial attorneys.
The staff was also occupied with hearings and trials before auditors,
masters and justices of the Superior Court. The length of these trials
ranged from one or two days for relatively simple matters to six months
for extremely complicated ones. At issue were varying fact situations in-
cluding extra work, delays, bidding, and storm damage.
In one case in which the Metropolitan District Commission contracted
with the petitioner for the construction of an eight-mile-long water dis-
tribution line through the cities of Medford and Maiden, suit was
brought against the Commonwealth for two and one-half million dollars
for alleged delays and failure to perform. This trial lasted some six
months or eighty-eight full trial days. In addition, the staff conducted
more than three months of post-trial research to prepare law memoranda
and suggested statements of fact for the auditor relative to eighty-five
separate allegations about the simultaneous construction of five distinct
parts of the pipe line. A preliminary decision has been reported by the
Auditor in favor of the petitioner in the amount of $300,000 plus interest.
The petitioner is in the process of deciding whether he will appeal on
the basis of the inadequacy of the recovery.
This office also defended a three and one-half million dollar suit
against the Commonwealth. This case demanded several months of
preparation and seventy-six days of trial. Following the presentation of
evidence, the auditor determined that none of the contractor's claims
had merit and found for the Commonwealth. As a result of this success-
ful conclusion, no funds had to be expended on this claim.
Thus, the Division has carried forward its litigation at a rapid pace,
continuing the policy instituted by this Administration of not settling
any disputed contract claims out of court. All disputed contract claims
are tried on their merits. The staff has worked effectively in the non-
trial areas of its concern as well, maintaining current status in all matters
before it.
Criminal Division
In order to carry out his duties as the Chief Law Enforcement Officer
of the Commonwealth, the Attorney General increased the personnel of
the Criminal Division. More investigators, as well as attorneys, were as-
signed to continue the investigation and prosecution of crime and corrup-
tion in Massachusetts.
Trial of most of the cases resulting from the work of the Massachusetts
Crime Commission has been delayed because of the vast number of special
pleadings filed by defendants. In the so-called Small Loans Case alone,
hundreds of motions have been filed. Many of these motions have been
argued by an Assistant Attorney General who was successful in defeating
almost all the attacks on the validity of the indictments. Only three indict-
ments out of 134 have been quashed, and the defendants in these are the
subject of other indictments.
A member of the Executive Council was tried with two co-defendants
on conspiracy and bribery charges with guilty findings resulting. On ap-
P.D. 12 19
peal these verdicts ^vere reversed and a new trial was ordered by the
Supreme Judicial Court. Another member of the Executive Council, who
was tried on bribery and conspiracy charges, was found not guilty by
a jury.
An official in the Department of Commerce was indicted for larceny
and conspiracy to commit larceny from the Commonwealth and was found
guilty. Two companion cases were placed on file by the Court.
A Commissioner of Public Safety, who was indicted for perjury before
the Crime Commission, was found guilty. The trial judge reported the
case to the Supreme Judicial Court on the question of the adequacy of
the indictment.
The appeals of the convictions obtained in the two Boston Under-
Common Garage Cases were decided by the Supreme Judicial Court. The
convictions were upheld and the sentences executed.
The number of extraordinary writs (writs of error, writs of habeas
corpus, writs of mandamus, declaratory judgments, etc.) continued to
increase. The number actually increased so much it was necessary to
assign two, and periodically more. Assistant Attorneys General to handle
them. The Assistants assigned to the extraordinary writs have been re-
markably successful in defending these actions. This was true in most
instances because the Assistant Attorney General was able to demonstrate
that the particular case was not controlled by any recent decision of the
Supreme Court of the United Slates enumerating further constitutional
rights of the accused.
The number of complaints received from the public at large also in-
creased. Nearly 3,000 complaints were processed during this period. In
many cases, the Division served as a clearing house, directing people to the
appropriate agency concerned with the subject of their complaint. Others
were forvvarded to state and local Police Departments, with a number of
them resulting in arrests and convictions for criminal offenses.
In an effort to aid law enforcement officials, the Criminal Division again
prepared a list of recent changes in criminal statutes for distribution to
police officers. A memorandum was sent to all police departments when
any decision was handed down which seriously affected police work. This
memorandum explained the meaning of the case and established certain
guidelines to assist police officers in conforming with the holding of
the case.
In addition, an assistant Attorney General has served on the staff of the
State Police Academy. The Assistant lectures to each class on constitu-
tional rights as set out in recent decisions of the Supreme Court of the
United States and the Supreme Judicial Court of Massachusetts.
This Division has sought to cooperate with all local and state officials
in combating crime and corruption. Information has been exchanged
which enables all law enforcement officials to operate more effectively.
The Division is striving to increase such cooperation and promote statu-
tory revisions which ivill assist in the effort directed at stemming the
rising tide of crime.
20 P.D. 12
Eminent Domain Division
This Division's work involves the problems resulting from the taking
of private land for a public purpose. If property is taken by the sovereign
power of eminent domain, the owner must be compensated in a fair and
reasonable manner. Current procedure is for the taking power and the
former owner to attempt to reach agreement on the fair value of the prop-
erty. When agreement is not reached the owner may petition the Superior
Court to assess damages according to Chapter 79 of the General Laws. It
is the Eminent Domain Division's responsibility to represent the Com-
monwealth in such litigation.
Members of the Division are constantly engaged in work to assure that
all those from whom property has been taken are compensated promptly
and equitably. The policy we have instituted— complete preparation for
trial in every pending case at the earliest possible date— has been extremely
successful. Every case is analyzed in detail, both in preparation for trial
in order to assign outside settlement authority and trial counsel to each
case. Attempts to settle each case are then pressed even more aggressively
for it is such settlements that are the best solution for all concerned. They
permit the speediest reimbursement to the former owner, substantially
reduce the interest expenses of the state and eliminate a significant num-
ber of lawsuits. This reduction of litigation lowers the expenses of indi-
vidual property owners and helps to clear some of the congestion on the
docket of the Superior Courts.
When settlement is not possible, we have proceeded with trials as cases
are routinely called on the regular lists. We have constantly endeavored
to reduce the number of such Chapter 79 petitions pending in the Supe-
rior Court. Thus, we have completely eliminated what was at one time a
major problem— the backlog of land damage claims. When this adminis-
tration assumed office, approximately 1,800 such cases had accumulated.
There is presently a total of only 690 cases awaiting trial. The pending
cases have been reduced to one-third of what they were prior to our ad-
ministration. The result is that, for the past year, the trial and settlement
of land-taking cases has been on a current status. This accomplishment
is considered by the public, and by the members of this office, to be one
of the most gratifyng achievements of our term of office.
The cases currently pending are in the following Superior Courts:
Barnstable 15
Berkshire 26
Bristol 90
Essex 104
Franklin 60
Hampden 35 I
Hampshire 65 \
Middlesex 110 '
Norfolk 100
Plymouth 15 '
Suffolk 10
Worcester 60
Dukes and Nantucket 0
The Bristol County list does not reflect a Special Session extending into
July. Authorization has been received from the Department of Public
P.D. 12 21
Works with the approval of the U. S. Bureau of Public Roads to appoint
an Assistant Attorney General for Case Analysis Control. We are cur-
rently interviewing for that position and when the position is filled, set-
tlement negotiations can be more aggressively initiated by this Division.
We have attempted not only to catch up on the backlog of cases that
has previously existed in this field, but we have also strived to eliminate
the conditions that permitted the development of such a situation. To do
so, this Division has formalized the best procedures in this field and pre-
pared for publication booklets that will contain all these procedures in
concise and clear form. One such publication will be the Manual of Mas-
sachusetts Eminent Domain Appraisal Law for use by Department of Pub-
lic Works appraisers. This manual is currently in the final stages and its
distribution to hundreds of state taking agencies is expected in the
near future.
Another booklet, a manual of procedures within the Eminent Domain
Division instituted by the administration of Edward W. Brooke, is being
prepared at the request of the United States Bureau of Public Roads.
This manual will consolidate what that Bureau considers to be major
improvements and innovations in this area.
Members of this Division are involved in another updating and over-
hauling of Massachusetts law. There has been no major revision of our
high^vay laws in fifty years and many of these old highway statutes are
outdated, poorly drawn and obscure. They frequently impose penalties
that do not fit the crime. To initiate action in this area, I met with high-
way experts, legislative leaders, and heads of state, county and municipal
agencies to propose a Highways Laws Study Commission and outline legis-
lation to revamp the highway laws. The ultimate goal of this top-level
study commission is an all-inclusive highway code to be submitted to the
Legislature next year. This comprehensive project and in-depth study
involves all aspects of the Massachusetts highway system— state highways,
park',vays and roads, traffic, construction, motor vehicle laws, maintenance
and repair financing and land acquisition. The proposed highway code
would bring together voluminous legislation, now scattered throughout
the General Laws.
The Codification Section of the Division spent two years in detailed
examination and study of all special and general laws concerning high-
ways and motor vehicles. The Section finally assembled over one thou-
sand sections of applicable statutes. These sections, together with court
decisons, are the foundation for the proposed legislation.
The Commission held its first meeting on June 4, 1965 with Assistant
Attorney General John S. Bottomly as Chairman. It created eleven work-
ing committees, all of which are meeting frequently and regularly to ana-
lyze, organize and amend, as well as add to, existing law. The preliminary
analysis and subsequent recommendations for changes are scheduled to
be submitted to the Commission in the Fall of 1965. Some legislation is
being drafted during the analysis period. However, most of the specific
drafting will be done after the Commission has made decisions about the
substance of the Code.
In the area of unusual litigation, special attention has been devoted to
civil cases that involve disputes about overpayments for peat excavation.
An Assistant Attorney General has been assigned to work on this matter
on a daily basis. The various contractors have been offered an arbitration
22 PD- 12
procedure to avoid expensive litigation. Basically, this solution consists of
having the contractors' experts confer with the Commonwealth's experts
in an attempt to arrive at a mutually agreeable technical determination
of the amount of overpayment. Some contractors have accepted a pro-
posal for arbitration by mutually acceptable technicians, soon to be ap-
pointed by each party. The Commonwealth has been using a professor
from a local university in this capacity. A useful program has been de-
veloped, although no specific proposals have been submitted by the
arbiters to date.
This Division, through its expeditious and efficient handling of land
damage cases, has performed an exceptionally valuable public service. Fi-
nancially, the Commonw^ealth has benefited greatly. There have been
both a saving of interest payments as a result of rapid disposition of cases
and a return of more favorable verdicts due to more thorough prepara-
tion procedures.
Employment Security Division
The Division of Employment Security of the Department of the Attor-
ney General works closely with the Massachusetts Division of Employ-
ment Security. Division members are primarily concerned with the prose-
cution of employers who are delinquent in making employment secu-
rity tax payments and employees who file fraudulent compensation
claims. Complaints brought against corporations and individuals in these
areas have resulted in large financial recoveries for the Treasury of
the Commonwealth.
On the other hand, this administration has been certain to insure that
all individuals and corporations have not been unfairly or hastily prose-
cuted. Every opportunity is given to all parties to make proper restitution
before litigation is begun. Criminal charges are brought only after the
entire gamut of approved procedure has been attempted and after many
opportunities have been given the individuals and the employers to dis-
cuss the problem and plan a solution outside of court.
When enforcement is attempted under the criminal procedures, pay-
ments are often made by employers who previously have ignored our
attempts to secure collection. Furthermore, the prosecutions we have
undertaken have encouraged other employers to take a more serious atti-
tude toward payment of their taxes.
Extensive investigation and preparation procedures and intensive pros-
ecution of delinquent employers have resulted in the following fiscal year
statistics: in 115 employer cases $125,235.69 was collected; in addition,
793 criminal complaints were brought against eighty-four employers and
there have been seventeen bills of complaint against employers.
The Division has also been conscientious in its efforts to prosecute
those who illegally collect unemployment benefits. As a result, seventy
cases were closed during the year covered by this report. In these cases
$37,967.00 was collected in overpayment benefits owed the Com-
monwealth and 400 criminal complaints were issued against thirty-one
employees.
This Division has also been active in the Supreme Judicial Court in
cases appealed to that body. In the matter of Gordon B. Wheeler v. Direc-
tor of the Division of Employment Security and another, the Supreme
P.D. 12 23
Judicial Court upheld the decision of the district court which had affirmed
the decision of the Board of Review. In addition, the General Electric
Company appealed two cases to the state Supreme Court. One of the
cases involved vacation allowances to General Electric employees. The
Supreme Court finding upheld the Director's decision. The other G. E.
case involved a labor dispute during a period in which the employees were
out of work because of a strike. This case was remanded to the Board
of Review for further action.
Finance Division
The Finance Division is active in assisting the following State Depart-
menf: and Agencies with their legal problems and with litigation on the
appellate levels: Department of Corporations and Taxation; Depart-
ment of Insurance; Department of Banking, and the State Treasurer.
A rfiember of the Division sits on the Contributory Retirement Appeal
Board, in accordance with the statute so providing, and also acts as coun-
sel for the Board.
Tlie Division is counsel to the Treasurer and Receiver-General of the
Commonwealth and represents the State Retirement Board and the
Teachers Retirement Board.
A more detailed analysis of the responsibilities of the members of this
Division can be found in the 1964 Annual Report.
Cases of note argued in behalf of the above state agencies by this Divi-
sion are outlined in the following paragraphs.
DeVincent vs. Tax Commissioner— involves determination as to the tax-
ability of the proceeds of life insurance policies in the hands of trustees
as being made "in contemplation of death." The case was argued at the
March Sitting and the Court strongly suggested in its decision that if such
proceeds are to be taxed it must be done by the Legislature and not by the
Court. Representatives of this office talked with the Tax Commissioner
and brought this suggestion to his attention. The Tax Commissioner
advised that an attempt would be made to draft legislation which would
make such proceeds taxable, as they are under the Internal Revenue Code.
Proceeds of life insurance policies in the hands of trustees are not taxable.
Levin vs. Tax Commissio7ier— involves the applicability of the short
Statute of Limitations to tax assessments made against the decedent. The
Supreme Judicial Court held that even if the short statute of limitations
were applicable, the Commonwealth may, under General Laws Chapter
60. Section 36, provide for the assessment and collection of taxes against
the personal representatives of an estate.
John Hancock Life Insurance v. Commissioner of Insurance— involves
the constitutionality of a moratorium on the payment of premiums during
a strike. The petitioner alleged that the statute impairs the obligation
of contracts, denies due process and equal protection of the Constitution,
and interferes with interstate commerce. "Amici" briefs were filed by
several life insurance companies and an Insurance Workers Union. The
High Court held that G. L. c. 175, § 187F was invalid as applied to
the petitioner.
Massachusetts Hospital Service, Inc. v. Commissioner of Administration
and Finance— This is a petition for declaratory judgment filed by Massa-
chusetts Hospital Service, Inc., CBlue Cross) seeking a determination as
24 P.D. 12
to the validity of Agreement :;f^HA-22-C bet\\'een Blue Cross and the par-
ticipating hospitals, which agreement was approved by Commissioner
Waldron on December 31, 1964. An agreed statement of facts is presently
being prepared and members of the Division are working on the case in
preparation for a fall argument before the Full Bench.
Mary Ayres v. Tax Co7nmissioner— involves the taxability under the in-
heritance tax laws of shares of stock received in exchange for old shares
where there has been a reorganization and subsequent merger of two cor-
porations. Despite attempts by members of this Department to reach a
compromise between the taxpayers and the Tax Commission, the matter
had to be taken to the High Court. No reasonable compromise was ac-
ceptable to both sides. As a result, the decision of the Supreme Judicial
Court resulted in a completely favorable finding for the taxpayers and
the Tax Commission was deprived of all revenue.
Tufts vs. Commissioner of Banks— involves a Petition for Writ of Man-
damus challenging the ruling of an administrative board which permits
savings bank corporations to make loans to one person of ^1500 by its
savings bank department and $1500 by its insurance department. The
Petitioners allege that the General Laws allow the corporation to make
only one loan of $1500 to a person. The Superior Court ordered that a
writ of mandamus issue to the commissioner requiring him to enforce
that provision of the law which states that savings banks may not make
personal loans to one person in excess of $1500. It had been the practice
of such banks to make a loan to one person of $3,000, with $1500 coming
from the savings bank side and the other half coming from the life insur-
ance side. Since the law is not very clear in this area and because of the
long-standing custom of the banking department, this office is appealing
the matter to the Supreme Judicial Court.
In regard to the Contributory Retirement Appeal Board, the backlog
facing that Board at the start of this administration has been completely
eliminated. Not so long ago an appellant often had to wait almost two
years after the time of the filing of a report for a hearing. We are contin-
uing to improve the time in which appeals to the Board are heard. And,
when we have given each claimant on the active list an opportunity to be
heard, it is our intention to have a show-cause hearing at which time the
balance of the cases are either dismissed for lack of prosecution or set
down for a day certain for hearing. The last meeting of the Contributory
Retirement Appeal Board for this year was held on June 25, 1965, at
which time disposition was made of all appeals both on the active list
and on the continued list.
In addition to working on current retirement cases, this Division has
sought to improve problems in the administration of the retirement laws.
Presently there is a good deal of ambiguity in this area of the law. Under
the present procedure, there is a possibility that both the "accumulated
deductions" and "retirement benefits" may be paid to different persons
as the result of certain designations made prior to the death of an em-
ployee. It is our hope that the proper case will soon come before us so
that the Supreme Judicial Court may clarify certain sections of the retire-
ment law. The Superior Court itself has referred to this Chapter as a
"patchwork" statute, hoping that those responsible for the administra-
tion of the law will take upon themselves the task of trying to clarify it.
P.D. 12 25
The preparation and writing of briefs and subsequent trial of cases such
as those discussed above consumes much time of the members of the Di-
vision. In addition, the Division devotes a great deal of time to drafting
ojiinions requested by the state agencies with which it is concerned. Fi-
nally, many hours are required to answer the correspondence received
from the public relative to insurance, tax and retirement questions.
Health, Education and Welfare Division
The Health, Education and Welfare Division was created by Attorney
General Brooke in 1963 to fill the pressing need for expertise in dealing
with the varied legal problems in the fields of health, education and wel-
fare. Prior to the creation of this Division, these problems were assigned
to various sections within the office. No one division was primarily re-
sponsible for all questions in this area. The present national and state-
wide concern for improved health and educational facilities has generated
a direct ])ublic interest in the work done by this Division. In the ^vake
of this community emphasis, the responsibilities of the Division have
multiplied and will continue to increase in the foreseeable future.
As the name implies, the Division is directly responsible for advising,
with regard to legal matters, the Departments of Public Health, Mental
Health, Education and Public Welfare. In addition, the Division handles
legal problems for the Department of Commerce and Development, Alco-
holic Beverages Control Commission, Board of Registration in Pharm-
acy, Board of Registration in Medicine, and the Rate Setting Board. The
importance of these agencies cannot be overemphasized since their work
directly affects every individual within the Commonwealth.
The legal problems referred to this Division are as varied and complex
as the many statutes presently being administered by these agencies. The
Department of Public Welfare itself has four w^ell-known programs to
aid the aged and the infirm. They are more familiarly known as "Aid
to Families with Dependent Children," "Old Age Assistance," "Medical
Assistance for the Aged," and "Disability Assistance." In the near future,
the coverage and complexity of these welfare and other programs will be
greatly increased by the institution of new federal programs.
The success of welfare as well as other programs depends to a great
degree upon the availability of federal ftinds. For example, when a state
educational institution applies for federal money, the authority to make
such an application and the title to the land upon which the new facility
is to be built, must be carefully checked and certified. During the past
year, the Division has reviewed over 75 contracts and bond issues and has
checked over 65 real property titles. In this manner, and in cooperation
with the agency involved, the Division has strived to see that Massachu-
setts obtains its fair share of federal grants.
Not all federal grants are for the construction of new buildings or the
institution of new welfare programs. Some grants are for planning
projects which are an initial step prior to the expenditure of more fed-
eral money to implement a program oiulined and conceived as a result
of this preliminary step. These projects require persons skilled in the
field under study as well as persons having legal training and, in this
latter capacity, the Division has participated in a number of these projects.
Litigation plays a large role in the present operations of the Division.
The Division carries an average of over 150 active cases. A number of
26 P.D. 12
the cases involve judicial review pursuant to the Administrative Pro-
cedure Act.
The litigation falls into five general categories. The first of these in-
volves rates established by various boards and agencies of the Common-
wealth, The agencies involved are the Industrial Accident Board, the
Rate Setting Board, the Commissioner of Administration and the Alco-
holic Beverages Control Commission. These rate cases have a far-reaching
effect because they include rates for almost all the hospitals, nursing and
convalescent homes in the Commonwealth. In addition, the cases have a
bearing on the present welfare programs and payments made under in-
dustrial accident policies.
In the second category are those cases on appeal from the Department
of Public Welfare to the Superior Court pursuant to G. L. c. 30A. These
cases involve the denial by the Department of claims made by welfare
applicants. If partial or total eligibility for welfare is denied the appli-
cant may file a petition for review in the Superior Court. This Division
represents the Department in the review proceeding before the court.
The third category involves licenses. Institutional licensing is included
in this category. The present concern for the proper care of the elderly
and the sick has focused a great deal of attention on this area. The need
for safe, sanitary and up-to-date hospitals, convalescent and nursing
homes, was never greater. When the public health standards are not met,
the Department has but one alternative: to protect the community by
revoking or refusing to grant a license.
Other licensing litigation concerns individuals or groups within a given
profession. For example, the Superior Court has overruled a demurrer
and a plea in bar to a bill for declaratory relief brought by several opti-
cians to review an opinion of the Attorney General that opticians are not
permitted to fit contact lenses. The case is currently on appeal to the
Supreme Judicial Court and we are representing the Board of Registra-
tion in Optometry.
In addition, the Division handles license cases from the Alcoholic
Beverages Control Commission, Board of Registration in Medicine and
Board of Registration in Pharmacy. The administrative proceedings are
subject to judicial review; this Division represents the agency in the
review proceeding.
The fourth category includes cases involving unsanitary conditions
that may arise in the state. For instance, an open dump may be causing
an unsightly and unsanitary condition in the community. If the local
authority fails to eliminate the condition, the problem becomes the direct
concern of the Department of Public Health. It is the responsibility of
this Division to see that the Department's order eliminating the condi-
tion is enforced.
The remaining cases would fall into the fifth or miscellaneous category
and it would be impossible to list them all. The following cases are cited
only as examples. The Division is presently maintaining a suit for one
of the state colleges to obtain a tax refund. In another suit which went to
the highest court of the State, the Division obtained a decision with regard
to the sale of artificial food substitutes. In still another case, the Division
brought suit against an adjacent landowner to protect a state hospital
against a possible trespass.
P.D. 12 27
As a result of the volume of litigation handled by the Division, we
are engaged in an active appellate practice. During this year the Division
argued at least eight cases before the Supreme Judicial Court. Among
these cases were the iollowing: Milligan v. Board of Registration in
Pharmacy, 348 Mass. 491; Sulllxmn v. Fall River Housing Authority, 348
Mass. 738; Cohen v. Board of Reg!strati(m in Pharmacy, 347 Mass. 96;
and Moskow v. Boston Redevelopment Authority, Adv. Sh. 1203.
Most litigation has only limited application. In order to effect perma-
nent changes, legislation is necessary. During the past year the Division
submitted legislation to the General Court. The Legislature passed H.
2147 which amended section 25C of chapter 138 of the General Laws.
This remedial step brought about a needed change in the laws admin-
istered by the Alcoholic Beverages Control Commission.
In addition, the members of the Division participate in many special
projects on behalf of the above agencies. For example, in conjunction
with other public agencies and private institutions, we are exploring
methods lor actively dealing with mental retardation through the Mas-
sachusetts Mental Retardation Planning Project.
In cooperation with the Department of Public Health, the Division,
for the Attorney General, is negotiating with towns bordering on the
Merrimack River to reclaim that river as a natural resource of the Com-
monwealth. Presently the towns are using it as a sewer. It is hoped that
these towns can be persuaded to construct sewerage treatment plants so
that the Merrimack River can be safely used for the pleasure of the public.
Industrial Accidents Division
The Attorney General under the provisions of G. L. c. 152, § 69A is
required to approve all compensation payments made under this Chapter
by the Commonwealth to its state employees who sustain injuries arising
out of and in the course of their employment with the Commonwealth,
including all disbursements for related medical and hospital expenditures.
With the cooperation of the Chairman of the Industrial Accident
Board and its Director of Public Employees Section, this Division made
considerable progress during this fiscal year in a concerted effort to reduce
the backlog of contested cases before the Industrial Accident Board, The
Division handled 585 Board assignments which consisted mainly of pre-
trial conferences and hearings on claims, many of which arose prior
to 1963.
During this fiscal period a total of 6783 accident reports were filed on
state employees' injuries. Although most of this number were non-
disability claims, nevertheless, they did require review by the Attorney
General for approval of incurred medical expenditures. Of the disability
claims received, the Attorney General approved 919 cases for voluntary
payment of compensation benefits. These payments were in addition to
any awards paid on litigated cases following decisions of the Industrial
Accident Board.
Total payments made by the Commonwealth to injured state employees
pursuant to General Laws c. 152, Section 69A, including all such dis-
bursements through voluntary agreements, Board decisions and lump sum
28: • P.D. 12
settlements, for the period July 1, 1964 through June 30, 1965 were as
follows:
Industrial Accident Board (General appropriation) :
Incapacity Compensation |1, 110,364.10
Hospital costs, drugs et al 211,748.26
Doctors', Nurses' costs 174,029.92
11,496,142.28
Metropolitan District Commission*
Incapacity compensation $100,406.66
Hospital and medical costs 41,058.70
$141,465.36
Total— All Disbursements
Incapacity compensation SI, 210, 770. 76
Hospital and Medical costs 426,836.88
$1,637,607.64
The above totals reflect an increase in the Commonw^ealth's expendi-
tures on its Workmen's Compensation claims over the prior fiscal year
in the amount of $157,286.13. This is attributable not only to the rising
costs of hospital and medical care but also in great measure to the adjust-
ment and settlement of backlog cases many of which involved heavy dis-
ability exposure.
In addition to its appearances before the Industrial Accident Board on
state employees' matters, this Division is also assigned to the Board on
petitions in "second iniurv" fund cases arising out of General Laws, c.
152, Sections 37 and 37A. It represents the Commonwealth in its capacity
as custodian of these funds, which are established under the provisions of
General Laws. c. 152, Sections 65 and 65N, and under which it must
process all claims by the Commonwealth, as required, for payments by
the insurers and self-insurers into the funds.
At the close of the fiscal year 1965 the General Accident Fund, estab-
lished under §65 of c. 152, held an unencumbered balance of $54,199.97
while the unencumbered balance in the Veterans Industrial Accident
Fund, established under §65N of c. 152, Avas $233,175.69. The special
emergency legislation enacted in Chapter 554 of the Acts of 1963 (de-
scribed in the Report of the Attorney General for the year ending June
30, 1964, page 37) expired on December 31, 1964.
Public Charities Division
The authority and duty of the Attorney General to represent the public
interest in all donations of funds for charitable purposes is one of his
most important and most interesting functions. This function of the office
is becoming increasingly important because the provisions of Federal and
State laws relative to the taxation of income, estates, legacies and gifts,
exempting donations for charitable purposes from the taxes imposed,
have greatly fostered charitable giving.
*These disbursements are from the Metropolitan District Commission appropri-
ated funds for claims of Metropolitan District Commission employees.
P.D. 12 29
The Attorney General must be named as a party in all court proceed-
ings involving the constructivon of charitable instruments, approval by
the courts of particular methods of administration of charities and
changes in the administration of charities.
In the fiscal year 1964-1965, the Attorney General appeared in many
court proceedings regarding charitable trust matters. The Attorney Gen-
eral was successful in every instance in having the courts decree that the
funds involved be devoted to charitable purposes in accordance with the
general charitable intentions of the donors.
Involved proceedings were had in the Supreme Judicial Court in refer-
ence to the Haiocs Fund. That Fund is held by a corporation which was
established for the purpose of carrying out the charitable provisions under
the will of John Hawes who died in South Boston in the 1820's. His will
provides that the income be used in part for religious purposes in connec-
tion -with a congregational church with which he was associated called
the Hawes Place Church, and in part for educational purposes in South
Boston. The HaAves Place Church is no longer in existence. The last use
of the income for educational purposes was for classes held in the Boys'
Club in South Boston. That use was discontinued during World War II.
No use had been made of the income of the Fund for many years. The
Fund now amounts to about S500,000. The case was heard by a master
appointed by the Supreme Judicial Court. His report was confirmed and
a decree was entered under which one half of the income of the Fund is
to be paid to the Phillips Congregational Church in South Boston and
the other half is to be paid to the Boys' Club in South Boston.
In the estate of Catherine Johnson the testatrix left her home and a
small amount of money for the purpose of establishing a home for aged
women in North Andover. Miss Johnson died in 1918. The home property
was not suitable for use as a home for the aged and the funds bequeathed
were inadequate for the maintenance of the home. The home property
was rented by the trustees and the funds were invested. The trustees filed
a petition to have the court determine whether the property could be
sold, and the funds and the accumulations left by the testatrix applied
cy pres. The Attorney General on behalf of the public interest contended
that the testatrix had a general charitable intent to aid elderly women.
If it was not possible to carry out Miss Johnson's desire, her general in-
tention should be carried out by applying the funds for some similar
charitable purpose under an application of the cy pres doctrine. Judge
Phelan in the Essex Probate Court entered a decree in accordance with
the Attorney General's contentions. His decree was affirmed by the Su-
preme Judicial Court in the case of Rogers v. Attorney General, 347 Mass.
126. A decree after rescript was entered under which the proceeds of Miss
Johnson's bequests were authorized to be paid to the Lawrence Home for
Aged Women to be used partly for the cost of construction of an infirmary
and partly for an endowment for the Lawrence Home. The decree con-
tains a provision providing for a limited preference of applicants for
admission to the Lawrence Home who are residents of North Andover.
In the estate of Bartholomew J. Donnelly two gifts of about ^200,000
each were involved. One gift was to the Working Boys' Home. A decree
was entered upholding that gift and providing for its payment to the
Home. The other gift was to the "Catholic Institute for the Blind at
Jersey City, New Jersey, conducted by the Little Sisters of the Poor." It
30 P.D. 12
appeared that the Little Sisters of the Poor never operated an institute for
the blind in Jersey City and that the only Catholic institute for the blind
in Jersey City at the time of the execution of the will was the "Institute
for the Blind, Sisters of St. Joseph of Peace." A decree was entered order-
ing the gift paid to the "Institute for the Blind, Sisters of St. Joseph of
Peace," now merged with "St. Joseph Home for the Blind, Sisters of St.
Joseph of Newark." We supported the claim of the Jersey City institution.
One of the heirs has taken an appeal which has been entered in the
Supreme Judicial Court.
In the Dornoe Parker estate the testator provided for the accumulation
of the residue of his estate until such time as it amounted to $1,000,000.
When that amount was reached, the trustees were to erect a hospital in
Monson. Since the death of the testator, a modern hospital, the Wing
Memorial Hospital, has been established in the adjoining town of Palmer.
In view of the fact that only a very small and inefficient hospital could be
erected for $1,000,000 and if erected would be in competition with the
Wing Memorial Hospital, the trustees filed a petition suggesting that it
would be impractical to erect the hospital in the manner suggested by the
testator. The Attorney General took the position that the testator had a
general charitable intention to benefit the people in the area by providing
hospital facilities which, under the circumstances, could best be carried
out by using the funds made available for the erection of an addition to
the Wing Memorial Hospital. Judge Smith of the Hampden Probate
Court found that it was impractical to use the funds as directed by the
testator and that the testator's general charitable intention should be
effected by using the funds for the construction of the addition to the
Wing Memorial Hospital in Palmer.
We have many cases in which, because of changes over the years, chari-
table corporations are no longer able to carry out the purposes for which
they were organized and can no longer raise the funds necessary to con-
tinue to operate. In such cases a dissolution of the corporation is sought
Avith the court ordering that any remaining funds be used for similar
charitable purposes. An example of such a case is the one involving the
National Sailors Home. The home was established shortly after the
Civil War for the purpose of caring for sailors and marines who had
served in the War. Originally, the Home had been located in Quincy.
Later it purchased a hotel building in Duxbury. When its funds became
exhausted its property in Duxbury was transferred to another home.
Sailors Snug Harbor. An arrangement was made to permit the National
Sailors Home to send persons to Snug Harbor. At the time of the litiga-
tion, all but one of the trustees of the National Sailors Home had died.
A petition was filed for the dissolution of the Home and the use of its re-
maining funds for similar charitable purposes. A receiver was appointed
and a decree was entered by which the remaining real estate of the Home
(a cemetery in Quincy) was transferred to the City of Quincy with a
SI 0,000 fund to maintain the cemetery and with permission for the City
to remove the bodies to a mvmicipal cemetery if that should be deemed
desirable. The remaining assets of the National Sailors Home were trans-
ferred to Sailors Snug Harbor.
In the estate of Lillis R. Saxvyer the testatrix left a fund for the purpose
of establishing a community house in Shelburne Falls. The fund was not
large enough for the purpose at the time of the testatrix's death. Later,
P.D. 12 31
the shortages and restrictions of the World War II and Post World War
II periods prevented construction. A decree was entered by the Probate
Court under the cy pres power authorizing the use of the funds made
available for concerts, lectures and other community activities.
In the Preston case in Suffolk County, a gift in remainder to the Village
Congregational Church of Dorchester was involved. Many years ago the
Church had voted not to accept the gift, evidently because the testator, a
grocer, had sold liquors. However, after the death of the life tenant, the
Church, which was now in financial difficulties and did not have a min-
ister, revoked its refusal of the fund. The trustee under the will of the
testator brought a bill for instructions. The only heir of the testator was
a very elderly woman in poor health and very moderate circumstances.
"VVe approved a compromise arranged by the Church under which the
heir would be paid $20,000 and release all her rights.
•Finally, two cases were argued at the April, 1965 sitting of the Full
Bench. One, on appeal from the Probate Court, concerned the validity
of a small trust (about $8,000) under the will of Mayy Brady of Worcester
for the education of one or more deserving needy children. The Court
ruled that the trust was a valid charitable one, as we had contended. The
other case, Newhall v. Second Church and Society of Boston, was on ap-
peal from the Superior Court's decision that the Church had the right to
sell five pieces of its church silver, which had been given to it in 1706 and
1711. The sale was for $50,000 to Henry F. Du Pont for the Winterthur
Museum in Wilmington, Delaware. The decision of the Supreme Court
accorded with the points made in our brief as to the title of the Church
to three of the five silver vessels, and as to the other two the decision was
in accord with the alternative point we had urged: that a sale of those two
pieces could be approved by a Court of Equity when the vessels became
of great historical and artistic value and thus particularly suitable for
museum exhibition.
The Charities Division has also devoted a great deal of its time to the
enforcement of Chapter 68, Sections 18-31, enacted in 1964. This legisla-
tion, prepared and sponsored by the Attorney General's Office, gives the
Department of the Attorney General new powers to protect the public
from fraudulent solicitations. As a result of the enactment of this statute,
we have been involved in the preparation of forms for the registration of
charities which solicit from the public and for the registration of profes-
sional fund raisers and solicitors. It is of interest to note in this connec-
tion that the U. S. Treasury Department has been urging other states in
the union to follow the lead of Massachusetts in the area of enforcement
of charitable solicitations.
In addition to acting as a watch-dog, the Division has taken a more ac-
tive role in the charitable community by recognizing the need for a
comprehensive directory of public charities operating within the Com-
monwealth. The Department took upon itself the task of compiling and
publishing a now widely-acclaimed publication, the Directory of Foun-
dations in Massachusetts. This Directory is a detailed description of more
than 1100 charitable funds and foundations in the State (which are re-
quired by law to file annual financial reports with the Division of Public
Charities) . The T)irectory has proved to be useful to charitable agencies
and individuals in search of money for scholarships, relief and various
charitable projects.
32 p.D. 12
Members of the Division have also engaged in various conferences and
meetings. For example, a conference was held with the officers of the Cen-
tral New England Sanatorium. This institution, originally for tuberculosis
patients, later became a sort of half-way house for convalescents from the
disease. More recently it operated as an institution for the care of dis-
turbed children. The institution is now in financial difficulties and desires
to transfer the assets to the Devereux Foundation, a large national organi-
zation that operates institutions for disturbed children. The Department
of Mental Health, which sends about 100 children each year to institutions
outside the State, including those operated by Devereux, is anxious to have
the latter group operate an institution here. W^e are cooperating in having
the question put before the Court for decision.
Of course, the Division members spend many hours answering the tele-
phone and personal inquiries from the general public. This Division is
one which handles matters of special concern to interested parties and
therefore has made every attempt to deal with all inquiries in the most
pleasant and expeditious manner possible.
Torts, Claims and Collections Division
The Torts, Claims and Collections Division represents Commonwealth
employees in tort action brought against them. The Division determines
the merits of each case and decides what is a reasonable amount for the
damages involved.
General laws, chapter 12, section 3B provides that the Attorney Gen-
eral shall defend state employees who are involved in accidents while
operating state-owned vehicles in the course of their employment. The
Attorney General may settle claims against state employees for 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.
During the fiscal year of this report the Division attorneys have settled
299 motor tort claims at an average of $330.21 per claim. The average
motor tort settlement for the year has increased slightly from last year's
figure of $312.09. This increase is due to the fact that in one instance it
was necessary to settle (during trial) a single claim for $9,350.00. It be-
came apparent during the trial that liability had been established and
the evidence as to damages indicated that a verdict in excess of $10,000.00
(the limit under G. L. c. 12, § 3B) was probable. In the best interest of
the Commonwealth and the employee involved, w^e decided to settle rather
than risk a recovery far in excess of the statutory liability. Despite the
slight rise in our average figure, the $330.21 amount is still a substantial
reduction from the average settlement figure of $407.00 existing during
the last administration.
One noteworthy claim in the tort field was that of Burns v. Bany, et al.
that has been pending in this office since 1958. This was a suit for libel,
slander and defamation of character arising from the action of the five
members of the Board of Registration for Professional Engineers. In the
Superior Court, motion for directed verdicts was allowed as to four mem-
bers of the Board but denied as to the Chairman of the Board and one
employee. Trial continued on the remaining counts and a verdict for the
remaining defendants was rendered on all but one count against the
Chairman. The verdict for this one count against the Chairman was in
P.D. 12 33
the amount of $20,000 plus interest for some seven years. This verdict was
taken under "leave reserved" by the Court. Motion for the defendant
Chairman was immediately filed on his behalf by this office. As the result
of hearing thereon, following intensive preparation of the law and suc-
cessful argument by Assistant Attorney General Samuel W. Gaffer, the
Court ordered a verdict for the defendant on the final count. The result
of our success in this instance resulted in a substantial savings to the Com-
monwealth. Had the plaintiff held his verdict, the situation was such that
the Legislature would have been called upon to indemnify this defendant
for the amount of this verdict.
This Division also handles moral claims, defective highway cases and
small claims. Moral claims (damages occurring in circumstances that
impose a moral, though not legal, liability upon the Commonwealth)
have accounted for twenty-seven cases which have been settled for an
average amount of $552.56 per case. Twenty-three cases have arisen from
defective state highways. Small claims have been settled for an average
of $151.54 in the 104 cases considered.
All correspondence in this section is up-to-date, acknowledged 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 state departments.
The following collections have been made in 698 cases during the
period covered by this report:
Department Amount Collected No. of Cases
Mental Health
$92,777.41
139
Public Health
220,886.11
251
Public Works
32,983.44
231
Metropolitan District Commission
6,783.08
25
Public Safety
1.032.08
9
Miscellaneous
686.60
6
Department of Correction
625.36
1
Department of Education
1,693.36
24
Department of Education —
Division of the Blind
77.14
1
Public Utilities
161.50
I
Natural Resources
2,683.65
5
Youth Service
137.95
1
Soldiers' Home
175.00
0
Veterans' Services
2.00
0
University of Massachusetts
784.67
7
$362,276.21 698
There has been a significant increase in the sums collected for the Com-
monwealth in this area ever since the start of this administration. Statis-
tics for comparison with previous years can be found in the 1964 Annual
Report.
During the year, 3016 claims for overdue payment have been referred
to this office by the various state departments and agencies. All of these
claims have been processed, a major task in itself. During the year 1664
34 P.D. 12
claims were settled and disposed of. At the moment there are some 11,691
active claims in this Department. These staggering figures give some con-
cept of the volume of work handled by this section of the office.
Finally, members of this Division represent the Attorney General on
the Motor Vehicle Appeal Board, as required by the statutes of the
Commonwealth.
Veterans Division
This Division advises Massachusetts veterans of their rights and duties
under State 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, avail-
able to them. The Veterans Division is available at all times to help vet-
erans resolve any problems that may arise in this regard.
Many inquiries have continued to be directed to the members of the
Division from veterans 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.
Springfield and Worcester Offices
The responsibilities of the Department of the Attorney General extend
through the Commonwealth. Many of the varied tasks of this Depart-
ment can be handled efficiently and satisfactorily from the central Boston
office, but maximum efficiency and accessibility for the citizens of the State
is provided by having regional offices in Springfield and Worcester.
Staff attorneys operate out of both these cities to help residents in the
specific areas with a variety of problems. In addition, the attorneys in
these two offices have been primarily concerned with the handling of land
damage, motor vehicle, tort and industrial accident cases. These are three
areas of the law which concern many citizens. Special Assistant Attorneys
General have been appointed from time to time to work in these offices
to handle particular problems that have arisen, or to expedite exception-
ally heavy workloads.
Conclusion
These reports give a basic recitation of the manifold tasks of the Depart-
ment of the Attorney General. They provide a brief and general review
of the work of the members of the staff during the past fiscal year.
The staff members of the Department of the Attorney General have
worked unceasingly to provide the Commonwealth with the finest legal
service possible. I am truly appreciative of the opportunity of serving the
citizens of the Commonwealth with such a dedicated and efficient staff.
Respectfully submitted,
EDWARD W. BROOKE,
Attorney General
P.D. 12 35
The trustees of the University of Massachusetts are authorized to make
rules and regulations for the control, movement and parking of
vehicles on the campus and other lands of the University and, while
they may collect parking fees, any amount so collected must be paid
info the treasury of the Commonwealth. Any procedure whereby the
trustees utilize the university store as an agency to collect and expend
trust fund receipts is not loithin the permissible use of such funds
as outlined by the provisions of § //;, c. 75.
July 1 1964.
Dr. John W. Lederle, President, University of Massachusetts.
Dear Dr. Lederle: — You have requested an opinion as to whether
the provisions of G. L. c. 75 authorize the University trustees to:
1. Make rules and regulations for the control, movement and parking
of vehicles on the campus and other lands of the University;
2. Provide fees for the registration of vehicles of students, employees,
faculty members and staff members of the University operated on
said campus and other lands;
3. Provide for the conduct of registration services and collection of fees
through the University Store and the application of said fees to pur-
chase supplies and materials, including but not limited to registra-
tion decals, required for the administration of the traffic regulations
and to defray other registration expenses as a part of the University
Store receipts.
This request has been made because the Comptroller of the Common-
wealth has stated that the retention of said vehicle registration fees is con-
trary to Art. XLIII, section 1 of the Constitution of the Commonwealth
which provides as follows:
"All monies received on account of the commonwealth from any source
whatsoever shall be paid into the treasury thereof."
The Comptroller also stated that the decals used in the vehicle registra-
tion should have been ordered by the Printing Office of the State Purchas-
ing Division. He referred to c. 29, § 18 which reads in part as follows:
"Except as otherwise provided, no money shall be paid by the common-
wealth without a warrant from the governor drawn in accordance with
an appropriation then in effect, and after the demand or account to be
paid has been certified by the comptroller. . . ."
1. Section 32A, c. 75 of the Massachusetts General Laws explicitly pro-
vides that the trustees of the University of Massachusetts may make rules
and regulations for the control, movement and parking of vehicles on
the campus and other lands of the University. This section provides as
follows:
"The trustees shall make rules and regulations for the control, move-
ment and parking of vehicles on the campus of the university and on
other land of the university, and may provide reasonable penalties for
the violation of said rules and regulations. The trustees may appoint as
36 P.D. 12
police officers persons in the employ of the university who in the enforce-
ment of said rules and regulations and throughout university property
shall have the powers of police officers, except as to service of civil process.
Notwithstanding any other provisions of law, all fines and penalties re-
covered for violation of rules and regulations made under authority of
this section shall be accounted for by the clerk of the court and forwarded
to the trustees of the university to be deposited in the scholarship trust
fund of the university for scholarship purposes."
As a consequence of this section a system employing decals to classify the
various categories of vehicles subject to the traffic and parking regulations
of the university is within the power granted to the trustees.
2 - 3. The trustees may not provide fees for the registration of vehicles
of students, employees, faculty members and staff members of the Univer-
sity operated on said campus so as to defray the expenses of such registra-
tion. If parking fees are created by the trustees the proceeds must be paid
into the Treasury of the Commonwealth to comply with Art. LXIII,
section 1 of the Constitution of the Commonwealth.
General Laws c. 75, § 11, dealing with trust funds does empower the
trustees to establish and manage such funds and expend the proceeds.
However, a trust fund set up for the collection of vehicle registration fees
and the purchase of the materials required to make the vehicle registra-
tion effective does not fall within the scope of the projects and activities
for which a trust fund may be properly created by the trustees pursuant
to the provisions of this section.
Section 11 explicitly mentions that trust funds may be created for "the
operation of the boarding halls, student health service, research institutes
and foundations, dormitories and student and faculty apartments." While
this section makes it clear that trust funds can be established for purposes
other than those enumerated, the nature and purposes of such special
trusts must be viewed in comparison to the type of projects and activities
for which trust funds are specifically allowed. It is clear that the statutory
intent was to allow the University trustees to collect and expend trust
income for projects and activities of broad operational importance that
are expected to be self-supporting and not for the regulation of parking
and traffic control. There is a manifest distinction between using trust
funds for a dormitory building project and for the support of parking
regulations.
Your letter also asked whether the collection and disbursement of regis-
tration fees by the University store would be permissible since § 11 ex-
plicitly allows the trustees to retain and expend income from this activity.
The pertinent part of § 1 1 states:
". . . All receipts from students activities, including the operation of
the university stores, student union, student operation of the home eco-
nomics practice house, dramatics, debating, musical clubs, band, athletics
and other like activities, shall be retained by the trustees in a trust fund
or trust funds and shall be expended as the trustees shall direct in further-
ing the activities from which the receipts were derived."
P.D. 12 37
Using the University store as the agency for the collection and disburse-
ment of registration fees is also outside the scope of the trustees' power
to use trust funds for two reasons:
a. Collection of registration fees is outside the normal and excepted
activities of the University store. If the trustees are granted permission
to use the University store as an agency to collect and disburse funds for
this activity a precedent is established by which the University store may
be used as an agency through which to channel income from any source
into the student activity trust fund. This income could then be used for
whatsoever activites and projects the trustees chose to designate, thus
giving them control over funds not intended by the Legislature.
b. The second reason is that the above-quoted portion of § 11 is ex-
plicit in directing the trustees to expend the receipts derived from student
activities in furthering the activities from which the receipts were derived.
Funds disbursed for vehicle registration and regulation materials cannot
be construed as furthering a student activity even when carried out under
the aegis of the University store. These funds are expended to promote
a regulatory system initiated by the trustees and do not further any stu-
dent activity within the meaning of § 11.
Consequently, you are advised that the trustees may collect, retain and
disburse receipts of the University store only when these receipts are
obtained from the regular and normal activities of this store; and may
not collect them when such collection and disbursement is additional and
collateral to the normal functions of the store.
To summarize, you are advised that while you may collect parking fees,
any amounts so collected must be paid into the Treasury of the Common-
wealth. The procedure set-up by the trustees using the University store
as an agency to collect and expend trust fund receipts is not within the
permissible use of such funds as outlined by the provisions of § 11. The
registration materials purchased should have been ordered by the Printing
Office of the State Purchasing Division, in compliance with c. 29, § 18,
which states:
"Except as otherwise provided, no money shall be paid by the
commonwealth without a warrant from the governor drawn in
accordance with an appropriation then in effect, and after the
demand or account to be paid has been certified by the comp-
troller . . . ."
Section 13 of c. 75 to which you referred in your letter is not applicable
to the purchases made of the registration decals, as that section authorizes
the trustees or officers to make
"... any purchase or purchases in the amount of five hundred
dollars or less, and to purchase without limitation of amount
library books and periodicals, educational and scientific sup-
plies and equipment, printing and binding, emergency repairs
and replacement parts, and perishable items, without records to
any other state board, bureau, department or commission. , . ."
This section is not applicable because, according to the Comptroller's
letter of December 23, 1963, the decals completed cost in excess of five
38 P.D. 12
hundred dollars. The clause "printing and binding" is not applicable to
the manufacture of decals.
Section 13 does permit the trustees and officers to purchase other sup-
plies and materials used in registration if such supplies cost under five
hundred dollars, or if they consist of printed materials used in conjunc-
tion with registration.
Very truly yours,
Edward W. Brooke
July 8, 1964.
St. 1964, C. 528, permitting the suspension of a person in the service of
the Commonwealth who is under indictment for misconduct, is ap-
plicable to individuals zvho were indicted prior to the effective date
of such Act for misconduct in an elective or appointive office which
he previously held. Such retrospective application is entirely within
the power of the General Court.
Honorable Endicott Peabody^ Governor.
Dear Governor Peabody: — I have received your letter of June 25, 1964
relative to the effect of the recent amendment to G. L. c. 30, § 59, the
so-called Perry Law. General Laws c. 30, § 59, which authorizes the suspen-
sion of appointd public officials who have been indicated for misconduct
relating to their offices, originally applied only to indictments for mis-
conduct in the particular office currently held by the ocffiial in question.
Suspension was not authorized in cases of indictments for misconduct
committed in prior offices.
By c. 528 of the Acts of 1964, the General Court expanded the effect of
the law by deleting the first sentence and substituting the following:
"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 or for
misconduct in any elective or appointive public office, trust or employ-
ment at any time held by him, if he was appointed by the governor, be sus-
pended by the governor, whether or not such appointment was subject
to the advice and consent of the council or, if he was appointed by some
other appointing authority, be suspended by such authority, whether or
not such appointment was subject to approval in any manner." (Emphasis
supplied.) Accordingly, the Perry Law now applies to indictments for mis-
conduct in any elective or appointive office, whether held currently or at
a prior time.
In light of the extension of the application of G. L. c. 30, § 59, you have
requested my opinion as to whether an officer or employee of the Com-
monwealth may be suspended for having been indicted for misconduct
relating to a public office when such indictment was returned prior to
the effective date of St. 1964, c. 528. In other words, you ask that an
opinion be rendered as to whether the recent amendments to the law in
question may validly be applied retroactively in cases of indictments for
P.D. 12 ."^9
offenses committed before the enactment of such amendments. Your re-
quest presents issues simiHar to those treated in my opinion rendered to
former Commissioner of Public Works Jack P. Ricciardi on June 26, 1963.
I will treat the problem of retroactive application of statutes below.
Before considering the validity of such application, however, it should be
pointed out that the question of retroactivity may well not arise at all.
Indictment of an individual creates a continuing status, a status which
exists from the time that the indictment is returned to the time that there
is a verdict of guilty, a quashing of the indictment, or the entry of some
other order conclusive of the case. The sentence inserted by c. 528 of the
Acts of 1964 authorizes suspension during any period an officer or em-
ployee is under indictment. The language of the statute by itself indicates
that it was the intention of the Legislature to make the amendments
applicable to all indicted officials so long as the indictments were still in
effect. Otherwise the General Court would not have referred to any period
during which an official might be under indictment. An offense may have
been committed prior to the effective date of the Act; but an official in-
dicted for such offense remains indicted until the matter is tried or a
determination is made not to pursue it further. An individual may well
be under indictment now for an offense committed prior to 1964; and the
amendments to G. L. c. 30, § 59 may properly be applied to him without
raising the issue of retroactive effect at all.
Nevertheless, much has been said on the subject of retroactive legisla-
tion in general, and on the effect of St. 1964, c. 528 in particular, and I
feel that some attention should be devoted to the matter. The said c. 528
does admittedly create disabilities which did not exist prior to its pas-
sage. Indictments for certain past offenses may now result in suspension,
whereas formerly the offender was entitled to retain his position at least
until conviction. However, there is nothing inherently wrong with retro-
active application; it is only when some constitutional or statutory right
is adversely affected that such application must be deemed to be invalid.
The General Court, having created certain offices and employments, has
the right to abolish or otherwise take steps which affect such offices or
employments. As they are created, so may they be abolished. Terms may
be lengthened or shortened, or requirements for holding positions altered.
No official has such a right to occupy a statutory office that he may object
to an act of the Legislature which affects such office, or even which de-
prives him of it. The General Court clearly may prescribe causes for and
method of removal from office.
Collins V. Selectmen of Brookline.
325 Mass. 562, 565
The Supreme Judicial Court has recently had occasion to consider this
problem. In Welch v. Mayor of Taunton, 343 Mass. 485. the Court held
that the General Court could lawfully empower the Mayor to remove
members of a commission for a cause, specified in the statute, which
occurred prior to its effective date. The Court pointed out that the statute
was not criminal in its application, nor did it adversely affect substan-
tive or vested rights of the officials indicted. The Court commented, at
page 488:
40 P.D. 12
"It is insignificant that § 56E increased the consequences of the plain-
tifiPs prior wrongdoing. No punishment or penalty is imposed on the
plaintiff in any constitutional sense by the operation of § 56E, An official
has no right, vested or otherwise, to do wrong without an effect upon his
term of office beyond that specified in the statutes when the wrong was
done,"
There is no substantive right to hold an office, and thus nothing of sub-
stance that can be affected by these amendments. The creation of a new
way of shortening a term "deprives the office holder of nothing which he
has a constitutional or statutory right to keep."
Welch V. Mayor of Taunton, supra, at p. 487
Statutes relating to remedies and not affecting substantive rights com-
monly are treated as operating retroactively.
Hanscom, Trustee v. Maiden & Melrose Gas
Light Co., et al, 220 Mass. 1, 3
The spirit of G. L. c. 30, § 59 is such that I am compelled to conclude
that the Legislature intended the law to have as wide an application as
possible. It is essential to the preservation of confidence in government
that public offices not be occupied by those who are under suspicion. The
statute is designed so that whatever the office holder has lost by suspension
will be returned in the event proceedings terminate without a verdict of
guilty. Broad application is therefore possible without fear that substan-
tive rights will be affected. Accordingly, it is my opinion that the Legis-
lature intended that the amendments embodied in c. 528 of the Acts of
1964 be applicable to individuals who were indicted prior to the effective
date of such amendments for misconduct in an elective or appointive office
which he previously held, and that such retroactive application is
entirely within the power of the General Court.
Very truly yours,
Edward W. Brooke
It is beyond the authority of the Secretary of State to require information
other than that specified by statute and he cannot require proof of
age or eligibility to vote as a condition to acceptance of nomination
papers.
July 8, 1964.
Hon. Kevin H. White^ Secretary of the Commonwealth.
Dear Mr. White: — I have received your letter of July 7, 1964 relative
to your duties with respect to the proposed candidacies of individuals who
have yet to reach the age of twenty-one years. You have informed me
that one Leonard Edward Tagg of 203 Green Street, Weymouth, has filed
nomination papers with your office as a candidate for election to the office
of Representatives from the Fourth Norfolk District. Apparently, reliable
reports indicate that Mr. Tagg is at present just sixteen years of age. Ac-
cordingly, you have requested my opinion upon the following questions:
"1. Is it within the purview of the administration rules and regula-
tions for this office to require proof that a candidate on election
P.D. 12 41
nomination papers is qualified as a voter prior to accepting the
nomination papers?
"2. Is it within the administrative powers of this office to make in-
quiry from other sources such as city and town clerks as to the
age of candidates?
"3. Having ascertained through official channels that the candidate
is a minor, woidd this office be authorized, under the statutes,
to refuse acceptance of his nomination papers?"
In essence, your questions are directed at determining whether you as
Secretary of the Commonwealth may lawfully impose, as a condition to
acceptance by your office of nomination papers, the requirement that the
candidate submit proof that he has attained the age of twenty-one years or
is qualified to register as a voter. The statute which governs the contents
of nomination papers does not require that the age of the candidate be
indicated, but rather provides in part as follows:
"All certificates of nomination and nomination papers shall, in addition
to the names of candidates, specify as to each, (1) his residence, with
street and number, if any, (2) the office for which he is nominated, and
(3), except as otherwise provided in this section and in city charters, the
party, if any, which he represents, expressed in not more than three
words. . . ."
Mass. G. L. c. 53, § 8.
The requirements presently contained in c. 53, § 8, presumably repre-
sent the entire scope of the information regarding the candidate in ques-
tion which the Legislature considered necessary for the candidate to
submit. Had the General Court desired that the candidate's age appear
on the papers it could easily have so provided. Absent such a provision,
it must be assumed that the Legislature did not intend that the candidate
be required to reveal his age at the time of the filing of nomination
papers.
Were you, as Secretary of the Commonwealth, to enact an administra-
tive rule governing the functioning of your department which required
proof of age or eligibility to vote as a condition to acceptance of nomina-
tion papers, you would in effect have amended the provisions of c. 53, § 8,
by imposing an additional requirement upon candidates. The statute
does not at this time provide that a candidate's age be included upon
his nomination papers, and it is not within your authority to add such
a burden, albeit resort is had to the device of a departmental rule.
It cannot be said that the General Court was unaware of the possibility
that proof of some kind might be required prior to acceptance of nomina-
tion papers. In § 48 of c. 53, which section provides for the filing of
nomination papers for candidates in state primaries, there is to be found
the requirement that a candidate submit a certificate from the registrars
of voters of his city or town that he is enrolled as a member of the
political party whose nomination he seeks. Such a requirement is of
course essential, since there must be some assurance that a candidate be-
longs to the party whose primary he wishes to enter.
42 P.D. 12
Having enacted such a provision relative to the filing of papers prior
to state primaries, the Legislature could well have included a similar
clause in c. 53, § 8. Failure to do so indicates that the Legislature did not
intend that candidates filing under c. 53, § 8 be required to establish their
eligibility to vote. Throughout the election laws, the General Court has
treated the Secretary of the Commonwealth as an officer having ministerial
duties only. When documents are submitted to his office for filing, the
Secretary has no inherent authority to look beyond the surface of such
documents. He may, for example, reject papers which obviously do not
contain the appropriate number of signatures. But he is obliged to accept
papers which on their face meet all lawful requirements; he cannot
engage in an independent search for additional evidence, and — based
upon such evidence — deny the candidate the right to file. Should an
individual's candidacy be unlawful, provision has been made in sections
11 and 12 or c. 53 for the filing of objections with the State Ballot Law
Commission. It is the Commission, and not the Secretary of the Common-
wealth, which has the facilities to examine questionable candidacies, and
which has been authorized to do so by the General Court.
The Legislature has not imposed upon the Secretary the burden of
determining the validity of nomination papers where independent evi-
dence is required. It would be beyond the authority of the Secretary to
require information other than that specified by statute. Accordingly, I
am answering each of your three questions in the negative.
There are, of course, other facets to the subject matter of your requests
which may well be determinative of the problems raised. However, in my
official capacity as Attorney General, I have addressed myself only to
the questions you pose.
Very truly yours
Edv^ard W. Brooke
The Director of Civil Sennce is legally correct in his refusal to approve
the appointment of a veteran where a disabled veteran, appearing
higher on the list, was passed over on the sole basis of arrests and
convictions for drunkenness which occurred more than ten years prior
to the filing of his application.
July 8, 1964.
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Mr. Finnegan: — You have asked my opinion, on the facts which
you have submitted to me in your letter of May 14, 1964, whether the
Director of Civil Service is legally correct in refusing to approve the ap-
pointment of a veteran where there is a disabled veteran appearing higher
on the list who was passed over on the sole basis of arrests and convictions
for drunkenness occurring more than ten years prior to the filing of his
application.
The Legislature has seen fit to establish preference in the appointment
of applicants to civil service positions. These preferences have been estab-
lished on the basis of service in the armed forces of the United States, and
on the basis of whether the applicant, as a result of that service, has
suffered any physical disabilities.
P.D. 12 43
This means that those disabled veterans who have received passing
grades on the written examination and who meet the other requirements
are placed at the top of the eligible list. The veterans, as a category,
appear below the disabled veterans, and still further down on the list
are the other applicants. Within any of these categories the applicants are
listed in order on the basis of the numerical mark which they received.
In accordance with this statutory system, a disabled veteran must be
appointed and employed in preference to all other applicants.
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; (2) veterans in the order of their respec-
tive standing; (3) persons described in section twenty-three B in the order
of their respective standing; (4) other applicants in the order of their
respective standing. Upon receipt of a requisition not especially calling
for women, names shall be certified from such lists according to the
method of certification prescribed by the civil service rules applying to
civilians. A disabled veteran shall be appointed and employed in prefer-
ence to all other persons, including veterans."
In instances where the appointing authority does not appoint in the
numerical order in which applicants appear on the list, the appointing
authority is required to file under G. L. c. 31, § 15, a statement explaining
the action which was taken. The statement in this case was to the effect
that the disabled veteran had "a lengthy court record plus some convic-
tions for drunkenness. "From your letter it appears that this matter was
investigated and that the Director of Civil Service found as a matter of
fact that the disabled veteran had a record of arrests and convictions for
drunkenness, only, extending over a period from 1949 to 1950, and that
this was the sole basis for his not being appointed.
Under G. L. c. 31, § 13, an applicant must include in his application
information concerning "any arrest or conviction . . . (for) drunken-
ness . . . provided, that the date of arrest or conviction was ten years prior
to the filing of said application." This section places the burden squarely
upon the applicant to file a correct and honest application. Willful failure
to do so would be grounds for disqualification.
G. L. c. 31,§ 13.
" Every application shall state under penalties of perjury the full name,
residence and post office address, citizenship, age, place of birth, health
and physical capacity, right of preference as a veteran or a blind person,
previous employment in the public service, occupation and residence for
the previous five years, education of the applicant, and such other infor-
mation as may be reasonably required relative to his fitness for the public
service; but no question shall be asked in such application or in any
examination requiring a statement as to any act of waywardness or
delinquency or any offence committed before the applicant reached the
age of seventeen. In filing such application, no applicant shall be required
44 p.D. 12
to furnish any information of arrest or conviction of the following mis-
demeanors: — drunkenness, simple assault, speeding, minor traffic viola-
tions, affray or disturbance of the peace, provided, that the date of arrest
or conviction was ten years prior to the filing of said application."
The purpose of this section is to establish a permanent record concern-
ing an applicant's background, and as such it may be used by the appoint-
ing authority in selecting the person most qualified for a permanent
appointment. (See Civil Service Rule 16.) The Legislature saw fit to
exclude from this record any arrests or convictions for drunkenness oc-
curing ten years before the applicant filed his application. In the light of
this, it is not incumbent upon the appointing authority to now resurrect
matters which the Legislature felt had no bearing upon his present
appointment.
Should the appointing authority be in possession of evidence that past
mistakes have been repeated in present conduct making the applicant
unfit to be employed, this should be brought to the attention of the
Director of Civil Service and made the basis for presently refusing to
employ the applicant.
The appointing authority is not required to permanently appoint a
person who is unqualified for the position for which he has applied. A
candidate for appointment to the Civil Service must, in accordance with
G. L. c. 31, § 20D, successfully serve a six months' probationary period.
This provides the appointing authority with a first-hand opportunity to
appraise his qualifications. If during this period the appointing authority
discovers that the applicant is unfit, he may discharge him in accordance
with the simple procedure found in that section.
In light of the action taken by the Legislature, it is my opinion that
the Director of Civil Service is legally correct in refusing to approve the
appointment of a veteran where there is a disabled veteran appearing
higher on the list who was passed oven on the sole basis of arrests and
convictions for drunkenness occurring more than ten years prior to the
filing of his application.
Very truly yours,
Edward W. Brooke
Where a municipality had obtained permission to pay a rate above the
maximum under a previous Welfare Compensation Plan, it is not
bound to pay an amount above the maximum rate under the present
Welfare Compensation Plan.
July 9, 1964.
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Mr. Finnegan: — You have asked my opinion concerning whether
a town or city must pay an amount above the maximum rate under the
present Welfare Compensation Plan (1963) where it had obtained per-
mission to pay a rate above the maximum under the previous Welfare
Compensation Plan (1961).
Certain local welfare employees were made subject to the Civil Service
Law and Rules by virtue of G. L. c. 31, § 47C, St. 1941, c. 402, § 1, as
P.D. 12 45
most recently amended by St. 1963, c. 432, § 1. As a result of this, all
welfare employees coming within the purview of this section enjoy unlim-
ited tenure and may be discharged only in accordance with the procedure
outlined in G. L. c. 30, § 43. This is the case even though prior special
statutes had been enacted excluding these employees from the operation
of the Civil Service Law.
The wages paid to these employees are set by the Director of Civil
Service and are incorporated into a compensation plan which must be
approved by a special M^elfare Compensation Board established under
G. L. c. 31, § 47D. The Board is comprised of the Director of Civil Service,
the Commissioner of Public Welfare, the Chairman of the Civil Service
Commission and the Director of Accounts, who sit ex officiis. Neither
the towns and cities nor the employees have direct representation on the
Board.
A typical Welfare Compensation Plan lists the various welfare jobs by
their position title. The towns and cities are not listed by name, but the
various categories are established according to population. Both the
maximum and minimum salary rates, as well as the annual step-rate
increases, are established in line with these population categories.
In the administration of this plan the Director of Civil Service is em-
powered by statute to promulgate appropriate rules and regulations.
These rules and regulations, as well as the Welfare Compensation Plan,
may be changed from time to time with the approval of the Board. Any
person employed by a local municipality who is aggrieved by any pro-
vision of a plan which affects his position may obtain a hearing before
the Board.
G. L. c. 31, § 47D.
"The director shall establish, with the approval of a board consisting
of the commissioner of public welfare, the chairman of the civil service
commission and the director of accounts, ex officiis, a compensation plan
for holders of positions referred to in section forty-seven C and made
subject to this chapter by said section or otherwise. The director may,
with like approval, make rules and regulations providing for the appli-
cation and administration of said compensation plan. The director, with
like approval, may from time to time modify or change said compensation
plan or said rules and regulations. Any holder of such a position object-
ing to any provision of such plan, or any action taken in connection there-
with, which affects his office or position, may appeal in writing to said
board and shall be entitled to a hearing, after due notice, upon such
appeal. The decision of said board shall be final."
Under G. L. c. 31, § 47E, as added by St. 1951, c. 537, local Welfare
employees are entitled to annual steprate increases up to the maximum
salary as a part of the Compensation Plan. These increases, however, do
not change the employees' job classification or increase their responsi-
bilities. The step-rate increases for all practical purposes are automatic
and are awarded on the basis of the number of years one has been em-
ployed. This section [G. L. c. 31, § 47E] dealing with step-rate increases
as originally enacted St. 1951, c. 537, was optional with the towns and
4:ities and became effective only after it had been accepted by the local
46 P.D. 12
community. By St. 1961, c. 529 and St. 1962, c. 579, the payment of step-
rate increases became mandatory.
Litigation arose over the proper interpretation of § 47E as it had been
added by St. 1951, c. 537. In Albernaz v. City of Fall River, 1963 Adv.
Sh. 963, 191 N. E. 2nd 771 (1963) , local welfare employees of the City of
Fall River contended that they were entitled under the new plan to any
step-rate increases which they had obtained under prior plans. The Su-
preme Judicial Court held that under this section, as it then stood, the
employees were not entitled to the new minimum plus any accrued step-
rate increases.
Before the Albernaz case was finally decided the Legislature amended
G. L. c. 31, § 47E by St. 1962, c. 579.
G. L. c. 31,§47E.
"Persons holding positions referred to in section forty-seven C shall be
paid the salaries set forth for such positions in the compensation plan
and in accordance with the rules and regulations providing for the appli-
cation and administration of said compensation plan established under
section forty-seven D. such persons shall be given an anual step-rate in-
crease, to be set forth in the compensation plan established under section
forty-seven D, on the anniversary date of their appointment to the posi-
tion which they hold or on such other date as the municipality uses for
other employees, but such increase shall not entitled such persons to any
change of rating or increased authority. Such increase shall be fixed by
the board referred to in section forty-seven D and shall be paid annually
until the maximum salary set forth in the compensation plan established
under section forty-seven D for the positions so held has been reached.
"An amendment or change in such compensation plan shall become
effective on the first day of July following the date on which such amend-
ment or change is made for such position, and each person shall be paid
the salary rate set forth in such compensation plan, as so amended or
changed, which is equivalent in relative standing to the salary grade in
effect prior to the amendment or change, as the case may be, commencing
on such effective date.
"The superior court, upon suit by the attorney general or petition of
one or more taxable inhabitants of a city or town in which it is alleged
that the provisions of this section or sections forty-seven C and forty-
seven D are not enforced may, in law or equity, enforce said sections."
(As amended by St. 1962, c. 579.)
This statute where it states, "Each person shall be paid the salary rate
set forth in such Compensation Plan, as so amended or changed which
is equivalent in relative standing to the salary grade in effect prior to
the amendment or change, as the case may be, commencing on such
effective date . . .", has effectively dealt with the problem in the Albernaz
case. The Court noted in this case that its decision would have been dif-
ferent if that case had been decided under c. 31, § 47E, as amended.
Under § 47E, as it was amended by St. 1962, c. 579, a welfare employee
is entitled to payment at the minimum rate under the new plan plus
any step-rate increase which he had obtained under any prior plans.
P.D. 12 47
Payment to welfare employees above the maximum established rate
are not provided tor in G. L. c. 31, §§ 47C through E. Provisions for such
payments have been made in the rules and regulations providing for the
application and administration of the Welfare Compensation Board.
Under § 4 (a) of these rules and regulations, a municipality may make
payments to its employees above the maximum rate by having the town
or city placed in the next higher population category.
RULES AND REGULATIONS
"4 (a) upon presensation by the proper municipal authority of evi-
dence of special reasons and exceptional circumstances in matters relat-
ing to the prevailing rates for comparable positions in other departments
of the municipality, the proximity of the population of the municipality
to the next higher population group and other relevant factors, the Di-
rector may authorize the establishment of a salai^ range for positions in
the next higher population group."
Secondly, a municipality may apply under § 8 (a) of the rules and regu-
lations to make salary payment in excess of the maximum rate.
RULES AND REGULATIONS
"8 (a) In any city or town wherein the Welfare Compensation Plan
would involve practical difficulty or unnecessary hardship and wherein
desirable relief may be granted without derogating from the intent and
purpose of the Welfare Compensation Plan. The Director may, upon
presentation of evidence satisfactory to him, permit reasonable differences
in excess of the salary ranges established in the plan if, in his opinion,
such differences are justified by local recruitment, employment or fiscal
conditions."
Under both these sections the town or city must obtain the prior per-
mission of the Director of Civil Service before making these payments.
The basis upon which the Director's approval is given is that the present
plan docs not meet the needs of an individual community. Further, the
municipality must establish that the new rates set by the Director and
approved by the Board are not adapted to the local conditions. An evalu-
ation such as this can only be made after the town or city has had an
opportunity to study the new or amended plan in light of its own needs.
Where permission was given under a former plan to make salary pay-
ments in excess of the maximum rate, such permission was given on the
basis of the plan and the needs of the community as they then existed.
Where a new or amended plan is adopted, no such basis still exists. The
welfare problems of a community are constantly changing. Whereas a
former plan may have been deficient, the new plan may now provide full
welfare services.
It is then incumbent upon the town and cities, after the promulgation
of a new or amended Welfare Compensation Plan, to re-evaluate the
welfare problems in their own community. If in the opinion of the town
or city the plan presently adopted does not provide adequate welfare
facilities, they may apply for permission under the new or amended plan
48 P.D. 12
to pay wage rates in excess of the maximum. The result is that when a
new or amended Welfare Compensation Plan is approved by the Board,
the town or city must pay the new wage rate or apply for permission
under the new or amended plan to pay a higher rate. Any other result
would bind the towns and cities to a prior Welfare Compensation Plan
found by the Board itself to be outmoded and not adapted to the wel-
fare needs of the Commonwealth.
In the light of the action taken by the Leigslature and the discussion
here of the problem involved, it is my opinion that a town or city does
not have to pay an amount above the maximum rate under the present
Welfare Compensation Plan (1963) where it had obtained permission to
pay a rate above the maximum under the previous Welfare Compen-
sation Plan (1961).
Very truly yours,
Edward W. Brooke
The manifest purpose of St. 1964, C. 561, amending G. L. C. 75, by the
insertion of § 55C, is to prescribe a safety requirement in classrooms
xuhere students and teachers engage in activities which could be
injurious to the eyes, and requires some discretion on the part of
school officials in determining when students and visitors are within
a dangerous proximity to the activity and require the use of eye
protective devices. The risk involved in particular classroom activi-
ties and not the general category of activity is the true criterion by
which to determine lahen protective eyeglasses must be ruorn.
July 20, 1964.
Hon. Owen B. Kiernan, Coynmissioner of Education.
Dear Doctor Kiernan: — You have requested answers to several ques-
tions which require an interpretation of c. 51 of the Acts of the General
Court of 1964. This Act amends c. 71 of the General Laws by the inser-
tion of § 55c. It reads as follows:
"The school committee of each city or town shall require each pupil
and teacher in a public school to wear industrial quality eye protective
devices, approved by the department of public safety, xvhile attending
classes in vocation or industrial art shops or laboratories in which caustic
or explosive chemicals, hot liquids or solids, hot molten metals, or
explosives are used or in ivhich xuelding of any type, repair or servicing
of vehicles, heat treatment or tempering of metals, or the milling, saioing,
stamping or cutting of solid materials, or any similar dangerous process
is taught, exposure to which might have a tendency to cause damage to
the eyes. Visitors to such classrooms or laboratories shall also be required
to wear such protective devices." (Emphasis supplied.)
The questions you have submitted are:
" (1) If only one student is performing an action covered by section 55C,
do all students, teachers and visitors have to wear protective eye devices?
P.D. 12 49
" (2) Does the act apply to cooking classes where water is boiled or
soup is brought to the boiling point?
" (3) Can a Laboratory teacher, wearing glasses, conduct an experiment
while all the students are watching without the students wearing glasses?
" (4) Can the laboratory teacher conduct an experiment wearing glasses
behind a protective shield, while all the students are watching him,
without the students wearing the glasses?
" (5) If a student saws a piece of wood with a hand saw, does he have
to wear protective glasses?
" (6) Do students have to wear glasses while working on the repairing
of an automobile regardless of the type of repair work that is being done?
■" (7) What are the circumstances under which visitors to the classrooms
or laboratories are required to wear protective eye devices?
" (8) Must the school committee purchase separate glasses for each
student who is obliged to wear them, the student returning the glasses
at the end of the course, or can it purchase a number of glasses from
which each student can pick one upon entering a laboratory? This ques-
tion is asked because of possible danger of transmitting skin and eye
disease by indiscriminate use of glasses.
" (9) Can a school committee purchase glasses and sell them at cost to
the student or require the student to buy approved glasses on his own?
(The Ohio law allows a school committee to purchase protective eye
glasses in large quantities and sell them at cost to pupils and teachers.)
In Masaschusetts H-340, which subsequently became H-3021, contained
such a provision. It was eliminated in the third reading in the House
when the bill became H-3021.
" (10) Does the school committee have to purchase and loan the protec-
tive eye devices under Chapter 71, section 48?
"(11) Does the phrase 'or any similar dangerous process is taught,
exposure to which might have a tendency to cause damage to the eye'
mean that all the act previously described in section 55C are considered
as 'dangerous processes' in and of themselves?"
The manifest purpose of this amendment is to prescribe a safety require-
ment in classrooms where students and teachers engage in activities that
have a tendency to cause eye damage. That purpose is served by applying
a proximity or exposure test rather than by requiring all persons entering
a classroom, where any activity mentioned in § 55C is being carried on
regardless of the unlikelihood of injury, to wear protective glasses. Conse-
quently, it is my opinion that the Legislature intended that eye protective
devices must be worn only when directly engaged in, or in close proximity
to the activities mentioned in this section. This will require some discre-
tion on the part of school officials in determining when students and
visitors are wuthin a dangerous proximity to the activity and require the
use of eye protective devices. This determination will vary depending on
the danger radius of various activities falling within the scope of § 55C.
50 P.D. 12
With regard to your explicit questions concerning this section, it is my
opinion and you are advised:
1. That if only one student is performing an action covered by § 55C,
others in the classroom need not wear protective eye devices unless they
are in such close proximity to the activity that their exposure would
have a tendency to cause damage to the eyes.
2. The act does not apply to cooking classes where water is boiled or
soup is brought to a boiling point. While water and soup are hot liquids
they are not the type of chemicals which would likely cause eye damage
after exposure, and should not be considered to be included within the
scope of § 55C.
3. Whether a laboratory teacher, wearing glasses, can conduct an
experiment while all the students are watching, without requiring the
students to wear glasses, depends on two factors: the distance of the stu-
dents from the teacher and the danger radius of the experiment. If the
students are crowded around in close proximity to the teacher as he con-
ducts the experiment, or if the experiment involves caustic or explosive
chemicals likely to affect everyone in the classroom, then all students
should wear the protective eye glasses.
4. Whether a laboratory teacher wearing an eye device can conduct
an experiment behind a protective shield, while all the students watch
him without wearing the glasses, depends on whether or not the protec-
tive shield provides the students with as good or better eye protection
than would their glasses. If the shield does provide such protection, the
students need not be required to wear their glasses during an experiment
conducted by the teacher. However, they must wear them if the experi-
ment exposes them to the danger of eye injury, despite the protective
shield.
5. If a student saws a piece of wood with a hand saw, he must wear
protective glasses. The section explicity mentions "sawing" but does not
distinguish between hand and machine sawing. Consequently, we must
infer that the Legislature intended the statute to apply to both, and
requires the student to wear a protective eye device while engaged in any
sawing activity.
6. A student must generally wear glasses while repairing or servicing
a car. However, if the repair work is of a nature where the possibility
of eye damage is virtually non-existent, it would not counter the purpose
of the law to allow students to work without protective glasses at such
times. The statute as it pertains to repairing an automobile should be
interpreted as applying to those situations where the student is working
with moving parts of machinery, using power tools, when there is a
danger of flying objects striking him in the eye, and like situations
where there is an exposure to eye injury.
7. Classrooms visitors are required to wear protective eye devices only
when they are in proximate danger of receiving an eye injury. They need
not wear these devices when they enter a classroom where an activity
described in § 55C is taking place unless they are personally exposed to
the possibility of eye injury.
P.D. 12 51
8. This section does not contain guidance to determine whether a
school committee must buy glasses for each student who is obliged to
wear them, or buy a number of glasses for use by students upon entering
the classroom and then depositing them at the termination of the class.
It is apparent that the school committee has discretion on this matter.
9. A school committee should not purchase glasses and sell them to
the student at cost nor should it require the student to buy approved
glasses on his own. The fact that this provision was originally included
in the House bill and subsequently dropped indicates that the Legisla-
ture did not approve either of these methods of procuring the protective
eye devices required by the final version of the statute.
10. The answer to question 4^9 indicates the Legislature did intend
that school committees purchase and loan the protective eye devices
under c. 71, § 48. This section states:
"The committee shall, at the expense of the town, purchase textbooks
and other school supplies, and, under such regulations as to their care
and custody as it may prescribe, shall loan them to the pupils free of
charge. If instruction is given in the manual and domestic arts, it may
so purchase and loan the necessary tools, implements and materials.
It shall also, at like expense, procure such apparatus, reference books
and other means of illustration, as may be needed."
11. The phrase "or any similar dangerous process is taught, exposure
to which might have a tendency to cause damage to the eye" should not
be construed to mean that all the acts previously enumerated in § 55C
are considered as "dangerous processes" in and of themselves. Any act
which fits the described activities enumerated under this section must
be evaluated according to whether or not it creates a danger of exposing
a person or persons to eye injury. The activities described are those
categories where the risk of eye injury is generally so great that only
exceptional circumstances would remove a presumption of risk when
protective eye devices are not used.
Consequently, the risk involved in particular classroom activities and
not the general category of activity is the true criterion by which to
determine when protective eyeglasses must be worn.
Very truly yours,
Edward W. Brooke
52 P.D. 12
The Commissioner of Agriculture and the Board of Agriculture are not
equal in terms of the statutory allocation of powers and duties within
the Department; the Commissioner's function is to administer and
enforce, the Board's function is to supervise and control. Sites of
Racing Meetings require approval by both the Board and the Com-
missioner. The Commissioner alone has the further duty of deter-
mining whether a fair is properly qualified. The broad discretion
given in the granting of licenses must conform to general standards
relating to the public interest.
July 20, 1964.
Hon. Vincent J. Riley, Chairman, Board of Agriculture.
Dear Mr. Riley: — You have asked my opinion on two questions:
1. A delineation of the statutory extent of the powers and duties of
the Board of Agriculture and the Commissioner of Agriculture.
2. The powers and duties of the Commissioner and the Board under
G. L. c. 128A, § 3, which states in part in subparagraph (4): "the loca-
tion where such racing meeting is to be held is annually approved by
him and by the board of agriculture. . . ."
These questions will be answered in the order in which they are
numbered above.
1. Recognizing that certain activities are best administered by non-
partisan specialists, G. L. (Ter. Ed.) c. 20, § 1 provided that:
"There shall be a department of agriculture under the supervision
and control of a commissioner, and an advisory board of six members
the principal vocation of at least three of whom shall be agriculture."
This section was amended by c. 674 of the Acts of 1954. Section 1
of that chapter abolished the advisory board and provides that: "There
shall be a department of agriculture under the supervision and control
of a board of agriculture. . . ." Under this statute, the Board is to consist
of seven members appointed by the Governor with the advice and con-
sent of the Council, at least four of whom shall be "farmers whose prin-
cipal vocation is the production of food or fibre." Each member must be
from a different county.
This statute further provides that the Commissioner is to be appointed
by the Governor with the advice and consent of the Council from a
panel of not less than three names submitted by the Board.
Prior to 1954, control of the department was in the Commissioner;
the function of the advisory board was limited, as shown by its title,
to advisory powers. After the 1954 amendatory act, however, the statute
now reads as follows:
"SECTION 1. ... Said commissioner shall serve for a term of four
years and shall have charge of the administration of the department. . . ."
"Section 3. The commissioner shall be the executive and administra-
tive head of the department and shall have charge of the administration
and enforcement of all laws which it is the duty of the department to
administer and enforce, and shall direct all inspections and investigations."
Section 6 of that statute provides that the Commissioner is to organize
the Department into divisions. The Commissioner's appointment and
P.D. 12 53
removal powers over the division directors are subject to the approval
of the Board, as is the Commissioner's appointment of "scientific experts."
Again, note the change from the pre-1954 statute, wherein these powers
resided solely in the Commissioner.
From the statute, then, it seems clear that while the function of the
Commissioner is to administer and enforce, the function of the Board
is to supervise and control. The Commissioner and the Board are not,
therefore, equal in terms of the statutory allocation of powers and duties
^vithin the department. The Board is the organ with the dominant role
in policy making.
2. In regard to your second inquiry, c. 805 of the Acts of 1963 has
changed G. L. c. 128A, § 3 (as amended by § 2 of c. 295 of the Acts of
1959) by inserting certain additional requirements in the granting of a
license for the holding or conducting of a horse or dog racing meeting
in the Commonwealth in connection with a state or county fair. These
provisions are that the license applicant show a certificate from the
Commissioner of Agriculture that: " (1) such fair is a state or county
fair as defined in section one [of c. 805], (2) such fair has been operating
for each of the five consecutive years immediately preceding the date
of filing such application and had received for each of said five consecu-
tive years assistance from the agricultural purposes fund, (3) such fair
is properly qualified as hereinafter in this paragraph provided, and
(4) the location where such racing meeting is to be held is annually
approved by him [the Commissioner of Agriculture] and by the board
of agriculture. . . ." Thus, in addition to the required annual approval
of the sites of the racing meeting, to be made by both the Commissioner
and the Board, the Commissioner alone has a further duty under the
statutes; namely, to determine whether a fair is properly qualified.
There is such judicial language as to the standards to which the State
Racing Commission should conform in granting licenses. The Massachu-
setts Superior Court has held the controlling factor to be "public interest."
As the Court pointed out in Bay State Harness Horse Racing and
Breeding Association, Inc. v. State Racing Commission, 342 Mass. 694,
at 699:
"We think that c. 128A contemplates that the commission, although
given a broad discretion in granting licenses . . . shall conform to general
standards related to the public interest. . . . From various provisions
of the chapter may be implied a legislative requirement that licensees
shall be financially responsible, be able to meet obligations to the Com-
monwealth, have suitable and safe facilities for the service of the patrons,
and be persons likely to conduct racing in accordance with approved
practices and in a manner consistent with the public safety, health,
morals, and welfare, . . ."
Although that case involved the State Racing Commission, it would
seem that, by analogy, similar standards would be implied by the Court
in reviewing a decision by the Commissioner and Board of Agriculture
as to the location of racing meetings.
Very truly yours,
Edward W. Brooke
54 P.D. 12
A liceyise issued to an apprentice plumber shall be renewed on the next
May First following the date it was issued.
July 20, 1964.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — In your letter of May 22, 1964, you have asked
my opinion concerning the next date when apprentice plumbers are to
renew their licenses.
The Board of State Examiners of Plumbers is established under G. L.
c. 13, §36. It is the duty of this Board to administer tlie appropriate
sections of G. L. c. 142 dealing with the "Supervision of Plumbing."
Included within these duties is that of issuing licenses to those who meet
the requisite standards.
Prior to the enactment of St. 1963, c. 431 there were two classifications
of licensed plumbers; namely, journeymen and master plumbers. St. 1963,
c. 431 amended c. 142 by including a new § 3A which provides for the
licensing of apprentice plumbers.
G. L. c. 142, § 3 A.
"Every apprentice shall before starting his apprenticeship file an
application, accompanied by the appropriate fee, with the examiners,
requesting that he be issued an apprentice license. Said application shall
be made on a fonn to be furnished by the examiners, and shall require
the applicant to state his age, the date on which he is to commence his
apprenticeship, the name and address of his employer, and such other
information as the examiners may require. Upon receipt thereof the
examiners shall license said applicant as an apprentice and shall forth-
with mail to him a certificate to that effect.
"A person may be employed as an apprentice by a master plumber
only. An apprentice shall work under the direct supervision of a master
plumber or a journeyman. A master plumber may employ one or more
apprentices but not more than one apprentice may work under the direct
supervision of a master plumber or a journeyman."
Under G. L. c. 142, § 1, an "apprentice is defined as "a person who is
learning and working at the business of plumbing under the direct
supervision of a master plumber or a journeyman." As a result of this
legislation, all those coming within this definition must, after August 27,
1963. the effective date of St. 1963, c. 431, obtain a license as an appren-
tice plumber.
The licensing process is not without some necessary expenses. For this
reason the Legislature saw fit to establish a fee of two dollars for the
initial license as well as any subsequent renewal.
G. L. c. 142, § 3.
"The fee for the first license of a master plumber shall be fifteen
dollars; for any renewal thereof eight dollars; and for an examination
therefore, five dollars .The fee for the first license of a journeyman shall
be five dollars; for any renewal thereof three dollars; and for an exami-
nation therefor, five dollars. . . ."
P.D. 12 55
In establishing this fee schedule and also in the section setting up the
categoi7 of apprentice plumber, the Legislature did not in that specific
statute provide a date when the first license was to be renewed.
This problem is not without some answer in G. L. c. 142. The amend-
in sections should, in this context, be read in harmony with the chapter
as a whole rather than as a series of unrelated sections. In G. L. c. 142, § 6
the Board of State Examiners of Plumbers is given the power to issue
licenses for one year and for their renewal on or before May first of
each year.
G. L. c. 142, § 6.
"Licenses and certificates issued by the examiners shall be valid through-
out the commonwealth, but shall not be assignable or transferable. The
examiners shall forward to the board of health of each town, or to the
inspector of buildings having control of the enforcement of regulations
relative to plumbing in such town, the names and addresses of all persons
in such town to whom such licenses have been granted. Licenses shall
be issued for one year and may be renewed annually on or before May
first, or, in case of absence, sickness or other disability of the holder, on
or before such later date as the examiners may permit, upon payment
of the required fee . . . ."
There is no limitation upon the type of licenses to be issued under this
section. It would apply with equal cogency to apprentice licenses as it
would to journeyman or master licenses.
The establishing of May first of each year as the renewal date for all
three categories of plumbing licenses has the attendant benefit of provid-
ing a uniform system. This benefit is shared by the agency's clerical force
as well as by the licensee himself who will have only one renewal date to
remember no matter what license he may hold at any given time.
Having set May first as the renewal date, the problem still remains of
ascertaining whether the first license shall be effective for a period less
than or in excess of one year. This problem arises because any initial
license will be between sucessive May firsts.
The statute states the (G. L. c. 142, § 6) "licenses should be issued for
one year." The issuance, in this instance, of a license which would be
effective for less than one year would not be in derogation of this section
since the power to issue a license for a greater period would include the
power to issue the initial license for a shorter period. The converse would
not be true since it would mean the exercise of a power greater than that
delegated to the Board by the Legislature.
In light of the action which the Legislature has taken in the licensing
of plumbers in the Commonwealth, it is my opinion:
1. That any first licenses isuued to apprentice plumbers from April
30, 1963 to August 27, 1963 (the effective date of St. 1963, c. 431), should
have been renewed on or before May 1, 1964.
2. That any first licenses issued to apprentice plumber between suc-
cessive May first shall be renewed on the next May first following the date
that it was issued.
3. That the next renewal date for apprentice plumbers is May 1, 1965.
Very truly yours
Edward W. Brooke
56 P.D. 12
The duty of a contractor to pay withholding taxes is not a condition in a
contract, but is required by statute, and failure to pay such taxes is
not a violation of the contract.
July 21, 1964
Re: Maiden Survey Company, Inc. and
Eastern Survey and Engineering
Company, Inc.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Dear Commissioner: — On May 28, 1964, you requested an opinion
from this office relative to proceedings brought by the Attorney General's
Office against the above-named corporations.
It is true that the Attorney General's Office, Empolyment Security
Division, has initiated criminal proceedings against the named companies
for their alleged failure to pay withholding taxes. As a result of these
proceedings, arrears are presently being paid to the Commonwealth at
a satisfactory rate.
In answer to the remaining questions contained in your letter:
1. There is no provision in the copy of the contract attached to your
letter which deals with the company's duty to pay withholding taxes.
This duty is required by statute. Gen. Laws (Ter. Ed.) c. 62B. Therefore,
the companies have not violated the contract concerned although they
may be guilty of statutory violations.
2. The department concerned is of the opinion that these companies
have no substantial assets other than contracts with the Commonwealth.
They are also satisfied with the companies' arrearage payments. We will
ask that your department be promptly advised if the arrearage payments
are not satisfactorily maintained.
Thank you for your interest and concern.
Very truly yours,
Edward W. Brooke
The Commonwealth and its departments are not allowed to purchase
or contract for purchases except through competitive bidding pro-
cedures and under rules and regulations established by the Executive
Office for Adminstration and Finance.
Hon. James D. Fitzgerald^ Commissioner of Public Works.
Dear Commissioner: — You have requested an opinion as to the meth-
ods and procedures available to exercise an option to purchase the 1965
and 1966 Official Route Maps from the company originally awarded the
contract for the 1964 Official Route Map of Massachusetts. As you have
explained, the 1965 and 1966 maps will require revisions and this same
company has offered to print the same at a certain price, provided that
the Commonwealth exercises an option which has been offered by such
company.
P.D. 12 57
The Commonwealth and its departments are not allowed to purchase
and contract for purchases except throught competitive bidding pro-
cedures and under rules and regulations established by the Executive
Office for Administration and Finance. See Gen. Laws (Ter. Ed.) c. 7,
§ 22, and amendments thereto.
The Executive Office for Administration and Finance of the Common-
wealth has duly promulgated rules and regulations regulating purchases.
The "Rules and Regulations Governing Purchasing" state as follows:
"6. No supplies, material or other property shall be purchased or
contracted for without competition, except it cases of emergency
requiring immediate action. ..."
Our courts have repeatedly held that competitive bidding procedures
must be strictly complied with.
Poorvu Construction Co., Inc. v. Nelson Electric Co., Inc.
335 Mass. 545, 552
Pacella v. Metropolitan District Commission
339 Mass. 338, 342
The fact that a saving may inure to the taxpayers of the Common-
wealth as a result of the exercises of this option is irrelevant.
East Side Construction Co. v Town of Adams,
329 Mass. 347
Gifford V. Commissioner of Public Health
328 Mass. 608
Irrespective of how slight the changes may be in the 1965 and 1966
maps, you would, nevertheless, be purchasing an entirely different pro-
duct than originally bid for and would, therefore, come within the
purview of requiring new bids for this item. Therefore, I have no alterna-
tive but to say that the competitive bid procedures must be complied
with.
Very truly yours,
Edward W. Brooke
An individual may apply for a position restricted to persons who are
not over forty-five years of age until the day that he reaches his
forty-sixth birthday.
July 29, 1964
Hon. W. Henry Finnegan, Director of Civil Service
Dear Sir: — I have received your letter relative to age limitations to
be imposed — pursuant to Civil Service Rule #6 — upon applicants
for appointment as Supervisors of Attendance in the City of Boston.
The Rules in question provides in part that individuals who are "over
forty-five years of age" may not apply for service in such positions in
the City of Boston. You have requested my opinion as to whether such
an applicant remains eligible to apply for examination until his forty-
sixth birthday.
58 P.D. 12
The legal meaning of expressions such as "over forty-five years of age"
has been a source of contention for a substantial period of time. Similar
language is used in connection with the positions of patrolman, fire
fighter, state police detective lieutenant inspector, fire inspector, and
correction officer. The Supreme Judicial Court has yet to rule on the
question, while courts of other jurisdictions have disagreed so completely
that it cannot be said that a majority position exists. Likewise, opinions
rendered by prior Attorneys General have failed to provide consistent
guidelines.
This is a question which must eventually be determined by the Su-
preme Judicial Court, or settled by clarification of the language of the
Rule involved. Lacking such guides, however, I must give to each word
of the Rule its common, everyday meaning, and advise that an indi-
vidual ordinarily is not considered over forty-five years until the day he
celebrates his forty-sixth birthday. The words of a statute must be given
their plain and ordinary meaning according to approved usage of
language.
Johnson's Case, 318 Mass. 741, 747
Unless the contrary appears, statutory words are presumed to be used
in their ordinary and natural meaning.
Massachusetts Protective Ass'n. v. United States,
114 F. 2d 304, 310-311
Technically speaking, an individual has lived more than forty-five
years by the time he reaches his forty-fifth birthday. But in common
parlance such a person generally is thought of as forty-five, not as being
older. He is not — still referring to ordinary speech — considered to be
older than forty-five until the day of his forty-sixth birthday. The public
at large does not think of one who has yet to reach his forty-sixth birth-
day as being over the age of forty-five, and I have no reason to believe
that the drafters of the Rule in question intended any other standard
of construction be applied.
Such a construction based upon common and ordinary usage has been
adopted by the courts of several other states. In Wilson v. Mid-Conti-
nent Life Ins. Co. of Oklahoma City, 159 Okla. 191, 14 P. 2nd 945, the
Supreme Court of Oklahoma ruled that the phrase "over the age of
sixty-five years", excluding from insurance coverage persons over sixty-
five, was inapplicable to individuals who had yet to reach their sixty-
sixth birthday, and commented that a fraction of a year should not be
considered as relevant to the determination. Likewise, in Allen v Baird,
268 Ark. 975, 188 S.W.2nd 505, the court held that a person is not "over
the age of forty-five years" until the day on which he reaches his forty-
sixth birthday.
It must be assumed that the drafters of Civil Service Rule :;!^6 were
aware of the common usage of the language which they employed. Had
they wished to eliminate applicants who were in their forty-sixth year,
they covdd easily have provided that application be made prior to age
forty-five, or have used some other expression which would have carried
out their intention. In addition, I can find no compelling reason to
P.D. 12 59
insist that the right to apply for the positions in question be cut off on
the forty-fifth rather than the forty-sixth birthday. Such a restriction is
recognized as arbitrary at best, and no policy exists which militates against
the more liberal construction of the Rule.
Accordingly, it is my considered opinion that an individual may apply
for positions restricted to persons who are not over forty-five years of
age until the day that he reaches his forty-sixth birthday. In light of
the undeniable ambiguity, however, I w^ould strongly recommend revi-
sion of Civil Service Rule :^6, as well as other rules containing similar
provisions, so that there may be clarification of the information to be
provided for prospective applicants.
Very truly yours,
Edward W. Brooke
A kennel license is required of veterinary hospitals which only harbor
dogs, already licensed, for injuries, illnesses or boarding, as well as
those hospitals ichich breed, raise and board dogs.
July 30, 1964.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — Vou have asked my opinion on behalf of the
Board of Registration in Veterinary Medicine whether veterinary hos-
pitals must purchase a kennel license in the State of Massachusetts. You
have broken down your inquiry according to the types of hospital in-
volved as follows:
(1) hospitals which neither breed nor raise dogs for sale but only
harbor dogs, already licensed by their owners, for injuries, ill-
nesses or boarding;
(2) hospitals which do breed, raise, sell and board dogs.
My answer will similarly deal with each type of hospital separately.
Before doing so, however, let me point out that as provided by G. L. c.
140, § 141A, my remarks will not apply to those institutions licensed
under c. 49A; i.e., those empowered to use certain animals for purposes
of scientific investigation, experiment or instruction.
1. As to those hospitals which merely harbor licensed dogs for in-
juries, illnesses or boarding, G. L. c. 140, § 136A defines a kennel as:
"one pack or collection of dogs on a single premises, xvhether main-
tained for breeding, boarding, sale, training, hunting or other purposes
and including any shop where dogs are on sale, and also including every
pack or collection of more than three dogs three months old or over
owned or kept by a person on a single premises, irrespective of the pur-
pose for which they are maintained." (Emphasis supplied.)
Section 137A of that chapter provides in part:
"Every person maintaining a kennel shall have a kennel license. . . .
Such license shall be in lieu of any other license for any dog while kept
60 P.D. 12
at such kennel during any portion of the period for which such kennel
license is issued."
It seems clear that a veterinary hospital would qualify under the stat-
ute as a kennel and must, therefore, purchase a kennel license. The
language of the statute is sufficiently strong so as to admit of no excep-
tions. Even though such an interpretation would appear to require a
double licensing for certain dogs, the statute seems to have anticipated
this contingency in the above-quoted provision declaring the kennel
license to be in lieu of other licenses for the relevant period. Further,
the public policy or legislative purpose behind each license requirement
— that of an owner for his dog and that of a "kennel" for its canine
inhabitants — are sufficiently distinguishable to belie an argument that
such dual licensing is illogical or repetitive. It is my opinion that the
hospital must purchase a kennel license.
2. This argument is, therefore, even stronger in regard to those hos-
pitals which breed, raise, sell and board dogs. As to this type of hospital,
there is no question that a kennel license is required.
Very truly yours,
Edward W. Brooke
While the power to employ apprentices is vested in a master plumber^
he is limited in the number of apprentices he may hire by the total
number (including himself) of master plumbers and journeymen in
his employ.
July 31, 1964.
Hon. Helen C. Sullivan, Director of Civil Service and Registration.
Dear Mrs. Sullivan: — You have requested my opinion, on behalf
of the Board of State Examiners of Plumbers, on the proper construction
of § 3A, par. 2 of c. 431 of the Acts of 1963, which paragraph provides
as follows:
"A person may be employed as an apprentice by a master plumber
only. An apprentice shall work under the direct supervision of a master
pulmber or a journeyman. A master plumber may employ one or more
apprentices, but not more than one apprentice may work under the
direct supervision of a master plumber or a journeyman."
More specifically, you have asked whether the latter half of the third
sentence qualifies the former half so that the number of apprentices
shall be limited to the total number of licensed journeymen and master
plumbers.
The answer to your question turns on the statutory definitions of the
three categories of plumbers involved: master plumbers, journeymen,
and apprentices. A master plumber is a plumber "having a regular place
of business and who, by himself or journeymen plumbers in his employ,
performs plumbing work." (G. L. c. 142, § 1.) A journeyman is defined
as "a person who himself does any work in plumbing subject to inspec-
tion under any law, ordinance, by-law, rule or regulation." (G. L. c.
142, § 1.) An apprentice is "a person who is learning and working at
P.D. 12 61
the business of plumbing under the direct supervision of a master
plumber or a journeyman." (G. L. c, 142, § 1, as amended by c. 431, § 1
of the Acts of 1963.)
From these definitions it is clear that while all master plumbers must
be licensed joiuneymen, all journeymen are not, without more, con-
sidered master plumbers. There is another relevant distinction to be
drawn between journeymen and master plumbers; only the latter may
employ apprentices. Such apprentices may, however, work under the
direct supervision of either a master plumber or a journeyman. Thus,
while the power to employ an apprentice is vested in a master plumber,
he is limited in the number of apprentices he may hire by the total
number (including himself) of master plumbers and journeymen in his
employ.
This interpretation is compelled not only by the wording of the statute
but by the general policy behind c. 142. As the Court stated in Barriere
V. Depatie, 219 Mass. 33, 36 (1914):
"Its primary object is the conservation of the public health from the
deleterious effects which experience has shown arise from unsanitary
and insufficient plumbing work due to the lack of technical knowledge
and skill of those who perform it."
Very truly yours,
Edward W. Brooke
The advertising of contraceptive devices or drugs meant for the preven-
tion of pregnancy is clearly prohibited by G. L. c. 272, §§ 20 and 21.
"Harmful" or so-called "Caution Drugs" , as defined in G. L. c. 94,
§ 181 A, may be prescribed only by physicians, dentists, or veterina-
rians.
August 3, 1964.
Hon. Louis J. Rossetti, Secretary, Board of Registratioyi in Pharmacy.
Dear Mr. Rossetti: — In your letter of May 19, 1964, you have asked
my opinion concerning certain legal questions raised by the Board of
Registration in Pharmacy. The text of these questions appears below,
and they ^vill be answered in the same order in which they were submitted
to this office.
" (1) Can contraceptives be advertised? (circular enclosed).
" (2) Has a podiatrist the right to write prescriptions for Dangerous,
Legent, or Caution drugs?"
1. The advertising of contraceptive devices or drugs meant for the
prevention of pregnancy is clearly prohibited by Mass. G. L. c. 272, §§ 20
and 21.
The constitutionality of these sections has been tested. In Common-
wealth V. Allison, 2.21 Mass. 57 (1917) the Court held that § 16 of c. 212,
now G. L. c. 272, § 20, was a proper exercise of the police power of the
state. The companion section, G. L. c. 272, § 21, was held to be constitu-
62 P.D. 12
tionally valid in Connnonwealth v. Gardner, 300 Mass. 372 (1938). The
Gardner case went to the United States Supreme Court where it was dis-
missed by that court for want of a substantial Federal question. [See 305
U.S. 559 (1938).] The most recent Supreme Court case, Poe v. Ullman,
367 U.S. 497 (1961), indicates that the court has not modified its position
on this subject.
2. "Harmful" or so-called "Caution Drugs" are defined by statute in
G. L. c. 94, § 187A. This same section specifically limits those persons
who may issue a prescription for these drugs to "physicians," "dentists,"
or "veterinarians." No other persons are authorized to write prescriptions
for these drugs.
G. L. c. 94, § 187A.
"For the purposes of this section, the term 'harmful drug' shall mean
and include any and all drugs upon which the manufacturer or distribu-
tor has, in compliance with federal law and regulations, placed the fol-
lowing: — 'Caution — Federal law prohibits dispensing without prescrip-
tion.' The term 'harmful drug' shall in particular include any derivative,
active principal, preparation, compound or mixture of barbituric acid,
amphetamines, ergot or any hypnotic or somnifacient drug.
"No person shall sell or offer for sale at retail or dispense or give away
any harmful drug to any person other than a physician, dentist or veteri-
narian, except upon oral or written prescription of a physician, dentist
or veterinarian or his expressly authorized representative. No such oral
or written prescription for a harmful drug shall be refilled unless the
original prescription provides for such refilling or unless such refilling
is authorized by the prescriber. Nothing in this paragraph shall be con-
strued to be in conflict with the provisions of the sixth paragraph of this
section.
"Whenever a physician, dentist or veterinarian prescribes a harmful
drug by an oral prescription, the physician, dentist or veterinarian shall
within a period of not more than seven days thereafter deliver a written
prescription to the pharmacist to whom said oral prescription was trans-
mitted. Any physician, dentist or veterinarian who violates this provision
shall be punished by a fine of not more than twenty-five dollars for each
violation.
"Except as otherwise provided herein, whoever violates any provision
of this section or any rule or regulation authorized hereunder shall be
punished by a fine of not more than one thousand dollars, or by impris-
onment in jail or house of correction for not more than one year or
both. ..."
The term "physician" as used in this section is not without a legisla-
tive definition. In an analogous, though not controlling section of the
"Narcotic Drugs Laws", G. L. c. 94, § 197, a physician is defined as: "A
person authorized by law to practice medicine in the commonwealth."
Further, those qualifications requisite to becoming a licensed physician
are to be found in G. L. c. 112, § 2. "Chiropody" (podiatry) is defined in
a separate section, G. L. c. 112, § 13 and the qualifications necessary to
becoming a licensed chiropodist (podiatrist) are to be found in § 14 of
P.D. 12 63
that chapter. The two definitions are not synonymous and a licensed
chiropodist may not qualify to practice as a physician within the mean-
ing of G. L. c. 112, § 2.
In the light of this, it is my opinion that a podiatrist is not included
within that group of persons authorized by the Legislature to write pre-
scriptions for "harmful drugs" as defined in G. L. c. 94, § 187A.
Very truly yours,
Edward W. Brooke
The Commissioner of Insurance ynust establish classifications of risks,
based on accident involvement, for the ensuing year, and the use of
■ statistics involving only property damage would be discriminatory
and therefore inconsistent with the requirements of G. L. c. 175,
§ 113B. He is not restricted to either a particular source or a. par-
ticular time to secure the information necessary to carry out the
August 12, 1964.
HcTx. C. Eugene Farnam, Commissiorier of Insurance.
Dear Commissioner Farnam: — I am in receipt of your letter of July
22, 1964 relative to the effect of Chapter 391 Acts of 1964 amending G. L.,
c. 175, § 113B. You have requested my opinion on the following questions:
"1. Must the Commissioner of Insurance establish classifications of
risks, 'including classifications of risks based on accident involvement' to
be used for the year commencing January 1, 1965?
"2. Does the Commissioner of Insurance have the authority to exclude
from his determinations 'classifications of risks based on accident involve-
ment' for the year 1965, and thereby make the recent amendment appli-
cable for any year subsequent to 1964 at the discretion of said Com-
missioner?
"3. Does the portion of the amendment referring to 'based on acci-
dent involvement' refer to accidents wherein only personal injuries were
involved and for which the motor vehicle liability policies or bonds as
defined in Section 34A of Chapter 90 are required to be issued, or does
it refer to any accident involved including those which might have re-
sulted only in property damage, and for which there is no requirement
of insurance under said Section 34A?
"4. Whereas said amendment was approved on May 15, 1964, and
becomes effective 90 days thereafter, August 13, 1964, and prior to the
present time the Commissioner of Insurance in the determination o£
classifications of risks has given consideration to statistics gathered up
to ten years prior thereto, and under the present amended section it is
intended to create a classification for those who were not involved in any
accident and who would pay a 'decreased premium,' may the Commis-
sioner in establishing 'classifications of risks based on accident involve-
ment' use statistics of accidents occurring prior to August 13, 1964, (at
a time said Act was not in effect and the public had no notice thereof).
64 P.D. 12
or must he give consideration only to accidents occurring after the effec-
tive date of said amendment?"
The pertinent part of G. L., c. 175, § 113B as amended reads:
"The Commissioner shall, annually on or before Sepetmber fifteenth,
after due hearing and investigation, fix and establish fair and reasonable
classification of risks, including classifications of risks based on accident
involvement, and adequate, just reasonable, and non-discriminatory pre-
mium charges to be used and charged by companies in connection with
the issue or execution of motor vehicle liability policies or bonds, both
as defined in section thirty-four of chapter ninety, for the ensuing cal-
endar year or any part thereof."
Chapter 391 Acts of 1964 was passed on May 15, 1964 and will go into
effect on August 13, 1964. The Commissioner of Insurance is directed to
establish a new classification based on accident involvement and, there-
fore, must initiate steps to carry out this directive. In the case of Liberty
Mutual Insurance Company vs. Acting Commissioner of Insurance, 265
Mass. 23 (1928), the court stated that:
"It was the duty of the Commissioner each year, on or before Septem-
ber 1, to fix rates for the subsequent year. But it is not mandatory that
this should be done within the time stated. . . . The time fixed for estab-
lishing rates was directory and not mandatory, otherwise it would be
within the power of the Commissioner to defeat the operation of the
statute."
The Liberty Mutual Case, however, is not controlling with regard to
question number one. That case dealt only with the date upon which
the rates for the subsequent year must be set — not whether or not a new
classification would or would not go into effect in the subsequent year.
The language in G. L., c. 175, § 113B, directing the Commissioner of In-
surance to establish classifications, including classifications of risks based
on accident involvement, is mandatory. If it were merely directory,
then the Commissioner of Insurance would have the power to defeat the
purpose of the statute. I do not believe that this was the intention of the
Legislature. It is therefore, my opinion that you must establish classifi-
cations of risks, based on accident involvement, applicable to the cal-
endar year 1965.
In view of the above, the answer to question number two is "no."
In answer to question number three, the Commissioner, in establishing
risk classifications, should use only those accidents covered by liability
insurance required by G. L., c. 175, § 34 A. There is not sufficient corre-
lation between accidents involving only property damage and the risks
which individuals present to the compulsory insurance system. Hence,
in my opinion, the use of statistics concerning accidents involving only
property damage would be discriminatory and therefore not consistent
with the requirements of G. L., c. 175, § 113B.
In answer to question number four, the powers and duties of the Com-
missioner of Insurance relating to the application and enforcement of
G. L., c. 175, § 113B are stated in paragraph four of said section. It pro-
vides:
P.D. 12 65
"The commissioner may make, and at any time alter or amend, reason-
able rules and regulations to facilitate the operation of this section. . . ,
He may at any time require any company to file with him such data,
statistics, schedules, or inforamtion as he may deem proper or necessmy
to enable him to fix and establish . . . fair and reasonable classifications
of risks and adequate, just reasonable and non-discriminatory premium
charges for such policies or bonds."
In my opinion, the Commissioner is not restricted to either a partic-
ular source or a particular time to secure the information necessary to
carry out the operation of G. L., c. 175, § 113B. He must, however, estab-
lish classifications and rates which are fair, reasonable, and non-discrimi-
natory. The final decision as to the use of statistical data occurring prior
to August 13, 1964 lies within the discretion of the Commissioner of
Insurance, guided by the principles hereinbefore discussed.
Very truly yours,
Edward W. Brooke
The Board of Registration of Electrologists is empowered to require a
physician's assistant, not himself a physician, to be a licensed elec-
trologist in order to perform operations using the electrolysis
method.
The Board is not authorized to inspect and regidate such physician's
office if one employed therein is practicing electrolysis without a
license. However, it is incumbent upon the Board to contact the
legal official charged with prosecuting the violator. If such assistant
is a licensed electrologist, the Board may regulate the establishment
in so far as the work being done there involves the practice of elec-
trolysis by a licensed electrologist.
August 13, 1964.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — I have your letter requesting, on behalf of the
Board of Registration of Electrologists, my opinion on the following
questions:
" If a physician employs an assistant, not a physican, who, under his
supervision, assists with patients and the assistant is permitted, under his
supervision, to remove hair from his patient, using the electrolysis
method, can this Board require that such assistant be a licensed electrol-
ogist in order to perform this duty?
"2. Is this Board authorized to inspect and regulate the establishment
where electrolysis is being practiced if the establishment is the office of
a qualified physician registered under the laws of the Commonwealth?
66 P.D. 12
"3. If the answer to question 2 is in the negative, may this Board in-
spect and regulate such establishment if the work is being performed
by a licensed electrologist?
These will be answered in the order in which they have been num-
bered above.
(1) General Laws, c. 112, §87 provides:
"No person shall engage in the practice of electrolysis or hold himself
out as a practitioner of, or being able to practice, electrolysis unless he
is duly licensed by the board or is a qualified physician registered under
the laws of this commonwealth. Whoever violates any provision of this
section shall be punished by a fine of not more than one hundred dollars."
In answer to your first question, it is clear that since the statute pro-
vides for no exceptions, the Board may require the physician's assistant
to be a licensed electrologist in order to perform this work. The rela-
tionship of supervisor and assistant is relevant only to the issue of liabil-
ity should the patient be injured. Accordingly, I answer your first question
in the affirmative.
(2) For the purposes of your second question, I shall assume, although
the activity is being done in the office of a qualified and registered phy-
sician, the actual hair removal is not being performed by a physician,
but by an electrologist who has neglected to procure the necessary cer-
tification from the Board of Registration of Electrologists.
General Laws c. 112, § 87EEE-87000 sets out the jurisdiction of the
Board of Registration of Electrologists. Where relevant to your second
question, this jurisdiction is limited by statute to the licensing, upon
application, of a candidate as a qualified electrologist and to the regu-
lation of the places in which such licensee practices electrolysis. Thus,
since the Board has no jurisdiction over a person practicing electrolysis
without a license, my answer to question number two must be in the
negative.
As quoted above, the last sentence of §.§. 87FFF does provide a pen-
alty for the practice of electrolysis without a license. Thus, upon dis-
covery of any such violation, it would of course be incumbent upon the
Board to contact the legal official charged with prosecuting the violator.
(3) In my opinion, however, if the work is being performed by a
licensed electrologist, albeit in the office of a qualified and registered
physician, the Board may regulate the establishment in so far as the work
being done there involves the practice of electrolysis by a licensed elec-
trologist. In other words, the Board's jurisdiction would not extend be-
yond this to the practice of medicine; it would, however, embrace elec-
trolysis wherever such is done by a registered electrologist.
Very truly yours,
Edward W. Brooke
P.D. 12 67
Certificates issued or renewed by the Board of Registration of Electrolo-
gists between June 12, 1964, and September 12, 1964, as well as cer-
tificates issued or rcrnoved between Jayiuary 1 and June 12 of the
year 1964, will upon the effective date of St. 1964, C. 518, automat-
ically receive the nezv expiration date of August 1, 1965, lohile li-
censes issued or renewed between January 1 and July 31 , 1965, will
be valid until the first day of August, 1967. The Board lacks the
authority to charge fees other than those specified by statute.
August 18, 1964.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan:— I have received your letter of July 23, 1964
relative to interpretation of c. 518 of the Acts of 1964, which chapter
regulates the issuance of certificates by the Board of Registration of Elec-
trologists. You have requested my opinion upon the following five ques-
tions:
"1. Will licenses renevv-ed between June 12, 1964 and September 12,
1964, the effective date of the amendment, be valid for a period of two
years from date of issue as provided by the present law or on August 1
of the next odd year?
"2. What of licenses issued or renewed from January 1, 1964 to June
12, 1964?
"3. If your answer to question (1) and/or (2) is that these licenses
are valid for a period of two years from date of issue, can this Board
require the total fee for such licenses when renewed in 1966 although
they would be valid only until August 1, 1967?
"4. Can this Board require the total fee for licenses required to be
renewed between September 12, 1964 and December 31, 1964?
"5. Will licenses issued or renewed between January 1, 1965 and July
31, 1965 be valid until August 1, 1965 or August 1, 1967?"
Registration of practicing electrologists is currently controlled by G. L.
c. 112, § 87GGG, as enacted by St. 1958, c. 625, § 2. The section provides
for examination of applicants who meet certain requirements, and for
the issuance of a certificate upon passage of such examination. "Such
license shall be valid for a period of two years from its date of issue, and
may be renewed for a like period upon application therefor on blank
forms to be furnished by the board. The fee for each such renewal shall
be thirty dollars." Accordingly, the present registration law provides for
two-year certificates, which certificates expire automatically two years
from the time of issue, irrespective of the particular date.
Chapter 518 of the Acts of 1964 deletes the present § 87GGG and
substitutes a new section. Approved on June 12, 1964, the new law be-
comes effective on September 12, 1964. The new section provides in part
as follows:
"Such license shall be valid until August first of the next odd year
and may be renewed for a two year period upon application therefor
on blank forms to be furnished by the board. The fee for each such
68 P.D. 12
renewal shall be thirty dollars. Any person who has been licensed as a
qualified electrologist . . . who fails to renew such license upon its expiry
date, may renew the same upon application therefor and payment of
the regular renewal fee at any time within two years after said expiry
date. . . ."
Apparently one purpose of the new registration law is to establish
August first of each odd year as the expiration date for all certificates,
regardless of when such certificates may have been issued.
The new Act does not specify with any clarity what its effect is to be
upon certicates that have already been issued, and which are scheduled
to expire on dates other than the first of August. However, the new Act
clearly supersedes the prior registration statute; since one object of the
new law is the setting of a uniform expiration date, it is my opinion
that the expiration dates determined pursuant to the earlier statutes
are thereby nullified, and that all certificates presently outstanding, as
well as all to be issued between now and the end of the current calendar
year, must— by operation of St. 1964, c. 518— expire upon the first day of
August, 1965. Consequently, the time during which outstanding certifi-
cates will remain effective will in some cases be shortened, in others
lengthened; the General Court without doubt has the authority to affect
outstanding licenses in either way.
In light of this construction of the statute in question, I will proceed
to consideration of your specific inquiries. License renewals between
June 12, 1964 and September 12, 1964, the effective date of the new Act.
will admittedly be effected under the authority of the old § 87GGG,
since the new section will not have become operative. Technically, there-
fore, such licenses will at the time they are issued be two-year licenses.
But on Septmber 12, at which time the new statute will go into effect,
all expiration dates set pursuant to prior legislation will be nullified,
and August 1, 1965 will be established as the new expiration date. Like-
wise, certificates issued or renewed between January 1 and June 12 of
this year will, upon the effective date of the new statute, automatically
receive the new expiration date of August 1, 1965.
Your third and fourth questions relate to the amount of renewal fees
to be imposed by the Board. Because of the change of expiration date,
licenses issued or renewed at this time will be quite short in duration,
remaining effective only until August 1, 1965. You have inquired whether
the Board must demand the entire fee specified in the statute for cer-
tificates of such short standing.
The Act provides that each application for an original certificate shall
be accompanied by a fee of twenty-five dollars, and that the fee for each
renewal shall be thirty dollars. Presumably, the drafters of the Act were
aware that the imposition of a new general expiration date would neces-
sitate the issuance of certificates of different durations. Had the Legis-
lature desired that fees be calculated pro rata according to the time dur-
ing which the license would be effective, it could easily have indicated
that such was to be the case. Absent such indication, however, the Board
lacks the authority to charge fees other than those specified by statute.
Should a licensee whose certificate expires in the summer or fall of 1964
object to the fact that payment of the full fee will secure him a certificate
P.D. 12 69
of less than a year's duration, he may take advantage of the right to renew
at any time within two years of expiration and delay renewal until Janu-
ary of 1965, at which time a certificate of substantially longer duration
will be issued. The licensee, of course, may not lawfully practice during
the interim period between expiration and renewal.
The statute provides that licenses "shall be valid until August first of
the next odd year." (Emphasis supplied.) Use of the word next prevents
the possibility of expiration of a certificate in the same calendar year in
which it is issued. Certificates issued at any time during the calendar
year 1965 will expire automatically on August 1, 1967. Accordingly, in
response to your fifth question, licenses issued or renewed between Janu-
ary 1 and July 31, 1965 will be valid until the first day of August, 1967.
Very truly yours,
Edward W. Brooke
Where money is expended for the administration of the Rehabilitation
Commission as a functioning entity to provide vocational rehabili-
tation services, the primary responsibility rests with the Commis-
sioner of Rehabilitation to see that the funds are correctly applied
to this purpose. However, the Advisory Council is not relieved of
its duty to explore possible methods by which these funds might
be used more properly. The Commissioner may at times, rely wholly
upon the wisdom and knotuledge of the Council and at others, the
exigency of the occasion may call for immediate action on the part
of the Commissioner without being able to seek the prior advice of
the Council.
August 18, 1964.
Dr. Augustus Thorndike, Chairman, Advisory Council, Massachusetts
Reltabilitation Commission.
Dear Dr. Thorndike: — You have asked my opinion concerning the
statutory organization of the Massachusetts Rehabilitation Commission
created by authority of St. 1956, c. 602. In this regard, you have posed
several specific questions. These questions have been numbered and will
be answered in the order in which they appear below.
1. "The Commission 'may expend such state, federal or other funds
as are available for the vocational rehabilitation of handicapped persons'.
Does this mean that I, as a member, have a direct responsibility in such
expenditures, despite the fact that fiscal matters are handled by the com-
missioner, practically without my knowledge or understanding?
2. " 'The commissioner shall have sole charge with the advice of the
advisory council of the supervision and administration of the commis-
sion, etc' Does this mean that the commissioner must have the advice
and/or the consent of the council on all important matters of supervision
and administration, or only those upon which he seeks advice?
3. " 'The commissioner shall prescribe all rules and regulations relat-
ing to the vocational rehabilitation of handicapped persons, etc.'. Does
70 P.D. 12
this overlap the mandate in Section 78 that 'The commission shall pro-
vide vocational rehabilitation services directly or through public or pri-
vate rehabilitation facilities to any handicapped person, etc.'?
4. "Under Section 79 where some detailed powers and duties of the
Commission are itemized— is the commissioner himself, with or without
the advice and consent of the advisory council, empowered to carry out
those powers and duties?
5. "In summary, is the commissioner the executive, agent, or admin-
istrator simply of the Commission as a whole or is he, in fact, the single
head of the agency, obliged only when he feels the need, to seek the
advice of council members. More important, if the latter have the larger
responsibilities, may they delegate them to the commissioner under some
sort of blanket vote and thus avoid them personally?"
1. The problems of the rehabilitation of the handicapped are not
new to the Commonwealth. By St. 1950, c. 767 there was established in
the Department of Industrial Accidents a State Rehabilitation Com-
mission. The primary responsibility of that Commission was to study
the problems of the handicapped industrial worker and to see that ade-
quate rehabilitation facilities were provided.
Under St. 1952, c. 630, § 1 the provisions setting up the State Reha-
bilitation Commission were repealed. The functions, as well as the per-
sonnel of this Commission, were transferred to a subcommittee of the
state board for vocational education which was designated to carry on
the work of this Commission.
Shortly thereafter Congress passed an important amendment to the
Vocational Rehabilitation Act (29 U.S.C. ch. 4) to provide, through
the various state agencies, more extensive and improved vocational reha-
bilitation services. In response to this federal legislation, the Legislature
again reorganized the vocational rehabilitation program. In accordance
with St. 1956, c. 602 there was established a Massachusetts Rehabilitation
Commission and an Industrial Rehabilitation Board. The scope of the
Industrial Accident Rehabilitation Board is limited to the problems of
vocational rehabilitation as they arise in the field of workmen's compen-
sation; whereas, the Massachusetts Rehabilitation Commission is charged
with the overall responsibility of providing comprehensive services to
those in need of vocational rehabilitation.
The Commission is made up of a Commissioner and an Advisory Coun-
cil. In carrying out its duties in regard to the vocational rehabilitation
of the handicapped, it has been authorized by statute to "expend such
state, federal or other funds as are available for the vocational rehabili-
tation of handicapped persons."
G. L. c. 6, § 74
"There shall be a commission on the vocational rehabilitation of han-
dicapped persons to be known as the Massachusetts rehabilitation com-
mission, in this section and in sections seventy-five to eighty-four, inclu-
sive, called the commission, consisting of a commissioner of rehabilitation
and an advisory council of eleven members as hereinafter described. The
commission shall co-operate with the United States Department of Health,
P.D. 12 71
Education, and Welfare or its successors in the administration of Public
Law 565 (83rd Congress, 2nd Session 1954), and amendments thereto,
relating to the vocational rehabilitation of handicapped persons, and
may expend such state, federal or other funds as are available for the
vocational rehabilitation of handicapped persons.
In the following section (G. L. c. 6, § 75) the Legislature has spelled
out the dominant role of the Commissioner in the organization of the
Commission. Section 75 specifically states that, "The Commissioner shall
have sole charge with the advice of the advisory council of the super-
vision and administration of the commission and of the vocational reha-
bilitation of all handicapped persons, except the blind." It is clear from
this section that where money is expended for the administration of the
Commission as a functioning entity to provide vocational rehabilitation
services for the handicapped, then the primary responsibility rests with
the Commissioner to sec that these funds are correctly applied to this
purpose. This, however, does not relieve the advisory council of its duty
to explore possible methods by which these funds might be used more
profitably.
In this regard, a section of the Annual Report of the Commission ("G. L.
c. 6, § 79 (f) ] should include a part edited by the advisory council out-
lining to the general court more appropriate means for expanding avail-
able funds.
2. The words "advice and consent" when used in a context such as
this in the General Laws has a definite and precise meaning. This phrase
is used quite extensively in connection wath the Governor and the Exec-
utive Council, and as such has taken on a definite meaning. A case dis-
cussing the meaning and the effect of these words is Murphy v. Casey,
300 Mass. 232 (1938). Though the facts of that case are not similar to
the present problem, the case is precedent for the proposition that where
the necessary consent is withheld any proposed action is ineffective.
In G. L. c. 6, § 75 th Legislature did not see fit to make the Commis-
sioner's actions subject to the "advice and consent" of the council. This
section states that the Commissioner's shall act "with the advice of the
advisory council." The council is described as serving in an advisory
capacity not only in section 74 establishing the Massachusetts Rehabili-
tation Commission but in section 76 as well which provides for those per-
sons who shall be members of the advisory council.
In the plain Avords of the statute the function of the council is to
advise the Commissioner. The word "advice" here means that the advis-
ory council is to aid the Commisisoner in devising the best possible voca-
tional rehabilitation program for the handicapped. Sometimes the exi-
gency of the occasion may call for immediate action on the part of the
Commissioner without being able to seek the prior advice of the council.
On other occasions the Commissioner may rely wholly upon the wisdom
and knowledge of the council.
That the advisory council was not given an effective veto over the
Commissioner's administration of the Commission does not mean that
the council has any less responsibility to those handicapped persons in
72 P.D. 12
need of vocational training. The problem is immense and needs the con-
certed effort of both the advisory council and the Commissioner.
3. One of the responsibilities which has been assigned to the Com-
missioner under G. L. c. 6, § 75 is that of promulgating rules and regu-
lations. These rules and regulations must have the approval of the Gov-
ernor and Council.
G. L. c. 6, § 75
"The Commissioner of rehabilitation shall be appointed by the gov-
ernor with the advice and consent of the council for a term of six years
and until his successor is duly appointed and qualified. He may be re-
moved from office by the governor with the consent of the council. He
shall receive such salary, not exceeding thirteen thousand dollars, as the
governor and council may determine, and shall devote his full time dur-
ing business hours to the duties of his office. The commissioner shall
have sole charge with the advice of the advisory council of the supervision
and administration of the commission and of the vocational rehabili-
tation of handicapped persons, except the blind. The commissioner shall,
with the approval of the governor and council, prescribe all rules and
regulations relating to the vocational rehabilitation of handicapped per-
sons. He may establish such divisions and with the approval 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."
In this section no mention was made of the specific areas to be regu-
lated by the Commissioner. In G. L. c. 6, § 78 the Legislature noted
with particular concern at least one area which might need immediate
attention. This is in regard to providing an orderly method by which
services shall be given to those in need of them.
Secondly, as to the overall duty of providing comprehensive services
for the handicapped contained in these two sections, G. L. c. 6, §§ 75
and 78, there is no conflict. The Commission, as administered by the
Commissioner of Rehabilitation, is to provide these services with the
advice of the Advisory Council.
4. and 5. Your last two questions will be answered together. They
raise the same problem concerning the powers of the Commissioner
and his relationship to the advisory council.
The powers of the Commissioner are clearly set out in G. L. c. 6, § 75.
In this section the Commissioner is given "sole charge ... of the super-
vision and administration of the commission and of the vocational reha-
bilitation of all handicapj)ed persons, except the blind." It is clear that
the Commissioner enjoys broad powers of control over the work of the
Commission. It is hard to conceive of giving the Commissioner much
more extensive powers.
In the exercise of these powers the Commissioner is not without some
supervision. His initial appointment must be by the Governor with the
advice and consent of the Executive Council, and he may be removed
by the same procedure. His regulatory and rule making powers are also
subject to the approval of the Governor and Council. Furthermore,
P.D. 12 73
an annual report ol the activities of the Commission must be made to
the General Court.
In G. L. c. 6, § 75 the Commissioner's powers are outlined as well as
his relationship to the council. The role of the council is one of giving
"advice" to the Commisisoner on the common problem of providing
necessary rehabilitation services and facilities. Tliis does not relegate
the council to a subordinate role, but sets before it a challenging goal
of devising better methods of improving the present system. It does mean,
however, that the Commissioner is the chief administrator of the Massa-
chusetts Rehabilitation Commission and as such must follow that policy
which he thinks best for the Commission and the Commonwealth as a
whole.
As to what work the Commission shall do and the powers which it
p.ossesses to accomplish this job, these are specified by statute. Section 79
of Chapter 6 provides a catalog of these powers and duties. This is not
a comprehensive list, and other responsibilies of the Commission are to
be found in other sections, especially §§ 77, 78, 80, 81, 83. In doing the
work of the Commission as outlined by these sections, the power of the
Commissioner does not change but is the same as that given to him by
the Legislature in section 75. His relationship to the Council is also
the same. The Council is to advise the Commissioner.
Very truly yours,
Edw^ard W. Brooke
Use of any representation of the arms or the great seal of the Com^non-
wealth is prohibited only when employed for an advertising or com-
mercial purpose, or where exposed to ridicule or exploited for private
gain. In this regard, private companies may lawfully reproduce the
registration application forms of the Registry of Motor Vehicles,
and may freely imprint the reproduction of the seal of the Com-
montvealth thereon.
August 20, 1964.
Hon. James R. Lawton, Registrar of Motor Vehicles.
Dear Registrar Lawton: — In your letter of June 24, 1964, you re-
quested my opinion on the subject of reproduction of registration appli-
cations bearing the seal of the Commonwealth. Apparently the Registry
has always prepared registration application forms itself, which forms
are distributed free of charge to individuals, insurance companies and
others who desire them. These forms contain a reproduction of the seal
of the Commonwealth imprinted upon them.
Certain insurance companies, brokers and agents have requested per-
mission to prepare the forms themselves, at no cost to the Commonwealth,
The form would be identical to those already produced by the Registry,
including use of the seal of the Commonwealth, except that carbon paper
would be interleaved between sheets. The printing to be done by the
74 p.D. 12
Registry of Motor Vehicles would of course be substantially reduced,
and the expenses of the Commonwealth consequently diminished. Ac-
cordingly, you have requested my opinion on the following question:
May we allow outside companies to reproduce the registration appli-
cations of this agency on which the seal of the Commonwealth is im-
printed, these forms to be used as applications for the registration of
motor vehicles?
The problem centers entirely upon the proposed use of the seal of
the Ccjmmonwcalth. Such use is governed by the provisions of G. L, c.
264, § 6, which reads in part as follows:
. . . whoever uses any representation of the arms or the great seal of
the commonwealth for any advertising or commercial purpose, shall be
punished by a fine of not less than ten nor more than one hundred dol-
lars or by imprisonment for not more than one year, or both. . . .
It should be noted that the statute does not contain a blanket prohibi-
tion against reproduction of the seal; use of the seal is declared unlaw-
ful only where such use is made for an advertising or commercial pur-
pose.
I have examined a copy of the proposed form, and in my opinion the
representation of the seal of the Commonwealth reproduced thereon
has not been placed there for an advertising or commercial purpose.
Efforts have obviously been made to reproduce an exact likeness of the
registration forms heretofore used by the Registry of Motor Vehicles.
The reproduction of the seal appears next to the reference to the Regi-
istry at the side of the form, and slightly above the words "Passenger
Registration Application." The seal in no way attracts attention to a
particular part of the form, or to the form as a whole. It serves no other
purpose than to identify the application form as an official document
which will be acted upon by the Registry of Motor Vehicles.
The proposed reproduction upon the application form of the seal of
the Commonwealth is necessary in order to duplicate the form currently
used by the Registry. Use of the seal does not in the present situation
serve to advertise the particular company or agency which prints the
form, nor does it produce any other commercial advantage. The seal is
not exposed to ridicule, nor is it exploited for private gain. An opinion
of a former Attorney General, which considered an earlier version of
G. L. c. 264, § 5, contains the following comment:
The purpose of this statute ... is "to prohibit the misuse of the na-
tional and the state flags." It should be interpreted in the light of this
purpose with a view to increase respect for our flags and, if possible, not
in such a manner as to restrict the proper use of the flags or to reduce
the statute to an absurdity. It apparently seeks to prohibit these things,
namely, first, insults to the flags; second, their use as a part of any form
of advertising, and third, the engraving or printing of a representation
of the United States flag upon any article of merchandise or any wrapper
or receptacle of articles. 4 Op. Atty. Gen., 1915, p. 470, 471.
The current statute extends the above protection to the seal of the Com-
monwealth, and should be construed similarly relative thereto. It is not
P.D. 12 75
the purpose of the statute unreasonably to prohibit reproduction of the
seal. Where, as in the present instance, the seal is not used for an adver-
tising or commercial purpose, and is not otherwise exploited or degraded,
I find nothing to prevent its reproduction.
You refer in your letter to the definition of "application" contained in
G. L. c. 90, § 1, which definition reads as follows:
"Application", an application by mail or otherwise to the registrar or
any agent designated by him for the purpose, upon a blank provided by
the registrar, and with which is deposited the fee provided in section
thirty-three. . . . [Emphasis supplied]
I do not find that this section imposes any limitation upon the plans for
private reproduction of registration application forms. The reference to
a blank "provided by the registrar" does not in my opinion require that
all application forms actually be supplied by the Registry of Motor
Vehicles. The Registrar need only be responsible for assuming that
appropriate forms are somehow made available; preparation and dis-
tribution by private companies and agencies, assuming that approval of
the Registrar has been obtained, clearly complies with the statutory
directive.
Accordingly, in light of the above analysis, it is my opinion that pri-
vate companies may lawfully reproduce the registration application forms
of the Registry of Motor Vehicles, and may freely imprint the reproduc-
tion of the seal of the Commonwealth thereon.
Very truly yours,
Edward W. Brooke
A married woman dwelling or having her home separate and apart from
her husband shall for the purpose of voting and registration there-
for be deemed to reside at the place where she dwells or has her
home, but her right to vote in her former name shall continue only
until January First next following her marriage.
Wives of servicemen accompanying them on foreign station are included
within the definition of "federal service personnel" , but is required
that such persons be qualified to register.
August 25, 1964.
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Mr. White: — You have asked my opinion on the following two
questions:
1. May a woman living in Hopedale, Massachusetts, at her parents'
residence, at which address she was formerly a registered voter in her
maiden name, married to a serviceman from New York who has since
been sent overseas, vote on November 3, 1964? In other words, has she
acquired New York as her domicile, or may she be retained on the vot-
ing list in Hopedale? If the latter contingency is correct, may she be
registered in her married name?
76 P.D. 12
2. May a woman who was a registered voter in Boston, who is married
to a serviceman from Brookline, and who has gone overseas with him,
intending to remain for the next two years, avail herself of G. L. c. 54,
§ 103B and be accorded the same absentee ballot privileges as a non-
registered voter that are extended to the soldier himself?
These questions will be answered in the order in which they have been
numbered above.
1. It is well settled that upon her marriage, a wife, by operation of
law, acquires the domicile of her husband. Greene v. Greene, 28 Mass.
(11 Pick.) 410 (1831); Mason v. Homer, 105 Mass. 116 (1870); Rolje v.
Walsh, 318 Mass. 733 (1945). G. L. c. 51, § 1, however, provides a statu-
tory exception to that rule as follows:
A married woman dwelling or having her home separate and apart
from her husband shall for the purpose of voting and registration there-
for be deemed to reside at the place where she dwells or has her home.
Thus, it is my opinion, in answer to your first question, assuming that
the woman in question in fact maintains a home separate from her hus-
band, and assuming further that she has complied with the other require-
ments of c. 51, § 1, such as age and length of time of residence, may still
be retained on the voting list in Hopedale.
It is also my opinion, that under c. 51, § 1, the legislative intent is
clear that such a woman be registered in her married name. This opin-
ion is, of course, subject to G. L. c. 51, § 2, which provides as follows:
If the name of a person who is duly registered as a voter is changed by
decree of court, or, if a female, by marriage, his or her right to vote in
his or her former name shall continue until January first next following.
In the case of a person who has qualified for voting for electors of presi-
dent and vice-president under section one A, his or her right to vote in
his or her former name shall continue until the next following election
at which such electors are to be chosen.
In other words, if the change of name has occurred within the time period
set out in the statute, a person may vote under his former name, if the
change of name has occurred beyond such period, the person must be
registered under his new name.
2. In answer to your second question, under the aforementioned rule,
the woman in question has acquired her husband's Brookline domicile.
As you point out, assuming they did not reside in Brookline for six
months, the issue now becomes whether G. L. c. 54, § 103B supersedes the
six-month registration requirement. In my opinion, such is not possible.
G. L. c. 54, §§ 103B-103Q does make provision for absent voting by fed-
eral service personnel, and wives of servicemen on foreign station are
included within the definition of "federal service personnel" under
§ 103B. The paragraph in § 103B in which federal service personnel are
defined, however, specifically includes the requirement that the persons
in question be qualified to register. That paragraph provides as follows:
Tederal service personnel,' persons on active service in the armed
forces or merchant marine of the United States . . . and spouses ... of.
P.D. 12 77
and accompanying or being with, such persons . . . and having the quali-
fications entitling them to register in the same election district. (Em-
phasis supplied.)
In addition, § 103C provides that only the following are entitled to
absentee ballots:
Any legal resident of the commonwealth who is included in the defi-
nition of 'federal service personnel' and whose name is included in the
current annual register of voters of any city or toxun therein or xvho may
be determined to be qualified for voting therein in accordance with
§ 103J. (Emphasis supplied.)
Section 103 J repeals the residence requirements of c. 51, § 1. Thus, it
is my opinion, in answer to your second question, that unless the woman
in question has qualified under c. 51, § 1, she may not avail herself of
the provisions of c. 54, § 103B-103Q.
Very truly yours,
Edward W. Brooke
The power to renegotiate a unit price of a contract or any part of a
contract differejit from the bid originally submitted militates against
the dictated purposes of the bid statute. The awarding authority
must comply strictly with the competitive bid statutes.
August 25, 1964.
Re: Chelmsford— Contract No. 8079 1-495-6(9)65
Hon. James D. Fitzgerald, Commissioner of Public Works.
Dear Commissioner: — By letter dated May 22, 1964, you requested
an opinion concerning renegotiation under Article 22 of the Standard
Specifications for Highways and Bridges of the above-designated contract.
Your letter states that because of overruns of quantities, an increased
allocation for traffic police, and an extra work order, the amount to be
paid to the contractor under the terms of the contract increased from
an estimated $1,579,551.00 to $2,027,889.90.
Article 22 of the Standard Specifications states in part:
. . . should alterations in the plans directly result in an increase or
decrease of the quantity of the work to be performed of a value greater
than twenty-five (25) per cent of the original value of the contract . . .
then either party to the contract, upon demand shall be entitled to a
revised contract consideration to be fixed and agreed upon in a written
supplementary argument, covering the necessary changes, executed be-
tween the contracting parties. [Emphasis supplied]
Division I of the Standard Specifications defines an alteration as a
"change in the form or character of any of the work done, or to be done."
Overruns on quantities and increased allocations for traffic police do not
constitute "alterations".
The only remaining item is a claim for extra work amounting to $163,-
041.34. Because the "alterations" made under this contract do not amount
78 P.D. 12
to 25 per cent of the original value of the contract, there is no occasion
to invoke Article 22 to revise or renegotiate any of the items under this
contract.
As you have correctly pointed out in your request, the contractor has
no claim for compensation other than that specified in the contract for
items on which the actual quantities concerned differed from estimated
quantities. The amounts provided in the published specifications, Invi-
tation to Bid, and Bid Proposal "are made solely to furnish a basis for
the comparison of bids" by the Commonwealth.
The Contractor must satisfy himself by his own investigation and re-
search regarding all conditions affecting the work to be done and labor
and material needed, and make his bid in sole reliance thereon.
Standard Specifications, Article 4
The courts have ruled that the contractor is bound by his submitted
bid when the work in progress varies from the published specifications.
Benjamin Foster Co. v. Commomuealth, 318 Mass. 190.
An extension of completion time does not entitle the contractor to
additional compensation for labor and overhead costs. Article 5A (Bid
Prices) states in part:
The price for any item, bid and/or contracted for, unless otherwise
noted or specified shall include full compensation for all materials, equip-
ment, tools, labor and incidental work, necessary to complete the item
to the satisfaction of the Engineer.
Standard Specifications, Article 5A
The parties must have contemplated that there might be delay in the
commencement of the work and they agreed that in that event the peti-
tioner should be given additional time for completion as the engineer
should determine was just, but it was specifically provided that the peti-
tioner should have no claim for damages on account of such delay. Such
a provision negatives any pecuniary compensation for delay.
Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 502
You further state that a doubt exists because of a letter to the former
Commissioner of the Department of Public Works under date of August
23, 1961, from my predecessor, and a letter dated September 26, 1962,
also from his office which touched upon this problem, namely, renegoti-
ation of a bid contract. Having examined both letters, it is my opinion
that the ruling given to your predecessor by letter of August 23, 1961,
which discussed the question and law pertaining to renegotiation, at
length is correct and is a ruling with which to concur.
The power to renegotiate a unit price of a contract or any part of a
contract different from the bid originally submitted militates against the
dictated purpose of the bid statute, G. L. (Ter. Ed.) c. 29, § 8A. The
Supreme Judicial Court of Massachusetts has demonstrated that award-
ing authorities must comply strictly with the competitive bid statutes.
Poorvu Construction Co. v. Nelson Electric Co., 335 Mass. 545. That a
benefit may accrue to the Commonwealth because of renegotiation is
P.D. 12 79
not grounds for ignoring the bid statute. Gifford v. Commissioner of
Public Health, 328 Mass. 608, 616-617.
Parties to a contract may not, by provisions of Article 22 avoid the
consequences of statutory provisions designed to limit and control the
authority of public officers to enlarge contracts without complying with
statutory requirements. Atorse v. Boston, 253 Mass. 247.
If said Article 22 is to be construed to stand for the principle that a
contract may be renegotiated, and the language would indicate that this
is so, then this is plainly wrong and steps should be taken to correct this
connotation by eliminating Article 22 or revising it so that it may com-
ply with the law.
I submit that this discussion should enable you to dispose of the claims
of the contractor under this contract.
The following excerpt in the Opinion from Attorney General Dever
to the State Racing Commission dated February 14, 1935, is most per-
tinent:
The long-continued practice of this department and the precedents set
by my predecessors in office indicate, what is undoubtedly the correct
rule of law, that it is not within the province of the Attorney General
to determine hypothetical questions which may arise, as distinguished
from questions relative to actual states of fact public officials are pres-
ently required to act; nor is it the duty of the Attorney General to at-
tempt to make general interpretations of statutes or of the duties of offi-
cials thereunder, except as such interpretations may be necessary to guide
them in the performance of some immediate duty.
In view of the foregoing, I must respectfully decline to answer your
remaining questions.
Very truly yours,
Edward W. Brooke
The positions of senior supervision in education, supervisor in educa-
tion, assistant supervisor in education, organizing extension in-
structor, university extension instructor and the like, in the De-
partment of Education, are not subject to the civil service laws and
rules.
August 26, 1964.
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Mr. Finnegan: — In your letter of May 20, 1964, you asked my
opinion whether certain positions such as senior supervisor in education,
supervisor in education, assistant supervisor in education, organizing
extension instructor, university extension instructor and the like, in
the Department of Education are subject to the provisions of the civil
service law and rules.
The Department of Education is organized pursuant to sections one
through twenty-eight of Chapter fifteen of the General Laws. The depart-
80 P.D. 12
ment is under the supervision and control ot the board of education
which is comprised of nine members chosen by the Governor with the
advice and consent of the Executive Council. It is the duty of the board
to appoint a commissioner of education who is the chief executive and
administrator of the department. The commissioner serves in this capac-
ity at the discretion of the board. Under the commissioner are various
divisions which specialize in the many varied phases of modern education.
G. L. c. 15, § 4
"Under the direction of the board of education, the commissioner shall
be the executive and administrative head of the department. He shall
have charge of the achiiinistration and enforcement of all laws, rules
and regulations which it is the duty of the department to administer
and enforce. In the department there shall be a division of library ex-
tension, a division of immigration and Americanization, a division of
the blind, a division of elementary and secondary education, a division
of teachers colleges, a division of university extension, a division of re-
search and statistics, a division of vocational education, a division of spe-
cial education, a division of teacher certification and placement, and a
division of civic education. Each division, except the division of immigra-
tion and Americanization, shall be in charge of a director, and each
division shall be under the general supervision of the commissioner.
Nothing in this chapter shall be construed as affecting the powers and
duties of the trustees of the University of Massachusetts as set forth in
chapter seventy-five or the powers of the trustees of the Lowell Tech-
nological Institute of Massachusetts as set forth in chapter seventy-five A."
The powers and responsibilities of the Department of Education are
found in more detail in sections one through thirty-three of Chapter
sixty-nine of the General Laws. In carrying out the functions of this
department, the commissioner plays a dominant role. One of his most
important duties, as well as tliat of the department as a whole, is seeing
that better educational facilities are provided for the Commonwealth.
More specifically, the commissioner is charged with the duty of seeing
that state funds are properly used by the various state, city and town
educational institutions. This duty includes the promulgation of infor-
mation dealing with better teaching methods as well as information
pertaining to the present school or college level.
In carrying out the various functions of his office, the commissioner
has a direct responsibility for the success of the Commonwealth's edu-
cational progress. As a practical mattei% however, the commissioner can-
not do everything himself. For this reason, certain subordinate positions
were created including those which you have refeiTed to in your letter.
This has in no way lessened the responsibility placed upon the com-
missioner. It means only that certain work must be delegated to indi-
vidual members of the Department of Education. Ultimately, in doing
this work, a member of the department nuist answer to the commissioner.
The organization of the Department of Education was created by the
Legislature. In forming this important department, the Legislature
coidd have made various positions within the department subject to
the civil service law and rules. The Legislature made no such provision
in Chapter fifteen or in Chapter sixty-nine of the General Laws.
P.D. 12 81
It is interesting to note in this regard that Chapters sixty-nine through
seventy-eight of the General Laws provide comprehensive educational
facilities for the Commonwealth. The Legislature has in effect estab-
lished an academic community which within its own tradition has
developed high occupational requirements and exceptional standards
of excellence.
Turning specifically to Chapter seventy-one of the General Laws, the
legislature has provided here the administrative framework for our
public schools. This Chapter spells out in detail, among other things,
certain subjects which are to be taught in the schools, state subsidies for
transportation of pupils, and provision is made as well for the length of
the school year. Within this system the Legislature has provided public
school teachers with a certain amount of job security independent of
the civil service system. A public school teacher which has been sum-
nrarily discharged has the right of judicial review found in G. L., c. 71,
§43A.
The work of the Department of Education is closely allied with the
public schools of the Commonwealth. The Legislature has created a
closely knit academic community which exercises for the most part
supervision over its own affairs. If the Legislature had seen fit to modify
or change this system by placing it within the classified civil service,
they could have done so.
No basis for a different conclusion can be found in Chapter thirty-
one of the General Laws. In section four of that Chapter there is enu-
merated a list of those positions which are to be included within the
classified civil service. Though this list is not complete, it does shed
some light upon the intent of the Legislature. Section four was amended
in succession by St. 1958, c. 583, §§ 1, 2 and by St. 1959, c 320, §§ 1, 2.
Under the 1959 amendment instructors in three state correctional insti-
tutions were placed within the classified civil service. If the Legislature
had intended to effect a sweeping change in connection with other edu-
cational programs, this would have been an appropriate time to effectuate
a change. This, however, was not done.
G.L. c. 31, §4.
"The following, among others, shall be included within the classified
civil service by rules of the commission: —
"Instructors in the Massachusetts Correctional Institution, Walpole,
the Massachusetts Correctional Institution, Concord, and the Massachu-
setts Correctional Institution, Norfolk, and all other employees of said
institutions having prisoners under their charge." (amended by St. 1959,
c. 320, § 1) .
This section also provides that the civil service commission shall exer-
cise rule making power. Any rule made under G. L. c. 31, § 4, must,
however, be in conformity with this section. The commission could not
assume any power which is not specifically provided for by statute. Any
rule which failed to have a statutory basis would be a nullity.
"But one of the exceptions to or qualifications of that doctrine is that
the Legislature may delegate to a board or an individual officer the
82 P.D. 12
working out of the details of a policy adopted by the Legislature. Com-
monwealth V, Hudson, 315 Mass. 335, 341-342, and cases cited. Com-
monwealth v. Fox, 218 Mass. 498, 500. "To deny this [power] would be
to stop the wheels of government. There are many things upon which
wise and useful legislation must depend which cannot be known to the
law-making power and, must, therefore, be a subject of inquiry and
determination outside the halls of legislation." Field v. Clark, 143, U.S.
649, 694. It is on this principle that ordinances and by-laws of munici-
palities and the regulations of various boards have been upheld. Brod-
bine v. Revere, 182 Mass. 598, 600-602. Of course such ordinances or
regulations, to be valid, must be within the ambit of the enabling
statute." [Cotnmonwealth v. Bias, 326 Mass. 525, 527 (1950).]
In light of the measures enacted by the legislature, it is my opinion
that the positions in the Department of Education which you have de-
scribed in your letter of May 20, 1964 are not subject to the civil service
law and rules.
Very truly yours,
Edward W. Brooke
A bowling alley shall be classified as a "place of assembly" rather than
as a "public hall" in accordance with the provisions of G. L. c. 143.
September 2, 1964.
Hon. Robert W. MacDonald, Commissioner of Public Safety.
Dear Commissioner MacDonald: — You have asked whether, in my
opinion, the definition of a "public hall" in G. L. c. 143, § 1 includes
within its scope all places of assembly with a capacity of more than four
hundred (400) . You inquire specifically whether a bowling alley with
a capacity of four hundred and fifty (450) is to be so included.
Pursuant to the regulation of safety facilities, the said c. 143 sets up a
classification scheme for certain structures within the Commonwealth.
The key factors in this scheme are usage and seating capacity. Thus,
a "place of assembly" is defined as:
"any building designed, constructed, reconstructed, remodeled, altered,
used, or intended to be used, for fifty or more persons to assemble therein
for any of the following: — . . . any room or space used for . . . billiard,
pool, boxoling and table tennis rooms. . . ." (Emphasis supplied.)
A "public hall" is defined as:
"any building or part thereof, except theatres, churches and schools,
containing an assembly hall with a seating capacity of more than four
hundred and used for public gatherings and for such entertainments,
not requiring the use of scenery and other stage appliances, as the licens-
ing officer may approve."
In my opinion, a bowling alley should be classified as a "place of
assembly," rather than as a "public hall." The statute is clear that the
word "capacity" refers to seating capacity and not to capacity in terms
P.D. 12 83
of net floor area. Accordingly, it is my opinion that the definition of
"place of assembly," referring specifically as it does to bowling, is the
controlling language.
Very truly yours,
Edward W. Brooke
A licensed drug store may sublease an area within the estahlishinent to
a sublessee who xuuuld deal exclusively within the fountain area.
An alien applicant for registration as a Pharmacist must offer evidence
(f his actual and timely filing of a Declaration of Intention to be-
come a citizen of the United States, otherwise, the Board of Regis-
tration would not have the right to grant a certificate.
September 2, 1964.
Hex. Louis J. Rossetti, Secretary, Board of Registration in Pharmacy.
Dear Mr. Rossetti: — You have asked my opinion on the following
two questions:
"1. Can a Massachusetts licensed drug store sub-lease the fountain
area?
"2. On June 22 and 23, 1964 an alien was examined for registration
as a Pharmacist, and passed the examination. He did not file his Dec-
laration of Intention to become a citizen of the United States with the
Board until July 23, 1964. Does the Board have the right to grant him
a Certificate of Registration?"
These questions will be answered in the order in whicli they have
been numbered above.
Pursuant to your first inquiry, I shall assume that the sublessee in
question does not have a license to operate as a drug store. General
Laws c. 112, § 38 provides in part:
"No store shall be kept open for the transaction of the retail drug
business, or be advertised or represented as transacting such business,
by means of any sign or advertisement containing the words 'drug store,'
'pharmacy', 'apothecary', 'drug', 'drugs', 'medicine shop', or any combin-
ation of such words, or otherwise, unless it is registered with, and a
permit therefor has been issued by, the board. . . ."
Section 39 of said c. 112 provides for the registration of such stores if
the "management of the drug business in such store is in the hands of a
registered pharmacist."
It seems clear that the intent of the Legislature in creating such a
licensing requirement was to regulate the sale of medicines and other
drugs. Assuming that the sublessee to whom you refer will be dealing
exclusively within the fountain area, I see no objection to allowing a
licensed drug store to sublease that area to an unlicensed lessee.
84 P.D. 12
Turning to your second question, G. L. c. 112, § 24 provides in part:
"No certificate [of registration] shall be granted under this section
unless the applicant shall have submitted evidence satisfactory to the
board that he is a citizen of the United States; provided, however, that
an alien may be examined by the board if he first offers evidence which
is satisfactory to said board that he has filed his declaration of intention
to become a citizen of the United States, and a certificate may be granted
if he passes such examination. In case such applicant is subsequently
registered, his certificate of registration shall be revoked and his regis-
tration cancelled, unless he shall present to the board, within five years
following the issuance of said certificate, his naturalization papers show-
ing that he is a citizen of the United States."
Given this language, it would seem clear that two courses of action
are open to the Board. If the applicant in question had offered evidence
"satisfactory" to the Board that he had seasonably filed his Declaration
of Intention to become an American citizen with the proper authorities,
the Board would then have the right to grant him a Certificate of Reg-
istration. Were the Board to do so, the last sentence of c. 112, § 24,
as quoted above, would be operative. Assuming, however, that the appli-
cant in question had not offered such evidence of his actual and timely
filing of the Declaration of Intention, in my opinion, the Board would
not have the right to grant the certificate.
Very truly yours,
Edward W. Brooke
The Commonwealth cannot impose criminal penalties upon lottery
activities conducted entirely witliiii the State of New Hampshire.
The so-called "acknowledgement of purchase" issued in connection
with the New Hampshire Sweepstakes is not a lottery ticket as
specified in G. L. c. 271, §§7 and 9, nor is it considered "apparatus
or device" under § 17 of said chapter. Section 17 is not applicable
to a casual arrangement whereby an individual may volunteer to
purchase a chance on the Sweepstakes for a friend, but said section
can be invoked against a professional gambler who sets up a place
of business or has records and apparatus in his possession which
enable him to deal in and profit by such transactions.
Money or other prizes toon in lottery activities conducted entirely in
New Hampshire do not fall within the purview of § 14 of c. 217
and are not subject to forfeiture.
September 9, 1964.
Honorable Robert W. MacDonald, Commissioner of Public Safety.
Dear Commissioner MacDonald: —Your predecessor has requested
my opinion relative to certain problems posed by the recently authorized
New Hampshire Sweepstakes.
The New Hampshire Sweepstakes program became law in that state
during the summer of 1963.
P.D. 12 85
Since the laws of the Commonwealth of Massachusetts do not permit
the functioning of a sweepstakes or any other lottery, the operation of
a sweepstakes in a neighboring state like New Hampshire could cause
reciprocal law enforcement problems of unusual complexity.
You have called to my attention the fact that participants in the New
Hampshire Sweepstakes do not receive and keep in their possession a
lottery ticket, as such. The purchaser receives only what is referred to
as an "acknowledgment of purchase," a form of receipt which need
not be presented in order to collect winnings. The lottery ticket, as
such, which contains the name and address of the purchaser, remains
in New Hampshire. This somewhat unorthodox practice presents subtle
problems to law enforcement officials. Both statutory construction and a
determination of legislative intent are involved.
To clarify the Massachusetts lottery laws and the legal impact of the
New Hampshire Sweepstakes on Massachusetts, you have requested my
opinion on five specific questions. I will answer your inquiries in the
order presented.
Our Legislatiue has spelled out in great detail both its opposition to
the operation of lotteries and other gambling devices in the Common-
wealth and its opposition to the participation in such by Massachusetts
citizens. (See Chapter 271 of the General Laws).
The New Hampshire Sweepstakes without question conforms to the
definition of a lottery provided by our Supreme Judicial Court. "The
essential elements of a lottery are the payment of a price and the possi-
bility of winning a prize, depending upon hazard or chance."
Commomoealth v. Rivers, 323 Mass. 379, 381
Commonwealth v. Lake, 317 Mass. 264, 267
Yet, the Commonwealth cannot impose Massachusetts criminal law
upon the State of New Hampshire. Consequently, it must be pointed
out, at the outset, that whatever gambling activities take place entirely
within New Hampshire are unaffected by the operation of Chapter 271
of the Massachusetts General Laws. It is equally clear, however, that
gambling activities which occur within the Commonwealth of Massa-
chusetts, albeit associated with a lottery legalized under the statutes of
another state, are subject to the laws of this Commonwealth. In each
instance certain determinations must be made: did the General Court
desire to prohibit this particular activity; and, in addition, did such
activity actually occur within the Commonwealth, and are Massachu-
setts laws applicable?
I set forth, below, your questions and my answers thereto:
O. (1) "Under our existing statutes, is this so-called 'acknowledg-
ment of purchase' a lottery ticket, a share of a ticket, or a writing, cer-
tificate, bill, token, or other device, or a share or right in such disposal
or offer, as described in Chapter 271, Sections 7 and 9 of the General
Laws?"
You have asked whether the so-called "acknowledgment of purchase"
given as a form of receipt to participants in the New Hampshire Sweep-
86 P.D. 12
stakes can be construed as being a lottery ticket, share of a ticket, writ-
ing, certificate, bill, token or other device as those terms are used in
Sections 7 and 9 of Chapter 271 of the General Laws. Section 9 pro-
vides as follows:
"Whoever, for himself, or for another, sells or offers for sale or has
in his possession with intent to sell or offer for sale, or to exchange or
negotiate, or aids or assists in the selling, exchanging, negotiating or
disposing of a ticket in such lottery, or a share of a ticket, or any such
writing, certificate, bill, token or other device, or a share or right in such
disposal or offer, as is mentioned in section 7, shall be punished by a fine
of not more than two thousand dollars or by imprisonment for not
more than one year."
The "disposal or offer" referred to in Section 7 is the transfer or
offer of transfer of money or other property by means of a lottery or
other game of chance. Section 9, makes the sale, exchange or other
transfer Avithin the Commonwealth of lottery tickets and similar items
such as tokens, certificates, etc., a criminal offense. Accordingly, the
statute proscribes all such transfers and negotiations and all offers of
transfer; furthermore, possession of such items with intent to sell or
otherwise transfer them is forbidden.
The statute in question is admittedly a broad one; but sensible law
enforcement demands that such a section be construed intelligently. The
regulations governing the operation of the New Hampshire Sweepstakes
characterize the "acknowledgment of purchase" as entirely without value.
The acknowledgment need not be presented in order to win. It need
not be retained by the participant. Its transfer is an act of no conse-
quence, since the transferee receives nothing but an acknowledgment
that he has purchased a sweepstakes ticket. The ticket itself remains in
New Hampshire.
The passing of a New Hampshire Sweepstakes "acknowledgment of
purchase" from one person to another has no greater consequence than
the passing of a blank piece of paper from one person to another. In
enacting the provisions of G. L. c. 271, Sections 7 and 9, the General
Court did not, in my opinion, intend to make such activities as the
transfer of "an acknowledgment of purchase" a criminal offense.
Section 7 refers to the setting up or promotion of lotteries or other
schemes for the distribution of money or property by chance. Section 9
speaks in terms of tickets, tokens, or other writings relating to "such
disposal or offer, as is mentioned in section seven" and provides that
the sale or other negotiation of such items shall be a criminal offense.
The objective of the statute is to prevent traffic in lottery tckets or
tokens that have some value, and which actually relate to the lottery
in question, in the sense that their possession may be significant to the
claim of winnings. The statute was clearly not designed to penalize an
essentially meaningless transaction which takes place sometime after the
actual entry of the participant into the lottery and which has no prac-
tical relationship to the operation of or to the participation in the
Sweepstakes.
The delivery or other transfer of the "acknowledgment of purchase"
within the Commonwealth cannot in and of itself be considered a crime.
P.D. 12 87
The act of entry into the Sweepstakes took place in New Hampshire;
it it legal there. The "acknowledgment of purchase" is delivered to the
purchaser of a lottery ticket after the act of entry into the Sweepstakes
has been completed. A subsequent transfer of the receipt does not affect
the completed transaction. Accordingly, in response to your first inquiry,
I advise you that the "acknowledgment of purchase" issued by the State
of New Hampshire is not a lottery ticket or other item specified by
sections 7 and 9 of Chapter 271.
Q. (2) "Under our existing statutes, would the so-called 'acknowledg-
ment of purchase' be considered to be apparatus, books, or any device
for registering bets, or the buying or selling of pools, upon the result
of a trial or contest of skill, speed or endurance of man, beast, bird or
machine, as described in Chapter 271, Section 17 of the General Laws?"
Turning to the possible inclusion of the so-called "acknowledgment
of purchase" within the subject matter treated by Section 17 of Chapter
271, it is my opinion that the acknowledgment issued by New Hamp-
shire is not the type of "apparatus or device" referred to in this para-
graph. It is not reasonable to assume that the General Court intended
the provisions of Section 17 to apply to what are essentially worthless
slips of paper.
Section 17 imposes criminal penalties on those who keep, or who
knowingly allow to be used on their premises "apparatus, books or any
device, for registering bets, or buying and selling pools, upon the result
of a trial or contest of skill, speed or endurance of man, beast, bird or
machine, or upon the result of a game, competition, political nomina-
tion, appointment, or election." It was enacted in an attempt to cope
effectively with the gambling operator or entrepreneur. It is not pri-
marily aimed at the participant. The section authorizes the prosecution
of those who actually set up and operate the games. It would be a dis-
tortion of the statute to hold that a receipt or a lottery ticket of any
kind was the type of apparatus or device which the Legislature describes
and proscribes in this Section.
Q. (3) "Would the mere possession of one so-called 'acknowledgment
of purchase' be a crime in this Commonwealth, in violation of Chapter
271, Sections 7, 15 or 17 of the General Laws?"
Possession of the "acknowledgment of purchase," or, indeed of any
type of ticket or receipt, is not considered a crime in the Commonwealth.
Sections 7, 15 and 17, to which you refer in your request, do not relate
to questions of possession. Section 7 deals only with the setting up,
promoting and administration of lotteries. Section 15 refers to foreign
lotteries and their promotion and management. Section 17, discussed
above, concerns itself only with apparatus and other devices, and their
use by gambling operators.
Possession of a lottery ticket is declared to be a common nuisance
under G. L. c. 271, § 20.
"All lottery, policy or pool tickets, slips or checks, memoranda of any
combination or other bet, manifold or other policy or pool books or
sheets, are hereby declared a common nuisance and the possession there-
88 P.D. 12
of unlawful; and the possession of any such article, or of any other im-
plements, apparatus or materials of any other form of gaming, shall be
prima facie evidence of their use, by the persons having them in pos-
session, in the form of gaming in which like articles are commonly
used. . . ."
However, in the light of my response to question :^1, it is clear that
possession of such an "acknowledgment of purchase" cannot be con-
sidered either a nuisance under section 20 or a crime under those sec-
tions specified in your letter.
Q. (4) "If a person purchases numerous tickets in the State of New
Hampshire for others, in their names, and then brings the so-called
'acknowledgments of purchase' back to them in this Commonwealth,
has he committed any violaton of Chapter 271, Sections 7, 9, 17 or 22
of the General Laws?"
In your fourth question you pose the problem of an individual who
goes to New Hampshire and purchases Sweepstakes chances for others,
returning to Massachusetts to distribute the acknowledgments to those
individuals in whose names the purchase was made. You ask whether
such activity violates the provisions of sections 7, 9, 17 or 22 of
Chapter 271.
Sections 7 and 9 should be eliminated from consideration at the outset,
for the reasons set forth in my answer to question ^ 1 . Since the acknowl-
edgment of purchase" is not a lottery ticket or similar writing, the de-
livery of the acknowledgment to the individual in whose name a chance
has been purchased is not a violation of either of these sections. Like-
wise, section 22, which prescribes penalties for those who deliver letters,
packages or parcels to or from an individual who there is reasonable
cause to believe is engaged in the promotion or management of a lot-
tery, is directed at the messenger who services the professional operator,
and not at the ordinary traveler who buys a chance or chances on the
Sweepstakes.
I would point out, however, that section 17 of Chapter 271 may in
certain instances be applicable to the activity discussed in your fourth
question. Section 17 provides in part, as follows:
"Whoever keeps . . . apparatus, books or any device, for registering
bets, or buying or selling pools, upon the result of a trial or contest of
skill, speed or endurance of man, beast, bird or machine, or upon the
result of a game, competition, political nomination, appointment or
election . . . or . . . registers such bets, or buys or sells such pools . . . ,
or whoever becomes the custodian or depository for hire, reward, com-
mission or compensation in any manner, of any pools, money, property
or thing of value, in any manner staked or bet upon such result, shall
be punished by a fine of not more than two thousand dollars or by im-
prisonment for not more than one year."
It follows that any individual who engages in the registering of bets
in particular places upon such contests as are described in Section 17 is
subject to the penalties contained in the above section. I, therefore, an-
swer your fourth inquiry in the affirmative insofar as the violations relate
to Section 17.
P.D. 12 89
In this case, it is not the passage of the acknowledgment of purchase
or other writing from one person to another which is at issue. Section 17
prohibits the actual making or registration of bets in places containing
registering apparatus or books. The section is, of course, aimed primarily
at the professional gambler or bookmaker whose business it is to place
and to record such wagers. Consequently, the keeping of wagering appa-
ratus or books and the holding of money or other property staked upon
the result of the enumerated contests, as well as the actual placing or
registering of the bets, are included among the prohibitions.
But the registering of wagers as such is not made a criminal offense
by section 17. Its effect is to prohibit the keeping of a building or room,
or the occupying of any place, with apparatus, books or other devices
for the registering of bets, and the actual registering of bets by such
keeper, occupant or person present in such a place.
Conunonivealth v. Chagnon, 330 Mass. 278, 282
Therefore, section 17 does not apply to the casual arrangement by
which an individual may volunteer to purchase a chance on tlie Sweep-
stakes for a friend. It can be invoked, however, against a professional
gambler Avho sets up a place of business or has records and apparatus
in his possession which enable him to deal in and profit by such trans-
actions. Should the activity referred to in question ^4 be carried on by
persons with the type of apparatus, records and place of business speci-
fied in section 17, such activity will constitute a criminal offense under
the statute.
Q. (5) "If a Massachusetts resident wins a prize in the New Hamp-
shire Sweepstakes, would the prize money be subject to forfeiture under
Chapter 271, Section 14 of the General Laws?"
As to your last inquiry, forfeiture of money or other prizes won in
lotteries is provided for by G. L. Chapter 271, Section 14:
"Money or other thing of value drawn as a prize or share thereof in
a lottery, and all property disposed of or offered to be disposed of by
chance or device under the pretext mentioned in section 7, by an inhabi-
tant of or a resident within the Commonwealth, and all money or other
thing of value received by such person by reason of his being the owner
or holder of a ticket in a lottery or pretended lottery, or of a share or
right in any such scheme of chance or such device, contrary to this chap-
ter, shall be forfeited, and may be recovered by an information filed or
by an action for money had and received brought by the attorney general
or a district attorney in the name and on behalf of the commonwealth."
(Emphasis supplied)
The question, therefore, arises as to whether sums won by a Massa-
chusetts resident in the New Hampshire Sweepstakes may be declared
forfeit and recovered for the Commonwealth under the provisions of
this section.
In order to answer this question, a distinction must be drawn between
lottery activities which take place entirely in New Hampshire, and which
are, therefore, permissible under the laws of that state, and activities
"which occur in Massachusetts and which are subject to regulation by
90 P.D. 12
the Commonwealth. Section 14 applies only to those xvhich occur in
Massachusetts. The General Court specifically refers in the statute, to
lotteries and other schemes "contrary to this chapter," thereby expressly
excluding a lottery like the New Hampshire Sweepstakes. Money or prizes
won pursuant to a violation of any of the sections of Chapter 271 may
well be subject to forfeiture; but, it is my opinion that money won in
New Hampshire in a transaction taking place and completed entirely
within that state, does not fall within the purview of Section 14.
Accordingly, I answer your fifth question in the negative.
Very truly yours,
Edward W. Brooke
Pursuant to G. L. c. 112, §§ 87000 and 87PPP, employees of a manufac-
turer need not be licensed, excepting technicians authorized by the
manufacturer to service equipment after it has left the manufacturer.
In accordance xuith the provisions of St. 1963, c. 604, § 87PPP, in order
to qualify under the "grandfather clause" for a. master "Technician-
License", the applicant must be twenty-one years of age.
September 11, 1964.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — You have requested my opinion on behalf of
the Board of Registration of Radio and Television Technicians on the
following questions:
"1. Do the employees of a large manufacturing company have to be
licensed if this is their full time position?
"2. Section 87PPP, of the Acts of 1963, Chapter 604, gives the defi-
nition of 'master technician' as a person being 21 years of age or over,
having at least one year of experience. How does this relate to the 'grand-
father clause'?"
These questions will be answered in the order in which they have been
numbered above.
Before turning to your specific question, let me point out that the fol-
lowing remarks pertain only to radio and television technicians as defined
in G. L. (Ter. Ed.) c. 112, § 87PPP; that is, one who "engages in the
business of maintaining or repairing radio or television receivers," and
not the persons licensed as electricians under G. L. (Ter. Ed.) c. 141, § 1.
General Laws (Ter. Ed.) c. 112, § 87RRR states that:
"Except as otherwise provided, no person shall engage in the business
of or act as a radio and television technician directly or indirectly, un-
less he is licensed."
Thus, unless specifically exempted, any person who comes within the
definition of a "radio and television technician" (G. L. (Ter. Ed.) c. 112,
§ 87PPP) must be licensed.
P.D. 12 91
The exemption in point is found in G. L. (Ter. Ed.) c. 112, § 87QQQ,
which exempts:
". . . any manufacturer of receiving equipment or the component parts
thereof, when the service, testing or inspection thereof is performed as
a necessary function of the manufacturer."
Obviously, a manufacturing entity does not personally accomplish
these tasks. Its employees are the ones who perform the services, testing
or inspection. Nor do the employees hold themselves out as radio and
television technicians within the meaning of G. L. (Ter. Ed.) c. 112,
§ 87PPP. Further, the purpose of the statute was to provide protection
to unwitting consumers against untrained or unscrupulous repairmen,
not to compel employees in manufacturing concerns to purchase a license
in order to retain their employment. Thus, I must conclude that em-
ployees of a manufacturer need not be licensed. However, I would not
include technicians authorized by the manufacturer to service equipment
after it has left the manufacturer within this definition.
Section 4 of c. 605 of the Acts of 1963 does not, in my opinion, allow
an individual under the age of twenty-one to obtain a master technician
license. That section provides for the payment of "the appropriate license
fee." It is manifest that the Legislature did not intend to give everyone
a master technician license. This section read in conjunction with the
mandatory language of G. L. (Ter. Ed.) c. 112, § 87TTT that: "A master
technician license shall not be issued to any person under twenty-one
years of age," impels the conclusion that in order to qualify under the
"grandfather clause" for a master technician license the applicant must
be twenty-one years of age.
Very truly yours,
Edward W. Brooke
To fulfill the requirement of a "substantially similar" license, the state
in which the traveller is licensed must impose at least those require-
ments for a license to carry firearms which are imposed by the Com-
moniuealth.
In determining wJiat is an "organized group of firearms collectors" , there
are many factors to be considered, including, but not necessarily lim-
ited to, time of organization, standing in relation to national organi-
zations, membership and attendance at meetings, meeting places and
regularity of meetings, and requirements for membership.
September 11, 1964.
Hon. Robert W. MacDonald, Commissioner of Public Safety.
Dear Sir: — You have requested my opinion on the following ques-
tions:
"1) Under the provisions of this Chapter (447, Acts of 1964) which
states in this United States issue a license that is 'substantially similar'
to that issued in the commonwealth?
92 P.D. 12
"2) What factors are required to be considered, 'any organized group
of firearms collectors . . .'?"
I think the best way to answer your first question is to cite certain
prominent examples of states which have substantially similar licensing
requirements and set some guidelines to aid you in determining whether
other states have "substantially similar" licensing provisions.
The purpose of the statute was to eliminate needless duplication of
the licensing of out-of-state residents who come within or pass through
the Commonwealth to attend a shooting match or a meeting of firearm
collectors, while providing for at least the same standards of licensing
as required by the Commonwealth. Thus, to fulfill the requirement of
a substantially similar license, the state in which the traveler is licensed
must impose at least those requirements for a license to carry firearms
which are imposed by Massachusetts.
New York most certainly fulfills this requirement. Article 172, §§ 1896-
1904 of the New York Law imposes more stringent standards for a license
than does Massachusetts and, thus, any New York firearm licensee quali-
fies under c. 447 of the Acts of 1964.
Pennsylvania, which has adopted the Uniform Firearms Act, also quali-
fies. Title 18, § 4628 of the Pennsylvania statutes provides for substan-
tially the same requirements for a firearm licensee as Massachusetts.
Therefore, you may accept as substantially similar the license to carry
firearms of any state which has adopted the Uniform Firearms Act or
like statutes.
I cannot give you a definitive answer to your second question. There
are many factors to be considered in determining what is an "organized
group of firearms collectors" and do not want to unnecessarily limit
your discretion. I might, however, suggest several factors which might
influence your decision: how long the organization has been in existence;
whether they meet regularly and attract a reputable membership; whether
they have a regular meeting place open to the interested public; how
they obtain new members; what requirements members need possess,
etc. These are not, by any means, exclusive factors which should be con-
sidered, but I think they should give some indication of what to look for
in order to determine what is a legitimate organization of firearms col-
lectors.
Very truly yours,
Edward W. Brooke
A question designed to allow voters to indicate approval or rejection of
a proposed Massachusetts Sweepstakes is properly one of public pol-
icy and may lawfully appear on the ballot.
September 15, 1964.
Hon. Kevin White, Secretary of the Commonwealth.
Dear Mr. White: — I have received your letter of September 8, 1964
requesting my determination pursuant to section 19 of chapter 53 of the
P.D. 12 93
General Laws whether a particular question filed with your office on
September 4, 1964 may properly be considered a question of public
policy. The said G. L. c. 53, § 19 provides in part as follows:
"On an aj)plication signed by twelve hundred voters in any senatorial
district, or by two hundred voters in any representative district, asking
for the submission to the voters of that senatorial or representative dis-
trict of any question of instructions to the senator or representatives from
that district, and stating the substance thereof, the attorney general shall
upon request of the state secretary determine whether or not such ques-
tion is one of public policy, and if such question is determined to be
one of public policy, the state secretary and the attorney general shall
draft it in such simple unequivocal and adequate form as shall be deemed
best suited for presentation upon the ballot. , . ."
The appropriate number of qualified voters of the Commonwealth of
Massachusetts have submitted a question of public policy to be voted
upon in the First Essex Representative District at the State Election to
be held on November 3, 1964. The question is designed to allow the
voters to indicate their approval or rejection of a proposed Massachusetts
Sweepstakes, "the exact nature of which shall be determined by the Gen-
eral Court and which shall in general provide that, after expenses, the
remaining receipts shall be divided equally with approximately 50% of
the remainder to be allotted for prize money and the remaining 50%
to be distributed to the Cities and Towns of the Commonwealth for aid
to Education and the relief of Real Estate Taxes."
I rule that such a question is properly one of public policy, and may
lawfully appear on the ballot. In accordance with the provisions of G. L.
c. 53, § 19, I am including the following statement of the measure for
use upon the November ballot.
Statement
Shall the Representative from this District be instructed to vote to
approve the passage of a measure providing for a Massachusetts Sweep-
stakes, its exact nature to be determined by the General Court, with
half of the receipts after payment of expenses to be distributed as prize
money, and half to be distributed to the Cities and Towns of the Com-
monwealth for aid to education and for reduction of real estate taxes?
I trust that the above wall be sufficient. Should you have further ques-
tions with respect to the placing of this measure on the November ballot,
please do not hesitate to contact this Department.
Very truly yours,
Edward W. Brooke
94 p.D. 12
Time which is to be counted in determining the end of a probationary
period is the time the probationer has actually worked and payment
of vacation time, during which duties were not actually performed,
will not extend the employment beyond the date of its actual ter-
mination.
September 22, 1964.
Hon. James R. Lawton, Registrar of Motor Vehicles.
Dear Sir: — You have requested my opinion as to:
"Whether payment of vacation time will extend the employment of
a probationary employee beyond the date of termination of his services?"
It is my understanding that services of the employee in question were
terminated three days before completion of his six month probationary
period. General Laws (Ter, Ed.) Chapter 31, § 20D, added by chapter
703, § 2 of the Acts of 1945, requires that:
". . . no person . . . shall be regarded as holding office or employment
therein until after he has actually performed the duties of the office or
position for a probationary period of six months." (emphasis supplied)
Thus, unless expressly provided otherwise, the time which is counted
in determining the end of the probationary period is the time the pro-
bationer has actually worked.
Inasmuch as the vacation period, for which the employee is entitled
to receive compensation, does not represent time within which duties
were "actually performed," it is my opinion that payment of such vaca-
tion time will not extend the employment of the subject beyond the
date of his actual termination nor beyond the six months probationary
period. I therefore answer your question in the negative.
Very truly yours,
Edward W. Brooke
There is no constitutional objection to the Massachusetts Rehabilitation
Commission's purchase of equipment to be used by a private non-
profit organization whereby the welfare of the general public would
be promoted, provided the equipment is kept under exclusive con-
trol of the public through such Commission.
September 22, 1964.
Hon. Francis A. Harding, Commissioner of Rehabilitation, Massachu-
setts Rehabilitation Commission.
Dear Commissioner Harding: — I am in receipt of your letter of
June 22, 1964 in which you request an opinion as to whether it is con-
stitutional for the Massachusetts Rehabilitation Commission to purchase
equipment to be used by the Berkshire Rehabilitation Center, a private
non-profit organization.
P.D. 12 95
The powers and duties of the Massachusetts Rehabilitation Commis-
sion are set forth in Chapter 602 of the Acts of 1956, Section 79.
"The Commission shall have the following powers and duties: (c) It
may establish and operate rehabilitation facilities and workshops, may
make grants to public and contracts with private, non-profit organiza-
tions."
From a reading of said Chapter 602 of the Acts of 1956, it is apparent
that the powers of the Commission are broad, with few restrictions. Ex-
clusive of the Constitution of Massachusetts, it would appear that Chap-
ter 602 gives the Commission the power to purchase equipment to be
used by a private, non-profit organization, according to a contract ar-
rangement under Section 79 (c).
The only question then is whether Article 46 of the Amendments to
the Constitution of Massachusetts prohibits the Massachusetts Rehabili-
tation Commission from executing a contract with a private, non-profit
organization as above stated.
Article 46, Section 2 of the Amendments to the Massachusetts Con-
stitution reads in part as follows:
". . . no grant, appropriation or use of public money or property or
loan of public credit shall be made or authorized by the Commonwealth
. . . for the purpose of founding, maintaining or aiding any school or
institution of learning ... or any college, infirmary, hospital, institu-
tion, or educational, charitable, or religious undertaking which is not
publicly owned and under the exclusive order and superintendence of
public officers or agents authorized by the Commonwealth or Federal
authority. . . ."
The plain intent of this amendment is to require that the expenditure
of public money for any educational, charitable or religious undertaking
which possesses the requisite public character shall be under exclusive
public control.
The Massachusetts Rehabilitation Commission was established and
designed to advance the public welfare. In this respect it is a vital agency
in the Commonwealth's public health program.
Equipment purchased by the Massachusetts Rehabilitation Commis-
sion to be used bv a private, non-profit organization under contract
would be a benefit to the people of the Commonwealth as distinguished
from a benefit to the private, non-profit organization. Under such an
agreement, the private, non-profit organization would not be receiving
aid or support, inasmuch as the Commission would be directly promot-
ing the general welfare by rehabilitating citizens of the Commonwealth
through its own equipment. The crucial and vital point is that the Berk-
shire Rehabilitation Center would be a conduit in the treatment and
care of the citizens of Massachusetts in an area where the Commission
has not established nor founded its own facilities. To deny the Berkshire
Rehabilitation Center the use of such equipment would be a deprivation
to citizens of the Commonwealth needing such treatment and not the
Center.
96 P.D. 12
Provided the contract to be entered into between the Massachusetts
Rehabilitation Commission and the Berkshire Rehabilitation Center is
one which will keep the equipment under exclusive control of the public
through its authorized agents on your commission, it must be concluded,
and it is my considered opinion, that there is no constitutional objection
to such an agreement.
Very truly yours,
Edward W. Brooke
The Department of Public Works must submit profiles to the Board of
Project Revieiu and to the municipalities affected prior to the hear-
ings conducted by said Board.
Public hearings are mandatory during the 90-day period, and notice to
the chief executive officers of the affected municipalities would con-
stitute proper notice.
The Board could approve a portion of a route and make recommenda-
tions consistent zvith State and Federal requirements, or it may reg-
ister disapproval of the entire route and may make recommendations
subject to such requirement.
The final approval or decision of the Board terminates any further
changes in the project except that any approval could include pro-
vision for minor essential, unforeseen engineering changes.
September 28, 1964.
Hon. Alfred R. Voke, Chairman, Board of Project Review.
Dear Chairman Voke: — Receipt is acknowledged of your letter of
August 24, 1964 requesting information about authority of the Board
of Project Review and answers to the following specific questions:
"1. Does this Board (of Project Review) have the power to approve
a portion of a route or recommend other changes?"
The Board may approve a portion of a route or recommend other
changes pursuant to c. 822, § 9, Acts of 1963:
"The board of project review . . . shall approve or disapprove the
project as orginally submitted; provided, however, that the board may
make such additional recommendations consistent with state and federal
requirements as it deems appropriate, which if approved by the depart-
ment (of public works) and the municipalities whose approval is required,
shall release funds for the project." (Emphasis added.)
That the power to approve the project includes authority to approve
only a portion of the route (or that part lying within a particular city
or town) is clear from the definition of "project' 'in said c. 822, § 9:
"For the purpose of this section 'project' shall mean only the route
through the particular city or town. . . ."
Exercise of the authority of the Board to recommend changes in a por-
tion of the route lying in a particular city or town must be consistent
P.D. 12 97
with State and Federal requirements. Recommendations must be ap-
proved by the Department of Public Works and appropriate interested
mimicipalities.
"2. Can this Board of (Project Review) disapprove the entire route
with recommendations of changes?"
The Board has the power to disapprove a "project". It is my opinion
that the Board could register disapproval and make recommendations to
the Department of Public Works subject to the qualifications noted in
the answer to question 1.
"3. Has the State D.P.W. the right to withdraw their proposed route
from this Board before the 90-day period?"
Chapter 822, Acts of 1963 provides that the Board "shall approve or
disapprove the project as originally submitted . . . ." (Emphasis sup-
plied.) The statutory language clearly means that the Board must con-
sider the original project of the Department of Public Works. The
Board must approve or disapprove it subject only to the proviso which
follows the quoted statutory language in the sixth paragraph of § 9,
Chapter 822, Acts of 1963 concerning recommendations by the Board.
That proviso is dealt with in the answers to questions 1 and 2. The Legis-
lature intended by the language of the sixth paragraph of § 9, Chapter
822, Acts of 1963 to limit to the Board the initiative for recommending
changes in ". . . the project as originally submitted . . ." subject to the
limitations set forth in the answer to question 1.
"4. Are Public Hearings mandatory during this 90-day period, and
if so, what notice is required?"
Chapter 822, Acts of 1963 provides: "The Board of project review
shall hold a hearing in the city or town affeceted by the proposed proj-
ect ..." (paragraph 6 of § 9) and "If a project is referred to the board
of project review, the board shall give the municipality in which the
project is to be located ample opportunity to show why said project
should not be approved." (paragraph 8 of § 9). The purposes of Chapter
822, Acts of 1963 are to establish an accelerated highway program and
to resolve delaying conflicts arising from objections from certain munici-
palities. The language of the General Court is mandatory on the matter
of hearings. The Board has no alternative. Such hearings would be of
a public nature under the provisions of Chapter 274, Acts of 1960.
Fulfillment of the provision of paragraph 8, § 9, Chapter 822, Acts of
1963 stating, ". . . the board shall give the municipality in which the
project is to be located ample opportunity to show why said project
should not be approved" requires giving as much advance notice as
possible to a municipality. Notice to the chief executive officer or offi-
cers of the municipal government would constitute proper notice "to the
municipality."
"5. If this Board approved the D.P.W. Project or route as presented
could the D.P.W. move the alignment laterally as much as 400 feet after
approval?"
Chapter 822, Acts of 1963 states in § 9 that the decision of the majority
of the Board of Project Review ". . . shall be final and binding . ." No
98 P.D. 12
language elsewhere in the statute relates to this question. The plain
meaning of the statutory language on this point is that the final approval
or decision of the Board terminates any further changes in the project
except that any approval could include provision for minor essential,
unforeseen engineering changes. However, a change as great as 400 feet
could not be subsequently made unilaterally by the Department of
Public Works.
"6. At the present time the D.P.W. submits to the cities and towns
affected locations. Is it necessary that the D.P.W. also submit profiles
at the same time?"
The Courts of the Commonwealth have interpreted the statutory duty
of the Department of Public Works under c. 79, § 12 of the General
Laws to include the making of profiles or cross-sections to aid in the
consideration of land taking damages. The Legislative intent apparent
in § 9 of Chapter 822, Acts of 1963 including the specific instruction
that "the board shall allow other interested persons and municipalities
an opportunity to be heard on the approval or disapproval of the pro-
ject . . ." make it necessary that the Department of Public Works submit
profiles to affected municipalities and to the Board of Project Review
prior to the hearings of the Board.
Very truly yours,
Edward W. Brooke
The Department of Public Works may make a land taking for highway
maintenance purposes at the same time a taking is made for right-of-
way purposes. If maintenance activities undertaken relate directly to
the highway projects authorized by the statutes creating Bond Issue
Funds, such funds may be used to pay for land taken for maintenance
purposes.
September 28, 1964.
Re: Taking of Highway Maintenance Area.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Dear Sir: — My opinion has been requested by you on the following
questions:
(1) Does the Department of Public Works have the power to make
a land taking for highway maintenance purposes at the same time a
taking is made for right of way purposes?
(2) Can Bond Issue Funds be used to pay for land takings for high-
way purposes?
Section 13 of Chapter 81 of the General Laws requires the Depart-
ment of Public Works to maintain state highways and keep them in
good repair and condition.
The Bond Issue authorizations to which you refer provide among
other things that the Department of Public Works be authorized and
P.D. 12 99
directed to expend money ". . . for purposes or laying out, construction,
re-construction, re-surfacing, relocation or improvement of highways,
parkways, bridges, grade crossing eliminations and alteration of cross-
ings at other than grade . . .". The same statutes provide that the cost
of the work authorized ". . . shall include all project payments, pro-
perty damage, expenses for contractors and engineering services includ-
ing traffic studies, and for all legal and other technical expert services,
and incidental expenses . . .". (Chapter 718, Acts of 1956; Chapter 32,
Acts of 1958; Chapter 528, Acts of 1960; Chapter 490, Acts of 1961; Chap-
ter 782, Acts of 1962; and Chapter 822, Acts of 1963.)
Chapter 354 of the Acts of 1962 established the Massachusetts Turn-
pike Authority. It was the subject of an Opinion of the Justices, 330
Mass. 713. In that Opinion the Court held, among other things, that
land used for storage of road machinery, towing vehicles, snow plows,
sanding equipment, and garages and buildings in connection therewith
bear a relationship to the Turnpike similar to that which switch towers,
water tanks, roundhouses, and stations bear to a railroad. 330 Mass. 713
at 722. Railroad charters, granting to private railroad corporations
authority to take land by eminent domain for the laying out of tracks
and establishment of those necessary auxiliary services, have come under
examination of the Court in many cases. See citations 330 Mass. 713
at 718, 719. The language of the Supreme Judicial Court in considera-
tion of the Turnpike Enabling Act could be applied as well to the
activities of the Department of Public Works in connection with the
accelerated highway program and particularly the interstate highway
phases thereof. The projects connected therewith must be envisaged
as a whole in their larger aspects.
It is my opinion that in addition to the worked portion of the road-
way buildings and other structures to house equipment and services
properly appurtenant to the construction and maintenance thereof and
a reasonable amount of land on which to situate said structures are all
needed for the actual construction of highways and must be considered
integral parts of them. Land that is taken or acquired for such purposes
will clearly be devoted to a public use. 330 Mass. 713 at 723.
The opinion of the Supreme Judicial Court as stated in 330 Mass.
713 indicates clearly that Article 39 of the Amendments to the Constitu-
tion of the Commonwealth does not restrict Article 10 of the Declaration
of Rights of said Constitution in a manner w^hich would reduce the
power of the Legislature to authorize taking of land for the purposes de-
scribed in the opinion letter. Land taken for such purposes would not be
"more land and property than are needed for the actual construction"
of the highway. The restrictions of Article 39 of the Amendments to the
Constitution of the 'Commonwealth are inapplicable to the taking of
property for activities as directly related to the construction and main-
tenance of the highway projects authorized in the many Bond Issue
statutes. 330 Mass. 713 at 723
It is my opinion that the Department of Public Works may make a
land taking for highway maintenance purposes at the same time a tak-
ing is made for right of way purposes.
100 P.D. 12
It is my opinion that so-called Bond Issue Funds may be used to pay
for land taken for maintenance purposes provided that the maintenance
activities undertaken therefrom relate directly to the highway projects
authorized by the statutes creating said Bond Issue Funds.
Very truly yours,
Edward W. Brooke
A bachelor of science degree awarded by Boston Universtiy can be con-
sidered as a degree granted by a college or university authorized by
the General Court to grant a degree of bachelor of science in
engineering.
September 29, 1964.
Hon. Charles O. Baird, Jr. Chairman, Board of Registration of Pro-
fessional Engineers and Land Surveyors.
Dear Mr. Baird: — In your letter of June 24, 1964, you have asked
my opinion whether a bachelor of science degree awarded by Boston
University can be considered as a degree granted by a college or univer-
sity authorized by the General Court to grant a degree of bachelor of
science in engineering.
In answering this request reference must by necessity be made to the
charter of Boston University. The original charter was granted by the
Legislature in 1869. In this charter are contained the powers enjoyed
by that corporate body. The specific power to grant degrees is clearly
spelled out in that instrument, the pertinent section of which appears
below:
5^. 1869, c. 322.
"Section 2. The said corporation shall have full power and authority
to determine at what times and places their meetings shall be held, and
the manner of notifying the trustees to convene at such meeting; and
also to establish boards of instruction in all departments of science and
the arts, to elect a president of said university, and such professors, tutors,
instructors and other university officers, as they shall judge for the interest
thereof, and to determine the duties, salaries, emoluments, responsi-
bilities and tenures of their respective offices. And the said corporation
is further empowered to purchase or erect, and keep in repair, such
houses and other buildings as they shall judge necessary for the said
university; and also to make and ordain, as occasion may require, reason-
able rules, orders and by-laws, not repugnant to the constitution and
laws of this commonwealth, with reasonable penalties, for the good
government of the said university, and for the regulation of their own
body; and also to determine and regulate the courses of instruction in
said university, and to confer degrees; but no degree shall be conferred
except upon the recommendation of the appropriate faculty." (Em-
phasis supplied.)
There is no indication that the word "science" appearing in the above
section is used in a restricted sense. In this regard the case of In Re
P.D. 12 101
Massachusetts General Hospital, 95 Fed. 973, 976 (1899) provides a
helpful definition.
"As there is a distinction between philosophy and science, so there
may be said to be a distinction between philosophical instruments and
scientific instruments. Philosophy has reference 'to the fundamental part
of any science', — to 'general principles connected with a science, but
not forming part of it.' Science, on the other hand, signifies 'knowl-
edge, coordinated, arranged, and systematized.' It is knowledge 'gained
by systematic observation, experiment, and reasoning.' "
Further, the use of "all departments" in and conjunction with "science"
indicates a clear intention that a broad interpretation was intended, a
definition embracing every phase or field of exact learning and knowl-
edge including engineering.
■ It is hard to conceive of any broader powers being given to a vmiver-
sity. These powers would not in any instance be limited to those
branches of science kno^vn and discovered at the time of incorporation,
but must by necessity embrace an expanding concept — one geared to
keep pace Avith the rapid growth of a modern society.
In light of the action taken by the Legislature, it is my opinion that
a bachelor of science degree awarded by Boston University can be con-
sidered as a degree granted by a college or university authorized by the
General Court to grant a degree of bachelor of science in engineering.
Very truly yours,
Edward W. Brooke
A resident of Rhode Island who is an employee of a Massachusetts firm
insured by a company doing xuorkmen's compensation business in
the Commonzuealth is eligible for vocational rehabilitation services
from an insurance company under the provisions of G. L. c. 152,
and G. L. c. 6, § 18.
September 29, 1964.
Hon. Francis A. Harding, Commissioner , Massachusetts Rehabilitation
Commission.
Dear Commissioner Hardings — You have requested my opinion as to
the eligibility of a resident of Rhode Island for vocational rehabilitation
services from an insurance company under the provisions of G. L. c. 152,
§§ 30A-30D. You specify that the individual in cjuestion is an employee
of a Massachusetts firm insured by an insurance company doing work-
men's compensation business in the Commonwealth; that he suffered an
industrial accident for which he was compensated; that, upon application
to the Rhode Island Division of Vocational Rehabilitation he was de-
clared by them to be eligible for services; that he is no longer receiving
compensation and is employed at his old job.
As you point out, under G. L. c. 6, § 78, the Commission is empow-
ered to provide vocational rehabilitation services to a handicapped per-
son:
102 P.D. 12
" (2) who is eligible therefor under the terms of an agreement with
any department, division, or sub-division of the commonwealth, with
another state, or with the federal government. . . ."
Thus, the question becomes the eligibility in the Commonwealth of
the employee in question for unpaid services under G. L. c. 152, § SOB.
Paragraph 3 of that section provides in part:
"An insurer or self-insurer shall furnish rehabilitation services by a
rehabilitation facility or a physician who, in the opinion of the board,
is qualified to render rehabilitation services, and shall also furnish voca-
tional rehabilitation services to any injured worker eligible for or receiv-
ing compensation under the provisions of this chapter who is determined
to be fit and eligible for vocational rehabilitation by the Massachusetts
rehabilitation commission. . . ." (Emphasis supplied.)
In my opinion, such an employee is eligible to receive compensation
in Massachusetts under this section. The case law is clear that a non-
resident, employed under a contract of employment made outside the
Commonwealth and injured in the course of his employment while on
temporary assignment in Massachusetts may recover under G. L. c. 152.
Bacnel v. Springfield Sand and Tile Co., 144 F.2nd 65 (1st Cir. 1944);
Lavoie's Case, 334 Mass. 403 (1956). It is also settled that an employee
working under a Massachusetts contract of hire may receive compensation
in Massachusetts for an injury sustained while temporarily employed in
another case. Wright's Case, 291 Mass. 334 (1935); Bauer's Case, 314 Mass.
4 (1943). As the Court in Lavoie's Case pointed out, the Supreme Court
has upheld both of these propositions:
"A State may give compensation under its act both in cases where the
contract of hire was made within the State and the injury occurred else-
where, Alaska Packers Association v. Industrial Accident Commission of
California, 294 U.S. 532, and in cases where the injury was sustained
within the State, though the contract of hire was made elsewhere. Pacific
Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493. . . ."
This interpretation is strengthened by the provisions of G. L. c. 152.
Section 26 of that chapter, dealing with the requirement of a waiver of
common law rights of action as a prerequisite to recovery under the
Workmen's Compensation Act, speaks of injuries "whether within or
without the commonwealth." If compensation may be awarded to an
employee injured out of state, it would seem that by analog)', a nonresi-
dent, working and injured within the Commonwealth is eligible for com-
])eiis.ition under the Massachusetts statute. As pointed out in the cases
cited above, the courts have upheld such eligibility. Similarly, in the
definitions of c. 152, § 1, an employee is defined as "every person in the
service of another under any contract of hire." The list of exceptions in
§ 1 makes no mention of nonresidents. Read in connection with the above-
quoted provision of G. L. c. 6, § 72, it is my opinion that the employee
in question is eligible for vocational rehabilitation ser\'ices.
Very truly yours,
Edward W. Brooke
P.D. 12 103
Any person loho advertises a. rifle or shotgun for sale by use of "want-ads"
is in violation of G. L., c. 140, § 128, if not licensed according to
G. L., c. 140, § 122.
"Want-ads", a publication or advertising circular, tuhich publishes such
advertisements comes loithin the exemption provided by G. L. c.
266, § 91, and is not subject to criminal process.
September 29, 1964.
Hon. Robert W. MacDonald, Commissioner of Public Safety.
Dear Sir: — You have asked my opinion on the following questions:
"1. Are each of the persons iv^ho advertise a rifle or shotgun for sale
through this media (the Want- Ads) in violation of c. 140, § 128 of the Gen-
eral Laws if they are not licensed under the provisions of c. 140, § 122?
"2. In that persons reading the Want-Ads might be lead to believe
that the persons they are doing business with are properly licensed, what
is the responsibility of the Want-Ads under the provisions of c. 266, § 91
of the General Laws?"
General Laws (Ter. Ed.) c. 140, § 120 reads in part:
". . . any person who, without being licensed as hereinbefore provided,
sells, rents or leases, or exposes for sale, rental or lease, or has in his
possession with intent to sell, rent or lease, a firearm, rifle, shotgun or
machine gun, . . . shall be punished bv imprisonment for not less than
six months nor more than two years. . . .' (Emphasis supplied.)
Under this section of the statute, no one may sell or have in his posses-
sion firearms for sale, rent or lease, or expose same for such purposes.
Clearly, advertising firearms for sale falls within the provisions of this
section and anyone who does so may be subject to criminal processes.
I do not believe that Want-Ads, a publication which publishes these
advertisements, is liable under the provisions of G. L. (Ter. Ed.) c. 266,
§ 91. The statute specifically states:
". . . . that this section shall not apply to any owner, publisher, printer,
agent or employee of a newspaper or other publication, periodical or cir-
cular, or to any agent of the advertiser who in good faith and without
knowledge of the falsity or deceptive character thereof publishes, causes
to be published, or participates in the publication of such advertisement."
It is my opinion that Want Ads, as an advertising circular, comes
within the exemption provided by this section. The onus of the statute
falls upon the person placing the advertisement.
Very truly yours,
Edward W. Brooke
104 P.D. 12
A physician may treat a drug addict for his addiction luith the use of
narcotics whether or not he is afflicted ivith any other ailment or
disease requiring drugs, provided the drugs are prescribed in "good
faith" and in "legitimate practice".
September 29, 1964.
Hon. Alfred L. Frechette, M.D., Commissioner of Public Health.
Dear Sir: — You have requested my opinion as to whether a physician
may treat a drug addict for his addiction with the use of narcotics whether
or not he is afflicted with any other ailment or disease requiring drugs.
Since federal law has no influence on this question [Lindex v. United
States, 268 U.S. 5; 45 S. Ct. 446; 69 L. Ed. 819 (1924)}; we need only
look to Massachusetts law. The pertinent statute, G. L. (Ter. Ed.) c. 94,
§ 200, reads, in part:
"A physician or a dentist, in good faith and in the course of his pro-
fessional practice only, for the alleviation of pain and suffering or for
the treatment or alleviation of disease may prescribe, administer and
dispense narcotic drugs, or he may cause the same to be administered
by a nurse or interne under his direction and supervision."
The Supreme Judicial Court has held that:
"This section was intended merely to make it plain that physicians
personally administering narcotics in good faith and in legitimate practice
should be exempt from a series of penal provisions relative to the sale
and distribution of narcotic drugs." (Emphasis supplied.)
King v. Solomon, 323 Mass. 329-330 (1948).
Thus, in order to be exempt from the penal provisions of the statute,
the physician must prescribe the drugs "in good faith" and "in legiti-
mate practice." Previously, the Legislature had provided specifically that
a doctor might not prescribe narcotics to cure his patients' addiction.
(St. 1917, c. 275, § 2.) However, by c. 660 of the Acts of 1957, the Legis-
lature rewrote the statute, eliminating this provision, and substituting
a provision which required a doctor or hospital treating a narcotics addict
to report same within seventy-two hours of the first treatment. [G. L.
(Ter. Ed.) c. 94, § 210A.] It would seem, therefore, in view of the leg-
islative history of the statutes dealing with narcotics addiction, that the
General Court intended to permit a physician, in good faith, to treat a
drug addict with the use of narcotics in an attempt to cure him. The
strong policy against permitting narcotics addiction, would, it seems to
me, limit a physician's ability to prescribe narcotics only to those cases
in which there is an active program to cure such addiction.
On the issue of a physician's good faith in treating a narcotics addict
by himself, I feel I should point out that it has always been the policy
to closely control the use of narcotics; that it is always open to the jury
to decide whether the physician's action was, in fact, done in good faith
\Commonwealth v. Noble, 230 Mass. 83 (1918)]; and that provision has
been made by G. L. (Ter. Ed.) c. 123. §80 for the commitment of drug
addicts to a hospital for treatment. Thus, although it is my opinion that
a physician may legally attempt to cure an addict by prescribing narcotics
P.D. 12 105
within the limitations set forth above, I would strongly urge that he
exercise extreme care while his patient remains exposed to some of the
factors which contributed to his addiction.
Very truly yours,
Edward W. Brooke
The Act which established the Board of Regional Community Colleges
cannot be construed as designed to affect rights secured by c. 30.
The provisions of G. L. c. 30, § 9B, are applicable to maintenance em-
ployees of the Board, and such employees are entitled to the safe-
guards of c. 31, §§ 43, 45, and 46 A in the event of attempted removal
or other action by the appoiyiting authority affecting their position.
September 29, 1964.
Mrs. Lalt^etta L. Kellaher, Acting Secretary, Civil Sert>ice Commission.
Dear Mrs. Kellaher: — I have received your letter dated August 27,
1964, relative to the application of §9B of c. 30 of the General Laws to
maintenance employees of the Board of Regional Community Colleges.
You have requested my opinion as to whether c. 605 of the Acts of 1958,
wherein it is provided that the Massachusetts Board of Regional Com-
munity Colleges shall be within the Department of Education "but not
subject to its control," has the effect of denying permanent maintenance
employees of the Board the protections guaranteed by G. L. c. 30, § 9B.
I understand that the question has arisen in connection with the pending
appeal to the Civil Service Commission of Mr. Joseph B. Doherty, a fire-
man-janitor employed by the Board.
General Laws c. 30, § 9B extends certain provisions of the civil sei-vice
law to particular permanent public employees not otherwise subject to
civil service regulation and protection. Section 9B provides in relevant
part as follows:
". . . no maintenance employee permanently employed in any institu-
tion under the department of education, shall, after having actually per-
formed the duties of any office or position continuously for a period of
six months in such an institution , . . , be discharged, removed, sus-
pended, laid off, transferred from the latest permanent office or employ-
ment held by him without his consent, lowered in rank or compensation,
nor shall his office or position be abolished, except for just cause and in
the manner provided by sections forty-three and forty-five of chapter
thirty-one. The provisions of section forty-six A of said chapter thirty-
one shall apply to any person so employed." (Emphasis supplied.)
It is the apparent intent of the General Court that the employees
referred to not be removed or otherwise have their positions affected
except in accordance Avith the relevant provisions of the civil service law.
The same protection is extended by § 9A of c. 30 to veterans in the un-
classified service of the Commonwealth who have held their positions for
not less than three years.
106 P.D. 12
Chapter 605 of the Acts of 1958 established the Massachusetts Board
of Regional Community Colleges and provided for the creation and
operation of the colleges themselves. The said "Board was made a part
of the Department of Education, but provision was specifically made
that it was not to be subject to Department control. A maintenance em-
ployee of the Board is — in a technical sense — an employee of an insti-
tution within the Department of Education rather than under the said
Department.
I do not believe that an employee of the Commonwealth should be
deprived of protection against arbitrary action by his appointing author-
ity on the basis of such a distinction. The guarantees of the statute were
intended to be broad.
"The protection to veterans under G. L. c. 30, § 9A, and to other
public officers and employees under § 9B of that chapter indicates the
declared policy of the Commonwealth toward its employees. Such statutes
should be liberally construed to carry out the protective measures in-
tended by such acts. . . ."
Op. Atty. Gen., Dec. 31, 1957, p. 39, 40.
The Act which established the Board of Regional Community Colleges
cannot be construed as designed to affect rights secured by c. 30. The Act
concerns itself almost exclusively with the creation and operation of the
Board and of the schools under its jurisdiction. Non-professional em-
ployees are mentioned only in passing, and were obviously not an object
of the General Court's consideration at that time.
The fact that the employees in question are appointees of the Board
rather than of the Department of Education itself in no way affects the
above analysis. General Laws c. 30, § 9B refers to employees of insti-
tutions uncler the Department, and it is not limited to employees of the
Department as such. Had the Legislature wished to do away with the
protections guaranteed by § 9B, it is safe to assume that it would have
indicated clearly that such was the case. Absent a more substantial indi-
cation than the language contained in the first sentence of St. 1958, c.
605, it cannot be said that the General Court intended to deprive em-
ployees of the Board of Regional Community Colleges of protections
granted employees of the Department of Education. Accordingly, it is
my opinion that the provisions of G. L. c. 30, § 9B are applicable to
maintenance employees of the Board, and that such employees are enti-
tled to the safeguards of G. L. c. 31, §§ 43, 45 and 46A in the event of
attempted removal or other action by the appointing authority affecting
their positions.
Very truly yours,
Edw^ard W. Brooke
P.D. 12 107
In spite of a technical invalidity of a certificate of enrollment, a nomi-
nation of a candidate at a primary election must stand since the
protester did not avail himself of procedure pursuant to G. L. c. 53,
§ 11, and the electorate has expressed its wilt.
September 30, 1964.
Hon. Robert J. O'Hayre, Chairman, State Ballot Law Commission.
Dear Mr. O'Hayre: — I have your request of September 25, 1964,
wherein you request my opinion of the validity of the nomination at the
recent primary election of a candidate in the Twenty-second Middlesex
District for the House of Representatives.
You recite, and the factual material you have submitted indicates, that
the candidate was not an enrolled member of the party whose nomination
he sought in the primary election for at least one year prior to the last
day for filing nominations with the State Secretary as required by c. 53,
§ 48, as amended by c. 254 of the Acts of 1964.
The said § 48, as amended, in part provides:
"There shall not be printed on the ballot at a state primary the name
of any person as a candidate for nomination for any office to be filled by
all the voters of the commonwealth, . . . unless a certificate from the reg-
istrars of voters of the city or town wherein such person is a registered
voter that he is enrolled as a member of the political party whose nomi-
nation he seeks is filed with the state secretary on or before the last day
herein provided for filing nomination papers. Said registrars shall issue
such a certificate forthwith upon request of any such candidate so en-
rolled or of his authorized representative.
"No such certificate shall be issvied to any person who is a candidate
for nomination for any such office, if such person has changed his party
enrollment less than one year prior to the last day for filing nomination
papers with the state secretary as provided by this section."
Inasmuch as your specific question relates to the 1964 amendment, I
am constrained to say that your inquiry is one of first impression and
with few guidelines set by our Court.
This matter differs in degree with the opinion of the Attorney General
of August 19, 1954 in that in the instant case a certificate of party enroll-
ment, on its face in proper form, has been duly filed with the Secretary
of the Commonwealth. Accordingly, the placing of the candidate's name
on the primary ballot, there being no protests to the nomination papers
pursuant to c. 53, §§ 11 and 12, was a necessary and proper function of
the Secretary of the Commonwealth.
Section 53A of c. 53 of the General Laws provides that written objec-
tions to a nomination at a state primary are subject to §12 of said chapter.
It appears that the protest to the nomination of the candidate was timely
filed and is properly before your Commission.
The question remains on the matter of law raised by your inquiry.
Irrespective of the mandate of § 48 as amended and above quoted, it is
clear that the candidate was chosen by the will of the people and to all
108 P.D. 12
intents and purposes at the time of the primary election was properly
on the ballot as a candidate for his party's nomination.
The case of Attorney General v. Campbell, 191 Mass. 497 is close on
point and the Court stated at pages 501 and 502 in upholding an election
where there had been statutory irregularities prior thereto:
"We are of opinion that, while the provisions as to holding caucuses
for the nomination of candidates and as to the filing of nomination papers
are binding upon the officers for whose guidance they are intended, they
may be disregarded in determining the validity of a subsequent election,
if it plainly appears that the will of the majority of the electors is fairly
expressed by their ballots."
The certificate of enrollment, effective March 25, 1964, filed with the
nomination papers could well have been protested procedurally before
the Registrars of Voters of Melrose or before your Commission pursuant
to § 11 of c. 53. Since the protester did not avail himself of these steps
and the electorate has expressed its will, the nomination must stand in
spite of the technical invalidity of the certificate of enrollment.
It is, therefore, my considered opinion that the name of the successful
primary nominee may properly remain on the ballot for the coming
State election.
Very truly yours,
Edward W. Brooke
Referral selling schemes are illegal in Massachusetts in violation of its
lottery laws, specifically, G. L. c. 271, § 6A.
September 30, 1964.
Hon. Dermot P. Shea, Executive Secretary, Consumers' Council.
Dear Mr. Shea: — We are in receipt of your letter of August 19, 1964,
requesting an opinion concerning the legality of referral selling schemes
in Massachusetts.
Referral selling schemes are subject to c. 271, § 6A, entitled, "Endless
Chain Transactions Subject to Laws Relative to Lotteries." It reads as
follows:
"Whoever sets up or promotes a plan by which goods or anything of
value is sold to a person for a consideration and upon the further con-
sideration that the purchaser agrees to secure one or more persons to
participate in the plan by respectively making a similar purchase or
purchases and in turn agreeing to secure one or more persons likewise
to join in the said plan, each purchaser being given the right to secure
money, credits, goods or something of value, depending upon the number
of persons joining in the plan, shall be held to have set up and promoted
a lottery and shall be punished as provided in section seven. The supreme
judicial court shall have jurisdiction in equity upon a petition filed by
the attorney general to enjoin the fmther prosecution of any such plan
and to appoint receivers to secure and distribute the assets received
thereunder."
P.D. 12 109
The language of § 6A indicates a clear intent of the Legislature to
make referral selling a lottery and as such a crime against public policy.
The purpose of this statute, other than to avoid the corruption of
public morals, is to prevent the citizens of the Commonwealth from
being cheated and defrauded.
Recently, the Attorney General of Ohio rendered an opinion ruling
that referral selling is a lottery. He stated as follows:
". . . it is my opinion . . . that a plan whereby a dealer agrees to pay
a purchaser of an automobile ^ 100.00 upon the purchase of an automo-
bile under the same plan, by any individual whose name was first sub-
mitted by said original purchaser, and also to pay to said original pur-
chaser 150.00 upon the purchase of an automobile, under the same plan,
by 3 person whose name is first submitted by such individual referred to,
is a lottery. . . ."
I am inclined towards the same view.
Statutes similar to the Massachusetts statute have been enacted in Mis-
souri, Ohio, Arizona, Oklahoma and Indiana; and proposed in New York.
There is a concerted effort in all states to outlaw referral selling
schemes.
Accordingly, it is my opinion that refen^al selling schemes are illegal
in Massachusetts in violation of its lottery laws, specifically c. 271, § 6A.
Very truly yours,
Edward W. Brooke
October 1, 1964.
The owner of a sei'vient estate retains the use of his lands for all purposes
not inconsistent with effectuation of the stated purpose of the ease-
ment.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Re: Opinion on Roughan's Point, Revere Easements.
Dear Commissioner Fitzgerald: — Reference is made to your request
for my opinion concerning the right of the Department of Public Works
to:
1. Order removal of the fences located on the black top areas of your
1936 and 1939 easements at Roughan's Point, Revere; and
2. Order removal of the fence built over the sea wall at Roughan's
Point, Revere, pursuant to the aforesaid easements.
Your request states that the purposes of the easements were ". . . to
construct, repair, inspect, renew, replace and hereafter maintain . . ." rip
rap, a sea wall, a jetty and such black fill as was deemed necessary.
110 P.D. 12
Whether or not the fences complained of do in fact interfere with the
easements is a matter to be determined by you. The law in such a situa-
tion is well established and clear. The owner of a servient estate retains
the use of his lands for all purposes except such as are inconsistent with
the easement.
Ampagoomian v. Atamian, 323 Mass. 319.
Therefore it is my opinion that the owners of the servient estate are
entitled to make such use of their land as is not in your determination
inconsistent with the right and ability of the Commonwealth to effectuate
the stated purposes of the easements.
Very truly yours,
Edward W. Brooke
Acceptance of the nomination is required of a candidate whose name has
not appeared upon the state primary ballot, but who has received
sufficient write-ins and sticker votes to qualify for nomination. Ac-
ceptance filed with the clerk of a municipality is not an acceptance
wtihin the meaning of G. L., c. 53, § 3.
"Ineligibility" of a candidate does not result from his failure to file a
notice of acceptance after a primary victory.
The action of ward and town committee delegates to fill a vacancy caused
by a nominee's failure to file such notice of acceptance is a. nullity.
October 1, 1964.
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Mr. White: — I have received your letter of September 28, 1964,
relative to the candidacy of one Vincent J. MacDonald for Representative
in the General Covin from the Eighth Essex District. You have informed
me that Mr. MacDonald received a number of write-in and sticker votes
in the primary election held on September 10 sufficient to nominate him
as a candidate in the general election of November 3. Mr. MacDonald
filed no notice of acceptance of the nomination with the Secretary of the
Commonwealth, but did notify the City Clerk of Salem on September 10
that he was a sticker candidate for the office in question.
The candidate was apparently informed by your office that his failure
to file a notice of acceptance would prevent the printing of his name
upon the November ballot. Thereupon, a meeting of ward and town
committee members from the district was held — purportedly pursuant
to G. L. c. 53, § 14 — and Mr. MacDonald was selected as a candidate
to fill the vacancy that had been caused.
Accordingly, you have requested my opinion upon the following ques-
tions:
"1) Is the acceptance filed with the City Clerk of Salem to be honored
as an acceptance of nomination within the meaning of G. L. c. 53, § 3?
If not:
P.D. 12 111
"2) Does a meeting of delegates of the ward and town committees in
the district possess the right to fill a vacancy for nomination, on the
grounds that Mr. McDonald is therefore 'ineligible' within the meaning
of G. L. c. 53, § 14?"
Acceptance of nomination is required of candidates whose names have
not appeared upon primary ballots, but who have received sufficient
write-in and sticker votes to qualify for nomination. Such acceptances
are governed by G. L. c. 53, § 3, which provides in part as follows:
"A person whose name is not printed on a state, city or town primary
ballot as a candidate for an office, but who receives sufficient votes to
nominate him therefor, shall file written acceptance of the nomination
in the office of the state secretary within six days, or the city or town clerk
within three days, as the case may be, succeeding five o'clock in the after-
noon of the day of holding the primaries, otherwise his name shall not
be printed on the ballot at the ensuing election. . . ."
Since it is possible that a write-in primary winner may choose not to
accept a nomination which he may not have sought, it is essential that
the Secretary of the Commonwealth be informed whether such an indi-
vidual actually intends to run in the general election. A ballot must be
printed and distributed, and accordingly the Secretary must know within
a short time after the primary election exactly what names are to appear.
Mr. MacDonald's letter to the City Clerk of Salem informing him of his
sticker candidacy is not a notice of acceptance which meets the require-
ments of G. L. c. 53, § 3. A municipal clerk may be notified in the case
of a city or town election; but a nominee of a state primary must notify
the Secretary of the Commonwealth. Therefore, I answer your first ques-
tion in the negative.
General Laws c. 53, § 14 provides in part:
"If a candidate nominated for a state, city or town office dies before
the day of election, or withdraws his name from nomination, or is found
ineligible, the vacancy, except for city offices where city charters provide
otherwise, may be filled by the same political party or persons who made
the original nomination, and in the same manner; or, if the time is in-
sufficient therefor, the vacancy may be filled, if the nomination was made
by a convention or caucus, in such manner as the convention or caucus
may have prescribed, or, if no such provision has been made, by a regu-
larly elected general or executive committee representing the political
party or persons who held such convention or caucus. . , ." (Emphasis
supplied.)
Delegates from ward and town committees in Mr. MacDonald's district
have met — purportedly pursuant to the provision quoted above — to fill
the vacancy created by the candidate's failure to file a notice of acceptance.
It cannot be said that Mr. MacDonald was an ineligible candidate
within the meaning of G. L. c. 53, ^ 14. Ineligibility implies that an
individual could not have held the office which he sought. It may result
from failure to meet residence requirements, from lack of citizenship or
from other factors. But it does not result from failure to file a notice
of acceptance after a primary victory. Mr. MacDonald can lawfully hold
112 P.D. 12
the office of Representative in the General Court. His failure to meet a
preliminary requirement will prevent the printing of his name on the
ballot, but does not render him ineligible to hold the office within the
meaning of G. L. c. 53, § 14. In fact, Mr. MacDonald may still run a
sticker and write-in campaign, and — should he win the general election
— he will be eligible to hold the seat in question.
The requirement of notice of acceptance would mean little if candi-
dates could ignore it and then be placed on the ballot by action of a
committee. It is my opinion that Mr. MacDonald is not an ineligible
candidate, as that expression is used in the statute, and that the action
of the delegates in filling the vacancy is a nullity. Accordingly, I answer
your second inquiry in the negative.
Very truly yours,
Edward W. Brooke
A contribution by a state, county or municipal employee to a political
committee legally constituted in behalf of incumbent office holders
does not violate the provisions of G. L. c. 55, § 13.
October 27, 1964.
Hon. Alfred A. Gardner, Chairman, Massachusetts Crime Commission.
Dear Mr. Gardner: — I have received your letter of October 23, 1964,
wherein you refer to the $100 contribution made by you to the current
campaign of the incumbent Attorney General. You have requested an
advisory opinion as to whether such a contribution violates the provisions
of G. L. c. 55, § 13 — a section of the so-called "Corrupt Practices Act."
This law is an old one. Some of its provisions are ambiguous. Since its
provisions affect an enormous number of state, county and municipal
officials and employees, it is important that the statute's language, intent
and history be carefully examined.
General Laws, Chapter 55, § 13, provides as follows:
"No officer, clerk, or other person in the service of the commonwealth
or of any county, city or town shall, directly or indirectly, give or deliver
to an officer, clerk or person in said service, or to any councillor, member
of the general court, alderman, councilman or commissioner, any money
or other valuable thing on account of, or to be applied to, the promotion
of any political object whatever.
"Nothing in this section shall be construed to prevent any person
holding elective public office from contributing to a candidate or to an
elected or non-elected political committee.
"Violation of any provision of this section shall be punished by a fine
of not less than one hundred nor more than one thousand dollars." (Em-
phasis supplied.)
The first paragraph of §13, therefore, prohibits the giving of political
contributions to certain specified persons in the state, county or munici-
pal service.
P.D. 12 113
The second paragraph, added in 1954, limits the first by providing that
any person holding elective public office may lawfidly contribute to any
candidate or to any elected or non-elected political committee. This is
the only reference to a political committee in § 13.
The third paragraph provides a criminal penalty for violation of § 13.
The first paragraph of c. 55, § 13 became law for the first time in 1884,
(c. 320, § 9) in substantially its present form.
Political committees, and contributions to such committees, are men-
tioned in our statutes for the first time some eight years later, in Chapter
416 of the Acts of 1892. That Chapter authorized contributions to politi-
cal committees, and provided for the selection of a treasurer for every
such committee. Accounts of receipts and expenditures were required to
be kept and filed. The Legislature did not amend the aforementioned
1884 statute in 1892. It must therefore be assumed that the Legislature
did not intend the 1892 law to expand the effect of the earlier statute
in any way. Had the General Court intended to prohibit gifts to political
committees by a large class of citizens it could have and undoubtedly
would have expressly so provided in the 1892 Act, or, in the alternative,
by amending the 1884 statute, the precursor of c. 55, § 13.
But, the first paragraph of c. 55, § 13 has now been the law in this
Commonwealth for eighty years. At no time has it ever made reference
to political committees.
Chapter 55, § 13, the section in question, is part of a more complete
statutory framework providing for the regulation of contributions and
other political activity. Accordingly, other sections of the Corrupt Prac-
tices Act (Chapter 55 of the General Laws) may well aid in the inter-
pretation of § 13.
Section 6 of Chapter 55 regulates receipts and disbursements of political
contributions, and provides in part:
". . . any individual may make campaign contributions to candidates
or non-elected political committees; 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 thoa-and dol-
lars. . . ."
This section was reconsidered by the General Court and amended as
recently as the year 1962. Had the Legislature desired to restrict the
general authorization of gifts to political committees, such language could
easily have been expressly included.
Chapter 55, § 11, which specifically mentions contributions for political
purposes of any candidate or of any political committee, prohibits the
solicitation or receipt of political contributions by persons in the public
service, but exempts from these provisions all elected officers.
Chapter 55, § 14 provides: "No person in the public service shall,
for that reason, be under obligtiticn to contribute to any political fund,
or to render any political service, and shall not be removed or other-
wise prejudiced for refusing to do so." Violation is a criminal offense.
114 P.D. 12
A similar provision protecting officers and employees from retaliation
for failure to contribute is to be found in § 15.
The question that must be resolved is whether a state, county or politi-
cal employee can lawfully make a political contribution to a legally
constituted political committee.
In order to resolve this question, it is necessary to determine the leg-
islative intent not only at the time Chapter 55, § 13 was first enacted in
1884, but also at the subsequent times at which this statute has been
examined and amended by the General Court.
In my opinion the Legislature, in the sections mentioned above, clearly
intended to protect, and did protect, state, county and municipal officers
and employees from coercion in so far as the solicitation, contribution
and receipt of political funds are concerned. There can be no question
that § 13 of c. 55 was written into law to protect public employees from
political exploitation including coercion, intimidation, political black-
mail or "kickbacks".
The question may well be raised as to what protection the Legislature
has provided in so far as possible coercion or intimidation by a public
official of state, county or municipal officers or employees in order to
compel political contributions to legally constituted political commit-
tees is concerned.
The Legislature has considered this problem, and has enacted §§ 14
and 15 of Chapter 55, which sections protect the officer or employee from
retaliation for failure to make such political contributions.
It is significant that § 6 of Chapter 55 specifically provides that any
individual may contribute to a non-elected political committee organ-
ized on behalf of a candidate. The language of this section is unqualified,
clear and unambiguous.
There are some two hundred two thousand, three hundred (202,300)
state, county and municipal employees in Massachusetts as of September,
1964, according to the Massachusetts Division of Employment Security.
If the Legislature had intended to make a special class of these em-
ployees— if the Legislature had intended to prohibit campaign contri-
butions from them to legally constituted political committees — it would
have written such a prohibition into our law with unmistakable clarity.
The Legislature has not done so. And in my opinion there is a serious
question as to the constitutionality of any act which would deny such a
right to citizens solely on the basis of employment in the public service.
The first paragraph of § 13 of Chapter 55 restricts gifts "to an officer,
clerk or person in said service" only. The paragraph fails to include any
reference to gifts to legally constituted political committees. The fact
that the second paragraph mentions contributions to political commit-
tees demonstrates that the members of the General Court had such com-
mittees in mind when considering the statute in 1954, and could easily
have included them within the prohibitions of the first paragraph. Fail-
ure to do so must be construed as a legislative determination that gifts
to political committees were to be exempted from the provisions of
P.D. 12 115
§ 13, Chapter 55.
One section of a law cannot be construed in such a way as to render
other equally valid sections meaningless. As has been stated, §§ 14 and
15 of Chapter 55 were written into law with the clear purpose of pro-
tecting those in the public service from pressure for contributions by
their employers or appointing authorities.
These provisions of law would be manifestly unnecessary were § 13
of Chapter 55 to be interpreted as a blanket prohibiiton against all
political gifts by state, county and municipal employees. Rather, it ap-
pears that the Legislature intended that certain gifts, such as those to
political committees, be permitted, and consequently enacted §§ 14 and
15 of Chapter 55 in order to shield employees from official retaliation
for failure to contribute.
Section 13 of Chapter 55 does not prohibit gifts to political committees
with the clarity required of a penal statute. I am well aware that the
statute states that none of the specified persons shall give directly or
indirectly to an officer, clerk or person in said service. The words "directly
or indirectly" in my opinion are intended to refer to the mechanics of
making the gift. The fact that the Legislature placed the words "directly
or indirectly" immediately prior to the words "give or deliver" demon-
strates that the former words apply to the act of giving alone. It prohibits
state employees from contributing to a public office holder personally
or to a public office holder through an intermediary. It is not intended
to prohibit the receipt of gifts by political committees which are, by
law, required to keep detailed records and to report their receipts and
disbursements to the Secretary of the Commonwealth where they become
a matter of public record.
Political contributions to political candidates and on behalf of politi-
cal causes are important to our system of government, providing the
opportunity by which the private citizen can exercise his right to work
for good and responsible government. Persons in the public service are
especially sensitive to the necessity of financial support of the political
parties and candidates of their choice.
In my opinion the General Court never intended to enact a law which
would make it a criminal offense to contribute to political committees
legally constituted in behalf of incumbent office holders, while permitting
contributions to all other candidates. It would be arbitrary to make a
distinction between gifts made by persons in public service for the pur-
pose of re-electing an incumbent public official, and gifts made by the
same employees to the incumbent official's opponent. On the basis of
the statutory language I do not find that the General Court has made
such a distinction.
Section 13 of Chapter 55 of the General Laws is a penal statute which
must be construed strictly. Its provisions cannot be extended by mere
implication.
Commomuealth v. Paccia, 338 Mass. 4, 6.
Lustwerk v. Lytrol, Inc., 344 Mass. 647, 653.
116 P.D. 12
As our General Court has reviewed, re-studied and amended the Mas-
sachusetts Corrupt Practices Act, it has undoubtedly been mindful of
the federal government's experience in this field. The so-called "Hatch
Act" (U.S.C.A., Title 5, Sect. 118i, et seq.) which has been in effect since
1939 permits federal employees to make voluntary contributions to regu-
larly constituted political organizations.
For the reasons I have set forth at some length I therefore advise you
that it is my considered opinion that your contribution of $100 to the
political campaign of the incumbent Attorney General is not a violation
of Chapter 55, § 13 of the Massachusetts General Laws.
Very truly yours,
Edward W. Brooke
The prior approval of the Governor and of the Department of Education
is required to here expenses are to be paid for the care of emotionally
disturbed children at schools, or like institutions.
Hon. Owen B. Kiernan, Commissioner of Education.
October 29, 1964.
Dear Commissioner Kiernan: — In your letter of July 17, 1964, you
have asked for my opinion in determining whether, under the provisions
of St. 1960, c. 750 (G. L. c. 71, §§ 46H and 461), Dr. Jacques May is
entitled to be reimbursed for expenses incurred in caring for his twin
boys at the Parents' School for Atypical Children. The period of care
extended from July 1, 1963 to June 30, 1964. In your supplementary
letter of October 8, 1964 you state that the commitment of the May
children to the school has not received the approval of the department
or of the Governor.
Section 461, Par. 1 of c. 71 of the General Laws reads as follows:
"The department may, upon the request of the parents or guardians
and with the approval of the governor, send such emotionally disturbed
children as it considers proper subjects for education to any school, hos-
pital, sanatorium or like institution, within or Avithout the common-
wealth, affording remedial treatment for emotionally disturbed children
for terms not exceeding twelve years, under regulations prescribed by the
departments of education and mental health. The department may, upon
like request and with like approval, continue for longer terms the edu-
cation of any children therein who are meritorious pupils recommended
by the principal or other chief administrative officer of such school, hos-
pital, sanatorium or like institution."
As I interpret this statute, the prior approval of the Governor and of
the department is required in any situation where expenses are to be
paid for the care of emotionally disturbed children at schools, or like
institutions. The statute seems to contemplate that the act of "sending"
the child to the institution is to be the act of the department and not
of the parents; the words "The department may . . , send" would be
P.D. 12 117
nugatory if parents could be permitted to send children to schools and
tfien request reimbursement.
This interpretation of § 461 is strongly reinforced by the second sen-
tence of the fust paragraph, which provides that the department may
"continue" the education of a child after the expiration of the term for
^vhich he has been sent to a school. The use of the word "continue" in
this context implies that the original decision to send the child to school
was made and approved at an earlier time.
I note that under § 461 the Department of Education and Mental
Health are authorized to prescribe regulations implementing the statute.
If they have not already been adopted, it seems to me that the adoption
of such regulations woidd be helpful to the parents of disturbed children
and all other parties whom this statute affects. The procedure for adopt-
ing, such regulations is indicated in G. L. c. 30A, §§ 3, 5 and 6.
With respect to Doctor May's request for reimbursement for expenses
incurred in the 1963-64 period, I am of the opinion that the department
may not approve the request at this time.
Very truly yours,
Edward W. Brooke
The Director of Personnel and Standardization may require information
relative to prior experience of proposed appointees under the pro-
visions of G. L., c. 30, § 46(5A).
October 29, 1964.
Hon. Harry C. Solomon, M.D., Commissiojier of Mental Health.
Dear Doctor Solomon: — In your letter to this office you have asked
whether the Director of Personnel and Standardization is correct in re-
quiring certain information pertaining to the recruitment of professional
personnel under the provisions of § 46 (5 A) of c. 30 of the General Laws.
The requirement that this information be furnished was contained in
a bulletin dated May 13, 1964 issued by the Bureau of Personnel and
Standardization. The bulletin states that no request for a recruitment
rate under G. L. c. 30, § 46 can be considered unless it is set forth in
a letter to the Director of Personnel and Standardization. This letter is
expected to contain the following information relative to the prior expe-
rience of the proposed appointee:
" (a) Title of position or positions
(b) Salaries received
(c) Summar)' of duties of such position or positions
(d) Dates employed in such position or positions
(e) Name and address of each employer".
By St. 1966, c. 729, § 9 the Legislature enacted the present provisions
of G. L., c. 30, § 46 (5A). As evidenced by its title, the purpose of this
statute as a whole is to ". . . correct existing inequities in the salary pay
118 P.D. 12
plan of the Commonwealth and to systematically and economically reduce
[the] time required to reach maximum rate in salary schedule." The text
of the section relevant to this opinion appears below:
G. L. c. 30, § 46(5) and (5A):
" (5) The said director may, with the approval of the commissioner
of administration, permit the recruitment of employees at a rate above
the minimum, but not exceeding the maximum, of the job group salary
range for the class concerned; provided, however, that the said director
shall have first determined, upon request of the appointing authority,
that an emergency exists due to inability to fill positions. Any such per-
mit shall remain in effect until rescinded by the said director, but shall
not be in effect longer than one year unless renewed in like manner and
with like approval. Whenever the said director shall permit such recruit-
ment, all employees in the same class, being paid at a rate or rates below
such rate of recruitment shall be advanced to the said recruitment rate."
" (5A) The said director shall permit the recruitment of professional
personnel at a rate above the minimum and within the grade to which
the requested position is allocated upon certification of the appointing
authority that the person to be employed has served satisfactorily in a
comparable position for a period of time equivalent to the period re-
quired by the general salary schedule had such service been entirely in
the service of the commonwetalth. For the purposes of this paragraph,
professional personnel shall include, but shall not be limited to, registered
nurses and persons employed in medical or technical positions in hos-
pitals and clinics, including the administration thereof, persons employed
for the instruction of students, and engineers and chemists. Nothing in
this section shall be construed to limit the recruitment of personnel under
the provisions of section thirteen of chapter seventy-five." (Added by St.
1956, c. 729, § 9.)
It is apparent that the Legislature, in addition to the general purpose
discussed above, intended by means of these sections to enable state
agencies to attract qualified individuals to fill responsible positions in
government service. One criterion used by the Legislature to determine
an applicant's experience and qualifications is that the applicant must
have served in a position similar to the state job for a period equivalent
to that required by the general salary schedule if the employment had
been entirely for the Commonwealth.
It seems that, consistent with the purposes of this statute, the Director
may require the information Vv^hich he has requested. Without this in-
formation, his duties under G. L. c. 30, § 46 (5A) would be reduced to
a purely "ministerial" status in carrying out the orders of a requesting
agency. If he could not determine whether the previous experience of
the proposed appointee justifies the request to permit the recruitment
at a rate above the minimum, there would be little ? ?
(G. L. c. 30, § 46 (5 A).
In this regard the bulletin of May 13, 1964 from the Bureau of Per-
sonnel and Standardization asks nothing more than that the appointing
authority furnish a brief resume of the facts constituting such a proper
appointment under G. L. c. 30, § 46 (5A). Further, on the face of the
P.D. 12 119
bulletin there is no evidence that any other purpose was intended nor
does it appear that such a request would burden the orderly conduct
oi government which many times is seemingly hampered by unnecessary
clerical and administrative matters. Such a request is proper.
In light of this, it is my opinion that your office should furnish to the
Director of Personnel and Standardization the information which he has
requested in the bulletin circulated by that office.
Very truly yours,
Edward W. Brooke
In accordance with the provisions of St. 1957 , c. 616, if a building is re-
■ moved from the flood control area and relocated in a town other
than that from which it was retnoved, there would be a resultant tax
loss to the municipality wherein the building was previously situated.
October 30, 1964.
Hon. Malcolm E. Graf, Director, Division of Water Resources.
Dear Sir: — I have received your letter of September 2, 1964, relative
to the Thames River Valley Flood Control Commission and the compu-
tation of the tax loss with regard to buildings removed from land now
owned by the United States. You have requested my opinion on the
follo^ving questions:
" (1) If the owner retained title to a building which was later removed
to a new location, should the building be considered a tax loss?
" (2) If the Government acc]uired title to land and buildings and
later sold the buildings to others for removal to a new site, should the
building be considered a tax loss?"
The governing statue, Acts of 1957, c. 616, incorporates in our laws
the compact made between this Commonwealth and the State of Con-
necticut.
Article V of the compact provides that the State of Connecticut is "to
reimburse the C'ommonAvealth of Massachusetts forty per cent of the
amount of taxes lost to its political subdivisions by reason of acquisition
and ownership by the United States of lands, rights of other property
therein for construction in the future of any flood control clam and
reservoir . . . hereafter constructed by the United States in the Thames
River Valley in Massachusetts."
This compact deals with contemplated and actual losses in tax
revenues from "land or other property therein." The question arises
as to whether there is a tax loss to one of Massachusetts' "political sub-
divisions" when buildings are removed and relocated elsewhere. Build-
ings assessed and taxed by the municipalities of the Commonwealth
fall within the term "land or other property therein." Should a building
be removed from the flood control area and relocated successfully and
in substantially the same condition on another site within the same
120 P.D. 12
town, then assuming no damage to the building because of the physical
movement of it, it would continue on the rolls of the municipal assessor
and be taxed at substantially the same rate. On the other hand, the
situation may develop where a building is removed from the flood con-
trol area and relocated in a town other than that from which it was
removed. Such a building would be removed from the tax rolls of the
town where it was formerly located. In this instance there would be a
tax loss to the municipality wherein the building was previously situated.
The terms of the Thames River Valley Flood Control Compact state
that Connecticut will reimburse Massachusetts a percentage "of the
amount of taxes lost" as a result of the project. The phrase "tax lost"
is not elsevv^here elaborated on or given a more limited meaning. No-
where in the compact is a situation contemplated or provided for in which
one town might lose a building which another town might gain. There-
fore, it must be assumed that the intent of the compact in this regard
was to compensate forty per cent of the taxable losses resulting to the
municipalities with the flood control district.
The language of Article V, par. 1 can be read no other way. To do
otherwise would be to legislate where in fact the compact is silent. In
addition, the spirit of this compact which provides for a plan to take
Massachusetts land for dams and reservoirs in order to control flood
damage in Connecticut supports this view. The mutual protection from
loss or damage is manifest in Article I:
"The principal purposes of this compact are: (a to promote inter-
state comity among and between the signatory states; b) to assure ad-
equate storage capacity for impounding the waters of the Thames River
and its tribvitaries for the protection of life and property from floods."
The reimbursement for actual tax loss to a Massachusetts town is,
in my opinion, very much a part of the scheme as stated in Article I.
Very truly yours,
Edward W. Brooke
November 5, 1964.
Hon. Amos E. Wasgatt, Jr., Chairman, State Racing Commission.
Dear Mr. Wasgatt: —I have received your letter of October 29, 1964
relative to the granting of an additional racing date to the Taunton
Greyhound Association, Inc., (hereinafter referred to as the Association) .
You have informed me of the following relevant facts. The State Racing
Commission early in 1964 granted licenses to the Association for dog
racing meetings to be held at its property in Dighton from August 28,
1964 to September 12, 1964 and from September 21, 1964 to October 31,
1964, a total of fifty racing days.
On Wednesday, October 28, 1964, a power failure in the City of
Taunton left the race track without electricity, and forced cancellation
of the evening program after the completion of the third race. The
Association has now made application to the Commission for a license
P.D. 12 121
authorizing the holding of an additional evening of racing on November
2, 1964 as a substitute for the evening lost during the previous week.
In light of the above facts, you have requested my opinion on the
following four questions:
"1. Can the Commission accept the application of the Taunton Grey-
hoimd Association, Inc. for one day (November 2nd, 1964) to make up
for that part of the progiam of Wednesday, October 28th, 1964 which
^\•as cancelled. The Taunton Greyhound Association, Inc. conducted
three races on Wednesday, October 28th, 1964 before the electric power
failed?
"2. If the answer to the above question is in the affirmative can the
Commission grant the Taunton Greyhound Association, Inc. a license
for a full racing program of eleven (11) races on Monday, November
2nd, 1964, if it so decides to issue a license.
"3. In view of the fact that time is of the essence in this case can the
advertising of a public hearing to be published on Friday, October 30th,
1964 in the Taimton Daily Gazette and the holding of a public hearing
on Saturday, October 31st, 1964 in the town of Dighton be considered
as compliance with the provisions of Section 3, Chapter 128-A of the
General Laws, as most recently amended by Chapter 803 of the Acts of
1963.
"4. If it is proper for the Commission to accept the application of
Taunton Greyhound Association, Inc. for one day, November 2nd, 1964
and proceed to conduct a public hearing as outlined in (3) above— and
after due consideration is it proper for the Commission to grant and
issue a license to the Taunton Greyhound Association, Inc. for one day,
November 2nd, 1964 regardless of the provisions of Section 3, paragraph
(e) ."
The issuance of licenses for horse and dog racing meetings within the
Commonwealth is governed by sections 3 and 4 of c. 128 A of the General
LaAvs. Section 3 provides: "If any application for a license, filed as
provided by section two, shall be in accordance with the provisions of
this chapter, the commission, after reasonable notice and a public hearing
in the city or town wherein the license is to be exercised, may issue a
license to the applicant to conduct a racing meeting, in accordance with
the provisions of this chapter, at the race track specified in such appli-
cation. . . ." The section further states, in par. (e) , that "dog racing
meetings may be held only between the eighteenth day of April and
the thirty-first day of October, both dates inclusive, in any year." The
Commission may authorize in the aggregate no more than two hundred
dog racing dates in any one year, not including dog racing meetings to
be held at state and county fairs.
Section 4 of c. 128 A provides in part as follows:
". . . The commission may, upon application of any such licenses, and
upon the payment of the required license fees, grant an additional license
for not more than the number of days on which it was impossible or
impracticable to conduct racing, which days shall not be counted in the
aggregate of racing days permitted by paragraphs (f) , (g) and (j) of
122 P.D. 12
section three. The decision of the commission as to such impossibility
or impracticability shall be final."
Accordingly, discretion is vested in the State Racing Commission to
grant substitute dates to licensees who have been deprived of regularly
assigned dates by reason of circumstances beyond their control. The
Commission may grant or withhold such additional licenses as it sees fit,
and is to be the final judge of the question of the impossibility or
impracticability of conducting racing.
Because of the provision contained in c. 128 A, § 3 (e) to the effect that
dog racing meetings shall not be held in the Commonwealth after the
thirty-first day of October in any year, your fourth question becomes the
crucial inquiry, and I am taking the liberty of treating its subject matter
first.
It is obvious that § 3 (e) and § 4 of c. 128 A potentially are in conflict.
The Legislature has not indicated whether the right of the State Racing
Commission to grant substitute dates may be exercised only during the
period specified in § 3 (e) , or whether such right is unlimited in so far
as time is concerned. However, I do not believe that the General Court
would have enacted the provisions of § 4 unless those provisions were
intended to be used in appropriate situations. Section 4 contains no
indication that the granting of substitute dates is to be restricted to
the period from April 18 to October 31 in any year. Such a restriction
would make § 4 meaningless to the licensee whose regularly assigned
dates extend to October 31. Dates lost through no fault of such a
licensee could never be replaced; such a result clearly discriminates
against the licensee who happens to be assigned the latter part of the
Massachusetts racing season.
The provision found in § 3 (e) was, in my opinion, intended to pro-
hibit the granting of original licenses for the holding of racing meetings
after October 31. It should be noted that the section restricting racing
to the period April 18 to October 31 refers specifically to "dog racing
meetings." Section 4, on the other hand, authorizes the granting of
licenses for additional "days." Use of the word "meeting" would appear
to be intentional, and is designed to indicate that the terminus date of
October 31 is meant to apply only to the original granting of licenses
for a series of dates. A date granted as a substitute for one that has been
lost cannot be called a "meeting," and should not be considered to be
subject to the restrictions embodied in § 3 (e) .
The same conclusion to the question whether substitute dates may be
granted beyond the limitations of § 3 (e) was rendered by former At-
torney General Edward J. McCormack, Jr. in an opinion issued on
October 17, 1960 to the State Racing Commission. Therefore, in response
to your fourth inquiry, I advise you that it is within the discretion of the
Commission to grant the Taunton Greyhound Association a substitute
racing date on November 2, 1964. The decision as to whether such
additional date should in fact be authorized must of course be made
solely by the State Racing Commission itself.
In light of the affirmative response to your fourth inquiry, I will
briefly treat with the first three questions. The filing of applications
P.D. 12 123
for substitute racing dates is governed by c. 128y\., § 2, which provides
that "supplementary applications by a licensee for additional licenses
under section four of this chapter may be filed with the commission at
any time prior to the expiration of said year, and the commission shall
grant or dismiss such applications within thirty days of the date of filing."
As a result, applications submitted imder the provisions of § 4 must be
accepted by the Conmiission if filed before the end of the calendar year,
and must be acted upon within thirty days of the date filed.
Should the Commission decide to act favorably upon the application,
the Commission may in its discretion authorize the holding of a full
eleven-race card, or may choose to allow a smaller number of races. I
am aware of the fact that three races had been completed before the
remainder of the card of October 28 had to be cancelled. But nothing
appears in the statute which would force the Commission to deal in
fractions of days. The Commission may properly decide that the evening
of October 28 was— for all ])ractical purposes— lost, and may authorize
another full evening of racing as a substitute. The restriction that no
more than two hundred dog racing dates (excepting those held at state
and county fairs) shall be allowed does not limit the right of the Com-
mission to grant substitute dates in any way (see c. 128 A, § 4) .
Section 3 of c. 128 A requires the giving of reasonable notice and the
holding of a public hearing.
"If any application for a license, filed as provided by section two, shall
be in accordance with the provisions of this chapter, the commission,
after reasonable notice and a public hearing in the city or town wherein
the license is to be exercised, may issue a license to the applicant to
conduct a racing meeting, in accordance with the provisions of this
chapter, at the race track specified in such application. . . ." (Emphasis
supplied.)
The statute does not specify what type of notice of the public hearing
must be given. It requires only notice that is reasonable under the
circumstances. Since applications for substitute dates under § 4 must
frec{uently be acted upon quickly, extensive notice cannot always be
given. Should newspaper advertising be impracticable for some reason,
the posting of notices in public places will ordinarily be a permissible
substitute. Since application has been made for a substitute racing date
to be held on Monday, November 2, and time is of the essence, the Com-
mission will, in my opinion, comply with statutory requirements by
posting notices on Friday, October 30, and by holding a public hearing
with regard to the application on Saturday, October 31.
Very truly yours,
Edward W. Brooke
124 P.D. 12
Towns may pass by-laios for preserving peace and good order within their
limits.
There is no statutory imposition of duty on a fire chief and his depart-
ment regarding civil disturbances, or general offense against society,
but the police may request assistance in dispersing a riot from "all
persons there present" and this would include firemen who loere
present at the scene.
November 9, 1964.
Hon. Robert W. MacDonald, Commissioner of Public Safety.
Dear Mr. MacDonald: — I have received your letter of September 24,
1964, formalizing the request of the Fire Chief's Club for an opinion as to
whether or not the Fire Department has the obligation to send men or
equipment in response to requests they may receive to assist in the super-
vision of civil disturbances.
A Fire Chief is the foremost administrator and director of an entire
fire department. His powers and duties, as granted by statute, necessarily
are broad enough to fulfill the direction of the department's activity as
that activity is conceived of by the Legislature.
"He shall have and exercise all the powers and discharge all the duties
conferred or imposed by statute. . . He shall have full and absolute
authority in the administration of the department." (G. L. c. 48, § 42.)
Such broad authority is gianted to the Fire Chief so that he may dis-
charge the duty imposed on him by statute, namely, G. L. c. 48, § 42, as
follows:
"He shall have charge of extinguishing fires in the town and the
protection of life and property in case of fire."
While there is no statutory imposition of duty on a fire chief and his
department regarding civil disturbances, or general offenses against
society, § 88 of c. 48 specifically indicates the General Court's intention
that the activities of the Fire and Police Departments be separate and
distinguishable in nature.
"No city or town . . . shall require a permanent member of its fire
department to perform the duties of a police officer during his tour of
duty." (G. L. c. 48, § 88.)
The duties of police officers as distinguished from firemen do relate
to offenses against society. And since civil disorders, disobedience, and
riot clearly offend society as a matter of reason and law, our General
Court has devolved upon the police in the Commonwealth certain duties
and concomitant powers, among which are those relative to suppressing
and preventing disorders. In terms of the statute, "They [the police]
shall suppress and prevent all disturbances and disorder." (c. 41, § 98.)
However, in carrying out their statutory duty under G. L. c. 41, § 98,
the police may request assistance in dispersing a riot from "all persons
there present," (G. L. c. 269, § 1) and this would include firemen who
were present at the scene. In addition, the police may call for aid
pursuant to the provisions of G. L. c. 269, § 3:
P.D. 12 125
"If any persons who are so riotously or unlawfully assembled, and who
have been commanded to disperse, as before provided, refuse or neglect
to disperse without unnecessary delay, any two of the magistrates or
officers before mentioned may require the aid of a sufficient number of
persons, in arms or otherioise as may be necessary, and shall proceed, in
such manner as they deem expedient, forthwith to disperse and suppress
such assembly. . . ." (Emphasis supplied.)
Accordingly, once the police officers issue the command to disperse,
they may not only request but also require the assistance of persons.
This statute gives to the police officers who have commanded disperse-
ment a certain discretion to call upon a number of persons generally
whether they are "in arms or otherwise as may be necsesary." Presumably
firemen would fit within the broad classification of "persons" as that
word is used. Moreover, although fire hoses spraying a stream of high
pressure water are not armaments and hence within the definition of
"arms" as used in the statute, they are capable of inflicting great distress
upon the human body. Consequently, even if not technically "arms,"
fire hoses could be summoned and be within the language "in arms or
otherwise as may be necessary."
The specific question contained in your letter can be answered affirma-
tively when as noted certain conditions are met; namely, the police have
commanded an unlawful assembly to disperse, and have required as-
sistance. Any obligation the fire departments have under our General
Laws derive from a request from the police department. But it may be
possible that specific towns are able to and have passed by-laws more
directly imposing an obligation on the fire department to maintain peace
and order within the city or town.
The preservation of peace and order is of primary importance to the
various cities and towns of this Commonwealth. In this connection a
city's or town's power to preserve its own integrity as a government, not
inconsistent with the laws of the state or the state or federal consti-
tutions, is within the power to preserve public peace and order. Our
General Laws have gianted to cities and towns some authority to "make
such orders and by-laws, not repugnant to law, as they may judge most
conducive to their welfare. . . ." (G. L. c. 40, § 21.) Chapter 40, § 21
does not transfer to cities and towns the entire police power of the
Commonwealth and does not sanction the establishment of local policy
with regard to a matter of general concern. (Commonicealth v. Kimball,
299 Mass. 353.) But towns may pass by-laws for preserving peace and
good order within their limits. (P. S. 1882, c. 27, § 15.) Whether or
not various cities and tOAvns throughout the Commonwealth have passed
by-laws more directly imposing an obligation on fire departments to deal
with rioting, would appear to be a matter of interest to the Fire Chief's
Club of Massachusetts. With regard to this question and the variety of
by-laws that undoubtedly exist, I -would deem it helpful to the local
Fire Chiefs to consult with their respective town counsels in this regard.
Very truly yours,
Edw^ard W. Brooke
126 P.D. 12
Upon the effective date (December 4, 1964) of St. 1964, c. 740, the Gov-
ernor, acting alone, may approve the taking or purchasing of land
by the Department of Mental Health for the purposes set forth in
G. L. c. 123, § <?.
November 13, 1964.
Hon. Harry C. Solomon, M.D., Commissioner, Department of Mental
Health.
Re: Effect of voter limitation of powers of Executive
Council on Chapter 123, Section 8 (G. L.)
Dear Commssioner: — By letter dated November 4, 1964, you have
asked my opinion on the two questions set forth herein and in the
third paragraph of your letter.
The first question propounded by you is:
1. Does the action of the voters in approving the law appearing on
yesterday's ballot in Question :^5 permit the Governor alone, Avithout
approval of the Council, to approve taking or purchasing land by this
Department as provided in Section 8, of Chapter 123 of the General
Laws.
Section 8 of Chapter 123 of the General Laws provides in part:
"The department, subject to the approval of the governor, and council,
shall select the site of any new state hospital and any land to be taken
or purchased by the Commonwealth for the purposes of any new or
existing state hospital."
Question 5 of the referenda considered by the voters of the Common-
wealth on November 3, 1964 dealt with An Act Repealing Statutory
Poxvers of the Governors Council Which Interfere with the Efficient
Operation of the Executive Department of the Commonwealth, (here-
after referred to as "The Act") .
Section 3 of Article 48 of the Constitution of the Commonwealth pro-
vides in part:
". . . if it [The Act] shall be approved by a majority of the qualified
voters voting thereon, such law shall, subject to the provisions of the
constitution, take effect in thirty days after such election, or at such
time after such election as may be provided in such law. . ."
Section 4 of "The Act" provides:
"Subject to Section 2 of this Act and except as required by the Consti-
tution of the Commonwealth, so much of each provision of the General
Laws and of any special law as requires the advice and consent of the
Council with respect to any action or omission to act by the governor
or by any officer, agency, or instrumentality in the executive department,
including without limitation, any deposit, borrowing, loan, investment,
endorsement, validation, surety or bond, or any lease, license, purchase,
acquisition, sale, conveyance, disposition or transfer, or any contract or
other agreement, or any permit or license, or any rules or regulations, is
hereby repealed."
P.D. 12 127
"The Act" was approved by a majority of the qualified voters of the
Commonwealth, voting thereon, on November 3, 1964 under the pro-
visions of Section 3 of Article 48 of the Constitution of the Common-
wealth.
The following language of Section 4 of "The Act" is applicable to
Section 8 of 123:
". . . so much of each provision of the General Laws ... as requires
the advice and consent of the council with respect to any action ... by
any . . . agency or instrumentality in the Executive Department, including
without limitation, any . . . purchase, acquisition, sale, conveyance . . .
or transfer ... is hereby repealed."
That language deletes from Section 8 of Chapter 1 23 (G. L.) the words:
". . . and Council . . ." so that on the effective date of "The Act" said
Section 8 shall read as follows:
"The department, subject to the approval of the governor, shall select
the site of any new state hospital and any land to be taken or purchased
by the Commonwealth for the purposes of any new or existing state
hospital."
It is my opinion that upon effective date of "The Act," the Governor,
acting alone, may approve taking or purchasing of land by the Depart-
ment of Mental Health for the purposes set forth in and under the
provisions of Section 8 of Chapter 123 of the General Laws.
The second question propounded by you is:
2. If the answer to question :+;tl is in the affirmative what is the
effective date of the approved statute repealing the statutory powers of
the Governor's Council, and what is the earliest date His Excellency
the Governor could act on a request made by this Department as pro-
vided by Section 8, Chapter 123, of the General Laws?
Nowhere in "The Act" is there a specific provision designating the
effective date thereof. The absence of such language was provided for
by that portion of Section 3 of Article 48 of the Constitution of the
Commonwealth, quoted above.
Based upon the assumption that the unofficial results of the November
3rd election as they relate to "The Act" are in due course officially cer-
tified, it is my opinion that the provisions of The Act Repealing Statutory
Powers of the Governor's Council Which Interfere with the Efficient
Operation of the Executive Department of the Commonwealth shall be-
come effective on 12:01 a.m., December 4, 1964.
Very truly yours,
Edw^ard W. Brooke
128 P.D. 12
A contractor is not entitled to additional compensation for damages
caused by a hurricane or other unusually sexjere storm prior to the
completion and acceptance of the project. The contractor must re-
build, repair, restore and make good, at his own expense, any work
performed which is damaged or destroyed in such manner.
November 20, 1964.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Dear Commissioner: — You have requested an opinion as to whether,
under Article 60 of the Massachusetts Standard Specifications for High-
ways and Bridges, a contractor must rebuild, repair, restore and make
good, at his own expense, any work performed thereunder which is
damaged or destroyed by a hurricane or other unusually severe weather.
Substantially the same question was asked by Commissioner Jack P.
Ricciardi in July, 1963. On the basis of Articles 60 and 74D of the
Standard Specifications for Waterways and the cases of Boyle v. The
Agawam Canal Co., 22 Pick. 381, and Adams v. Nichols, 36 Mass, 275, I
replied on July 16, 1963 that a contractor is not entitled to additional
compensation for damage caused by a hurricane. A copy of said opinion
is herewith enclosed.
Articles 60 and 74P of the Standard Specifications for Highways and
Bridges are identical to those referred to above. In addition to the
portions quoted in the July 16, 1963 opinion, I should like to call to
your attention the following language of Article 60:
"The Contractor shall rebuild, restore and make good, at his own
expense, all injuries or damages to any portion of the work occasioned
by any of the above causes before the completion of the work and the
acceptance of the contract."
The case of Boyle v. Agawam, supra, answers the question set forth in
your letter. The following case is also analogous particularly in view
of the language used in Article 60 of the Standard Specifications. In
Rowe V. Peabody, 207 Mass. 226, the plaintiff agreed to construct a tunnel
thirty inches in diameter by the use of timber props. After work had
begun, the plaintiff encountered such serious difficulties because of the
nature of the soil that construction pursuant to the terms of the contract
was almost impossible. The plaintiff thereupon abandoned its con-
tract, whereupon the City of Peabody had the tunnel completed at a cost
of $47,805.12 in excess of the contract price. In denying the plaintiff
this sum in its action for breach of contract, and in allowing the city
to recoup said sum, the Court stated at pages 233 and 234:
". . . 'where there is a positive contract to do a thing, not in itself
unlawful, the contractor must perform it or pay damages for not doing
it, although in consequence of unforeseen accidents the performance of
his contract has become unexpectedly burdensome or even impossible.' . , .
"But they chose to make their agreement an absolute one, and the
court cannot relieve them from the bargain which they saw fit to
make. . . .
P.D. 12 129
"We are clearly of opinion that these contractors were not excused
from the performance of their agreement by reason of its alleged im-
possibility, but that they were bound either to accomplish what they had
promised to do or to respond in damages for their failure."
On the basis of the foregoing discussion I wish to reaffirm my position
that under the facts as you have presented them a contractor is not en-
titled to any compensation for damage caused by a hurricane or other
unusually severe stonn, prior to the completion and acceptance of the
project. I answer your question in the affirmative.
Very truly yours,
Edward W. Brooke
I?i vieiv of the qualifications required for a position and the duties thereof,
the trustees of State Colleges may properly classify a Business Man-
ager as a professional and thereby remove the position from the
jurisdiction of the Division of Civil Service.
November 25, 1964.
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Sir: —I have received your letter of September 16, 1964 request-
ing an opinion about the ability of the Board of Trustees of State Colleges
to classify a Business Manager as a professional and thereby remove the
position from the jurisdiction of the Division of Civil Service. As you
have written, the question arises since the Division of State Colleges has
recently created the position of Business Manager. You have referred
me to the relevant statutes.
If the position of Business Manager is within the jurisdiction of civil
service, then it must be because that position is "non-professional."
"The non-professional personnel of the colleges shall continue as state
employees under the provisions of chapter thirty. . . ." (G. L. c. 73, § 16.)
And if there is a newly created non-professional position within the
Division of State Colleges, then, as you have indicated, the Director of
Civil Service does have certain statutoi^y duties.
"The director of personnel and standardization shall establish, ad-
minister and keep current and complete an office and position plan and
a pay plan of the commonwealth.
" (1) In pursuance of such responsibilities as to the said classification
plan, the said director shall classify all appointive offices and positions in
the government of the commonwealth. . . ." (G. L. c. 30, § 45.)
On the other hand, the Trustees of the Board of State Colleges have
been given some statutory discretion pursuant to G. L. c. 73, § 16 relative
to appointment, promotion and reclassification of the professional staff.
"The trustees shall have complete authority with respect to the election
or appointment of the professional staff including terms, conditions and
130 P.D. 12
periods of employment . . . classification and reclassification. . . ." (G. L.
c. 73, § 16.)
The General Court has clearly drawn the lines of authority. The
Trustees of the Division of State Colleges are obliged to classify such
persons in the employ of the division within their jurisdiction.
The question arises: is the determination of the Division of State
Colleges correct that a Business Manager is a professional man and
thereby removed from the provisions of G. L. c. 30? Mr. Francis X.
Guindon's letter of July 17, 1963 to you indicates that the Division is
seeking a man qualified at least in part by having earned a master's and
a bachelor's degree. Such qualifications as well as the title Business
Manager seem to indicate that the business manager will not function in
a clerical capacity. The language of G. L. c. 73, § 16 clearly defines
"professional staff" as being those employees who are involved in ad-
ministrative work as distinguished from clerical or similar duties. "Pro-
fessional staff" is defined as being composed of "all persons except those
whose duties are clerical. . . ." (G. L. c. 73, § 16.)
In view of the qualifications required for the position and the duties
thereof as outlined by the Trustees of the Division of State Colleges,
it is my opinion that the position of Business Manager may properly
be classified within the professional staff.
Very truly yours,
Edward W. Brooke
It is within the discretion of the State Racing Commission to grant a sub-
stitute racing date to a licensee who has been deprived of regularly
assigned dates by reason of circumstances beyond his control.
Where time is of the essence, the Commission will comply with statutory
requirements regarding advertising by posting notices and by holding
a public hearing prior to proposed date of substitute meeting.
Where a patient appeals his transfer by the Department of Mental Health
from Boston State Hospital to Bridgewater State Hospital, under
the provisions of c. 123, § 20, the request for hearing under that
section should be made to a justice of the Superior Court, or a judge
of probate for Suffolk County, or a justice of a district court in Suf-
folk County (other than the Municipal Court of the City of Boston),
all of whom are given jurisdiction of original commitments under
G. L. c. 123, § 50.
November 25, 1964.
Hon, Harry C. Solomon, M.D., Commissioner of Mental Health.
Dear Doctor Solomon: — You have asked my opinion as to what
court a patient may appeal his transfer by the Department of Mental
Health from Boston State Hospital to Bridgewater State Hospital, under
the provisions of G. L. c. 123, § 20.
You state that the patient in question was originally committed to
Grafton State Hospital by the West Roxbury District Court under G. L.
P.D. 12 131
c. 123, § 100 on July 15, 1963, and was transferred by the department to
Boston State Hospital on September 10, 1963, under the same commit-
ment.
On August 13, 1964, the department ordered the patient's transfer to
the Bridgewater State Hospital under the provisions of § 20 of c. 123 of
the General Laws.
He was notified of his right to appeal, and signified that he desired a
court hearing upon the order. His request was transmitted to the Suffolk
County Probate Court and then to the West Roxbury District Court.
Each court, in turn, indicated that it did not consider that it had juris-
diction in the matter.
General Laws c. 123, § 20 deals generally with transfers of patients
from one institution to another by the Department of Mental Health.
It^ final paragraph deals specifically with transfers to Bridgewater State
Hospital. It reads as follows:
"On the request of a superintendent of any state hospital, the com-
missioner may transfer to the state hospital division at Bridgewater any
male patient who has made two or more attempts to escape, or whose
conduct has been such as to render him dangerous to other patients or
the personnel of the hospital or school. In considering such application,
the commissioner or an assistant commissioner shall personally visit and
examine the patient. A transfer to Bridgewater state hospital shall not
in any way interfere with the patient's rights for discharge under this
chapter. Except in emergency cases, written notice must be given to the
patient and to his nearest relative or guardian of the department's inten-
tion to transfer him to Bridgewater state hospital at least three days
before such transfer. The notice shall contain a statement that the patient
has a right to appeal this decision to the commissioner and a right to a
hearing in a court in regard to such transfer. Such request for a hearing
must be filed with a court having jurisdiction over original commitments
under sections fifty and fifty-one. The court shall hear and determine
whether or not the department is justified in making the transfer under
this section. The procedure for such hearing shall be the same as in an
original commitment hearing under said section fifty-one of this chapter.
If the department determines that an emergency exists, it may make the
transfer to Bridgewater forthwith, but shall give such notice as hereunder
required within twenty-four hours of such transfer, and the patient's
rights to a hearing shall be the same as above stated. If the court deter-
mines that the department is not justified in making the transfer it shall
order the patient returned to the original state hospital or hospital
school."
The clear intent of this paragraph is two-fold: to isolate dangerous
patients, and to protect fully all rights of such patients by special pro-
vision for a court hearing on appeal. Such appeal is to be filed and heard
in "a court having jurisdiction over original commitments under sections
fifty and fifty-one."
This language is clear and unequivocal. It does not refer to the court
having original jurisdiction of the particular commitment under which
the patient is held, but to a court having jurisdiction of commitments
under sections fifty and fifty-one.
132 P.D. 12.
Section 20 does not make any specific reference to patients committed
under § 100. It refers to "any male patient." In my opinion this means
what it says, and is not limited to commitments under § 51. To so limit
the section would defeat one of the major purposes of the paragraph,
which is to protect other patients by removing dangerous individuals
from their midst.
It would further appear that the sole question to be determined by
the court on such an appeal is whether "the department is justified in
making the transfer under this section." (§ 20.)
The criteria for determining this are the same regardless of the circum-
stances under which the patient was committed, depending on his con-
duct in the institution.
For these reasons it is my opinion that G. L. c. 123, § 20 applies to the
situation you have described and that the request for hearing under said
§ 20 should be made to a justice of the Superior Court, or a judge of
probate for Suffolk County, or a justice of a district court in Suffolk
County (other than the Municipal Court of the City of Boston), all of
whom are given jurisdiction of original commitments under G. L. c. 123,
§50.
Very truly yours,
Edward W. Brooke
The Metropolitan District Commission alone is authorized and directed
to construct and maintain the bridge noted in St. 1964 c. 682 of the
Acts of 1964.
The Commission may not lawfully enter into an inter-agency agreement
whereby it redelegates the decision-making power or the actual re-
sponsibility for performance.
November 30, 1964.
Hon. Robert F. Murphy, Commissioner, Metropolitan District Com-
mission
Dear Commissioner Murphy: — I have received your letter of Octo-
ber 19, 1964, which relates to the proposed construction of a high level
bridge from Leverett Circle in the City of Boston to the Mystic River
Bridge in the City Square area of Boston's Charlestown District. The
matter is governed by c. 682 of the Acts of 1964, which Act is entitled
An Act directing the metropolitan district commission to coyistruct and
maintain a high level bridge over the Charles river from Leverett circle
to the vicinity of City Square in the city of Boston, and authorizing the
Massachusetts Port Authority to construct certain connections thereto'
and to contribute to the cost thereof.
You have informed me that at this time no money has been appropri-
ated by the Legislature to defray the cost of construction. The Massa-
chusetts Port Authority has proposed that the Metropolitan District Com-
mission enter into an inter-agency agreement with the Authority to select
and to hire a consulting engineer to design the bridge in question. The
P.D. 12 133
engineer would be engaged with funds already available to the Authority,
and would presumably be under the Authority's control and jurisdiction.
In light of the provisions of c. 682 of the Acts of 1964, you have re-
quested my opinion as to the following:
"1. The legal right of the Commission to enter into this inter-agency
agreement with the Authority in view of the language of Chapter 682 of
the Acts of 1964, which places resjoonsibility for the construction of the
bridge in the hands of the Metropolitan District Commission, and
"2. Whether the entire project, including the hiring of a designer
(consulting engineer), as well as the proposed bridge's construction, is
vested solely in the hands of the Commission under the provisions of
the Act."
St. 1964, c. 682 provides in part as follows:
tlie rtictropolitan district commission ... is hereby authorized
and directed to' construct and maintain a high level bridge over the
Charles river from Leverett circle . . . to . . . the vicinity of City Square
in the Charlestown district . . . together with the necessary approaches
thereto. . . . The authority is hereby authorized to construct and main-
tain, as a southerly extension of the Mystic River bridge, such connec-
tions betAveen the Mystic River bridge and said high level bridge and
such other ways in the area in the vicinity of the present southerly end
of said bridge, as may be necessary or desirable. . . ." (Emphasis supplied.)
The statute further provides that there shall be an agreement between
the Metropolitan District Commission and the Massachusetts Port Author-
ity that the Authority shall pay to the Commission half the cost of con-
struction of the bridge, if the total cost does not exceed three million
dollars. Should total construction costs exceed the figure of three mil-
lion dollars, the Authority shall agree to reimburse the Commission
for that part of the total construction cost which exceeds one and one-
half million dollars.
The Metropolitan District Commission itself is authorized to spend
such sums as may be appropriated for the project, such expenditure not
to exceed one and one-half million dollars. The Commission may in addi-
tion expend whatever federal funds may be obtained for the purpose, as
\vell as the sums contributed by the Massachusetts Port Authority under
the provisions described above. The Commission may take by eminent
domain or otherwise acquire whatever property may be necessary for
completion of the project, and may apply for and use whatever federal
assistance may be available.
Since the answer to your first inquiry depends upon the response to
the second question, I am taking the liberty of treating the latter subject
matter at the outset. St. 1964, c. 682 clearly distinguishes between the re-
sponsibilities of the Metropolitan District Commission and those of the
Massachusetts Port Authority. The Commission is authorized and directed
by § 1 of the chapter to construct and maintain the bridge in question.
Construction and maintenance of necessary or desirable connections is
left to the Massachusetts Port Authority. The statute does not indicate
that the duties are to be shared in any way; authorization and responsi-
134 P.D. 12
biliy are instead carefully determined and assigned. Even the title affixed
to the chapter retains the distinction between the duties to be performed
by the two agencies.
Provision is admittedly made for the Massachusetts Port Authority to
share the construction cost of the bridge; in fact, under the statutory
provisions the Authority could conceivably contribute more to the cost
of the bridge than the Commission itself. An agreement binding the Au-
thority to contribute its share must be signed before the Commission
may lawfully expend funds for the project. But nothing in the law gives
the Authority any control over the project, notwithstanding the large
sum of money it may well pay before the bridge is completed. The Met-
ropolitan District Commission alone is authorized and directed to main-
tain the bridge, and this responsibility is not — under the terms of St.
1964, c. 682 — limited or shared.
Accordingly, in response to your second inquiry, it is my opinion that
the General Court has vested control of that part of the project which
involves the building of the high level bridge solely in the Metropolitan
District Commission, and has left to the Massachusetts Port Authority
control over construction of the so-called connections only. Hiring of a
designer for the proposed bridge is an integral part of the task of con-
struction, and therefore must — under the statute — be the responsibility
of the Commission.
The question arises, therefore, whether — in view of the fact that re-
sponsibility for construction of the bridge is entirely in the hands of the
Metropolitan District Commission — the Commission may lawfully enter
into the inter-agency agreement described in your request. The effect of
this agreement would be to allow the Port Authority to select and pay
for a designer, and to exercise control and supervision over him.
An agency has only those powers actually conferred by its governing
statute, or which are reasonably necessary to accomplish the purposes
of the statute.
Scannell v. State Ballot Law Commission,
324 Mass. 494, 501
When the Legislature has itself delegated a particular function to an
agency, that agency may properly exercise whatever powers may reason-
ably be necessary to perform such function. It may hire employees, and
may assign them tasks of a ministerial, clerical or even investigative na-
ture. But it cannot re-delegate the actual responsibility for performance.
Attorney General v. Trustees of Boston Elevated
Raihvay Co., 319 Mass. 642, 654-655
A re-delegation of the decision-making power is unlawful as an exer-
cise of governmental power without legislative authority.
"I think there is no escape from the principle that public officers who
have duties imposed upon them by law must perform those duties, and
persons who do not have duties imposed upon them by law are not au-
thorized to perform the duties imposed upon others."
5 Op. Attorney General, 1920, pp. 628, 629
P.D. 12 135
Selection of a designer for ihe proposed bridge is in my opinion an
important part of the construction project. It is not the kind of minis-
terial work which can lawfully be re-delegated. It becomes all the more
apparent that abdication by the Metropolitan District Commission of
its responsibility for such selection is unjustified, since it is proposed that
the Port Authority is not only to supervise selection of the designer but
is also to exercise control over his work.
The General Court has indicated that it expects the two agencies in-
volved to enter into an agreement regulating contributions to the cost
of construction. It has also j^rovidcd in § 5 of the Act that the Commis-
sion may cxercsie its normal powers and may enter agreements as provided
by chapters twenty-eight and ninety-two of the General Laws. None of
these powers are applicable to the present matter. The statute is silent
as to other agreements, and accordingly I find that other agreements
are not authorized.
The fact that the Legislature has yet to appropriate funds for construc-
tion does not give the Commission authority to seek those funds else-
where. Rather, failure to pass an appropriation would indicate that the
General Court is not at present willing to have the project begin. Once
an appropriation is made and the Commission commences operations,
the Commission may of course consult with the Authority on any issue.
Final decisions must however be made by the Commission alone, and
may not be shared with any other person or agency. In view of the pro-
visions of c. 682 of the Acts of 1964, and for the reasons given above, it
is my opinion that the Metropolitan District Commission may not law-
fully enter into the inter-agency agreement described in your request.
Very truly yours,
Edward W. Brooke
The person occupying the position of Secretary to the Public Works Com-
mission may be removed only by the specific procedure outlined in
G. L. c. 30, § 9, by the Governor for cause.
December 1, 1964.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Dear Sir: — In your letter of November 18, 1964, you have asked my
opinion concerning the following questions pertaining to the position of
Secretary to the Public Works Commission:
"1.) Is the removal procedure provided by General Laws, Chapter 30,
Section 9 applicable to the position of Secretary to the Public Works
Commission, created by Section 4 of Chapter 16 as it appears in Chapter
821 of the Acts of 1963.
"2.) Is the tenure of an incumbent of the position of Secretary to the
Public Works Commission coterminous with the term of the Governor
who appointed him or does the tenure of the Secretary continue there-
after with the benefits of General Laws, Chapter 30, Section 9."
136 P.D. 12
The Department of Public Works was reorganized under the provisions
of St. 1963, c. 821 by amending c. 16 of the General Laws. Under § 1 of
that chapter, a public works commission was created comprised of five
members appointed by the Governor with the advice and consent of the
Council. One of the five is designated "the Commissioner of Public
Works." Each commissioner serves a term of five years. Since each member
is appointed by the Governor with the advice and consent of the Council,
each member may be discharged during his term only in accordance with
G. L. c. 30, § 9, by the Governor for cause with the advice and consent
of the Council.
G. L. c. 16, §1
"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
governor, with the advice and consent of the council. Upon the expira-
tion of the term of each member his successor shall be appointed, in like
of five years. . . ."
The employees in the Department of Public Works are directly under
the supervision of the commissioner and he may appoint or discharge
any of these employees. This power is not unrestricted, however. It is
subject to certain qualifications and exceptions. All employees who are
members of the civil service may be appointed, promoted or removed
only in accordance with c. 31. Similarly, where there are provisions of
the General Laws other than the civil service sections which provide a
specific appointment or removal procedure, the commissioner may not
employ or discharge an employee contrary to such section.
G. L. c. 16, § 4
"The commissioner shall appoint and may remove all employees in
the department under the public works commission. Unless otherwise
provided by law, all such appointments and removals shall be done in
accordance with chapter thirty-one. From time to time the commissioner
may, subject to appropriation and regulation, employ such consultants
as he may deem necessary."
Besides the qualifications described above, certain exceptions also exist.
In § 4, itself, a maximum of twelve employees may be appointed and
removed without regard to c. 31. In § 5 (b) the commissioner may appoint
a hearing examiner with the approval of the Governor and he may be
removed for cause in the same manner.
In the case of the Secretary to the Commission, the power of the com-
missioner is more than limited or restricted. The office itself is provided
for not in § 4 but in § 5. The whole employment process is taken com-
pletely out of the hands of the commissioner. The Secretary is appointed
by the Governor with the advice and consent of the Council. Being ap-
pointed in the same manner as the commissioners themselves, he may be
removed only by the specific procedure outlined in G. L. c. 30, § 9 —
"bv tlie Governor . . . for cause."
P.D. 12 137
Unlike the commissioners, however, there is no provision in c. 16 as to
the Secretary's term. There is no basis, then, on the face of this chapter
which would support the contention that the Secretary's term is co-
terminous with the Governor. Such a provision making the term of the
Commissioner of Administration and Finance coterminous with the Gov-
ernor appears in G. L. c. 7, § 4. This section should be compared with
§ 5 of c. 16.
G. L. c. 7, § 4
"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 twenty thousand
dollars per year as the governor may determine, and shall devote his full
time, during business hours to the duties of his office. . . ."
G. L. c. 16, § 5
"The commissioner shall have a secretary, appointed by the governor
with the advice and consent of the council, who shall receive a salai-y of
twelve thousand dollars. The secretary shall have the duty and responsi-
bility of keeping the minutes of the commission, shall have custody of the
official documents and papers of the commission and of the department,
and of the official seal of the commission, of which judicial notice shall
be taken."
Had the Legislature intended a different result, such as one similar
to that applicable to the Commissioner of Administration, it would have
done so by clearly stating its intention in this statute. No such inten-
tion appears. There being no provision reflecting such specific intention,
reference must again be made to G. L. c. 30, § 9. Under that section the
Secretary may be discharged and his term ended when it is established
that there is sufficient cause for his removal.
Inasmuch as the Secretary to the Commission is appointed by the Gov-
ernor with the advice and consent of the Council, a question arises about
the effect of c. 740 of the Acts of 1964, the initiative petition to curb
some of the statutory powers of the Council. When it has been officially
determined that the said c. 740 has been approved in accord with Amend.
Art. 48, Pt. 5, § 1 of our State Constitution, the Governor may then ap-
point and remove for cause in conformity with G. L. c. 30, § 9.
It is therefore my opinion that the Secretary to the Commission may
be removed only by the Governor for cause following the effective date
of c. 740 of the Acts of 1964. The Secretary's term is not coterminous
with the Governor's but may be ended only where sufficient cause is es-
tablished for his removal.
Very truly yours,
Edward W. Brooke
138 P.D. 12
The Deputy Registrar of Motor Vehicles is authorized to exercise all
the powers and duties of the Registrar until a Registrar is duly
qualified, and he may delegate to individuals who hold positions
under G. L. c. 90, § 29, the performance of any duty imposed upon
the Registrar by any provision of c. 90.
December 4, 1964
Mr. Robert C. Capasso, Deputy Registrar of Motor Vehicles.
Dear Mr. Capasso: — I have your request wherein you pose the
following two questions:
"1. May the Deputy Registrar who is exercising the powers and duties
of the Registrar under the provisions of General Laws, Chapter 16, Sec-
tion 9, delegate to individuals who hold positions under Chapter 90,
Section 29, the authority to certify records of the Registrar as provided
under General Laws, Chapter 90, Section 30?
2. May the Deputy Registrar who is exercising the powers and duties
of the Registrar under the provisions of General Laws, Chapter 16, Sec-
tion 9, delegate to individuals who hold positions under General Laws,
Chapter 90, Section 29, the performance of any duty imposed upon the
Registrar by any provisions of this chapter (Chapter 90)?"
I will treat with your questions in the order presented.
Chapter 16, Section 9 of the General Laws in part provides:
"In the event of a vacancy in the office of registrar, his powers and
duties shall be exercised and performed by the deputy registrar until
a registrar is duly qualified."
Accordingly, when there is a vacancy in the office of Registrar, his
powers and duties are exercised by the deputy. The Legislature did
not see fit to include any restrictions on this delegation of authority
and it is my opinion that the section clearly intends to bestow on the
deputy all the powers and duties of the registrar, including those powers
and duties vested in the Registrar under Sections 29 and 30 of the
General Laws.
An examination of the records at the Secretary of State's office reveals
that on June 12, 1963 former Registrar James R. Lawton appointed
E. Theodore Gunaris as Deputy Registrar of Motor Vehicles.
It is therefore my opinion that Deputy Registrar Gunaris is authorized
to exercise all the powers and duties of the Registrar until a registrar
is duly qualified, thus answering your first question in the affirmative.
From the above discussion, it is clear that the answer to your second
inquiry is in the affirmative.
Very truly yours,
Edward T. Martin
Deputy Attorney General
P.D. 12 139
The term "office" as used in G. L. c. 51 %25, does not automatically in-
clude all positions filled by governmental personnel, and said section
does not indiscriminately prohibit all governmental employees from
serving as registrar of voters.
December 8, 1964
Hon. Kevin H. White, Secretary of the Commonwealth.
Dear Mr. White: — I have received your letter relative to the statu-
toi7 prohibition against appointment of federal, state or municipal
officers as registrars or assistant registrars of voters. This prohibition
is contained in G. L. c. 51, § 25, which provides in part as follows:
"No person shall be appointed a registrar or assistant registrar who
is not a voter of the city or town for which he is appointed, who holds
an office in the city or town for which he is appointed either by election
or by direct appointment of the mayor or of the selectmen or of a city
manager or town manager, or who holds an office by election or appoint-
ment under the government of the United States or of the common-
wealth, except as a justice of the peace, notary public, or officer of the
state militia. The acceptance by a registrar or assistant registrar of any
such office shall vacate his office as registrar or assistant registrar." (Em-
phasis supplied.)
You have informed me that a member of the Board of Registrars of a
particular town is also a permanent employee of that community's
Department of Public Works. The legality of such a situation has been
questioned in light of the statute quoted above. Accordingly, you have
requested my opinion on the following inquiries:
"1. Does the word 'office' as used in the cited section prohibit any
employee of a town from serving as a member of the board of registrars?
"2. Is the word 'office', as used in the cited section, to be limited to
public office in the town, whether elected or appointed, as distinguished
from mere employment in the town such as civil service, clerk, or public
service employee?"
The word "office" has traditionally been given a specialized meaning,
and an "officer" of a municipality or other governmental unit has always
been distinguished from an employee or an independent contractor. A
governmental position which is designated as an "office" connotes a
certain term or duration, a fixed salary and specified emoluments. Powers
and duties of the office will generally be fixed by law; but the incumbent
official ordinarily is vested with at least some discretion to determine
how such powers shall be exercised and in what manner such duties shall
be carried out.
"An office is a public station conferred by the appointment of govern-
ment. The term embraces the idea of tenure, duration, emolument and
duties fixed by la^v. Where an office is created, the law usually fixes its
incidents, including its term, its duties and its compensation."
Metcalf V. Mitchell, 269 U. S. 514, 520
Creation of an office involves delegation by the Legislature of some of
the sovereign powers and functions. There is an importance and dignity
140 P.D. 12
to an office which does not attach to mere employment or to a simple
contractual relationship.
"The holder of an office must have entrusted to him some portion of
the sovereign authority of the State. His duties must not be merely
clerical, or those only of an agent or servant, but must be performed in
the execution or administration of the law, in the exercise of power
and authority bestowed by the law."
Attorney General v. Tillinghast, 203, Mass. 539, 543
Employment by a governmental unit does not in and of itself make the
employee an "officer." An employee who performs duties of a routine
nature and who is supervised by a superior cannot ordinarily claim
the status conferred upon those who are deemed governmental officials.
Each position must of course be separately examined to determine
whether it actually constitutes an office. But it is clear that the word
"office," as it is used in G. L. c. 51, § 25, does not automatically include
all positions filled by governmental empolyees, irrespective of the nature
of such positions. Clerks, civil service personnel and independent con-
tractors, as well as a large variety of other employees, have never been
considered governmental officials as such, and were not meant to be
subject to the provisions of G. L. c. 51, § 25.
The statute in question does not, in my opinion, use the word "office"
in any manner inconsistent with its traditional meaning. I do not believe
that the General Court intended to bar all governmental employees
from service as registrars of voters. Had the Legislature desired to do
so, it would presumably have referred to employees in the aggregate,
and avoided reference solely to those holding "an office." But the Legis-
lature did not choose to use broader language, and the scope of the
statute should not be extended by interpretation.
Accordingly, it is my opinion that the word "office," as it is used in
G. L. c. 51, § 25, must be given its usual restricted meaning, and that
the statute does not indiscriminately prohibit all governmental employees
from serving as registrars of voters.
Very truly yours,
Edward W. Brooke
The trustees of Lowell Technological Institute are empoioered to classify
jobs and to change salaries and job descriptions, provided that
salaries be within the general salary schedule and that notifications
of personnel actions are filed.
December 11, 1964
Hon. Martin J. Lydon^ President, Loioell Technological Institute.
Dear Sir: — I have received your letter of November 12, 1964 relative
to the actions taken by the Committee on Personnel of the Lowell Tech-
nological Institute Board of Trustees on October 5, 1964. Specifically,
the trustees have voted to expand the scope and function of the offices
P.D. 12 141
of Assistant to the President, the Dean, and the Dean of Students. Your
letter states that job descriptions corresponding to the new scope and
duties of the above offices have been filed, and increases in salaries
made. You have requested my opinion as to whether these actions taken
by the trustees are within their powers under G. L. c. 75 A, § 12, as
amended by cc. 701, 801 of the Acts of 1963 and by c. 357 of the Acts
of 1964.
The various state colleges and universities, among them the Lowell
Technological Institute, have been given certain latitude and independ-
ence by the Legislature. Matters of policy which naturally affect the
educational qualities of our state colleges are generally left to the boards
of trustees; and the decisions made regarding personnel above a certain
level clearly are matters of such policy. For this reason the General
Court has made a distinction between professional and nonprofessional
staffs and partially removed the former from the jurisdiction of Civil
Service.
"In establishing the classification, title, and salary plan for the pro-
fessional staff of the institute, the trustees shall give recognition to the
need to establish and maintain appropriate academic ranks and titles
as may be appropriate for higher education in order to provide for out-
standing scholars, scientists and teachers." (c. 701 of the Acts of 1963.)
Thus, a broad directive is given to the trustees in respect to the classi-
fication and salary plan for the institute.
The power to classify jobs and to change salaries and job descriptions
is specifically granted to the trustees with the provisions that salaries
be within the "general salary schedule" and that notification of person-
nel actions shall be filed.
"The classification, title, salary range within the general salary sched-
ule, and descriptive job specifications for each position shall be deter-
mined by the trustees for each member of the professional staff and
copies thereof shall be placed on file with the governor, budget director,
director of personnel and standardization, and the joint committee on
ways and means." (c. 357 of the Acts of 1964.)
The positions with regard to which you have made the changes
enumerated in your letter could properly be determined by the trustees
to fall within the category of "professional staff." Also, your letter in-
dicates that you have made the necessary filings of the changed job
descriptions, duties and salaries.
Accordingly, I answer your first inquiry in the affirmative.
You further request an opinion as to whether or not the amounts
that the Board of Trustees voted, on October 5, 1964, to be paid as
salary increases to certain employees, could be effective beginning Sep-
tember 1, 1964.
The Legislature, in enacting cc. 701 and 801 of the Acts of 1963 and
c. 357 of the Acts of 1964, has given the trustees the authority to deter-
mine salary schedules within the amounts set forth in § 46 of c. 30. Ir
142 P.D. 12
is also within the power of the trustees to effect the new salary schedules
as of September 1, 1964; consequently, I answer your second inquiry
in the affirmative.
Very truly yours,
Edward W. Brooke
Implemetation of the work provided for in St. 1963, c. 732, is "subject to
appropriation" and the Department of Public Works is precluded
from making any expenditure until the town of Winthrop has
performed the acts prescribed. Department activity is limited to
preparing estimates of construction costs.
December 14, 1964
Hon. Francis W. Sargent, Associate Commissioner of Public Works.
Dear Sir: — I have received your letter regarding c. 732 of the Acts
of 1963 providing for the dredging and filling of Winthrop harbor.
Chapter 732 was passed subject to appropriation and, in addition, the
act specifies:
"No expenditure shall be made under this act until said town (of
Winthrop) has acquired title to such land, water rights, rights-of-way,
or other easements as said department (of Public Works) deems neces-
sary . . ., nor until said town assumes liability . . . for all damages to
property suffered by any person by any taking of land, or of any
right . . . ."
Thus, there are two contingencies upon which implementation of
work under the act depend. One such contingency is the phrase "sub-
ject to appropriation" found in § 1; the other is the requirement that
the town take title and assume liability for possible resulting damages.
You have requested my opinion as to both of these contingencies.
Namely, your letter asks what effect the phrase "subject to appropria-
tion" has; and a further opinion is requested as to whether your depart-
ment is precluded from making any expenditures until the town of
Winthrop has acquired the titles and assumed the liabilities described
in § 1 of c. 732 of the Acts of 1963.
With regard to the contingency that the proposed project is "subject
to appropriation," provisions for financing the reclamation project are
made in § 4 of the Act which states:
"To meet the expenditure necessary to accomplish the work authorized
in section one, the state treasurer shall upon request of the governor
and council, issue . . . bonds of the commonwealth . . . ." (c. 732 of
the Acts of 1963, § 4.)
The maximum limit on the bond issue is two and one-half million
dollars.
The question arises: what expenditures, if any, the Department of
Public Works may make pursuant to c. 732 before the Governor and
Council request the State Treasurer to issue and sell bonds. Chapter 732
P.D. 12 143
makes no provision for such expenditures by your department. The
activity of the department relative to the reclamation project would be
limited to the statutory obligations found in G. L. c. 29, §§ 4 and 5A,
outlining the duty to prepare estimates of construction costs. Indeed,
such estimates would be deemed most useful to the Governor and
Council since they determine the amount of bond issue to be requested
from the State Treasurer.
With regard to the contingency that the town of Winthrop must take
title to land needed for the project, once again c. 732 § 4 provides for
doing so:
"The town of Winthrop may take by eminent domain under chapter
seventy-nine of the General Laws, or acquire by purchase, or otherwise,
any lands, water rights, rights-of-way or other easements, public or pri-
vate, required by said department to perform the work authorized under
this act."
And, as noted above, in close connection with the requirement that
the town take title, is the legislative directive that:
"No expenditure shall be made . . . until said town assumes liability . . .
for all damages to property . . . suffered by any taking of land . . . ."
(Emphasis supplied.) (c. 732 of the Acts of 1963, § 1.)
It clearly appears that the Legislature has imposed requirements
that the town, rather than the Commonwealth, shall assume legal
liability before any expenditures are made. Thus, the reclamation is
"subject to appropriation" and the Department of Public Works is
precluded from making any expenditures until the town of Winthrop
has done the acts prescribed by c. 732 of the Acts of 1963.
Very truly yours,
Edward W. Brooke
No person who has been retired for superanmiation shall be paid for
any seinice rendered to the Commonwealth except for emergency
sei-vice and provided the certification required by c. 32 § 91, is
first obtained.
December 14, 1964
Hon. John D. Coughlan, Director, Division of Youth Service.
Dear Sir: — I have received your request for an opinion regarding
the employment by your division of a psychiatrist who has retired from
service with the Commonwealth. Specifically, you have requested my
opinion as to whether a psychiatrist who has been retired for super-
annuation at his own request from the position of Director of Clinical
Psychiatry for the Division of Youth Service may be retained on a fee
basis as a consultant for the division.
The Director of the Division of Youth Service has certain discre-
tionary powers to hire employees in order to carry out his duties and
obligations set forth in G. L. c. 120, §§ 1-4A. However, the General
144 P.D. 12
Court has expressly limited the authority of a division head to employ
retired persons. Such individuals may not be paid unless restored to
active service on order by the appropriate retirement board except for
services rendered under certain circumstances or in certain capacities.
(G. L. c. 32, § 91.)
Under c. 32, § 91, the one circumstance that might possibly apply
to the psychiatrist is the emergency situation. Chapter 32, § 91 states that:
"No person while receiving a pension or retirement allowance from
the commonwealth . . . shall ... be paid for any service rendered to
the commonwealth . . . except . . . for emergency service for a period
not to exceed one year in any position after certification that an emer-
gency exists, that a vacancy exists, and that no person having the same
or similar skill is available for such position, which certification shall,
in each instance, be made by the appointing authority and, ... by the
director of personnel and standardization . . . ."
Within the prescribed limits for an emergency appointment as set
forth in the above-quoted § 91, it is necessary for you to acquire the
necessary certifications prior to retaining this employee.
Very truly yours,
Edward W. Brooke
The Board of Elevator Regulations, upon a petition for variance from
the application of any law, code or regulation relating to the in-
stallation or alteration of elevators, may grant a postponement of
such application upon such conditions of time and use as it might
prescribe.
December 14, 1964.
Hon. Robert W. MacDonald, Commissioner of Public Safety.
Dear Sir: — I have received your recent letter requesting an opinion
regarding G. L. c. 143, § 70, as inserted by c. 439 of the Acts of 1959.
More specifically, you have asked whether that statute "empowers the
Board of Elevator Regulations upon a petition for a variance from the
application of any law, code or regulation relating to the installation or
alteration of elevators to grant a postponement of such application upon
such conditions of time and use as it might prescribe."
A code of revised elevator regulations was promulgated by the Board
of Elevator Regulations in 1956 pursuant to the statutory authority con-
tained in G. L. c. 143, §§ 67, 68 and 69. The effective date of these regu-
lations was delayed eight years, because, in many cases, large capital
outlays would be needed to modify older elevators in compliance with
the code. Without this delay the revised code could have created hardship.
General Laws c. 143, § 70 sets out the procedures to be followed by
any party aggrieved by the application of regulations or codes, and the
relief that the Board of Elevator Regulations or the Board of Elevator
Appeals may grant. Once the regulations or codes become effective, abso-
lute and immediate enforcement is not a foregone conclusion.
P.D. 12 145
As to the procedures an aggrieved party may follow, they are complete
and may be prolonged, thus further extending the time before the appli-
cation of the codes or regulations becomes effective. A person is not com-
pelled to comply until he has exhausted his administrative remedies and
obtained judicial review. I'o this extent there is a type of postponement
of the application of the law. More specifically, § 70 provides:
"Whoever is aggrieved by an interpretation, order, requirement or di-
rection of an inspector . . . may within ten days after the service or
notice thereof appeal from such interpretation, order, requirement or
direction. . . ."
and,
"Whoever is or will be aggrieved by the application of any provision
of law . . . may file a petition for a variance. . . ."
In the case the above appeal is made or petition filed, then there is
a public hearing within thirty days thereof unless the appellant or pe-
titioner agrees to an extension of the time, a postponement of the mat-
ter. Then, within thirty days after the hearing, the Board of Elevator
Regulations issues a decision, unless once again the petitioner or ap-
pellant agrees to an extension of this time, in which case there is another
postponement in the application of the law, the code, or the regulations.
These postponements that I have referred to are products of the procedure
established by § 70 and are available to an aggrieved party.
In addition, § 70 does speak of "postponing the application" of the
law. This occurs as a mentioned possible type of decision the Board may
make following the hearing on an appeal from an order or petition for a
variance. The pertinent sentence reads:
"The board shall . . . issue an appropriate decision or order revers-
ing, affirming or modifying in whole or in part said interpretation, order,
requirement or direction or postpoving the application thereof or grant-
ing or denying a variance." (Emphasis supplied.)
The plain meaning of this sentence appears to be that the Board of
Elevator Regulations is directed to issue a decision reversing, affirming,
modifying, or postponing the application of previously issued orders.
In the sense that a continuing use may be considered a postponement
of the application of the law, § 70 provides for such as follows:
"In exercising its powers under this paragraph, the board of elevator
regulations may impose limitations both of time and use, and a
continuation of the use permitted may be conditioned. . . ." (Emphasis
supplied.)
Under paragraphs (b) and (c) of § 70 there are more built-in proce-
dural postponements. Appeals from the decisions of the Board of Ele-
vator Regulations may be taken to the Board of Elevator Appeals. Such
appeals must be heard within thirty days unless, once again, that time
is extended by agreement with appellant. Then that Board must render
a decision within sixty days of the hearing unless, by similar agreement,
that is postponed. Further appeals may be taken to the Superior Court
sitting in equity.
146 P.D. 12
Because of the procedural and administrative delays provided for in
§ 70, and because of the statutory language indicating provision for post-
ponements of the application of laws, regulations, or codes, it is my
opinion that the answer to your question would be in the affirmative.
Very truly yours,
Edward W. Brooke
A public officer, serving as a member of the Youth Service Board, whose
tenure of office has terminated, may not receive vacation pay in
lieu of vacation leave which he has not taken.
December 14, 1964.
Hon. John D. Coughlan^ Director, Division of Youth Service.
Dear Sir: — I have received your recent letter requesting an opinion
regarding the eligibility of a member of the Youth Service Board for
a payment in lieu of a paid vacation. Specifically, the question you pose
is that if Mr, Turley, a member of the Youth Service Board, has not
been able to take a month's paid vacation for fiscal year 1965, now that
his term of office has expired, may he receive a month's salary instead of
the paid vacation leave he never took?
You recite that Mr. Turley's term has expired and that a successor
has qualified as a member of the board. As your letter states, confirma-
tion of the new appointment ends one term and begins another, pursuant
to G. L. c. 30, § 8, entitled, "Public Officers appointed by governor."
(Emphasis supplied.) A "public officer" is a person who serves the Com-
monwealth in a responsible capacity, a category into which a member
of the Youth Service Board would fall as a consequence of the nature
of his qualifications, duties and responsibilities. The distinction that our
General Laws makes between a "public officer" and an "employee" seems
clearly to be drawn on the basis of the nature of the position and all that
it involves. See Ops. Atty. Gen. May 28, 1957, January 28, 1964.
Statutory provision has been made for compensating a person who has
worked throughout the year and thus failed to benefit from paid vaca-
tions. The statute in question reads:
" (c) Employees who are eligible for vacation under the rules of said
director (Director of Personnel and Standardization) . . . shall be paid
an amount equal to the vacation allowance credited but not granted to
them as of the final date of the next preceding vacation year; provided
that no monetary or other allowance has already been made therefor."
(Emphasis supplied.) (G. L. c. 29, § 31 A.)
The question arises whether c. 29, § 31 A, referring to employees, gov-
erns the eligibility for payments for vacation benefits accruing to public
officers.
The Director of Personnel and Standardization has, pursuant to au-
thority granted him, promulgated
P.D. 12 147
"rules which shall regulate vacation leave, sick leave and other leave
with pay and overtime compensation, maintenance charges, or payments
in lieu thereof . . . for officers other than those exempted by such rules."
(Emphasis supplied.) (G. L. c. 7, § 28.)
It appears, therefore, that c. 29, § 31 A, read in conjunction with G. L.
c. 7, § 28, provides for the payment of money to some public officers
to take the place of a paid vacation allowance. Some officers are exempted.
The Director of Personnel's rules which govern state employees and
officials became effective July 1, 1956, and these rules apply to all per-
sons in the executive branch of the state government with important
exemptions; namely, "officers of the commonwealth, as defined in rule
G-6, Members of Boards, Commissions or Committees established
by statute or any other person whose expenses while performing their
duties are expressly provided for by law in manner other than by rules
and regulations of the Director of Personnel and Standardization." (Rule
G-5.)
If a member of the Youth Service Board is within the purview of the
rules and regulations, then in accord with rule LV-9 he will receive
payment in lieu of accrued vacation time as follows:
"Persons who are eligible for vacation under these rules, whose services
terminated other than as provided in Rules LV-7 and LV-8, shall be
paid an amount equal to the vacation allowance earned in the vacation
year prior to such termination which has not been granted; provided
that no monetary or other allowance has already been made therefor."
(Rule LV-9.)
If a member of the Youth Service Board is exempted from the rules and
regulations and the vacation-payment benefit thereby conferred, the ex-
emption may be for one of two reasons; namely, such a member may be
an officer of the Commonwealth as defined by Rule G-6, or he may be a
member of a board within the meaning of Rule G-5.
As to the first of the two possible reasons for exemption, as set forth
in Rule G-6, an officer of the Commonwealth is a person who is, in fact,
the head of a department, division, commission or committee established
by statute. Furthermore, the expressed intention of Rule G-6 is "to ex-
clude (only) heads of departments who are charged with the successful
operation of a state unit." (Rule G-6.) There is no indication that Mr.
Turley was, in fact, head of a department, division, or commission. There-
fore, Rule G-6 would not exclude him from the coverage of the rules and
its benefits. See also Op. Atty. Gen. January 28, 1964.
As to the second of the two possible reasons for exemption, the ques-
tion arises as to a member of the Youth Service Board's exclusion from
the rules and the vacation-payment benefit by virtue of being a member
of a board or a person whose expenses are provided for by statute. Rule
G-5 states that the rules do not apply to "Members of Boards, Commis-
sions or Committees established by statute or any other person whose ex-
penses while performing their duties are expressly provided for by law
in manner other than by rules and regulations of the Director of Per-
sonnel and Standardization." (Emphasis supplied.)
148 P.D. 12
The part of Rule G-5 beginning with the phrase "or any other person"
and continuing to the end of the paragraph refers to persons whose ex-
penses are provided for by legislation. Such "persons" are individuals
other than those enumerated; i.e., members of boards and commissions.
Accordingly, this part of Rule G-5 cannot be considered adjectival and
as such must be deemed to refer only to those particular board members
whose expenses are expressly provided for by law and not by rules pro-
mulgated by the Director of Personnel.
However, even if the language were construed to mean that the only
board or commission members excluded from the rules by Rule G-5 were
those members whose expenses are provided for by statute, then a Youth
Service Board member would still be within the exclusionary meaning
of Rule G-5 and not entitled to the pay Mr. Turley seeks because of G. L.
c. 6, § 66. That statute dealt explicitly with the matter of expenses of the
members of the Youth Service Board and "expressly provided for (ex-
penses) by law in a manner other than by (the) rules and regulations
of the Director of Personnel and Standardization." (Rule G-5.)
"The chairman shall receive a salary of twelve thousand dollars, and
each of the other members shall receive a salary of eleven thousand dol-
lars, and each member shall also be reimbursed for his expenses actually
and necessarily incurred by him in the performance of his official duties."
(G. L. c. 6, § 66.)
The remainder of the exclusionary language found in Rule G-5 states
clearly that the rules of the Director of Personnel do not apply to "Mem-
bers of Boards . . . established by statute." The Youth Service Board
was "established by statute"; namely, G. L. c. 6, § 65. Mr. Turley was
appointed a member of that Board and has continued to serve as a "mem-
ber." It is therefore my opinion that a member of the Youth Service Board
whose tenure of office has terminated may not receive vacation pay in
lieu of vacation leave which he has not taken.
Very truly yours,
Edward W. Brooke
The widow of a judge who died prior to January 1, 1964, is not entitled
to the benefits of St. 1964, c. 464.
December 14, 1964.
Hon. William A. Waldron, Commissioner of Administration.
Dear Commissioner Waldron: — You have asked my opinion about
the applicability of c. 464, Acts of 1964 to a widow of a judge who died
on July 25, 1960. The act, approved on June 4, 1964 and effective on
January 1, 1964, states as follows:
"In determining whether a judge has served in any such office or
offices at least ten years continuously and would be, for the purposes of
the second or third paragraphs of this section, entitled to a pension for
life, under section sixty-five A, each three years spent by him in the serv-
P.D. 12 149
ice of the commonwealth or of any county, city or town thereof shall
count as one year of creditable service and each such year so credited,
but in no event to exceed more than four years of such creditable service,
shall be added to and deemed continuous with the period of his service
in any such office or offices."
It would appear from the facts, as you have presented them, that the
judge would not have been entitled to a pension when he died, since he
had less than ten years' continuous service. His widow is similarly pre-
cluded unless she is entitled to the benefit of c. 464, Acts of 1964.
Ordinarily, a legislative act has only prospective application. However,
in c. 464, the Legislature expressly stated that the act be retroactive to
January 1, 1964. If the Legislature had intended the act to apply to
widows of judges who died prior to January 1, 1964, it could have so
provided with ease.
Chapter 464, Acts of 1964 is to be inserted in G. L. c. 32, § 65C, which
section was approved by the Governor on October 27, 1960 and made
retroactive to July 1, 1960. The Attorney General, in an opinion dated
February 7, 1961 relating specifically to the question of veteran survivor-
ship benefits under G. L. c. 32, § 58B, stated that the widow of a judge
who died prior to July 1, 1960 was not entitled to receive a pension un-
der G. L. c. 32, § 65C.
The question you have presented is essentially the same as that cov-
ered in the opinion of February 7, 1961. It is, therefore, my opinion
that the widow of a judge who died prior to January 1, 1964 is not en-
titled to the benefits of c. 464, Acts of 1964.
Very truly yours,
Edward W. Brooke
An initiative petition can affect only those pozuers conferred on the Gov-
ernor's Council by statute and can not abolish any Constitutional
provisions or amendments.
Any provision of the general or special law requiring any act or omis-
sion to act, appointment or reynoval by the executive department re-
quiring the advice and consent of the Governor's Council has been
repealed, excepting those powers and duties specifically exempted
from the initiative act under % 2 of the Act.
The Governors Council has tJie authority to approve the withdrawal of
monies from the treasury of the Commonxuealth by warrant including
land damage and extra work payments under contract to which the
Commonwealth is a party, except such funds as may be appropriated
for the redemption of bills of credit or treasurer's notes or for the
payment of interest thereon as set forth in Pt. 2, c. 2, § 1, Article II
of the Massachusetts Constitution.
December 15, 1964.
Hon. Francis X. Bellotti, Lieutenant Governor of the Commonwealth.
Dear Sir: — In your letter of December 10, 1964, you have asked my
opinion concerning a law proposed by initiative petition which appeared
150 P.D. 12
as Question No. 5 on the Massachusetts ballot of November 3, 1964. The
specific questions which you have posed in this regard are listed below
and will be answered in the order in which they app>ear in your letter.
"1. Define the powers and duties of the Governor's Council as they
presently exist.
"2. Does the Governor's Council have the authority to approve land
damage payments?
"3. Does the Governor's Council have the authority to approve the
extra work order payments under contracts in which the Commonwealth
is a party?
"4. Does the Governor's Council have the authority to approve the
Treasurer's warrants?"
From your letter it appears that the results of the election of November
3, 1964 have been certified by the Governor's Council and that the peo-
ple have approved and adopted this initiative petition as a law of the
Commonwealth.
The purpose of this law, as evidenced from the statute as a whole, is
to repeal certain statutoi7 powers of the Governor's Council. Section 1
defines the words "the council," "advice and consent of the council,"
and "executive department" as these terms are used in the context of this
act. Section 2 exempts from the operation of this statute certain boards
and commissions i established by § 65 of c. 6, § 15 of c. 23, § 2 of c. 25,
§ 4 of c. 27, and § 1 of c. 58A of the General Laws, but makes certain
exceptions with regard to these sections where the Council refuses to act
on an appointment or removal within a thirty-day period. Section 3
amends any provision of the General or special laws of this Common-
wealth inconsistent with this act and repeals thereby any provisions of
these laws which require the advice and consent 2 of the council "to
any appointment (whether made by the Governor or other officer) in the
executive department, or to the fixing of any salary, or other compen-
sation for services rendered, in the executive department, or to the re-
moval of any person holding office in the executive department. . . ."
Section 4 repeals in the same manner as § 3 so much of any provision of
the general or special laws which would require the advice and consent
of the Council in regard "to any action or omission to act (relating to
without limitation) any deposit, borrowing, loan, investment, endorse-
ment, validation, surety, or bond, or any lease, license, purchase, acqui-
sition, sale, conveyance, disposition or transfer, or any contract or other
agreement, or any pennit or license, or any rules or regulations. . . ."
Section 5 permits the Governor at his discretion to seek the advice of the
Council concerning any matter. Section 7 makes provision for severing
any part of the act held to be unconstitutional and maintaining intact
any provision not affected by such a decision.
From Article 48 of the Amendments to our Constitution, it is clear
that an initiative petition could affect only those powers conferred on
the Council by statute and could not abolish any constitutional provi-
sion or amendment. The act itself has effectively repealed all those statu-
P.D. 12 151
tory powers of the Council relating to the executive branch of govern-
ment -"^ which heretobefore had required the advice and consent of the
Council.
In light of this, in answer to question one, it is my opinion that any
act or omission to act, appointment or removal by the executive depart-
ment which had fomierly required the advice and consent of the Govern-
or's Council no longer needs such approval. Any provision of the general
or special laws in which any such requirement appears is repealed. Those
powers and duties of the Governor's Council not relating to the executive
department as described above, those specifically exempted from the act
under § 2 and those conferred on the Council by the Constitution remain
unchanged. 4
. 2. 3. 4. These three questions will be answered together since they con-
cern related matters pertaining to the power of the Council to approve
warrants submitted by the Treasurer.
A warrant is simply a document authorizing a specific act.5 In this
instance the act needing prior authorization is the withdrawal of funds
from the Treasury of the Commonwealth. The Constitution requires in
making such a withdrawal that:
Mass. Const. Pt. 2, c. 2, § 1, Art. 11.
"No moneys shall be issued out of the treasury of this commonwealth,
and disposed of (except such sums as may be appropriated for the re-
demption of bills of credit or treasurer's notes, or for the payment of
interest arising thereon) but by w^arrant under the hand of the governor
for the time being, -with the advice and consent of the council, for the
necessary defence and support of the commonwealth; and for the protec-
tion and preservation of the inhabitants thereof, agreeably to the acts and
resolves of the general court." 6
The responsibility of authorizing a warrant initially stems from the
Constitution. The duty under this section primarily rests with the Gov-
ernor as the chief executive. Opinion of the Justices, 190 Mass. 617, 618,
619 (1906). The purpose of this section is to "insure that no payments
(are made) from the public treasury except for public purposes and in
accordance with the law. It is not the purpose to give the Governor and
Council power to veto contracts or purchases lawfully made by authorized
officers or to refuse to honor debts and obligations lawfully incurred."
Willar V. Commomuealth, 297 Mass. 527, 529 (1937)."^ No inquiry may
then be made concerning the wisdom of the policy behind the statute or
decision. In approving such a warrant a reasonable delay would be jus-
tified only where "reasonable doubt on the part of the Governor and
Council (arises) as to the existence or amount, according to law, of an
obligation or liability. . . ." Opinion of the Justices, 309 Mass. 609, 630
(1941).
Certain funds are specifically exempted from the purview of this
section. They are, as stated above, "sums . . . appropriated for the re-
demption of bills of credit or treasurer's notes, or for the payment of
interest arising thereon. ..." Land damage and extra work payments
152 P.D. 12
are not within the exempted category. Such withdrawals must be made
by warrant with the signature of the Governor and the approval of the
Council.
In answer to questions 2, 3 and 4, it is my opinion that the Governor's
Council has the authority to approve the withdrawal of monies from the
Treasury of the Commonwealth by warrant including land damage and
extra work payments under contract to which the Commonwealth is a
party, except such sums as may be appropriated for the redemption of
bills of credit or Treasurer's notes or for the payment of interest thereon
as set forth in Pt. 2, c. 2, § 1, Art. 11 of the Massachusetts Constitution.
Very truly yours,
Edward W. Brooke
1 These boards and commissions are the Youth Service Board, Industrial Accident
Board, Commission of the Department of Public Utilities, Parole Board, and Ap-
pellate Tax Board.
2 As that term is defined in § 1 of the act.
3 Section 1 of the act expressly excludes from the definition of "executive depart-
ment" the legislative, judicial departments and any instrumentality or agency of a
city or town.
4 Including the following constitutional powers and duties of the Council: Mass.
Const. Pt. 2, c. 1, § 1, Art. 4, Approval of Warrants; Pi. 2, c. 1, § 2, Art. 3, Examining
Records and Issuing Summons to Persons Elected; Pt. 2, c. 2, § 1, Art. 4, Meeting
with Governor concerning Affairs of the Commonwealth, Arts. 5 and 6, Certain Pow-
ers in Adjourning and Proroguing the General Court, Art. 8 Pardoning Offenses, Art.
9 Judicial Appointments, Art. 11 Approval of Warrants; Pt. 2, c. 2, § 3, Arts 1, 3,
and 5, Establishing Council; Pt. 2, c. 2, § 4, Art. 2, Certain Records; Pt. 2, c. 3,
Art. 1, Removal of Judicial Officers, Art. 2, Opinions of the Justices; Amendments
Art. 4 Notaries Public, Art. 16 Election and Qualification of Councillors, Art. 17
Filling Certain Vacancies, Art. 37 Removal of Notaries and Justices of the Peace,
Art. 85, Opinions of the Justices.
5 Webster, New International Dictionary (2 ed. 1948).
6 See also Mass. Const. Pt. 2, c. 1, § 1, Art. 4; Mass. G. L. c. 29, § 18, as amended
by St. 1953, c. 203, § 2.
7 See also cases cited by court. Opinion of the Justices, 13 Allen 593; Boston & Albany
Railroad v. Commonwealth, 296 Mass. 426; Daley v. Mayor of Medford, 241 Mass.
336, 339; Godfrey Coal Co. v. Gray, 296 Mass. 323, 325.
Where the Legislature has enacted a statute which contains broad or
ambiguous layiguage, the state agency charged ivith the administra-
tion of the statute in question is empozuered to enact interpretative
regulations^ consistent with applicable statutes, in order to clarify
parts of the laio which require explanation.
December 17, 1964.
Hon. Salvatore Petrone, Chairman, Board Regulating Installation of
Gas Piping and Gas Appliances in Buildings.
Dear Mr. Petrone: — I have received the Massachusetts Gas Regula-
tory Board's request for an opinion on the subject of "gas fitting" as that
term is used in c. 312 of the Acts of 1964. You have informed me that
the Board is presently conducting a series of public hearings prior to the
adoption of rules and regulations governing the installation, inspection
and operation of liquefied petroleum containers and associated equip-
ment.
P.D. 12 153
The Board has investigated practices connected with the use of liquid
petroleum for the heating of buildings. The equipment that is ordinarily
installed for such heating consists of a cylinder, connecting hose or tube,
and a heater (sometimes called a "salamander"). Such equipment is porta-
ble, and may easily be moved from one part of a building to another.
Relocating these items necessitates lighting and turning off the flame,
and removing and replacing a threaded fitting on a valve attached to the
cylinder.
Chapter 312 of the Acts of 1964 provides in part as follows:
". . . As used in this section the words 'gas fitting' shall be construed
to include the installation, alteration and replacement of a system be-
yond the gas meter outlet or regulator through which is conveyed or in-
tended to be conveyed fuel gas of any kind for power, refrigeration,
heating or illuminating purposes including the connection therewith and
testing of gas fixtures, ranges, refrigerators, stoves, water heaters, house
heating boilers, and any other gas using appliances and all attachments
and appurtenances, and the maintenance in good and safe condition of
said systems, and the making of necessary repairs and changes.'" (Empha-
sis supplied.)
Your Board now wishes to promulgate a regulation which would au-
thorize the moving of the liquid petroleum heating equipment described
above, as well as the accompanying replacement of the threaded fitting
and re-lighting of the flame, by laborers who are not licensed gas fitters.
Accordingly, you have requested a determination whether the type of
tending, positioning, refueling and relocation of salamanders refored
to in your letter should be considered "eas fitting" as defined bv St. 1964,
c. 312.
As indicated above, "gas fitting" shall — under the statute — be con-
strued to include "installation, alteration and replacement" of certain
systems. The words "installation, alteration and replacement" are not
exact in their meaning, and are subject to varied interpretations. This
language needs to be further defined so that decisions as to what opera-
tions are to be considered to be within the area of "gas fitting" may more
easily be made. The General Court has not at the date of this writing
provided such additional definition.
Further definition and refinement of this language can lawfully be
provided by the state agency that has been charged with administration
of the statute in question. It is an accepted principle of administrative
law that a board or agency authorized by its governing statutes to pro-
mulgate rules and regulations may enact so-called "interpretative" regu-
lations in order to clarify parts of the law which require explanation.
Cammarano v. United States, 358 U. S. 498, 508
The agency is thus in effect authorized to make the initial interpreta-
tions of its statute in light of its expertise in the subject matter to be regu-
lated. \yhere the Legislature has enacted a statute which contains broad
or ambiguous language, such interpretative regulation can be an impor-
tant contribution by the agency.
154 P.D, 12
The United States Supreme Court has recognized the implied author-
ity vested in administrative agencies to embody statutory interpretation
in regulations.
"... The crucial words of the statute . . . are not so easy of applica-
tion to varying facts that they leave no room for administrative interpre-
tation or elucidation. . . . Interpretative regulations . . . are appro-
priate aids toward eliminating that confusion and uncertainty. . . ."
Magruder v. Washington, Baltimore & Annapolis Realty Corp., 316
U. S. 69, 73-74.
Practical interpretation of an ambiguous or doubtful statute by ad-
ministrators who are experts in the field regulated by such statute will
not be disturbed except for reasons of great weight.
Brewster v. Gage, 280 U. S. 327, 336.
Such interpretative regulations must of course be consistent with ap-
plicable statutes; to the extent that these regulations conflict with such
statutes the regulations would be unauthorized and invalid.
Trust of Bingha?n v. Commissioner of Internal Revenue, 325 U. S. 365,
377.
St. 1964, c. 312 does not indicate with any clarity whether the type of
operation described in your letter should or should not be included within
the concept of "gas fitting." A technical decision of this nature cannot
properly be made by the Attorney General. Your Board, however, does
have the experience and expertise necessary to make such a decision, and
should provide the initial interpretation of the statute in question.
The words "installation, alteration and replacement" could have been
intended to include the moving of salamanders and related equipment;
but the term is equally susceptible to the opposite construction. This
situation logically calls for the exercise of your Board's authority to en-
act interpretative regulations to clarify the ambiguity. In light of the
professional knowledge of the members of the Board, and their under-
standing of the practical aspects of the subject matter being regulated,
such a determination will be accorded great weight, and — unless deter-
mined to be clearly wrong by a court — will become the controlling in-
terpretation of St. 1964, c. 312.
Very truly yours,
Edward W. Brooke
P.D. 12 155
The so called "grandfather clause" contained in St. 1963, c. 604, prcr
eludes the application of the age and experience limitations con-
tained in ^87PPP to individuals currently in the radio and television
repairing field who seek to be licensed pursuant to St. 1963, c. 604,
§ 4. Applications under said "clause" may only he accepted prior to
December 31, 1964, after which § 4 will no longer be in effect.
December 17, 1964.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — I have received your letter of November 27,
1964, wherein you request reconsideration of an interpretation contained
in an opinion of the Attorney General rendered to you on September 11,
1964, in response to two questions posed by the Board of Registration of
Radio and Television Technicians. The second inquiry was worded as
follows:
"2. Section 87PPP, of the Acts of 1963, Chapter 604, gives the defini-
tion of a 'master technician' as a person being 21 years of age or over,
having at least one year of experience. How does this relate to the 'grand-
father clause'?"
Section 2 of the said St. 1963, c. 604 amends c. 112 of the General Laws
by inserting, under the caption REGISTRATION OF RADIO AND
TELEVISION TECHNICIANS, §§ 87PPP to 87VVV, inclusive. Section
87PPP defines a master technician's license as a "license to any person
at least twenty-one years of age who has had at least one year of expe-
rience in the repair and maintenance of radio and television receivers";
a technician's license is defined as a "license issued to any person at least
eighteen years of age, who is employed by a service dealer or acts under
the supervision of a licensed master technician in the repair and mainte-
nance of radio and television receivers."
The "grandfather clause" to which you refer is to be found in § 4 of
c. 604 of the Acts of 1963, and provides as follows:
"Notwithstanding the provisions of section eighty-seven PPP to eighty-
seven VVV, inclusive, of chapter one hundred and tivelve of the General
Laws, inserted by section tioo of this act, any person who files an appli-
cation for a license as a technician or a master technician with the board
of registration of radio and television technicians at any time prior to
December thirty-first, nineteen hundred and sixty-four, on a form fur-
nished by said board, containing a written statement that he is engaged
in the business of repairing and maintaining radio and television re-
ceivers in the commonwealth on the date of said application and fur-
nishes evidence that he is and is found to be of good moral character,
and pays the appropriate license fee as provided in section eighty-seven
UUU, shall, without examination or compliance with any other provision
of sections eighty-seven PPP to eighty-seven VVV, inclusive, be granted
and issued such license by the board. Any such license shall expire one
year from the date of issuance." (Emphasis supplied.)
St. 1963, c. 604, § 4, as amended by St. 1964, c. 110.
156 P.D. 12
It is clear from the language of § 4 that the General Court intended
by means of the so-called "grandfather clause" to protect all persons en-
gaged in the business of repairing and maintaining radio and television
receivers at the time of passage of the new registration law. The provisions
of § 4 must be applied notwithstanding any requirements which appear
in G. L. c. 112, §§ 87PPP-87VW. Thus, the age and experience limita-
tions imposed by the definitions contained in § 87PPP may not be ap-
plied to individuals currently in the radio and television repairing field
who seek to be licensed pursuant to § 4 of St. 1963, c. 604.
Section 4 admittedly contains nothing which would prevent individ-
uals of tender age and limited experience from becoming licensed tech-
nicians or even master technicians. But the General Court has specifically
provided that applicants who file under § 4 need not comply with other
sections of the registration statute, and it must therefore be assumed
that the Legislature was aware of the possible result. Accordingly, such
applicants are entitled to be licensed upon payment of the appropriate
license fee and upon findings by the Board that they are engaged in the
business of repairing and maintaining radio and television receivers in
the Commonwealth and that they are of good moral character. Any lan-
guage to the contrary appearing in the Attorney General's opinion of
September 11, 1964 referred to above is hereby withdrawn. Applications
under the "grandfather clause" may of course only be accepted prior to
December 31, 1964; 8 4 will no longer be in effect after that date, and
applications must then be processed in accordance with the regular pro-
visions of the regulation law.
Very truly yours,
Edward W. Brooke
The holder of private tidal flats in Massachusetts is not entitled to dam-
ages luhen said flats are appropriated by the Commonwealth for pub-
lic use to improve navigational facilities.
December 21, 1964.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Re: Chapter 543, Acts of 1964.
Dear Commissioner: — By letter of October 20, 1964, you have asked
for my opinion on the following:
" (1) (Is) the holder of private tidal flats in Massachusetts . . . en-
titled to damages when said flats are appropriated by the Commonwealth
for the public's use to improve navigational facilities?"
" (2) Who has the authority to make any taking for the Common-
wealth within the limits of the Boston Harbor inasmuch as the Massa-
chusetts Port Authority created by Chapter 465 of the Acts of 1946 has
jurisdiction over Boston Harbor . . . ?"
The general rules of law evolved at common law and under the Colo-
nial Ordinances of 1641-47 to govern property interests along the shores
of the sea, bays, beaches and inlets have been considered repeatedly
\
P.D. 12 157
by the Courts of the Commonwealth. Commonwealth v. Charlestown, 1
Pick. 179. Commonxvealth v. Alger, 7 Cush. 53. Commonwealth v. 7?ox-
biiry, 9 Grey. 451. Home For Aged Women v. Commonwealth, 202 Mass.
422. Early Colonial charters conferred all rights belonging to the English
government on its representatives in this countiy. The title of the King
of England to certain property, both jus publicum, and jus privatum,
with rights of regulation in Parliament in the interest of the people,
came to the Colonies and passed to the several States and their legisla-
tures.
The fee in the land under tidewaters has remained in the government
as the representative of the people for the public use, subject to the Colo-
nial Ordinance of 1647 and private grants. Before the adoption of that
1647 Ordinance private ownership of grants on navigable waters stopped
at the highwater mark. The Ordinance of 1657 states: ". . . it is declared
that' in all creeks, coves and other places about and upon salt water,
where the sea ebbs and flows, the proprietor, of the land adjoining shall
have propriety to the low water mark, when the sea doth not ebb above
a hundred rods and not more wheresoever it ebbs further: provided that
such proprietor shall not by this liberty have power to stop or hinder
the passage of boats or other vessels, in or through any sea, creeks or
coves to another man's homes or lands" Anc. Chart. 148, 149. Title to
low water mark or to the distance of one hundred rods is subject to
the rights of navigation, fishing and fowling. Butler v. Attorney General,
195 Mass. 79. The government, representing the interests of all the
people, reserved that control over the flats in private ownership neces-
sary for the protection and promotion of navigation. All tideland rights
granted to individuals by the General Laws are subject to that paramount
right of the Legislature to do what it deems necessary for the promotion
of Navigation.
Waters and the land under them beyond the line of private owner-
ship are held by the Commonwealth both as it is owner of the fee and
repository of sovereign power with a perfect right of control in the
interest of the public. Acts of the Legislature on these matters have
been treated as paramount to all private rights, subject only to the power
of the Government of the United States to act in the interest of inter-
state or foreign commerce. Home for Aged Women v. Commonwealth,
supra.
In Sage v. Mayor of New York, 154 N. Y. 61, cited in Home for Aged
Women the Court said: "When any public authority conveys land
bounded by tidewater, it is impliedly subject to these paramount uses
to which the Government as trustee for the public may be called upon
to apply the water front for the promotion of commerce and general
welfare". Knowlton, }., citing this case, said: "The fundamental reason
for the rule is the same as that in Massachusetts. Ultimately, the right
depends upon the inherent and paramount power of the government
as the representative of the whole public, which power has always been
retained by the Legislature except when plainly limited by an express
grant."
It has been established that even a title in flats by grant from the
Colony or Commonwealth if they have not been built upon, is subject
to the authority of the Legislature for the protection of harbors and
158 P.D. 12
the public right of navigation, Boston v. Richardson, 105 Mass. 351-362.
Home for Aged Women v. Commonwealth, supra. Crocker v. Champlin,
202 Mass. 441-442. Michaelson v. Silver Beach Improvement Associa-
tion, Inc. 342. Mass. 251.
In the Crocker Case the Court, through Knowlton, J., asked: "Did
the extension of the boundaries of private ownership under the Colonial
Ordinance take away from the State the right to make such a change
(in the depth of water over flats in that case) for the improvement of
navigation Avithout providing compensation to individual owners under
the ordinance?" In answer the Court said: "We are of the opinion that
it did not. This ordinance gave the owners only qualified rights. The
rights of the public to have the benefit of waters for navigation were
reserved." It must be noted with interest that there were no formal
takings by eminent domain in the Crocker Case. See also Butler v.
Attorney General, 195 Mass. 79 and 83.
The reserved public rights include a right to control the property
as reasonably necessary in the interests of navigation. That is the sub-
stance of the decision in Commonwealth v, Alger, 7 Cash. 53, 89, 91 in
which it was held that the Commonwealth might establish harbor lines
over privately owned flats that had not been built upon and "... ex-
clude the owner from any use of them inconsistent zvith the most
advantageous use that the public might make for purposes of navigation."
(Emphasis supplied) That doctrine has been embodied in the legisla-
tion and judicial decisions of the Commonwealth. The statutes of the
United States rest upon that principle.
In the case of Michaelson v. Silver Beach Improvement Association,
Inc., supra, the Court said at page 256:
"An examination of our decisions shows that the only specific powers
which have been expressly recognized as exercisable without compensa-
tion to private parties are those to regulate and improve navigation
and the fisheries."
Under the authority of Chapter 543 of the Acts of 1964 the Depart-
ment of Public Works was authorized to act as local agent for the Corps
of Engineers on several projects. The specific project about which you
wrote includes the proposed Navigational Improvements to Chelsea River
in the Cities of Revere, Chelsea and Boston.
It is my opinion that the holder of private tidal flats in Massachusetts
is not entitled to damages when said flats are appropriated by the
Commonwealth for public use to improve navigational facilities.
The opinion expressed in the preceding paragraph makes it unneces-
sary to answer the second question propounded in your letter of October
20, 1964, because no formal taking of property by eminent domain
need be made.
Very truly yours,
Edward W. Brooke
P.D. 12 159
Persons eligible under the so called "grandfather clause" in St. 1963, c. 604,
need not comply with the requirements contained in ^%S7PPP to
87VVV of G. L. c. 112; age and experience limitations are not ap-
plicable.
A license cannot be issued under the provisions of the "grandfather
clause" to any applicant loho cannot establish that he was engaged
in the radio and television repair business in the Commonwealth
on the date of application.
December 23, 1964.
Hon. Helen C. Sullivan, Director of Registration
Dear Mrs. Sullivan: — I have your letter of December 14, 1964, in
which you pose the follov^ing two questions on behalf of the Board of
Registration of Radio and Television Technicians:
"1. Can a person under eighteen years of age, obtain a Master or
Technician License if he is actively engaged in the repair and main-
tenance of radio and television receivers at the time of filing the appli-
cation under the 'grandfather clause'?
"2. Can a person under the 'grandfather clause' obtain a Master
or Technician License if he was actively engaged in the repair and
maintenance of radio and television receivers before he entered the
military service?"
The "grandfather clause" to which you refer in your inquiries is
found in § 4 of c. 604 of the Acts of 1963, and is designed to insure that
persons engaged in the business of repairing and maintaining radio and
television receivers at the time of passage of the regulatory statute
would not be adversely affected by the new legislation.
"Notwithstanding the provisions of section eighty-seven PPP to eighty-
seven VW, inclusive, of chapter one hundred and twelve of the General
Laws, inserted by section two of this act, any person who files an applica-
tion for a license as a technician or a master technician with the board
of registration of radio and television technicians at any time prior to
December thirty-first, nineteen hundred and sixty-four, on a form fur-
nished by said board, containing a written statement that he is engaged
in the business of repairing and maintaining radio and television receivers
in the commonwealth on the date of said applicatioji and furnishes
evidence that he is and is found to be of good moral character, and pays
the appropriate license fee as provided in section eighty-seven UUU,
shall, without examination or compliance with any other provision of
sections eighty-seven PPP to eighty-seven VW, inclusive, be granted
and issued such license by the board. Any such license shall expire
one year from the date of issuance." (Emphasis supplied.)
St. 1963, c. 604, § 4, as amended by St. 1964, c. 110.
The subject matter of your first question has been fully treated in an
opinion of the Attorney General rendered on December 17, 1964. It is
clearly stated in § 4 of the new law that persons who are eligible to
be licensed under the provisions of the "grandfather clause" need not
comply with the requirements contained in §§ 87PPP to 87VW of c
160 P.D. 12
112 of the General Laws. The age and experience limitations mentioned
in the definitions which appear in § 87PPP thus are not applicable to
individuals who seek to be licensed under § 4 of St. 1963, c. 604. An
applicant, irrespective of his age, must be licensed if he meets the re-
quirements of § 4, and I accordingly answer your fiirst question in the
affirmative.
The "grandfather clause" does, however, require that an applicant
furnish evidence that he is engaged in the business of repairing and
maintaining radio and television receivers in the Commonwealth on the
date on which his application for a license is filed. The statutory
language is clear, and its interpretation cannot be varied. Should —
for any reason — an applicant not be in business on the day on which
he applies for a license, such license cannot be issued under the provis-
ions of § 4 quoted above.
I am aware of the fact that individuals may be engaged in the radio
and television repair business and may be forced to cease their operations
because of military service. Such circumstances cannot be considered
under the language of § 4. A person who makes application while in
military service would, in virtually all instances, find it impossible to
establish that he was engaged in the radio and television repair business
in the Commonwealth on the date of application, and would not there-
fore be entitled to receive a license under the provisions of § 4 of
St. 1963, c. 604.
Very truly yours,
Edward W. Brooke
Application of G. L., c. 271, ^6A-(referral selling) is made conditional
upon the existence of an original sale to the person who is to under-
take further solicitations and the chain aspect is an essential element
amounting to a condition to prosecution.
December 23, 1964
Hon. Dermot P. Shea, Executive Secretary, Consumers' Council.
Dear Mr. Shea: — On August 19, 1964, the Consumers' Council
requested an opinion relative to the legality of the practice of "referral
selling" in the Commonwealth of Massachusetts. An opinion of the
Attorney General treating this subject matter was rendered on September
30, 1964. Since this opinion was issued, this Department has received
a great variety of written and verbal communications seeking further
clarification of the statute involved and of its application to specific
selling practices. Because the treatment contained in the opinion of
September 30, 1964 was intended as a general guide only, and was not
addressed to problems of a specific nature, I feel that it is necessary to
provide the following for application to such problems.
The statute which governs chain transactions within the Common-
wealth of Massachusetts was enacted by St. 1938, c. 144, and inserted
into the General Laws as § 6A of c. 271.
P.D. 12 161
"Whoever sets up or promotes a plan by which goods or anything of
value is sold to a person for a consideration and upon further considera-
tion that the purchase agrees to secure one or more persons to partici-
pate in the plan by respectively making a similar purchase or purchases
and in turn agreeing to secure one or more persons likewise to join in
said plan, each purchaser being given the right to secure money, credits,
goods or something of value, depending upon the number of persons
joining in the plan, shall be held to have set up and promoted a lottery
and shall be punished as provided in section seven. The supreme
judicial court shall have jurisdiction in equity upon a petition filed by
the attorney general to enjoin the further prosecution of any such plan
and to appoint receivers to secure and distribute the assets received there-
under."
Jt is clear from even a single reading that this statute is extremely
complicated and requires careful application. Criminal penalties can
be imposed for violation of its provisions, and accordingly the said
provisions must be strictly construed. The scope of this law must not
be mere implication.
Commomuealth v. Paccia, 336 Mass. 4, 6
The statute describes several different aspects of selling plans; the exist-
ence of each must be proven before it may properly be established that
a particular selling plan falls within the statutory prohibitions.
General laws c. 271, § 6A refers at the outset to the individual who
"sets up or promotes a plan by which goods or anything of value is sold
to a person for a consideration." Application of the statute is thus made
conditional upon the existence of an original sale to the person who
is to undertake further solicitation. The absence of such an original
sale will in all cases protect whatever solicitation plan has been
developed. The company which hires solictors who do not themselves
purchase the item sold cannot be prosecuted under G. L. c. 271, § 6A,
irrespective of the nature of the solicitation plan.
Assuming that a purchase has been made by the solicitor himself,
there must under the statute be "the further consideration that the
purchaser agrees to secure one or more persons to participate in the plan
by respectively making a similar purchase or purchases and in turn
agreeing to secure one or more persons likewise to join in the said plan,
each purchaser being given the right to secure money, credits, goods or
something of value, depending upon the number of persons joining in
the plan. . . ." Therefore, it is far from automatic that selling plans under
w^hich purchasers agree to solicit other purchases will violate the pro-
visions of the statute. The language quoted in this paragraph contains
three distinct elements, each of which must be present before the selling
plan may lawfully be prohibited.
1) The original purchaser must produce a new purchaser; i.e., one
who will in fact buy the product in question. An actual purchase by
the individual contacted by the solicitor is a requirement under the
statute. Plans which require the securing of a potential customer or a
"listener" only, (where the solicitor receives value or credit from the
company merely for producing a prospect irrespective of whether the
162 P.D. 12
negotiation culminates in an actual purchase), are not outlawed by
the statute.
2) St. 1938 c. 144, which Act added § 6A to c. 271 of the General
Laws, was entitled An Act Making Certain Endless Chain Trans-
actions Subject to the Law^s Relative to Lotteries. Thus it would
appear that the statute is directed entirely at selling plans with a partic-
ular type of chain aspect. The original purchaser must not only produce
a second purchaser, but he must in addition secure an agreement from
the said second purchaser that the latter will secure a third purchaser
who will in turn submit to the same agreement. In other words, pur-
chaser A must not only produce purchaser B, but must also induce
purchaser B to agree to obtain similar agreements from purchaser C,
who will in turn solicit purchaser D, etc. This chain aspect is an essential
under the statute and is a condition to prosecution.
3) The plan must give each purchaser the right to secure money or
other things of value, the amount to be determined by the number of
persons participating in the said plan. The length of the chain would
determine the amount of money or other premium, with each pur-
chaster's reward increasing as new purchasers are attracted. Each pur-
chaser in the chain must therefore be affected by each new purchase;
plans which reward only the solicitor who actually produces the new
purchaser are not prohibited by the statute.
The term "referral selling" as such is not used in G. L. c. 271, § 6A,
and it is difficult to determine exactly what forms of such activity the
members of the General Court had in mind when the statute was enacted.
"Referral selling" is a label which covers a variety of plans and arrange-
ments. The type of activity described in and declared unlawful by the
statute in question certainly would be considered a form of referral
selling. But the term may also justifiably be applied to plans which do
not come within the provisions of G. L. c. 271, § 6A, and which are
entirely legitimate. Any plan under which one customer suggests the
names of other potential customers is in fact a form of referral selling.
A selling plan or arrangement may, consequently, be called "referral
selling," but yet will not violate the provisions of G. L. c. 271, § 6A.
The application of the label "referral selling" must not substitute for
a careful analysis of what is involved in a particular selling plan. Such
analysis must take place on a case-to-case basis. Plans which conform to
the provisions contained in the statute as those provisions have been
explained above must be considered unlawful and will be subject to
prosecution. Plans which do not conform in every respect to the statutory
description remain fully protected by law and their use must be permitted
without interference.
Very truly yours,
Edward W. Brooke
P.D. 12 \ 163
The Farmers' Agricultural Cooperathe Trading Society is required to
be bonded pursuant to G. L. c. 94, C'- 152A by way of § 152E.
December 29, 1964.
Hon. Charles H. McNamara^ Commissioner of Agriculture.
Dear Sir: — I have received your letter relative to the Farmers Agri-
cultural Cooperative Trading Society and your request for an opinion
as to whether that organization (herein referred to as the Society) is
required to be bonded pursuant to G. L. c. 94, §§ 152A to G.
The statute provides for the licensing of persons engaged in the busi-
ness of buying and selling poultry. A specific type of business activity,
namely, that of contracting with producers, falls within the broader
perspective of business activity which must be licensed. Section 152E
reads:
"Any person . . . who contracts with a producer . . . for the raising
and delivery of poultry . . . shall be subject to the provisions of sections
one hundred and fifty-two A and one hundred and fifty-two D . . . ."
The provisions of the referred section 152A require persons involved
in the business of buying and selling to be licensed and bonded. Section
152C imposes a criminal penalty for violations.
The Society is a Massachusetts corporation formed under G. L. c. 157,
§ 3. Among the purposes of the Society, as they are set out in its corporate
charter, is the contracting with producers thereby requiring them to
market any or all of their products through the Society which is authori-
zed to acquire title to the products to remarket and distribute them.
The Society, pursuant to its charter and purposes, does contract with
its producer membership. Under paragraph six of that contract, the
grower-producer agrees "to sell and deliver all fowl" only to such firms,
persons, or corporations as the Society designates "and only pursuant
to an Approved Contract." The last sentence in paragraph six referring
to the Approved Contract states: "Official notice of such approval shall
be given to Member by Society by mail . . . ." Thus, it appears that
the Society is acting pursuant to its purposes. It contracts with members
and thereby exercises control over the products (to which it may take
title); it then arranges for distribution and marketing. All of this is
by contract as that word is used in § 152E; and in so conducting its
business relative to these contracts the Society shall be deemed to be
acting in its own name. (Society's Marketing Agreement clause 14.)
Clearly then, the Society, in my opinion, falls within the category of
"any person . . . who contracts with a producer . . . shall ... be subject
to the provisions of section 152 A . . . ." (§ 152E.)
Section 152A states:
"No person shall engage regularly in the business of buying or selling
poultry which is to sold or used for food unless he has a license from
the commissioner of agriculture, the fee for which shall not exceed two
dollars, and has filed a surety bond with said commissioner. . . ." (Em-
phasis supplied.)
164 P.D. 12
Aside from the fact that the Society's contracting activities are within
the purview of § 152E which inrturn involves § 152A (and its bonding
provision), the Society's charter sets out numerous activities it proposes
to engage in, and does engage in; such activities when considered as a
whole might be deemed as putting the Society "in the business" of buy-
ing and selling poultry. I refer to activities such as negotiations of sales,
selling directly, acquiring title, and distributing. Thus, being so closely
involved with the process of marketing poultry, the Society might be
viewed as being "in the business" or being in the industry of buying
and selling poultry as that phrase is used. However, since § 152D im-
poses criminal penalties for violations of § 152A, the statute must be con-
strued strictly. It is, therefore, my opinion that the Society is covered
by the bonding requirement of § 152 A by way of § 152E.
Very truly yours,
Edward W. Brooke
The trustees of the Southeastern Massachusetts Technological Institute
have the discretion to apply for and use federal grants of the type
available under the Higher Education Facilities Act of 1963 (Public
Law 8S.204), and have satisfied the requirements contained in
170.14 of the Regulations promulgated pursuant to such Public
Law.
December 30, 1964.
Hon. Joseph L. Driscoll, President, Southeastern Massachusetts Tech-
nological Institute.
Dear Doctor Driscoll: — I have your request for an opinion rela-
tive to compliance by the Southeastern Massachusetts Technological In-
stitute with certain regulations promulgated pursuant to Public Law 88-
204, the so-called Higher Education Facilities Act of 1963. I understand
that the Institute is about to file an application under the Act for a grant
of federal funds for construction of educational facilities. Section 170.14
of the Regulations provides as follows:
"Before approving a Title I grant the Commissioner will require:
" (a) Satisfactory evidence that the applicant has or will have a fee sim-
ple or such other estate or interest in the facilities and site, including
access thereto, sufficient in the opinion of the Commissioner to assure un-
disturbed use and possession for the purpose of the construction and
operation of the facilities for not less than seventy-five years from the
date of the application.
" (b) Satisfactory evidence that the applicant has the necessary legal
authority to finance, construct, and maintain the proposed facilities, and
to apply for and receive the proposed grant."
Accordingly, you have asked whether the Institute can comply with
these two requirements imposed as conditions to receipt of the federal
funds in question.
P.D. 12 165
The campus properties in Dartmouth were taken by the trustees of
the Southeastern Massachusetts Technological Institute pursuant to the
eminent domain provisions contained in c. 543 of the Acts of 1960. The
property taken exceeds 700 acres in extent, and the Institute will — as a
result of the authorized taking — have clear and undisturbed use and
possession of the same for at least 75 years from the date of application
for the Federal grant. It is conceivable, of course, that the General Court
could lawfully alter this situation in the future by providing for a dif-
ferent use of the land. But in light of the clear intent of the Legislature,
as evidenced by St. 1960, c. 543, that this land was to be devoted to the
purposes of the Institute, it is unlikely that the General Court would
act to the contrary in any way.
The trustees of the Institute have been given broad powers of manage-
ment by the General Court to the end that high educational standards
may be maintained. The trustees are authorized, subject to appropriation
and to G. L. c. 7, §§ 30A to 30J, to prepare plans and specifications
and to award contracts "for the construction of necessary classrooms and
library, laboratory, dormitory, administration and other buildings at the
site of the campus." (St. 1960, c. 543, § 5.) In addition, c. 75B, § 8 pro-
vides in part:
". . . The trustees shall have the authority to assent to federal laws de-
signed to benefit the institute and to enter into agreements or contracts
with agencies of other governments, other colleges and universities, foun-
dations, corporations, interstate compact agencies and individuals where
such agreements or contracts, in the judgment of the trustees, will pro-
mote the objectives of the institute. . . ."
Clearly, discretion is vested in the trustees to apply for and to use fed-
eral grants of the type available under the Higher Education Facilities
Act of 1963.
Consequently, in light of the above, it is my opinion that the require-
ments contained in § 170.14 of the Regulations have been satisfied.
Very truly yours,
Edward W. Brooke
An application for voluntary retirement may, under the retirement law,
be withdrawn by the employee prior to the effective date of retire-
ment by means of oral communication, provided that adequate no-
tice is conveyed in some way to the State Retirement Board that it
is the employees desire not to pursue his original intent to retire
voluntarily.
January 4, 1965.
Hon. Robert Q. Crane, Treasurer and Receiver General of the Com-
monwealth.
Dear Mr. Crane: — I have received your letter of December 30, 1964,
wherein you request my opinion relative to the property of an oral
withdrawal of a retirement application by one Rose L. Levine, an em-
166 P.D. 12
ployee of the Department of Corporations and Taxation, You have in-
formed me that earlier this year Miss Levine submitted an application
for voluntary retirement to the State Retirement Board under the pro-
visions of G. L. c. 32, § 5(1) (a), such retirement to become effective upon
November 19, 1964. On November 16, 1964, having decided to return
to work, Miss Levine orally notified the Commissioner of Corporations
and Taxation, through one of the Commissioner's secretaries, that she
wished to withdraw her retirement request. Consequently, the Com-
missioner apparently concluded that the matter was at an end, and did
not submit the statistical information relative to Miss Levine which
would ordinarily have been forwarded to the State Retirement Board.
The State Retirement Board was not actually advised in writing of
Miss Levine's intent to withdraw her application until December 23, 1964,
at which time the Board was so informed by the Commissioner. (The
Commissioner's letter recited that the Board had been orally informed
of the withdrawal at an earlier date.) Accordingly, you have asked whether
an application for voluntary superannuation retirement may orally be
withdrawn prior to the effective date of such retirement, and whether —
on the above facts — there has been an effective withdrawal of the appli-
cation filed by Miss Levine.
Applications for superannuation retirement are governed by G. L. c.
32, § 5 (1) (a), which provides in part:
"Any member in service or any member inactive on authorized leave
of absence classified in either Group 1 or Group 2 who has attained age
fifty-five, upon his written application on a prescribed form filed with
the board or upon such an application by the head of his department
after a hearing, if requested, as provided for in subdivision (1) of sec-
tion sixteen and subject to the conditions set forth in said section and in
this section, shall be retired for superannuation as of a date which shall
be specified in such application and which shall be subsequent to but not
more than four months after the filing of such application. . . ."
Nothing is contained in the sections governing applications for super-
annuation retirement which provides in any way for the withdrawal of
such applications.
Considering the subject matter that is involved, I do not believe that
the General Court's failure to treat the problem of withdrawal of appli-
cations should be considered an indication that such withdrawals were
not to be permitted. Once an employee has decided to retire voluntarily,
it is of course unlikely that he will subsequently choose to return to his
former employment. But should he wish to do so, there certainly exists
no overwhelming public policy consideration which would compel the
employee's retirement notwithstanding his desire to continue working.
Nothing in the retirement law prevents withdrawal of a voluntary retire-
ment application prior to the date on which such retirement is scheduled
to become effective; and nothing requires that notice of such withdrawal
be written. Should the employee decide not to retire and should he give
the State Retirement Board timely notice to this effect, the Board may—
in my opinion — forego further processing of the application and the
applicant may continue in the public employ as if no application had
ever been filed.
P.D. 12 167
The State Retirement Board must, however, determine in the first in-
stance whether timely notice from the applicant has in fact been received.
Although such notice need not necessarily be in writing, it must be of
such a nature that the Retirement Board will actually be apprised of
the employee's intention to withdraw his application. In the present
case. Miss Levine notified only the Commissioner of Corporations and
Taxation, her immediate employer. Prior to November 19, 1964, the
scheduled effective date of Miss Levine's retirement, notice to the Board
consisted only of the Commissioner's failure to submit the usual statis-
tical information pertaining to the employee in question.
Since final processing of the application presumably required access
to such documents, it would appear to be within the discretion of the
State Retirement Board to determine that withholding of such infor-
mation by the Commissioner constituted notice of withdrawal of the
application. The Board itself must, however, judge whether timely notice
of withdrawal has been received.
Accordingly, it is my opinion that an application for voluntary retire-
ment may, under the retirement law, be withdrawn by the employee
prior to the effective date of retirement by means of oral communication,
assuming that adequate notice is conveyed in some way to the State Re-
tirement Board that it is the employee's desire not to pursue his original
intent to retire voluntarily.
Very truly yours,
Edward W. Brooke
The Metropolitan Area Planning Council may enter into agreements
with the Federal government to receive and expend Federal funds,
but cannot lawfully hind itself by such agreements to take action
inconsistent with or in excess of its controlling statute.
The Planning Council is authorized to cooperate and to xvork with de-
partments, agencies, authorities and political subdivisions of the
Commonwealth, but it cannot delegate the actual responsibility for
performance of its particular functions to other agencies.
January 5, 1965.
Hon. W. Seavey Joyce, S.J., President, Metropolitan Area Planning
Council.
Dear Father Joyce: — I have received your letter wherein you re-
quest my opinion upon the following questions relative to the function-
ing of the Metropolitan Area Planning Council:
"1. Is the Planning Council authorized to receive and expend Federal
funds and to contract wath the United States for the purpose of receiv-
ing and expending Federal funds in carrying out the metropolitan plan-
ning functions with which it is charged by the General Court?
"2. In carrying out these functions, may the Planning Council enter
into working agreements with departments, agencies, authorities and
political subdivisions of the Commonwealth?"
168 P.D. 12
The Metropolitan Area Planning Council was established by c. 668
of the Acts of 1963, which chapter inserted §§ 109 to 114 into c. 6 of the
General Laws. The Council consists of representatives of the cities and
towns which comprise the Metropolitan Area Planning District, twenty-
one gubernatorial appointees and eleven members ex officiis. The Coun-
cil is charged with responsibility for research and study designed to im-
prove the physical, social and economic conditions of the District, and
for the development of comprehensve plans for the implementation of
development and redevelopment programs. The Council shall maintain
full cooperation with the cities and towns of the District, and shall render
all possible assistance to them in their planning activities.
You have informed me that the Council is preparing an application
to be submitted to the Urban Renewal Administration of the Housing
and Home Finance Agency to obtain certain research and planning grants
which are available under the so-called Urban Planning Assistance Pro-
gram. Apparently the United States Government is prepared to contribute
up to two-thirds of the cost of certain studies to be undertaken by the
Metropolitan Area Planning Council.
The only reference to the United States Government to be found in
St. 1963, c. 668 occurs in that part of § 2 of the act which inserts § 14
into c. 6 of the General Laws, and which reads in part as follows:
"The council may expend for services and other expenses such amounts
as the general court may appropriate therefor. The total amount so ap-
propriated, less contributions from the federal government, if any, shall
be charged as assessments upon the various cities and towns comprising
the district. . . ." (Emphasis supplied.)
The statute is silent otherwise on the subject of Federal grants. How-
ever, it is apparent that the General Court assumed that the Metropoli-
tan Area Planning Council would take advantage of whatever Federal
funds might become available; the language quoted above is a clear
indication that the Legislature expected that contributions by the Fed-
eral government might be forthcoming. Projects such as those to be
carried on by the Council frequently are financed in part by Federal
funds and in fact may well be dependent upon such grants. The Coun-
cil is, at least by implication, authorized to receive and to expend funds
contributed by the United States Government. The Council may enter
into agreements with the Federal government in order to secure such aid,
but of course cannot lawfully bind itself by such agreements to take
action inconsistent with or in excess of its controlling statute. Accord-
ingly, I answer your first inquiry in the affirmative.
Section 112 of c. 6 provides in part as follows:
"There shall be a mutual exchange, between the council and all offi-
ces, boards, commissions, departments, divisions and agencies of the com-
monwealth, and all offices, boards, commissions and departments of each
political subdivision of the commonwealth within the district, and all
public authorities operating within the district, of data, records and in-
formation within their knowledge and control pertaining to the district,
or to parts thereof, which may be required for the preparation of plans
made pursuant to section one hundred and ten. . . ."
P.D. 12 169
The General Court has thus provided that there shall be communication
between the Metropolitan Area Planning Council and other departments,
agencies and public authorities of the Commonwealth and of political
subdivisions interested in the Council's projects, at least in so far as
necessary records and information within the control of these bodies are
concerned. It was clearly the Legislature's intent that the Council be
authorized to work with other agencies and to take advantage of the
knowledge and experience that other administrators might offer.
Section 112, however, does not authorize the Council to delegate re-
sponsibilities to other agencies. When the Legislature has assigned a
particular function to an agency, that agency may properly exercise
whatever powers may reasonably be necessary to perform such function.
But it cannot re-delegate the actual responsibility for performance.
Attorney General v. Trustees of Boston Elevated
Railway Co., 319 Mass. 642, 654-655
With this single proviso, therefore, it is my opinion that the General
Court has authorized, and in fact expects, the Metropolitan Area Plan-
ning Council to cooperate and to work with departments, agencies, au-
thorities and political subdivisions of the Commonwealth, and I accord-
ingly answer your second question in the affirmative.
Very truly yours,
Edward W. Brooke
Municipal Light Boards are not subject to municipal ordinances and
by-laws respecting employment, classifications, and salaries.
January 6, 1965.
Hon, Norman Mason, Chairman, Department of Public Utilities.
Dear Sir: — By letter of November 12, 1964, you have requested my
opinion whether Municipal Light Boards are subject to municipal ordi-
nances and by-laws respecting employment, classifications, and salaries.
Municipal Light Departments were originally established under au-
thority of Chapter 370 of the Acts of 1891. Section 8 of that Act provided
that the general management of the business was to be exercised by an
officer with the title of manager and enumerated his duties, which in-
cluded the hiring and discharging of employees, expressly providing that
such duties were "subject to any ordinances established by the city coun-
cil in a city, or the by-laws or regulations established in a town," The
manager was to be appointed by the mayor in a city or by the select-
men in a town.
St. 1893, c. 454, § 10 changed this section to give the power of appoint-
ment of the manager to a Municipal Light Board if one were established,
and incorporated this section in R.L. c. 34, § 20. A further revision (St.
1905, c. 410) substituted a new section 20 which struck out the refer-
ence to ordinances and by-laws completely and provided "the . . . Mu-
nicipal Light Board . . . shall appoint a manager of municipal lighting
who shall, under the direction and control of the . . . Municipal Light
170 P.D. 12
Board, and subject to the provisions of this chapter, have full charge of
the operation and management of the plant, the manufacture and dis-
tribution of gas and electricity, the purchase of supplies, the employ-
ment of agents and servants, the method, time, price, quantity and
quality of the supplies, the collection of bills, and the keeping of ac-
counts." It contained further detailed provisions relating to his duties
which are substantially the same as contained in the present General
Laws Chapter 164, Section 56.
In the case of Municipal Light Commission vs. Taunton, 323 Mass.
79, much of this legislative history is recapitulated. The question in that
case was whether an ordinance of the city forbidding expenditures over
^500 without sealed bids, and an ordinance setting salaries for custo-
dians, janitors and matrons, applied to the Municipal Light Department.
The court stated that the statutes authorizing cities and towns to enter
the electric light business make the members of the light board and the
manager "public officers under legislative mandate, and not agents of
the city," and vest "exclusive managerial powers in the commission sub-
ject to the supervision of other public officers and particularly the De-
partment of Public Utilities of the Commonwealth as provided by G. L.
c. 164".
It therefore held that these ordinances "have no application to the
affairs of the commission, the management of which rest exclusively in
the commission subject to the provisions of G. L. c. 164."
The principles enunciated in that case are decisive of the issues raised
in your letter. The provisions of Chapter 41, Section 108A which pro-
vide for general employee classification and pay plans, were not intended
to frustrate the legislative intent spelled out in Chapter 164 and are
not applicable to municipal light departments.
This construction is strengthened by the decision in Municipal Light
Commission of Peabody vs. City of Peabody, 1964 A.S. p. 1437 (Decem-
ber 11, 1964), holding that while in certain respects light departments
are municipal departments, that generally speaking G. L. c. 44, dealing
with municipal finance, does not apply to them because of the provisions
of chapter 164. This reasoning would apply equally to section 108A of
chapter 41.
You have asked three specific questions as follows:
1. May the manager, with the concurrence of the municipal light
board, establish salary schedules applicable to employees of its depart-
ment only, without the approval of a town meeting or of a board of
selectmen (in the case of a town) or of the city council or board of alder-
men (in the case of a city).
2. Where job classifications and salaries for municipal employees are
established by ordinance or by-law, may the manager, with the concur-
rence of the municipal light board, establish job classifications or salary
schedules incompatible with such ordinance or by-law.
3. Where an ordinance or by-law requires salary adjustments be ap-
proved by a municipal board other than a municipal light board, may
P.D. 12 171
the manager, with the concurrence of the municipal light board, make
salary adjustments without the approval of such other board.
I answer all three questions in the affirmative for the reasons stated
above.
Very truly yours,
Edward W. Brooke
The requirement of the Board of State Examiners of Plumbers, to the
extent used in connection with its licensing activities, that appli-
cants complete an application which elicits information regarding
national origin, age and derivation of citizenship, is not a violation
of G. L. c. 151B, %4(3).
January 6, 1965.
Hon. Walter H. Nolan, Executive Secretary, Massachusetts Commis-
sion Against Discrimination.
Dear Sir: — You have asked my opinion whether the requirement of
the Board of State Examiners of Plumbers, that each applicant for a
license to engage in the business of a master plumber or to work as a
journeyman complete an application which elicits information regard-
ing national origin, age and derivation of citizenship, is in violation of
G. L. c. 151B, §4(3).
General Laws, c. 151B, § 4(3) makes it unlawful for any employer
or employment agency "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 discrimi-
nation as to race, color, religious creed, national origin, age or ancestry
or any intent to make any such limitation, specification or discrimina-
tion. . . ." For the purpose of this opinion, I assume that an applica-
tion of the type described, if used by an employer or employment agency,
would violate the quoted portion of § 4. The Board, however, clearly
is not an employer. Therefore, unless the licensing activities of the Board
make it an "employment agency" within the meaning of § 4 (3), it is not
subject to that section.
General Laws, c. 15 IB, § 1 (2) provides as follows:
"The term 'employment agency' includes any person undertaking to
procure employees or opportunities to work."
The reference sets forth the common understanding of the functions of
an employment agency. The use of the word "includes" permits the
development and expansion of the definition. It does not, however,
evince a policy broad enough to cover activities wholly foreign to and
different from those mentioned in the section. Were it otherwise, the
definition would be spurious, and limited only by the uncontrolled dis-
cretion of the Commission. The licensing activities of the Board are
so foreign. They are designed to determine only who is qualified by
training and experience to compete for work as a master plumber or
journeyman. No person may so compete unless the Board is convinced
that he is so qualified. G. L. c. 142, §§ 3, 4. The application is a part
of the procedure by which the Board's determination is made. The
172 P.D. 12
"employment agency" is not entitled to participate in the Board's deliber-
ative process and is bound by the decision of the Board, or of any
reviewing agency. On the other hand, the Board must license any person
so qualified, irrespective of the availability of jobs or job opportunities;
and its licensing duties or functions cease upon the determination that
the person is so qualified. Accordingly, although the activities of the
Board complement those of the "employment agency," in that the latter's
activities can be effective only when the work or job seeker has been
qualified, they are designed to and do effectuate different purposes.
The New York Legislature, in its counterpart to our § 4 (3), has seen
fit to subject licensing agencies to the same strictures which bind em-
ployers and employment agencies. New York Executive Law, Art. XV,
§ 296, 3-a (b). The General Court has not done so, and it alone is
entitled to do so.
I express no opinion of whether the Board's application form is a
proper exercise of power under G. L. c. 142, § 4, since the propriety of
the exercise under that section is not before me. For the foregoing
reasons, however, it is my considered judgment that the Board's require-
ment that each applicant for a license to engage in the business of a
master plumber, or to work as a journeyman plumber, complete an
application of the type described above, to the extent used in connection
with its licensing activities, is not a violation of G. L. c. 151B, § 4(3).
Very truly yours,
Edward W. Brooke
A majority of the Commission of Labor and Industries, which does not
include the Commissioner, 7nay call a meeting of the Commission,
provided proper notice of the meeting is given to the other members.
January 6, 1965.
Hon. Louis W. Maples, Associate Commissioner, Department of Labor
and Industries.
Dear Mr. Maples: — On Januai7 6, 1965, you requested my opinion
upon the following matter:
May a majority of the Commission of Labor and Industries, which
does not include the Commissioner, call a meeting of the Commission?
General Laws, Chapter 23, Section 1 governs the composition of the
Commission of Labor and Industries:
There shall be a department of labor and industries, under the super-
vision and control of a commissioner of labor and industries, in this
chapter called the commissioner, an assistant commissioner, who shall
be a woman, and three associate commissioners, one of whom shall be
a representative of labor and one a representative of employers of labor.
Thus it would appear that the General Court intended that supervision
and control of the Department be vested in the five officers mentioned in
this section, rather than that responsibility be assigned to the Commis-
sioner alone. Certain duties, such as the appointment of experts and
the employment of inspectors and investigators, are to be carried out by
P.D. 12 178
the Commissioner. Appointment and removal of directors must clearly
be acted upon by the commissioners sitting as a body (c. 23, § 4). Busi-
ness which is not specifically assigned by the statute to the Commissioner
himself, or to another party in particular, must — in light of the language
of c. 23, § 1 — be conducted by the several members of the Commission.
The statute is silent on the question of how meetings of the full Com-
mission are to be called. Likewise, nothing appears in the General Laws
which governs what shall constitute a quorum or what vote shall be
necessary in order to take action. I am assuming that the Department
has not promulgated regulations which would clarify these matters.
Absent statutory provisions to the contrary, an agency is entitled to
act by vote of a majority of its members.
Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531,
34 S. Ct. 359.
Such procedure is virtually compelled by practical considerations, since
to require either unanimity or a very high vote as a condition to agency
action would be, in many cases, to stifle the administrative process. The
statute which governs the functioning of the Commissioners does not
require a specific vote, and, accordingly, a majority vote is sufficient for
lawful agency action.
Since a majority may carry on the business of the Commissioners, it
is my opinion that a majority may also call meetings for the purpose of
transacting such business. The General Court has not provided that
the calling of meetings shall be the exclusive prerogative of the Com-
missioner. The statute assigns certain duties to the Commission as a
w^hole, and the Commission must be able to meet to carry out such duties.
The individuals who call the meeting will, of course, not be relieved of
the obligation to give proper notice of the meeting to the other members.
Assuming that all members are properly notified, however, a majority
may lawfully call a meeting and may proceed to perform the business
of the agency.
Very truly yours,
Edward W. Brooke
Appointments of notaries public, justices of the peace, masters in
chancery, and public administrators by the Governor require Ex-
ecutive Council advice and consent.
January 7, 1965.
Hon. Endicott Peabody, Governor of the Commonwealth.
Dear Sir: — I have received your letter of December 30, 1964, relative
to the Executive Council's role with respect to the appointments of
notaries public, justices of the peace, masters in chancery, and public .
administrators.
A law proposed and passed by initiative petition which appeared as
Question No. 5 on the Massachusetts ballot of November 3, 1964, re-
pealed any provision of the general or special laws in which appointments
to offices in the Executive Department required the advice and consent
174 P.D. 12
of the Executive Council. (See Op. Atty. Gen. December 15, 1964.)
The constitutional requirements for advice and consent of the Executive
Council remain. Therefore, any positions the appointments to which
are made pursuant to the Constitution with advice and consent of the
Council must still be made accordingly.
Appointments of notaries public are governed by the Constitution as
follows:
"Notaries public shall be appointed by the governor in the same
manner as judicial officers are appointed. . . ." Const., Article of Amend-
ments, Art. 4.
"All judicial officers . . . shall be nominated and appointed by the
governor, by and with the advice and consent of the council." Const.
Pt. 2, c. 2, § 1, Art. 9.
The appointing of notaries public, therefore, still requires the advice
and consent of the Executive Council since notaries public must be
appointed in the same manner as are all judicial officers, namely, pur-
suant to the Commonwealth's Constitution Pt. 2, c. 2, § 1, art. 9, which
prescribes Executive Council advice and consent. Justices of the peace
are also judicial officers and therefore the above-quoted constitutional
provision applies to their appointments.
The appointments of masters in chancery are governed by G. L. c. 221,
§ 53, which provides for the advice and consent of the Executive Council.
Public administrators are appointed pursuant to G. L. c. 194, § 1, which
likewise provides for the advice and consent of the Executive Council.
The law passed on November 3, 1964, as Question No. 5 on the ballot
is limited to repealing provisions of the general and special laws re-
quiring advice and consent of the Council "to any appointment in the
executive department." (§ 3.) In § 1 of the law, "executive depart-
ment" is defined as including
"all departments, divisions, boards, bureaus, commissions, institutions,
... but expressly excluding therefrom the legislative and judicial depart-
ments. . . ." (§ 1.)
In so far as a master in chancery makes judicial findings of fact, he
acts as an adjunct to members of the bench. A public administrator is
charged with handling the affairs of a deceased and representing the
estate of the deceased. The work of both a master in chancery and a
public administrator is performed within the judicial department.
As noted above, the law passed on November 3, 1964, as Question No.
5 on the ballot does not repeal those sections of our general and special
laws providing for appointments to the judicial department. General
Laws c. 221, § 53 and G. L. c. 194, § 1, governing the appointments of
masters in chancery and public administrators, have not been repealed.
Therefore, these appointments still require Executive Council advice
and consent.
Very truly yours,
Edward W. Brooke
P.D. 12 175
5^ 1964, c. 610 does not apply to tenancies at will.
Pursuant to St. 1964, c. 610, where the property is in multiple ownership,
each owner must sign and file jointly or separately a statement setting
forth the information required by the statute.
Pursuant to St. 1964, c. 610, xohere property is held in trust or other
fiduciary capacity, each trustee must file a signed statement disclosing
all those persons hat'ing a direct or indirect beneficial interest in the
property. A separate statement must be filed with each lease.
Phrase "(any stockholders of a corporation the stock of which is) listed
for sale to the general public luith the securities and exchange com-
mission" defined. A business trust is not a corporation and the
exception herein does not apply to such.
The statute does not invalidate and prex>ent the payment of rent under
an agreement of sale or lease entered into prior to the effective date
of the statute. However, a statement must be filed in any instance
where a renewal, extension or modification of the existing lease
luould constitute a new agreement.
The commissioner must file an annual report with the Secretary of the
Commomvealth of the statements received in his department pur-
suant to the statute.
January 7, 1965.
Hon. William A. Waldron, Commissioner of Administration.
Dear Commissioner Waldron: — In your letter of September 25, 1964,
and in a subsequent memorandum from your department dated No-
vember 10, 1964, you have asked the advice of this office concerning
certain problems of interpretation which may arise in the administration
of G. L. c. 7, § 36, as added by St. 1964, c. 610. The specific questions
which you have raised are answered below in the same order in which
they were submitted.
G. L. c. 7, § 36
"No agreement to lease or to sell real property to the commonwealth
or to any of its political subdivisions or to any authority created by the
general court shall be valid and no payment shall be made to the lessor
or seller of such property until a statement has been filed, under the
penalties of perjury, with the commissioner of administration by the
lessor or seller, and in the case of a corporation by a duly authorized
officer thereof giving the true names and addresses of all persons who
have a direct or indirect beneficial interest in said property. The pro-
visions of this section shall not apply to any stockholder of a corporation
the stock of which is listed for sale to the general public with the securi-
ties and exchange commission, if such stockholder holds less than ten
per cent of the outstanding stock entitled to vote at the annual meeting
of such corporation.
"The commissioner shall annually file with the secretary of the com-
monwealth a report of such statements."
176 P.D. 12
"1. Does the statute apply to tenancies at will?"
Under G. L. c. 8, § lOA, as amended by St. 1962, c. 757, § 37, the
Commonwealth may only enter into a lease "for a term not exceeding
five years." An estate for years (a term) is defined as "an estate, the
duration of which is fixed in units of a year or multiples or divisions
thereof" ^ and a tenancy at will as "an estate which is terminable at the
will of the transferor and also at the will of the transferee and which has
no other designated period of duration." ^ A tenancy at will and a
tenancy for a term are two separate and distinct estates. General Laws
c. 8, § lOA authorizes the Commonwealth only to enter into a lease for
a term. This section precludes the state from making a lease creating
a tenancy at will. Fo rthis reason, St. 1964, c. 610 would not apply to a
tenant at will.
"2. Where the property is in multiple ownership, is it sufficient if one
of the owners executes the statement, or must all of the owners join in
its execution?
"3. Where property is held in trust or other fiduciary capacity, is it
sufficient for the holder of legal title to execute the statement, or must
a beneficial owner or all the beneficial owners execute the statement?
What if (the) beneficial owners are minors?"
The two questions will be answered together since they raise similar
issues pertaining to multiple ownership.
The words "lessor" or "seller" as used in this section appear in the
singular gender. It would be an unnecessary repetition for the General
Court to include in every statute the plural gender each time the singular
is used. Instead, the Legislature has enacted general "Rules of Con-
struing Statutes" found in G. L. c. 4, § 6, as amended. In the fourth
paragraph of that section, specific provision is made for extending the
singular meaning to include the plural where it was intended not to
restrict the meaning to the singular.
It is clear on the face of St. 1964, c. 610, that the Legislature did not
intend this section to apply merely to property held by one person as
lessor or seller. This statute clearly intends as broad and extensive
disclosure as in practically possible. To insure accuracy in making such
disclosure, each owner must file his statement under the penalties of
perjury. Where the property is held by more than one person, each
owner must sign and file jointly or separately a statement setting forth
the information required by this statute.
In the case of a trust, the problem is not one merely of multiple owner-
ship, but the more basic question of who is the owner or the lessor. When
a trust is created, the legal title to the property vests in the trustee and
the equitable title in the beneficiary.^ Historically, at law viz. equity the
trustee would be considered the owner or the lessor of the property. This
would be the case also from a practical point of view, since under most
1 Restatement, Property, § 19 (1936).
2 Restatement, Property, § 21 (1936).
3Bogart, Trusts, §§ 1, 12 (1951).
P.D. 12 177
trust agreements it would be the trustee who made repairs, collected the
rents or initially received the sale price. Anyone coming in contact
with the trust property would normally deal directly with the trustee.
The statute itself, where it states, "giving the true names and addresses
of all persons who have a direct or indirect beneficial interest in said
property," differentiates between the lessor or seller and those persons
having a beneficial interest. This phrase, though appearing directly
after the clause dealing with corporations, would not be limited to corpo-
rations. Any such construction would not be consonant with the pur-
poses of the statute as a whole. In the case of a trust, the trustee or
trustees, in every instance where there is more than one, must file a signed
statement disclosing all those persons having a direct or indirect beneficial
interest in the property.
No special problem would be created where the beneficiary is a minor
since it is the trustee that is required to file the statement.
"4. What is meant by the phrase 'listed for sale to the general public
with the securities and exchange commission'? Does this apply to busi-
ness trusts with transferable shares as well as to corporations?"
The phrase, " (any stockholders of a corporation the stock of w^hich is)
listed for sale to the general public with the securities and exchange
commission," refers to those securities of a corporation which are required
to be registered wdth the Securities and Exchange Commission prior to
their sale to the general public under the terms of the various Federal
Securities Acts, more particularly the Federal Securities Act (1933) as
amended.
In answer to the second part of your question and also with regard
to question ten, it may well be that the Legislature excepted stockholders
of corporations listed with the Securities and Exchange Commission
because it felt that the federal listing requirement and the attendant
public notice gives sufficient protection against an unheralded use of
public funds. The General Court may also have been motivated by the
fact that in most instances, the stock of a corporation listed with the
S.E.C. is usually more widely distributed than closely held corporations
and less susceptible to control by one stockholder. Or as it has been
suggested, it may have been intended as a means of distinguishing be-
tween corporations with broad public ownership and those corporations
that are privately owned.
These motives, discussed above, for establishing this exception might
well apply with equal logic to both corporate and non-corporate business
entities. It has been suggested further, in line with this, that there is a
certain degree of similarity between a so-called Massachusetts business
trust and a corporation. Any such discussion is now purely academic.
The statute clearly states "a corporation." A business trust is not a
corporation.* The exception applies only to corporations. The Legis-
lature could in the future extend the exception to include other business
associations. It has not yet done so.
4 Henn. Corporations, §§ 58-67 (1961).
178 P.D. 12
"5. Does the new statute invalidate and prevent the payment of rent
under leases entered into prior to September 24, 1964, in the absence of
the required statement now being filed with the Commissioner of Ad-
ministration?"
This statute would not invalidate and prevent the payment of rent
under an agreement of sale or lease entered into prior to the effective
date of this statute. It is a well-established canon of statutory construc-
tion that an act is to be construed as having a prospective application
unless a contrary intent is clearly evidenced. No such intent appears
in this statute.
It is also correctly pointed out that a retroactive interpretation might
raise certain constitutional questions not dissimilar to the early case of
Dartmouth College v. Woodward ^ where the State of New Hampshire
attempted unsuccessfully to amend the prior charter agreement between
the crown and the college. An application of this statute to contracts
already in existence might well violate Article I, Section 10, Clause 1 of
the United States Constitution. Such an interpretation would, however,
be contrary to the intent of the statute and the rule of construction which
requires a constitutional construction where two interpretations are
possible.®
"6. Assuming that existing leases are not invalidated if no statement
is filed, what is the effect of a future renewal, extension, or modification
of an existing lease?"
Where a lease is entered into prior to the effective date of this statute,
a statement must be filed in any instance where a renewal, extension or
modification of the existing lease would constitute a new agreement.
What constitutes a new agreement would have to be decided in light of
the specific facts of each individual case.
"7. In the case of a lessor, the beneficial ownership of which is con-
stantly subject to change, how often must the statement required by the
statute be filed?"
The statute states in the second paragraph, "The Commissioner shall
annually file with the secretary of the commonwealth a report of such
statements." It is obvious that the Commissioner must file with the
secretary a report of the statements received in his department pursuant
to the statute. This would, of course, involve listing all new statements
filed, inclusive of amendments and changes. The burden of filing the
statement falls upon the lessor; the Commissioner merely files a report
of what the statements indicate with the Secretary of the Commonwealth.
"8. Does a trust which has a statement on file, made in connection
with one governmental tenant, have to file an additional statement when
it enters into a new lease with another (or the same) governmental
5 Trustees of Dartmouth College v. Woodxvard, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629
(1819).
&Thurman v. Chicago, Milwaukee & St. Paul Ry., 254 Mass. 509, 576 (1926). Lewis
V. White, 56 F.2d 390 (1932).
P.D. 12 179
tenant for additional space in the same (or a different) building owned
by it?"
It is the individual lease which is rendered invalid by the failure to
file under this section. In accordance with this requirement, a separate
statement must be filed with each lease. Any proposed short cut would
lessen the effectiveness of this legislation. It may be, however, that, in
the discretion of the department, an orderly system of indexing will
obviate difficulties under this provision.
"9. What would be the form and extent of the statement required
to be filed?"
It may prove feasible for the Executive Office for Administration and
Finance to print and promulgate a special form to be used for filing
under this section. Should this course be adopted, this office would be
happy to advise your department concerning that form. As to broad
general guidelines, every statement should fully disclose all those persons,
not specifically exempted, who have any interest in the property sold
to or leased by the Commonwealth. In a case of a corporation or a busi-
ness entity with transferable shares, this would naturally include a list
of all the stockholders.
"10. Is the exemption from the filing requirement contained in the
last sentence of the first paragraph of the new section available to a
(business) trust?"
This problem has been previously discussed in answer to question
four. The exception applies only to corporations.
As you have pointed out in your letter, this new statute presents some
problem in interpretation and administration. It is hoped that the
above discussion will help in this regard.
I suggest that if any future questions arise under this statute they may
best be solved by having members of this office meet with those responsible
for administering this statute.
Very truly yours,
Edward W. Brooke
5^ 1964, c. 582, confers upon the Trustees of the Southeastern Massa-
chusetts Technological Institute at least as much authority as was
conferred by the former G. L. c. 75.
January 11, 1965.
Hon. Joseph L. Driscoll, President, Southeastern Massachusetts Tech-
nological Institute.
Dear Doctor Driscoll: — In your letter of December 15, 1964, you
ask the following question:
"Are all of the powers, rights, duties and responsibilities as set forth
in Chapter 75B of the General Laws that were established by Chapter
543 of the Acts of 1960 inherent in Chapter 582 of the Acts of 1964?"
180 P.D. 12
St. 1964, c. 582 inserted new §§ 1 to 17 in c. 75B of the General Laws,
deleting the former §§ 1 to 20. The new § 1 in part provides:
"The Southeastern Massachusetts Technological Institute shall con-
tinue as a state institution of higher learning . ... In addition to the
authority, responsibility , powers, and duties specifically conferred by
this chapter, the board of trustees shall have all authority, responsibility,
rights, privileges, powers and duties customarily and traditionally ex-
ercised by governing boards of institutions of higher learning." (Emphasis
supplied.)
The underscored language clearly confers upon the Trustees at least
as much authority as was conferred by the former G. L. c. 75, §§ 1-20.
(See Attorney General's Report, 1948, p. 57.)
I conclude, therefore, that the amendments provided by St. 1964, c.
582 were for the purpose of expanding the powers of the Trustees in
order to promote the administration and staff of Southeastern Massa-
chusetts Technological Institute to that of other like institutes in the
Commonwealth. (See Doggett v. Hooper, 306 Mass. 129, 132.)
Accordingly, I answer your question in the affirmative.
Very truly yours,
Edward W. Brooke
A person who has been registered as a professional engineer under the
so-called "grandfather clause" (§ 11) of St. 1938, C. 584, may also
apply for a certificate as an engineer in training, under provisions of
%4 of said chapter, without requesting the cancellation of his existing
registration as a professional engineer.
January 12, 1965.
Hon. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: — By letter dated November 19, 1964, on behalf
of the Board of Registration of Professional Engineers and of Land Sur-
veyors, you have asked my opinion whether a person who has been regis-
tered as a professional engineer under the so-called "grandfather" clause
(section 11) of Chapter 584 of the Acts of 1958 may also apply for a cer-
tificate as an engineer-in-training, under the provisions of section 4 of
the same chapter. You further ask whether, if he is allowed to apply for
the certificate, he must as a prerequisite ask that his registration under
section 11 be cancelled.
In order to answer your questions, it is necessary to look at the legis-
lative history of St. 1958, Ch. 584.
Prior to the passage of the said Ch. 584, G. L., C. 112, §§ 81-D-81T
provided for the registration of "Professional Engineers" after examina-
tion and/or proof of training and experience as set forth in the chapter.
It did not forbid generally the practice of engineering by unregistered
engineers, provided that such persons did not hold themselves out to be
registered professional engineers.
P.D. 12 181
Ch. 584 for the first time forbade the practice of engineering by un-
registered engineers (section 10). To ease the effect on persons then cur-
rently practicing engineering, however, it provided in section 11 that
such persons might be registered as professional engineers without exami-
nation, if they had been residents of the Commonwealth for a year, were
of good character, and had done w^ork satisfactory to the Board. All other
applicants were required to take examinations and/or meet specific re-
quirements of training and experience spelled out in section 4. Also,
Ch. 584 inserted a new category, Engineer-in-Training, and provided
that upon application and the meeting of educational and/or training
qualifications and the passing of an examination, a certificate as Engi-
neer-in-Training would be given by the Board.
The clear purpose of these changes is to improve the quality of engi-
neering training and practice in the Commonwealth and to bring Massa-
chusetts standards more in line with those of other states, while protecting
the livelihood of existing practitioners.
The statute does not in express terms require an applicant to choose
between categories. Its provisions for becoming professional engineers
and engineers-in-training by meeting prescribed standards of education,
training and/or experience are made part of G. L., C. 112, §§ 81D-81T.
The grandfather clause (section 11) is not made a part of the General
Laws, since its provisions must be taken advantage of within one year
after June 1, 1958, and thereafter all applicants come under the continu-
ing requirements of sections 81D-81T.
Faced with this statutory scheme, it is natural that an engineer who
was eligible under the grandfather clause would seek to protect his live-
lihood by securing registration thereunder.
Having done that, he now seeks to advance himself, and possibly to
secure employment open only to persons who have demonstrated the
ability to pass the examination required of an engineer-in-training.
I see nothing in the language or intent of Ch. 584 that would prevent
him from doing so, or authorize the Board to reject his application for a
certificate if he meets the qualifications spelled out in section 4, now
section 81 J (2) of G. L., C. 112. The statute does not require an ap-
plicant to make a choice between categories. It simply states the require-
ments for obtaining:
1. Registration as a professional engineer.
2. Certification as an engineer-in-training.
3. Registration as a land surveyor.
It is true that, ordinarily, the greater includes the lesser, and one
would not usually expect that a person who was already registered as a
professional engineer would seek the title of engineer-in-training. But
one's doing so, in the circumstances you have outlined in your letter,
evinces a desire to prove oneself as an engineer, entirely in accord with
the language and intent of the chapter. It is my opinion that registra-
tion under the grandfather clause was not intended to disqualify a per-
son from earning the certificate.
182 P.D. 12
I am aware of the possibility that an applicant might fail the examina-
tion, and thus create the embarrassing anomaly of a registered engineer
who lacks the qualifications of an engineer-in-training. But this situation
is implicit so long as there is registration under the grandfather clause.
In my opinion the applicant has a right to apply for and take the
examination for a certificate as engineer-in-training, without requesting
the cancellation of his existing registration as a professional engineer.
The fact, as stated by you, that this applicant is older than most ap-
plicants for this examination who are usually recent college graduates,
and the likelihood that a precedent may be set for other registrants under
the grandafther clause, does not appear to me grounds for denying the
application under the law.
The use of the examinations to indicate proficiency in basic engineer-
ing information is a perfectly legitimate use by the applicant under C. 1 12
of the General Laws.
Very truly yours,
Edward W. Brooke
After November 1, 1964, the right to damages arising from a taking by
eminent domain vests in the persons entitled thereto upon the re-
cording of the order of taking and interest is payable from the date
of recording of the order to the date the agreement for settlement
is approved by vote of the commissioner of the Department of Public
Works.
For takings prior to November 1, 1964, the purpose of the taking must
be considered when determijiing starting date of the period over
ivhich interest runs on the damages; final date of interest period is
that on which the settlement agree^nent is approved by vote of the
Commissioners.
General Laws, c. 79, § 37 does not permit by implication or otherwise,
inclusion of interest in the amount assessed as damages to the land-
owner.
January 15, 1965.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Re: G. L. Chapter 79 § 37 — Interest on Land Damage Settlements.
Dear Commissioner Fitzgerald: — By letter dated December 16, 1964,
you have asked my opinion of the effect of Section 37 of Chapter 79 of
the General Laws, as amended, on the payment of interest for negotiated
settlements of land damage awards prior to and since January 2, 1962
and whether by implication or otherwise this section permits inclusion
of interest in the assessment of an award of damages to the landowner.
Section 37 of Chapter 79 of General Laws states:
"Damages under this chapter shall bear interest at the rate of six per
cent per annum from the date as of which they are assessed until paid,
except that an award shall not bear interest after it is payable unless the
P.D. 12 183
body politic or corporate liable therefor fails upon demand to pay the
same to the person entitled thereto. Interest shall be added by the clerk
of the court to the damages expressed in a verdict, finding, or order for
judgment on an auditor's report. A judgment, whether against the com-
monwealth or any other body politic or corporate, shall bear interest
at the rate of six per cent per annum from the date of the entry of such
judgment to and inchuling the last day of the month prior to the month
in which satisfaction thereof is paid."
The phrase "damages under this chapter" refers to all types of dam-
ages included in G. L., Chapter 79. It includes the "damages" referred
to in Section .^9 of Chapter 79, G. L., authorizing certain settlement
procedures by taking agencies.
The payment of interest on damage awards has been provided for
by the Massachusetts General Laws since the passage of Chapter 257 of
the Acts of 1918. Section 187 of that Act inserted a new chapter into the
then Revised Laws of the Commonwealth, headed, "Eminent Domain,
and the Assessment of Damages caused by acts done for public purposes."
Section 37 of § 187 of said Chapter 257 of 1918 reads exactly the same
as the current Section 37 of G. L. Chapter 79 on the obligation to pay
interest on land damages except that the interest was then accrued at
4 per cent per annum rather than the current 6 per cent per annum.
Section 39 of § 187 of said Chapter 257 of Acts of 1918 provided for set-
tlement and tender and allowed "interest thereon as provided by law."
The right to receive interest on damages has thus existed in the Com-
monwealth for 47 years.
Section 37 of Chapter 79 of the General Laws directs that interest
shall accrue and be paid for the period from the date of assessment of
damages to the date that damages are payable. It has long been the rule
in Massachusetts that the title of a landowner in real property converts
to a claim for damages at the time of the taking of said property by emi-
nent domain. Damages are assessed as of the date of the taking. In Im-
bescheid v. Old Colony Railroad Cornpany, 171 Mass. 209 (189^), the
trial judge awarded the petitioner interest from the date of the taking.
The Supreme Judicial Court ordered judgment on the verdict, including
the interest, stating at page 210:
"The petitioner's loss of title occurred at the date of the taking. His
compensation was then due, and his right to receive it with interest from
that date is settled."
As of November 1, 1964, all takings on the part of the Commonwealth
are accomplished by the recording of an order of taking in the appro-
priate registry of deeds. Chapter 579 § 1, Acts of 1964 amending G. L.
Chapter 79 § 3. The right to damages arising from a taking by eminent
domain now vests in the persons entitled thereto upon the recording of
the order of taking. Interest is now payable from the date of recording of
the taking.
Prior to November 1, 1964, the right to damages vested at different
times for different types of takings. From takings for a highway or town
way, ditches or drainage, the right to damages vested upon entry or
taking of possession by the taking authority. From water right takings.
184 P.D. 12
the right to damages accrued when the water was diverted. From all
other takings, the right to damages vested when the order of taking was
recorded. For takings occurring prior to November 1, 1964, the purpose
of the taking must be considered when determining the period over
which interest runs on the damages.
Section 37 of Chapter 79 G. L. provides that an award of damages
shall not bear interest after the award is payable unless there is a failure,
upon demand, to pay the award to the person entitled thereto. Damage
awards detennined by settlement under § 39 Chapter 79 G. L. are pay-
able to the person entitled thereto when the Commissioners of the De-
partment of Public Works approve the settlement agreement submitted
for their consideration after having been executed by the former owner
of the taken property. When voted by the Commissioners such approval
creates a binding contract. Their vote constitutes the acceptance by the
Commonwealth, of the offer, technically made by the former owner of
the property by signing and delivering to the Department of Public
Works the land damage agreement containing the proposed amount of
the land damage award. Damages are then payable. Interest on nego-
tiated land damage settlements must be computed up to the date of ap-
proval of the settlement agreement by vote of the Commissioners of the
Department of Public Works.
The Department of Public Works has always paid interest on damages
for land takings. Prior to the vote of January 2, 1962, it was depart-
mental practice to total the damages and interest and describe the result
as "damages." The word "damages" is used by some to describe the total
amount paid to the former owner of the property including the dam-
age award, interest thereon, taxes and costs. The concept of damages in-
volves a right of recovery for the taking of property. Interest is the
mathematical result of the multiplication of a land damage award by the
rate of interest established by the Legislature. The separate references
to "damages" and "interest" in Section 37 of Chapter 79, G. L. dictates
the conclusion that an award of damages does not, by implication or
otherwise, include interest.
It is my opinion that under the provisions of Section 37 Chapter 79
of the General Laws, after November 1, 1964, interest on negotiated
settlements of damages resulting from all types of takings by eminent
domain must be computed from the date of recording of the taking to
the date the agreement for settlement is approved by vote of the Com-
missioners of the Department of Public Works.
If a taking by eminent domain were made prior to November 1, 1964,
it is my opinion that interest must be computed on damage awards for
takings for highway or drainage purposes from the date of entry to the
date the settlement agreement is approved by vote of the Commissioners
of the Department of Public Works, and on damage awards for takings of
water rights from the date of diversion of the water to the date the
settlement agreement is approved by the vote of the Commissioners of the
Department of Public Works, and on damage awards for all other takings
from the date of the recording of the order of taking to the date the
settlement agreement is approved by vote of the Commissioners of the
Department of Public Works,
P.D. 12 185
It is my opinion that Section 37 of Chapter 79 of the General Laws
does not permit, by implication or otherwise, inclusion of interest in
the amount assessed as damages to the landowners. Said Section 37 pro-
vides, however, that such sum shall be the principal amount upon
which shall be computed interest to be added thereto, along with the
statutory adjustment of real estate taxes, to determine the total amount
to be paid to the former property owner by the taking agency.
Very truly yours,
Edward W. Brooke
Distances under c. 128A § 3 (p) must be measured from the outermost
point of the property specified in the application and meant to be cov-
.ered by the license, and must then proceed in a straight line to the
nearest outside point on the nearest church, school or housing de-
velopment building.
January 18, 1965.
Hon. Paul F. Walsh, Chairman, State Racing Commission.
Dear Mr. Walsh: — The State Racing Commission has requested my
opinion on certain questions pertaining to an application for dog racing
dates at a proposed site located on Middlesex Road in Tyngsborough.
The dates requested are September 13, 1965 to October 30, 1965, inclu-
sive, a total of 40 racing days. You have informed me that this is the first
application to be filed by the applicant Tyngsborough Enterprises, In-
corporated; no license has ever been granted for a racing meeting to be
held by Tyngsborough Enterprises or for a racing meeting to be held at
the proposed Middlesex Road Location.
In answer to a question in the application form calling for a state-
ment of the distance between the proposed track and the nearest church,
school or housing development, the applicant indicated that such dis-
tance was 2.04 miles. The applicant arrived at this figure by measuring
along the roadway from the Winslow School to a point of intersection
between Middlesex Road and a proposed but as yet not constructed ac-
cess road, and then along the route of the proposed access road to the
entrance to the proposed track. In light of these facts and of applica-
ble laws set forth below, you have posed the following two questions:
"1. W^hat method of measuring the distance between the proposed
site as set forth in the application of Tyngsborough Enterprises, Incor-
porated and the Winslow School should be used? Should the measure-
ment be taken over the road as claimed by the applicant — or should the
distance be measured on a straight line commonly referred to 'as the
crow flies.'
"2. In determining the distance by whatever method may be proper
at what point in the applicant's premises should be used and at what point
in the property of the Winslow School should be used."
The General Court has provided that racing meetings shall not be con-
ducted within two miles of a church, school or housing development.
186 P.D. 12
"No license shall be issued to permit a racing meeting to be held or
conducted at any location within two miles of a church, school or housing
development; provided, however, that this clause shall not apply to the
issuance of a license to hold or conduct a racing meeting at any location
at which a racing meeting had been held or conducted, pursuant to a
license issued under the provisions of this chapter, prior to January first,
nineteen hundred and sixty-one. . . ."
Mass. General Laws, Chapter 128A, section 3 (p), as added by St. 1961,
c 1.
Since racing meetings have never been held at the location in question,
the above-quoted clause is applicable, and Tyngsborough Enterprises,
Inc. must establish that the nearest church, school or housing develop-
ment — in this case, the Winslow School — is not within two miles of
the area to be licensed.
Nothing in G. L. c. 128A, § 3 (p) indicates how the distance specified
therein is to be measured. Comparison to another statute may, however,
cast some light upon the intentions of the General Court. Similar con-
siderations are necessitated by c. 138 of the General Laws, which chapter
governs the manufacture and sale of alcoholic beverages. Section 16C
of c. 138 is the counterpart of c. 128A, § 3 (p):
"Premises, except those of an inn-holder, located within five hundred
feet; measured along public ways, of a church or school shall not be li-
censed for the sale of alcoholic beverages . . ." (Emphasis supplied.)
Mass. General Laws Chapter 138, section 16C, as added by St. 1954,
c. 569, § 1.
The language of this section indicates clearly that the Legislature in-
tended the required distance between premises licensed for the sale of
alcoholic beverages and the nearest church or school to be measured
along public ways rather than "as the crow flies." The phrase "meas-
ured along public ways" is itself ambiguous to a certain extent, and the
Supreme Judicial Court has recommended the promulgation of inter-
pretative regulations by the Alcoholic Beverages Control Commission.
Cleary v. Cardiillo's Inc. 1964 Mass. Adv Sh 633, 638-639
But the General Court has at least established that measurement is to be
made along normal routes of travel.
Section 3 (p) of c. 128 A does not provide that the distance in ques-
tion is to be measured along any particular route. This paragraph was
added to the chapter governing horse and dog racing meetings in 1961.
Section 16C of c. 138, the chapter relating to alcoholic beverages, con-
tains the language "measured along public ways," and was inserted in
1954. Thus the General Court had a model provision which could easily
have been duplicated had that body desired to impose similar conditions
upon the measurement process. The fact that the provisions of the two
statutes differ must be given some meaning. I can only conclude that omis-
sion of the language used in the earlier law was intentional, and that the
Legislature meant that distances required under the racing statute
were to be measured directly and not along roadways. Thus, no racing
meetings may be licensed within a two-mile radius of a church, school
P.D. 12 187
or housing development irrespective of what the distance may be along
existing or proposed routes.
You have, in addition, requested a determination as to what point in
a given piece of property should be used for measurement purposes. Ap-
parently the applicant, Tyngsborough Enterprises, Inc., measured to the
entrance to the proposed track facility itself, including in the measure-
ment a portion of the applicant's property intended for parking for track
patrons.
The statute itself is silent on this question. However, the license sought
by the applicant would not be limited in its effect solely to that part of
the applicant's property on which races are conducted. The authority
granted by the license presumably extends to all of the property owned
by the applicant at a particular location, including areas set aside for
parking, ticket sales and the like. Distance under c. 128A, § 3 (p) must
therefore be measured from the outermost point of the property speci-
fied in the application and meant to be covered by the license. Measure-
ment must then proceed in a straight line to the nearest outside point on
the nearest church, school or housing development building.
Consequently, the applicant should submit to your Commission fur-
ther documents indicating the distances between the area to be covered
by the license and the Winslow School, with such distance to be meas-
ured in accordance with the interpretations set forth above. Should such
new measurement indicate that the proposed track lies within a two-
mile radius of the Winslow School, the license applied for may not law-
fully be issued.
Very truly yours,
Edward W. Brooke
Pursuant to G. L. c. 121 , § 129, as amended by St. 1963, c. 535, from its
elective date fonuard, any prisoner zvho commits a crime and is
convicted and sentenced therefor may have no deductions from the
nexu sentence; deductions from his prior sentence are not affected.
January 19, 1965.
Hon. George F. McGrath, Commissioner of Correction.
Dear Sir: — You have asked my opinion as to the application of c. 127,
§ 129 of the General Laws, as amended by St. 1963, c. 535, to three speci-
fic fact situations outlined in your letter of October 5, 1964.
Prior to October 13, 1963, the effective date of c. 535 of the Acts of
1963, § 129 provided as follows:
"If during the term of imprisonment of a prisoner confined in a cor-
rectional institution of the commonwealth, such prisoner shall commit
any offense of which he shall be convicted and sentenced, all deductions
hereunder from the former sentence of imprisonment of such prisoner
shall be thereby forfeited." (Emphasis supplied.)
St. 1963, c. 535 amended this portion of § 129 to read as follows:
"If, during the term of imprisonment of a prisoner confined in a cor-
rectional institution of the commonwealth, such prisoner shall commit any
^^ p.D. 12
offense of which he shall be convicted and sentenced, he shall not be en-
titled to any deductions hereunder from the new sentence or sentences of
imprisonment." (Emphasis supplied.)
General Laws c. 4, § 6, cl. 2, provides:
"Second, The repeal of a statute shall not affect any punishment, pen-
alty or forfeiture incurred before the repeal takes effect, or any suit, prose-
cution or proceeding pending at the time of the repeal for an offence
committed, or for the recovery of a penalty or forfeiture incurred, under
the statute repealed."
The Supreme Judicial Court has held that the rule set forth in § 6
above is applicable to amendments having the effect of a repeal in whole
or in part. {Commonwealth v. Nassar, 341 Mass. 584, 589 [1961].)
I find no provision in the said c. 535 which would negate the applica-
tion of this rule to the fact situations you have presented.
The specific question then is — whether the prisoners in the three in-
stances you have set forth incurred any punishment penalty or forfeiture
when they committed their escapes and while § 129 as it then provided
was in effect?
In Commonwealth v. Benoit (1963 Adv. Sh. 917), there is a very full
consideration of the meaning of "incur" in this connection. There the
court held that incurrence resulted from the offender's wrongful act,
and applied the law, as it then existed to his case relying upon G. L. c. 4,
§ 6. The court quoted the decision in the Nassar case (supra): "The gen-
eral intention of c. 4, § 6, Second, is to preserve, even after legislative
change of a statute, the liability of an offender to punishment for an
earlier act or omission made criminal by the statute repealed in whole or
in part. . . ."
It is a general rule of statutory construction that statutes operate pros-
pectively. This is particularly true of criminal statutes, which would be
unconstitutional if they imposed a substantially heavier penalty upon a
prior act. (Commonwealth v. Wyman, 12 Gush. 237, 239 [1853].)
Here, one would have to know the record of the particular individual
involved in each case, to be certain whether the elimination of "good
time" from a prior sentence or from the new sentence would result in a
substantially lighter or heavier penalty for him.
This is not "an act plainly mitigating the punishment of an offense"
as in the Wyman case, in which tlie court held that a law reducing the
penalty for arson from death to life imprisonment was an act of clem-
ency, and should be applied to a person guilty of arson committed before
the date of the repeal, but sentenced afterward.
Here the plain intent of the Legislature was to try a new approach to
the problem which would clearly be more severe in some instances and
conceivably less severe in others. I see no reason to take it out of the
general rule that it should apply prospectively only.
From its effective date forward, any prisoner who commits a crime and
is convicted and sentenced therefor may have no deductions from the new
sentence. Deductions from his prior sentence are not affected.
P.D. 12 189
Applying these principles to the fact situations, you have outlined:
"#1- On 7-25-63 prisoner escaped from M.C.I. Norfolk where he was
serving a 21/2-3 year sentence.
"He was returned from escape on 7-27-63.
"For the crime of escape from Norfolk, he was sentenced in the Norfolk
Superior Court on 10-14-63 for a term of 6 months from and after (1 day
after the effective date of Chap. 535 of the Acts of 1963).
"#2. On 8-23-63 prisoner attempted to escape from M.C.I, Concord
while serving a sentence of 6-10 years and 3-5 years concurrent.
"He was indicted for attempt to escape and on 10-14-63 (1 day after
the effective date of Chap. 535 of the Acts of 1963) in the Middlesex Su-
perior Court received a sentence of 2 1/2-3 years from and after for at-
tempted escape.
"#3. On 7-25-63 prisoner escaped from M.C.I. Concord where he was
serving a sentence of 5 years 1 day, 5 years concurrent.
"Returned from escape to Concord on 8-3-63. On 10-14-63 (1 day after
the effective date of Chap. 535 of the Acts of 1963) in the Middlesex
Superior Court was sentenced to 21/2-4 years for the crime of escape to be
served forthwith notwithstanding the sentence to Concord and was com-
mitted to M.C.I. Walpole."
In my opinion, the prisoner in fact situation ^1 must lose deductions
from his prior sentence, but will be entitled to deductions from the new
sentence provided under § 129 prior to the adoption of c. 535 of the
Acts of 1963.
The prisoner in situation ^2 must lose any deductions accumulated
under his prior sentences. He is entitled to any deductions from his new
sentence that § 129 gave him as it stood prior to the adoption of c. 535.
Fact situation :^3 is not entirely clear. You state elsewhere in your
letter that the new sentence "wiped out" the former sentence. If, in fact,
there is left no former sentence, I can only state that the same princi-
ples apply.
Very truly yours,
Edward W. Brooke
Tlie position of Education Informatio7i Officer in the Department of
Education authorized in the appropriation bill for fiscal year 1965
is not subject to the Civil Service Law and Rules adopted in pur-
suance thereof.
January 21, 1965.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Commissioner Kiernan: — In your letter of December 16, 1964,
you have asked my opinion as to whether the new position of Education
Information Officer authorized in the appropriation bill for the fiscal year
1965 is subject to G. L. c. 31, the Civil Service Law and Rules adopted in
pursuance thereof.
190 P.D. 12
In my opinion of August 26, 1964, addressed to the Director of Civil
Service, a copy of which is enclosed, the question of the application of
the Civil Service Law to positions in the Department of Education was
discussed at length.
The conclusion was reached that such positions as Senior Supervisor
in Education, Organizing Extension Instructor, University Extension In-
structor and the like, are not subject to Civil Service. In that opinion, I
said: "One of (the Commissioners') most important duties ... is seeing
that better educational facilities are provided for the Commonwealth.
. . . This duty includes the promulgation of information dealing with
better teaching methods as well as information pertaining to the present
school or college level."
This language clearly applies to the position and duties of Education
Information Officer as outlined in your letter of December 16, 1964,
and, in accordance with the reasoning of my letter of August 26 to the
Director of Civil Service, it is my opinion that such position is not sub-
ject to the Civil Service Law and Rules.
Very truly yours,
Edward W. Brooke
Any method or device intended to provide approval to the issuance of
luarrants for the payments of moneys from the treasury of the
Commonwealth prior to a Council Meeting with a quorum preseyit
and voting is incompatible with the Constitutional responsibility
of the Executive Council.
January 21, 1965.
Hon. Elliot Richardson, Lieutenant Governor of the Commonwealth.
Dear Lieutenant Governor Richardson: — You have requested my
opinion on the question of the manner in which the Executive Council
may give its advice and consent, in advance, to the issuance of warrants
for the payment of moneys from the Treasury of the Commonwealth.
More specifically, you have asked my opinion as to the effect of my state-
ment in opinion dated December 15, 1964, to then Lieutenant Governor
Bellotti that "such withdrawals must be made by warrant with the sig-
nature of the Governor and the approval of the Council," upon the Or-
der of the Council, dated January 7, 1965, as follows:
"5. The Order re payment of Cash Discounts is adopted (see below).
This Order facilitates the payment of bills of the Commonwealth in ad-
vance of a Council meeting in order to take advantage of cash discounts.
It also provides for emergency payments. (The Council approves the war-
rants covering such discounts and emergency payments at the next meet-
ing.)
ORDERED: That upon presentation of bills upon which a discount
is to be allowed the Commonwealth for early payment, accompanied by
a certificate duly signed by the Comptroller or Acting Comptroller show-
ing amounts due to parties from the Commonwealth in accordance with
an appropriation then in effect, including requests for travel on official
P.D. 12 191
business, and for payments and reimbursements to departments, boards
and institutions of the Commonwealth for payrolls and other purposes
when it is for the public interest as determined by the Comptroller to
make immediate payment; also, for the purpose of making emergency
payments to individuals in an amount not to exceed SI 00.00 in any one
instance, warrants for such purposes for the issuing of money out of the
Treasury of the Commonwealth may be signed under the hand of the
Governor or in his absence or disability under the hand of the Lieuten-
ant Governor, the Secretary of the Commonwealth or whoever may be the
Acting Governor for the time being — for the necessary defense and sup-
port of the Commonwealth and for the protection and preservation of
the inhabitants thereof, agreeably to the Constitution and Acts and Re-
solves of the General Court. For such action the advice and consent of
the Council is hereby given."
The responsibility of the Executive Council in the matter of approval
of disbursement warrants is set out in the State Constitution as follows:
"No moneys shall be issued out of the treasury of this Commonwealth,
and disposed of (except such sums as may be appropriated for the redemp-
tion of bills of credit or treasurer's notes, or for the payment of interest
arising thereon) but by warrant under the hand of the governor for the
time being, with the advice and consent of the council, for the necessary
defense and support of the Commonwealth; and for the protection and
preservation of the inhabitants thereof, agreeably to the acts and resolves
of the general court."
Mass. Const. Pt. 2, c. 2, § 1, Art. XI.
The language of this constitutional provision is clear. Other than the
specified exemptions provided for, the redemption of bills of credit or
treasurer's notes or for the payment of interest on them, all moneys are
to be issued from the Treasury only by warrant under the Governor's
hand xvith the advice and consent of the Council. Where the Constitu-
tion has expressly provided that the issuance of moneys be accomplished
with the advice and consent of the Council, that language must be given
effect and cannot be dealt with as mere surplusage. There is therefore
only one reasonable conclusion to be reached from a reading of this con-
stitutional provision. That conclusion was expressed in my opinion of
December 15, 1964, to the effect that "such withdrawals must be made
. . . with . . . the approval of the council."
The question that you are now raising is directed to the determination
of the lawful and proper means of the Council's expressing its approval
in this context, to wit, whether approval of warrants in advance of a
council meeting will satisfy the Constitution's requirement of approval.
The mandate of our constitution clearly requires a negative answer.
The responsibility of the Executive Council in regard to its giving advice
and consent to disbursement warrants arises from the Constitution of our
Commonwealth. As such, the importance of that responsibility cannot be
doubted; and, its purpose, "to insure that no payments (are made) . . .
except for public purposes and in accordance with law" must be given
fullest possible effect. Willarv. Commonwealth, 297 Mass. 527, 529 (1937).
This purpose is not accomplished by the use of approval of warrants
prior to Council meetings.
192 P.D. 12
The gravity of the matters involved necessitates the careful and studied
attention of the Executive Council in order to fulfill its constitutional
responsibility. The approval of warrants for withdrawal of moneys neces-
sitates that degree of judgment and discretion which can only be grounded
in an informed, deliberate decision of the Council. Payment of the Com-
monwealth's funds prior to the positing of an informed opinion by the
Executive Council as to the propriety of such disbursement is inconsistent
with the Council's responsibility.
The grant of a general approval of warrants for emergency payment
or discount benefits is not in keeping with the constitutional intent to
insure responsible, lawful payments for public purposes. It is the respon-
sibility of the Executive Council to act upon full information and after
due and reasonable deliberation. A general approval, such as contained
in the Order of January 7, 1965, is not the type of approval intended
and therefore could constitute an unlawful abdication of constitutional
responsibility.
Inasmuch as it is my opinion that approval of warrants in advance
of Council meetings is incompatible with the constitutional responsi-
bility of the Executive Council, any method adopted to implement utili-
zation of advance approval would be unlawful as a means of discharging
the burden of the Constitution. Accordingly it is not necessary for me
to reply to your further questions.
The adoption of the Executive Council Order of January 7, 1965,
will not satisfy the requirements of advice and consent found in the Con-
stitution, nor would any other device intended to provide approval prior
to a Council meeting with a quorum present and voting.
Very truly yours,
Edward W. Brooke
G. L. c. 161A, § 18, as enacted by St. 1964, c. 653 , exempts the Massachu-
setts Bay Transportation Authority from, any tax, betterment or as-
sessment, and xvaives payment by said Authority of its proportionate
share of the expenses on self-insurers determined by the Department
of Administration and Finance. Hoxvcver, the Authority is required
under c. 152, § 25 A (2) (a) to make the deposit of securities required
of self-iyisurers; and these may be included in the total deposits
under the statute.
January 28, 1965.
Hon. James J. Gaffney, Jr., Chairmayi, Division of Industrial Accidents.
Dear Mr. Gaffney: — You have requested my opinion concerning
the effect of § 18 of G. L. c. 161A, as enacted by c. 653 of the Acts of 1964,
providing for an exemption of the Massachusetts Bay Transportation Au-
thority from taxation, betterments and assessments, from the provisions
of G. L. c. 152, § 25 (a) (4), requiring assessment of expenses on self-
insurers. More specifically you have asked:
"1. Do the provisions of Section 18, Mass., G. L., c. 161A as enacted
by Chapter 563 of the Acts of 1964 supersede or conflict with Section 25A,
P.D. 12 193
par. 4, Mass., G. L., c. 152 and thereby waive the payment on the part
of the Massachusetts Bay Transportation Authority of its proportionate
share of expenses as shall be determined by the Department of Adminis-
tration and Finance as necessary to carry out the provisions of Chapter
152 relating to Self-Insurance?"
It is my opinion that the provision in G. L. c. 152, § 25 (a) (4) that
"such expenses as shall be determined by the Department of Administra-
tion and Finance as necessary to carry out the provisions of this chapter
relating to self-insurance shall be assessed against all self-insurers . . ."
has been superseded by G. L. c. 161A, § 18, enacted by c. 563, Acts of 1964.
That enactment provides:
"The authority and all its real and personal property shall be exempt
from taxation and from betterments and special assessments; and the
authority shall not be required to pay any tax, excise or assessment to or
for the commonwealth or any of its subdivisions; nor shall the authority
be required to pay any fee or charge for any permit or license issued
to it. . . ." (Emphasis supplied.)
The statutory language clearly and explicitly exempts the Massachu-
setts Bay Transportation Authority from any tax, betterment or assess-
ment. Clearly, the purpose of the General Court in enacting this statute
was to exempt the Massachusetts Bay Transportation Authority from
any and all forms of taxation.
It is my opinion, therefore, that c. 161A, § 18 supersedes the provisions
of c. 152, § 25 (a) (4) and waives payment by the Massachusetts Bay
Transportation Authority of its proportionate share of the expenses on
self-insurers determined by the Department of Administration and Fi-
nance,
You have also recjuested my opinion as to whether "the securities de-
posited by the Massachusetts Bay Transportation Authority may be in-
cluded in the total deposits and bonds of all self-insurers for the purpose
of determining the proportionate share of the expenses that the securi-
ties and deposits of each self-insurer bear to such total deposits?"
In light of my discussion above in answering your first question, your
second question is answered in the affirmative. Although the Authority
is exempt from the assessment set forth in G. L. c. 152, § 25 (a) (4), the
Massachusetts Bay Transportation Authority would still be required un-
der c. 152, § 25A (2) (a) to make the deposit of securities required of
self-insurers. There is no provision to contravene this requirement and
therefore no reason to conclude that such deposits be omitted from the
total deposit. The mere fact of exempting the payment of an assessment
computed proportionally on the basis that any given security deposit
would bear to the total deposit, is not sufficient reason to obviate the de-
posit itself. Furthermore, including the Massachusetts Bay Transportation
Authority securities in the total deposit As'ould w'ork no hardship on the
other self-insurers.
It is my opinion, therefore, that despite the exemption of payment
of any assessment based on the deposited securities, there is no reason
why those securities should not be included in the total deposits.
Very truly yours,
Edward W. Brooke
194 P.D. 12
The qualification of a contractor to bid on work of the Department
of Pjiblic Works are to be determined under the provisions of
G. L. c. 29, § 8B.
The commissioners of the Department must decide whether acceptance
of a bid from any company is in the public interest and whether
the contractor could be the lowest responsible and eligible bidder
possessing the integrity necessary for the faithful performance of
the work.
February 1, 1965.
Hon. James D. Fitzgerald, Commissioner of Public Works.
Re: M. DeMatteo Construction Company — Employment As Con-
tractor.
Dear Commissioner Fitzgerald: — Reference is made to your letter
of January 13, 1965, on the above subject. With that letter you enclosed
a copy of a letter dated January 12, 1965 from John A. Hanson, Division
Engineer, U. S. Bureau of Public Roads to you advising that the M.
DeMatteo Construction Company had been removed from suspension
because investigation had not been completed by the Department of Jus-
tice. Division Engineer Hanson wrote in the same letter to you that the
rescission of suspension is without prejudice to further administrative
or legal action that may be taken by the U. S. Department of Justice or
the U. S. Department of Commerce at some future date.
The second enclosure with your letter of January 13, 1965, is a copy
of a letter to the DeMatteo Construction Company from Dowell H. An-
ders, General Counsel for the U. S. Bureau of Public Roads. Thereby
Mr. Anders advises the DeMatteo Construction Company of the rescission
of its suspension due to ". . . our inability to provide a hearing at this
time. . . ." Mr. Anders also wrote, "It is our intention that following
completion of the Department of Justice investigation and at such time
as we can afford a hearing, we will reinstitute our proposed action."
By that and other language in his letter of January 8, Mr. Anders empha-
sized that the action taken was solely for the reason that the U. S. Bureau
of Public Roads was not in a position to grant immediately a hearing re-
quested by the DeMatteo Construction Company.
In your letter of January 13, 1965, you wrote that the President of
M. DeMatteo Construction Company has requested immediate consid-
eration of that company for pre-qualification purposes prior to requesting
plans and specifications for bidding purposes on several currently pend-
ing projects.
By your letter of January 13, 1965, you have requested my opinion
on the following:
"1. Whether or not there is any impediment to permitting the DeMat-
teo Company bidding on work of this department.
"2. If there is such impediment, what it is.
"3. If there is such impediment, on what grounds and in what man-
ner this department should proceed to exclude the DeMatteo Company
from departmental work."
P.D. 12 195
Your attention is respectluUy invited to Section 8B of Chapter 29 of
the General Laws of the Commonwealth. That section directs the Com-
missioner of Public Works to require that any person or company pro-
posing to bid on any work (with a lew exceptions not pertinent to this
opinion) submit a statement under penalties of perjury setting forth his
qualifications to perform such work. In some detail the statute indicates
the information which must be included in the qualification statement
and the procedures by which the Commissioner and the Pre-qualification
Committee assisting him shall make a determination abovit the qualifica-
tion of a prospective bidder to perform work. The statute directs the
Commissioner not to consider any bid or to award any contract to any
individual or company not qualified under the provisions of said Section
8B and appropriate administrative rules promulgated thereunder.
Y.our attention is invited to Paragraph 3C, Section II, Regulations Gov-
erning Classification and Rating of Prospective Bidders, R-110, Massa-
chusetts Department of Public Works, promulgated March 29, 1963, pro-
viding:
"On federally-aided projects, if the prospective bidder has been estab-
lished as being unacceptable for employment under administrative action
taken in instances of irregidarities as set forth in Federal Regulations,
Chapter I, Part 2, Title 23, 'Statement of policy as to administrative ac-
tion to be taken by the Federal Highway Administrator in instances of
irregularities.' The time period during which a proposal form will not be
issued in this instance shall be the period that the prospective bidder is
considered unacceptable by the Federal Highway Administrator."
Your attention is invited to Section 39M, Chapter 30 of the General
La^vs of the Commonwealth providing for the manner of awarding con-
tracts for construction and materials.
Paragraph (a) of said Section 39 states in part: "Every contract . . .
shall be awarded to the lowest responsible and eligible bidder . . . ;
provided, however, that such awarding authority may reject any and all
bids, if it is in the public interest so to do."
Paragraph (c) of said Section 39M defines the term "lowest responsible
and eligible bidder" to mean ". . . the bidder . . . possessing the skill,
ability and integrity necessary for the faithful performance of the work."
In order to determine if there is any impediment to permitting the
DeMatteo Construction Company of Quincy, Massachusetts, to bid on
work of the Department of Public Works, it is necessary that you, as
Commissioner of that Department, make a decision about the qualifica-
tions of that company under the provisions of Section 8B of Chapter 29
of the General Laws of the Commonwealth.
Regulation-UO of the Department of Public Works governing classi-
fication and rating of prospective bidders was promulgated to assist in
the execution of said Section SB of Chapter 29. In connection with the
application of Paragraph 3C of said Department of Public Works Regu-
lation-! 10 it must be noted that while the suspension of the DeMatteo
Construction Company has been rescinded by the U. S. Bureau of Public
Roads, notices of that rescission of suspension both to you and to the
DeMatteo Company indicate that the U. S. Bureau of Public Roads con-
196 P.D. 12
tinues to plan an administrative hearing on the qualifications of the
DeMatteo Company.
In determining the qualifications of the DeMatteo Construction Com-
pany, it will be necessary for the Pre-qualification Committee and the
Commissioner of the Department of Public Works to decide if the pend-
ency of such an investigation and future hearing by the U. S. Bureau of
Public Roads, has ". . . established (DeMatteo Construction Company)
as being unacceptable for employment . . ." as provided in 3C, Section
II, Department of Public Works R-110, promulgated by the Commis-
sioners of the Department of Public Works on March 29, 1963.
Assuming that it is found by the Department of Public Works that the
DeMatteo Construction Company is qualified under the provisions of
Section 8B of Chapter 29 of the General Laws and the Departmental
Regulations promulgated thereunder, consideration must then be given
by the Commissioners of the Department of Public Works to the provi-
sions of paragraphs (a) and (c) of Section 39M of Chapter 30 of the
General Laws. On the basis of all the facts available to them concerning
the M. DeMatteo Construction Company of Quincy and the significance
to the "public interest" of Federal participation in the types of projects
for which the DeMatteo Construction Company might bid, the Com-
missioners of the Department of Public Works must decide whether
acceptance of a bid from that company is ". . . in the public interest
. . ." and whether the M. DeMatteo Construction Company could be a
"lowest responsible and eligible bidder" possessing the ". . . integrity
necessary for the faithful performance of the work . . ."' If the Commis-
sioners should determine that awarding such contracts is not in the public
interest, statutory authority for such a decision is provided by Paragraph
(a). Section 39M of Chapter 30 of the General Laws. If the Commis-
sioners should decide that the M. DeMatteo Construction Company of
Quincy does not have the integrity necessary for the faithful performance
of a contract, statutory authority for that decision is contained in Para-
graph (c). Section 39M of Chapter 39 of the General Laws.
Very truly yours,
Edward W. Brooke
Settlement procedures in cases arising from land takings made pursuant
to St. 1952, C. 556, St. 1954, C. 403, and St. 1956, C.^718 are governed
by the identical latiguage contained in ^ 6 of those three statutes,
and the limitations contained therein continue to control settle-
ments of takings thereunder which exceed both twenty-jive hundred
dollars and the amount recommended by the Real Estate Review
Board.
February 1, 1965.
Hon. James D. Fitzgerald, Commissioner, Department of Public Works.
Re: Property Takings — Settlements — Statutory Procedural Require-
ments Chapter 782 of the Acts of 1962; Chapter 822 of the Acts of 1963.
Dear Commissioner Fitzgerald: — As a result of certain language con-
tained in Chapter 782 of the Acts of 1962 and Chapter 822 of the Acts of
P.D. 12 197
1963 on January 4, 1965, you asked my opinion concerning appropriate
procedures for settling claims for damages arising from land takings made
pursuant to Chapter 556 of the Acts of 1952, Chapter 782 of tne Acts
of 1962 and Chapter 822 of the Acts of 1963.
(a) Chapter 782, Acts of 1962, Section 1, paragraph 2:
"Funds authorized in this section shall, except as otherwise specifically
provided in this act, be available subject to the same conditions and for
the same purposes as funds authorized in Chapter 718 of the Acts of 1956,
Chapter 32 of the Acts of 1958, Chapter 528 of the Acts of 1960 and Chap-
ter 590 of the Acts of 1961, as amended."
(b) Chapter 822, Acts of 1963, Section 1, paragraph 2:
"Funds authorized in this section shall, except as otherwise specifically
provided in this act, be available subject to the same conditions and for
the same purposes as funds authorized in Chapter 718 of the Acts of 1956,
and shall be in addition to the amounts made available in Chapter 782
of the Acts of 1962 and to any other funds available for the purpose."
(c) Chapter 822, Acts of 1963, Section 3:
"No payment in excess of twenty thousand dollars by way of purchase
of real estate or any interest therein shall be made, and no settlement
in excess of twenty thousand dollars shall be made out of court for dam-
ages recoverable under Chapter seventy-nine of the General Laws, in excess
of the amount recommended by the real estate review board established
by Section six of Chapter 718 of the Acts of 1956 by reason of a purchase
or taking under this act or under Chapter 782 of the Acts of 1962. Each
recommendation of such real estate review board shall be in writing and
shall be accompanied by a written statement indicating the reasons for
such recommendations.
"No settlement by reason of a taking under this act or under said Chap-
ter 782, in excess of twenty thousand dollars and in excess of the recom-
mendation of the real estate review board shall be made by agreement
of the parties during or after trial except with the written approval of
the court; provided, that settlement in excess of the recommendation of
the board may be made without such approval if the settlement does not
exceed the amount of any verdict or finding which may have been ren-
dered together with the interest and costs.
"The department is hereby ordered and directed to file reports of all
payments in excess of ten thousand dollars for damages resulting from a
taking or for a purchase under this act or under said chapter seven hun-
dred and eighty-two with the clerk of the house of representatives and
with the clerk of the senate not later than ninety days after payment. Such
reports shall contain the amount of the payment, an affidavit that the
amount was not in excess of the amount recommended by the board if
payment in excess of said amount is prohibited hereunder, by whom and
in what manner settled, the name of the owner or owners of the land in-
volved, and a description of said land sufficient to identify it."
Settlement procedures in cases arising from land takings made pursuant
to Chapter 556 of the Acts of 1952, Chapter 403 of the Acts of 1954, and
198 P.D. 12
Chapter 718 of the Acts of 1956 are governed by the following identical
language in each Section 6 of those three statutes:
"No payment in excess of twenty-five hundred dollars by way of pur-
chase of real estate or any interest therein shall be made, and no settle-
ment in excess of twenty-five hundred dollars shall be made out of court
for damages recoverable under chapter seventy-nine of the General Laws
in excess of the amount recommended by said real estate review board."
Chapter 822, Acts of 1963 does not amend the settlement procedures
established by the earlier Acts. The amount of twenty thousand dollars
is applicable only to cases arising out of takings under Chapter 782 of
the Acts of 1962 and Chapter 822 of the Acts of 1963. When enacting
Chapter 822, Acts of 1963 the Legislature clearly had previous similar
statutes in mind. That is evident from reference to Chapter 718, Acts of
1956, specifically cited in Sections one and five of said Chapter 822.
Said Chapter 822 also follows the previous statutes in general form. The
omission, except for Chapter 782, Acts of 1962, of reference in Section 3
of said Chapter 822 to settlement limitations enacted by earlier, similar
legislation must be construed as clear expression of the deliberate inten-
tion of the General Court not to amend those earlier limitations.
The limitations imposed by Section 6 of the Acts of 1952, 1954 and
1956 continue to control settlements of takings thereunder which exceed
both twenty-five hundred dollars and the amount recommended by the
Real Estate Review Board. Unless a settlement exceeds both of those
limits, said Section 6 has no application. A settlement not in excess of
either of those stated limits may be made by the Department of Public
Works at any time before litigation is instituted (General Laws, Chap-
ter 79, Section 39) and thereafter by the Attorney General. (6 Op. x\ttor-
ney General 1921, p. 169; Opinion of the Attorney General, March 7,
1963.)
The limitations imposed by Section 3 of Chapter 822 of the Acts of
1963 operate in the same manner as those of the Sections 6 of the earlier
Acts except that twenty thousand dollars has been substituted for twenty-
five hundred dollars. Unless a settlement exceeds both limitations. Sec-
tion 3 of said Chapter 822 has no application. A settlement not in excess
of both defined limits may be made by the Department of Public Works
at any time before suit is commenced. (General Laws, Chapter 79, Sec-
tion 39) and by the Attorney General thereafter. (6 Op. Attorney Gen-
eral 1921, p. 169; Opinion of the Attorney General, March 7, 1963.)
Statutes concerned with remedies or procedure generally apply to pend-
ing cases. Lindherg v. State Tax Con-iinission, 335 Mass. 41. Statutes re-
lating to remedies and not affecting substantive rights coinmonly are
treated as operating retroactively. Hanscorn v. Maiden Light Company,
220 Mass 1. The increase of the settlement limitation from $2,500 to
$20,000 does not affect detrimentally the substantive rights of either the
property owner or the Commonwealth. It provides a more practical and
efficient system for the settling of land damage cases.
When considering the reference to Chapter 782, Acts of 1962 in Sec-
tion 3. Chapter 822, Acts of 1963 it cannot be assumed that the Legislature
intended to establish two different procedures for different takings under
P.D. 12 199
authority conferred by the same enabhng Acts (Chapter 782 of 1962
and Chapter 822 of 1963). The clear legislative language and the absence
of adverse effect on any private rights permits the retroactive applica-
tion of Section 3 of Chapter 822 of the Acts of 1963 to all takings there-
under and under Chapter 782 of the Acts of 1962.
Herewith are answers to the specific questions propounded by you in
your letter of January 4, 1965:
1. Submission of appraisals for review by the Review Board or recom-
mendation of the Review Board is not required before payment or settle-
ment is made out of Court for a taking made pursuant to Chapter 822
of the Acts of 1963 in an amount not in excess of twenty thousand dol-
lars.
2. A payment or a settlement for a taking made pursuant to Chap-
ter- 822 of the Acts of 1963 may be made out of Court in an amount
not in excess of twenty thousand dollars if the Review Board has recom-
mended an amount which is less than twenty thousand dollars.
3. Submission of appraisals for review by the Review Board or recom-
mendation of the Review Board is not required before payment or settle-
ment is made out of Court for a taking made pursuant to Chapter 782
of the Acts of 1962 in an amount not in excess of twenty thousand dollars.
4. A payment or settlement for a taking made pursuant to Chapter 782
of the Acts of 1962 may be made out of Court in an amount not in excess
of twenty thousand dollars if the Review Board recommends an amount
which is less than twenty thousand dollars.
5. The opinions expressed in answer to your third and fourth ques-
tions apply to all takings made pursuant to Chapter 782 of the Acts of
1962, whenever made.
6. It is my opinion that Chapter 822, Acts of 1963 did not amend the
settlement procedures for cases arising from land takings pursuant to the
Acts cited in your sixth question. Submission of appraisals for review by
the Review Board or recommendation by the Review Board continues to
be required before payment or settlement is made out of Court in an
amount in excess of t^venty-five hundred dollars for a taking made pur-
suant to Chapter 556 Acts of 1952, Chapter 403 Acts of 1954 and Chapter
718 Acts of 1956.
7. Payment or settlement of a taking made pursuant to Chapter 556
Acts of 1952, Chapter 403 Acts of 1954, and Chapter 718 Acts of 1956 may
be made only when such settlement does not exceed twenty-five hundred
dollars or does not exceed the recommendation by the Real Estate Review
Board in an amount in excess of twenty-five hundred dollars.
This opinion is concerned with the operation of the staiutoi-y provi-
sions specifically cited herein. It is not concerned with administrative
procedures of the Department of Public Works for the prudent review
of appraisals of damages arising from any property takings by that De-
partment which may exist independent of and in addition to the statutory
duties of the Real Estate Review Board.
Very truly yours,
Edward W. Brooke
200 P.D. 12
The Commissioner of the Departmerit of Mental Health has the author-
ity to apply in behalf of the Commonwealth to the Division of Sur-
plus Property of the United States for the conveyance of land with
buildings thereon and certain easements located in Greenfield.
The Commissioner of the Department of Mental Health has authority
on behalf of the Commonwealth to accept the aforesaid property
subject to the terms and conditions of the Federal Property and Ad-
ministrative Services Act of 1949, as amended.
February 9, 1965
Re: Department of Mental Health — Receipt
of Property in Greenfield from U.S.A.
Hon. Harry C. Solomon, M.D., Cojnmissioner, Department of Mental
Health.
Dear Commissioner Solomon: — You have requested my opinion
on the points raised by E. G. Bradley, Regional Representative, Division
of Surplus Property, Department of Health, Education and Welfare"
as set forth in his letter to the Commissioner, Department of Mental
Health under date of December 7, 1964.
The December 7th letter of Mr. Bradley solicits my assurance that:
1. The Commissioner of the Department of Mental Health has the
authority "under Chapter 414 of the Acts of 1964" to apply in behalf
of the Commonwealth to the Division of Surplus Property of the United
States for the conveyance of certain land with the buildings thereon
and certain easements located in Greenfield, Massachusetts; and that
2. The Commissioner of the Department of Mental Health has
authority on behalf of the Commonwealth to accept the aforesaid prop-
erty subject to the terms and conditions, set forth in the draft of the deed
without warranty transmitted by Mr. Bradley with his letter of Decem-
ber 7.
Section 1 of Chapter 414 of the Acts of 1964 states:
"The Department of Mental Health is hereby authorized to accept
on behalf of the Commonwealth, a conveyance from the United States
of America of all its right, title and interest in and to certain real estate
together with the building thereon situated in the Town of Greenfield. . .
said conveyance and the use of such real estate to be subject to the
provisions and conditions of the Federal Property and Administrative
Services Act of 1949 as amended".
Chapter 123, Section 1 of the General Laws provides that the Depart-
ment of Mental Health shall act by the through the Commissioner of
Mental Health.
The Federal Property and Administration Services Act of 1949 (63
Stat. 377) provides for the disposal of surplus property in part in Sec-
tion 203:
" (a) Except as otherwise provided in this section, the administrator
shall have supervision and direction over the disposition of surplus
P.D. 12 201
property. Such property shall be disposed of to such extent at such times,
in such areas, by such agencies, at such terms and conditions and in such,
manner as may be prescribed in or pursuant to this act.
" (b) . . . and the disposal of surplus property may be performed by
the General Services Administrator, or where so determined by the Ad-
ministrator, by the Executive Agency in possession thereof or by any
other executive agency consenting thereto.
" (c) Any Executive Agency designated or authorized by the Admin-
istrator to dispose of surplus property may do so by the sale, exchange,
lease, permit or transfer . . . with or without warranty upon such terms
and conditions as the Administrator deems proper and it may execute
such documents for the transfer of title or other interests in property . . .
as it deems necessary and proper to dispose of such property under the
provisions of this title ..."
it is my opinion that under the provisions of Chapter 414 of the Acts
of 1964 interpreted in conjunction with the appropriate Sections of
Chapter 123 of the General Laws of the Commonwealth that:
1. The Commissioner of the Department of Mental Health does have
the authority to apply in behalf of the Commonwealth to the Division
of Surplus Property of the United States of America for the conveyance
of all its right, title and interest in and to certain real estate together
-vvith the building thereon situated in the Town of Greenfield, Massa-
chusetts and known and numbered as 20 Sanderson Street; and
2. The Commissioner of the Department of Mental Health has the
authority on behalf of the Common^vealth to accept the conveyance of
said real estate subject to the provisions and conditions of the Federal
Property and Administrative Services Act of 1949, as amended, and as
set forth in part in the deed without warranty proposed by E. G. Bradley,
Regional Representative, Division of Surplus Property, U.S. Department
of Health, Education and Welfare in his December 7, 1964 letter to the
Commissioner of the Massachusetts Department of Mental Health. The
provisions and conditions of that proposed deed are authorized com-
pletely by the Federal Property and Administrative Services Act of
1949, as amended.
Very truly yours,
Edward W. Brooke
The position or rank of detective could be created under G. L. C. 31 only
by including that position in the original classification plan or in a
subsequent acceptance, which, in the normal course should be on
file with the Department of Civil Service. If no such rank or posi-
tion appears therein, it is within the discretion of the Chief of Police,
under G. L. C. 41, § 97 A, to assign the duties of conducting inves-
tigations to any officer or officers within the department.
February 11, 1965
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Mr. Finnegan: — In your letter of November 23, 1964, you have
asked my opinion concerning the follo^ving question: Whether a munici-
pality has effectively established the position of detective in the local
202 P.D. 12
police force, or whether the town may instead assign to individual
patrolmen employed within the department the responsibility of doing
investigative work which in some municipalities is performed by officers
holding the rank of detective? From your letter it appears that the town
police force has been classified under Civil Service since March 5, 1923,
and that, in addition, you have reason to believe that the town has ac-
cepted § 97A of c. 41 of the General Laws.
Under that section the Board of Selectmen is responsible for establish-
ing a local police force. Once established, the Selectmen have the further
duty to appoint a Chief of Police, to appoint those officers who may be
required, and to establish a workable pay scale within the department.
These duties would include the continuing responsibility of appointing
new personnel due to retirement, resignation, the creation of new posi-
tions or for other cause. The pay scale adopted must naturally not exceed
the annual appropriation for that purpose.
The day-to-day supervision of the department is entrusted to the Chief
of Police. Among those duties specifically enumerated by statute is the
assumption of control of the town property used by the department,
the supervision of those officers employed with the department, and the
assignment of the various officers to particular duties. As an integral
part of the administration of the department, the Chief of Police is
required, from time to time, to draw up and promulgate regulations
designed to promote the efficient running of the department, as a whole,
including therein rules pertaining to the officers themselves. These
regulations are subject to the prior approval of the Board of Selectmen.
If the board, however, fails to act upon these regulations within a thirty-
day period, the regulations become effective without the board's approval.
G. L. c. 41, § 9TA.
"In any town which accepts this section there shall be a police depart-
ment established by the selectmen, and such department shall be under
the supervision of an officer to be known as the chief of police. The
selectmen of any such town shall appoint a chief of police and such
other officers as they deem necessary, and fix their compensation, not
exceeding, in the aggregate, the annual appropriation therefor. In any
such town in which such appointments are not subject to chapter thirty-
one, they shall be made annually and the selectmen may remove such
chief or other officers for cause at any time after a hearing. The chief
of police in any such town shall from time to time make suitable regula-
tions governing the police department, and the officers thereof, subject
to the approval of the selectmen; provided, that such regulations shall
become effective without such approval upon the failure of the select-
men to take action thereon within thirty clays after they have been sub-
mitted to them by the chief of police. The chief of police in any such
town shall be in immediate control of all town property used by the
department, and of the police officers, whom he shall assign to their
respective duties and who shall obey his orders. Section ninety-seven
shall not apply in any town which accepts the provisions of this section.
Acceptance of the provisions of this section shall be by a vote at an
annual town meeting."
The powers of the Board of Selectmen and Chief of Police, as out-
lined above, are not contingent upon the town's establishment of a
P.D. 12 203
Civil Service system for the employees involved. The town may, however,
place the department within the classified Civil Service. To do this,
certain formal procedures must be followed. These procedures arc to
be found in G. L. c. 31, §§ 47 through 50, entitled: "Application of
Law to Commonwealth, Cities and Town:."
Under § 47, municipal employees in cities of over one hundred thou-
sand inhabitants which would be classified in the category of the official
or labor service arc by the force of that section placed under c. 31. In
the instance of a city with less than one hundred thousand inhabitants,
those employees classified as the official service are subject to the provision
of that chapter whether or not the city has accepted it. In respect to the
labor service of such a city, not already a part of the system by a prior
enactment, the city may choose to place these employees under Civil
Service by vote of the City Council.
In the case of a town, as distinguished from a city, the provisions of
this chapter become applicable only with respect to those employees
who would be classified within the official or labor services by vote of
the town itself at an annual election or a town meeting. The requisite
machineiT for placing this question before the town is outlined in
§§ 47 and 49A.
Special provision is made in § 48 for members of municipal police and
fire forces. In both cities and towns, without regard to size, the regular
or permanent members of the police and fire forces can be classified
within Civil Service only by the approval of the electorate. The proce-
dure for doing this is contained within section 48 and with regard to
the certification of names on petitions to place a department under
Civil Service as well as the filing and hearing of objections to such a
petition, under § 49A. The prior acceptance of § 48 wath reference to
certain officers or positions would not preclude a subsequent acceptance
of that section where a new rank or position is created. Until such
acceptance, no new position coming wuthin this section would be subject
to c. 31.
G. L. (Ter. Ed.) c. 31, § 48
"Regular or permanent members of police and fire forces of cities, and
regular or permanent members of police and fire forces and call fire forces
of such tow^ns as, with reference to said forces, respectively, accept the
provisions of this section as hereinafter provided or have accepted cor-
responding provisions of earlier laws, and chiefs of police or officers per-
forming similar duties, however entitled, and chiefs of fire departments
or officers performing similar duties, however entitled, of such cities or
towns, as, with reference to such officers, respectively, accept the provi-
sions of this section as hereinafter provided or have accepted correspond-
ing provisions of earlier laws, shall be subject to the provisions of this
chapter and the rules established thereunder; except that no rule regu-
lating the height and weight of persons eligible to become members
of the fire department shall be made or enforced except by the city
council or selectmen; and except further that no rule shall prescribe
a maximum age limit for applicants in police or fire departments lower
than thirty-five years or a minimum age limit therefor higher than
twenty-two years. In case an eligible list of at least two available persons
204 P.D. 12
is not established from a competitive examination for fire fighter or
police officer, the director may, upon request of the appointing authority
of a fire force or police force made within six months after the results
of the examination are determined, hold another competitive examina-
tion in which he may fix a maximum age limit of not more that forty
years.
"In towns using official ballots at town elections, acceptance of the
provisions of this section relative to any such officer or force shall be by
vote in answer to a question placed on the official ballot at an annual
town election as hereinafter provided, and in towns not using official
ballots at town elections such acceptance shall be by vote at an annual
town meeting. Upon the filing, with the clerk of any town using official
ballots at town elections, of a petition signed either by not less than
one thousand registered voters thereof or by not less than five per cent
of the total number or registered voters thereof, requesting that the
question of accepting the pertinent provisions of this chapter with
reference to any such officer or force be placed upon the official ballot,
the clerk shall, if such provisions are not already in force in such town,
place such question on the official ballot for the next town election
occurring more than thirty days after the filing of such petition. The
provisions of section forty-nine A relative to the certification of names
on petitions under said section and to the filing and hearing of objec-
tions to the validity or sufficiency of such petitions or of the signatures
thereon shall apply in the case of petitions under this section.
"Acceptance of this section or corresponding provisions of earlier
laws with reference to any of the aforesaid officers or forces shall not
prevent subsequent acceptance of this section with reference to any or
all of such officers or forces as to which there has been no acceptance of
said section or provisions."
After the town has accepted c. 31, as in the present case, it is incumbent
upon the Director of Civil Service, in accordance with § 2A, cl. (b) of
that chapter, to establish a classification plan for the municipal depart-
ment. Such plan should include a detailed classification of the various
employees by their office or position within the department and contain
as well a job description of each. Once the classification plan has been
established, it is final as to those positions contained within the plan,
and notice of the effective date thereof must be sent to the town. Within
one year after receipt of such notice, the town must establish a compensa-
tion plan with maximum and minimum rates for the various positions.
G. L. (Ter. Ed.) c. 31, § 2A.
"In addition to other duties imposed upon him by this chapter and
chapter thirteen the director shall —
" (b) Establish, with the approval of the commission, classification
plans for positions in every city and town which are subject to any provi-
sion of this chapter. Upon the estabhshment of such classification plan
the director shall forthwith make such plan effective, and after the
establishment of such classification it shall be final. The city or to'5vn
affected thereby shall, within one year after receiving notice from the
director of the eff^ective date of such classification plan, establish a com-
pensation plan with a minimum and maximum salary, in accordance
P.D. 12 205
with the class and grade, for each position, but no compensation plan
established hereunder shall include positions subject to section forty-
seven D. . . ."
The Commission, as distinct from the Director, is, under the section
cited above, required to approve the classification plan. In addition,
under § 3 (a), the Commission is empowered to promulgate rules per-
taining to the " (e)stablishment of civil service classes and grades "
By means of this rule-making power, the Commission could not uni-
laterallv reorganize the present municipal department by creating a
new position not already contained in the original organization plan
or in a subsequent acceptance. A new rank or position could only be
created by following the procedure discussed above. This requires
individual as well as cooperative action on the part of the town and
the Department of Civil Service. This is not a case falling within the
general provisions of § 4, but comes under the specific provisions of
§§ 47-50, more particulary, § 48.
The town is not to go without adequate protection where such a
position has not been created. A modern police department must render
diverse services to the community. Each member is called upon to main-
tain skills in both crime prevention and crime detection. It may well
be that in this matter each member of the department must share the
responsibility of crime investigation- Whether this assignment of duties
or an alternative is adopted, would be within the discretion of the
Chief of Police under G. L. c. 41, § 96A.
On the basis of the statutes cited and the principles discussed above,
it is my opinion that the position or rank of detective could be created
under c. 31 only by including that position in the original classification
plan or in a subsequent acceptance which, in the normal course, should
be on file with the Department of Civil Service. If no such rank or
position appears therein, it would be within the discretion of the Chief
of Police under G. L. c. 41, § 97A, to assign the duties of conducting
investigations to any officer or officers within the department.
Very truly yours,
Edward W. Brooke
The benefits available to an employee of the Commonwealth under G. L.
C. 152 would not provide the necessary coverage for an individual
engaged in employment under the provisions of the Defense Base
Act, 42 U.S.C.A. 1651, as amended, and would not satisfy the pro-
visions of a proposed contract betiueen the United States Agency for
International Development and the University of Massachusetts.
February 11, 1965
Hon. John W. Lederle, President, University of Massachusetts.
Dear President Lederle: — In your letter of October 29, 1964, you
have asked my opinion concerning certain problems arising under a
contract entered into by the University of Massachusetts and the United
States Agency for International Development which entails giving
certain technical advice and assistance to the Government of Malawi.
206 P.D. 12
The three questions which you have raised concerning this agreement
appear in the text of this opinion. The third question will be answered
first since this question largely determines the answers to the other two.
That portion of the contract which you have included in your letter
which has been designated provisions "G. 1." appears below:
"G. Workmen's Compensation Insurance
1. The Contractor shall provide and thereafter maintain workmen's
compensation as required by United States Public Law 208, 77th Con-
gress, as amended (42 U.S.C. 1 (6)51), with respect to and prior to the
departure for overseas employment under this contract of all employees
who are hired in the United States or who are American citizens or
bona fide residents of the United States."
"3. If it is your opinion that any of the parts of question 1 should be
answered 'yes', are the benefits available to such an individual under
General Laws Chapter 152 sufficient to satisfy the above quoted require-
ments of the above contract?"
Under the contract clause appearing above, the University must pro-
vide and maintain workmen's compensation coverage as required by 42
U.S.C. § 1651, as amended. Section 1651 of c. 42 of the United States
Code and the companion sections, 1652-4, are more commonly known
as the "Defense Base Act." This statute was initially passed by Con-
gress in 1941 as an adjunct to the destroyer-defense base agreement -with
Great Britain. The present provisions of § 1651 extend the benefits un-
der the Longshoremen's and Harbor Workers' Compensation Act to in-
clude, among others, those employed ". . . under a contract entered
into with the United States or . . . agency . . . where such contract is
to be performed outside the continental United States." Such coverage
is ". . . irrespective of the place where the injury or death occurs . . ." i
and is not contingent on ". . . where the contract of hire . . . may have
been made or entered into." 2 This coverage includes ". . . any injury
or death occurring . . . during transportation to or from his place of
employment, where the employer or the United States . . ." pays for or
provides the transportation. s
In the normal course, an employee would be covered by § 1651 while
in transit and during his employment in a foreign country. This Act
has been interpreted, however, as not providing coverage to an employee
injured or killed while performing work within the continental United
States.4
Under the Longshoremen's and Harbor Workers' Act, itself, without
reference to 42 U.S.C. § 1651, compensation is payable ". . . only . . .
if recovery for the disability or death through workmen's compensation
proceedings may not validly be provided by State law." This section has
created a twilight zone in which an employee may, in certain cases, elect
1 42 U.S.C.A. § 1651 (a).
2 42 U.S.C.A. § 1651 (c).
3 42 U.S.C.A. § 1651 (a).
'^Alaska Airlines, Inc. v. O'Leary, 216 F. Supp. 540, 545 (W. D. Wash. 1963).
P.D. 12 207
either the state or federal remedy and, in the same manner, the section
alloAvs certain isolated instances in which state coverage might provide
some protection to an individual employed under a contract circum-
scribed within this federal Act.
The Foreign Bases Act, as to workers specifically covered by that statute,
has attempted to eliminate any possibility of such divided jurisdiction.
The remedy imder § 1651 is exclusive and can only be enforced through
the federal administrative procedure and, if necessary, in the federal
courts. 5 Similarly, the liability of the employer is exclusive ". . . and
in place of all other liability . . . under the workmen's compensation
law of any state, territory, or other jurisdiction." ^ No state compensa-
tion plan could provide any coverage under a statute such as this where
the federal government has effectively preempted the field.
The Act, however, gives to the Secretary of Labor a certain amount of
discretion. He may, in an appropriate situation, waive the application
of § 1651."^ In lieu of such a waiver, a contractor might act as a self-
insurer or purchase a commercial workmen's compensation policy pro-
viding coverage under this statute.
In answer to question three, it is my opinion that the benefits avail-
able to an employee of the Commonwealth under G. L. c. 152 would not
jDrovide the necessary coverage for an individual engaged in employ-
ment under the provisions of the Defense Bases Act and would not
satisfy provision "G. 1." of the contract.
"I. Is an individual employed by the University and assigned to service
under the above contract entitled to benefits under General Laws Chap-
ter 152 on account of injuries or death arising out of and in the course
of his employment if such injuries are incurred while performing such
service (a) within Massachusetts, (b) outside Massachusetts but within
the United States of America, (c) outside the United States of America?"
Any discussion of this question is to a certain extent academic in light
of the answer to question three. A discussion of this question may prove
of some value, ho^vever, in future negotiations concerning this or subse-
quent contracts.
Under G. L. c. 152, § 69, as amended by St. 1959, c. 555, the Common-
wealth is required to pay ". . . laborers, workmen and mechanics em-
ployed by it who receive injuries arising out of and in the course of their
employment, or, in case of death resulting from such injury, to the per-
sons entitled thereto, the compensation provided by this chapter." In
the same section "laborers," "workmen" and "mechanics" are broadly
defined to ". . . include other employees of the commonwealth ... re-
gardless of the nature of their work . . ." but to exclude members of the
police or fire force.
5 42 U.S.C.A. § 1653. See also Royal Indemnity Co. v. Puerto Rico Cement Corpora-
Hon, 142 F. 2d 237, 239 (1st Cir. 1944). Rogers Const, v. Alaska Industrial Board, 116 F.
Supp. 65 (D. Alaska 1953).
6 42 U.S.C.A. § 1651 (c).
7 42 U.S.C.A. § 1651 (e).
208 P.D. 12
An individual employed by the University of Massachusetts is an em-
ployee of the Commonwealth as that term is used in c. 152.^ As a Com-
monwealth employee, the individual would be covered by that chapter.
As long as the individual is a bona fide employee of the Common-
wealth and has otherwise qualified for compensation benefits, the local-
ity where the injury occurs would not usually, and for that reason alone,
affect his coverage. It specifically states in G. L. c. 152, § 26 that an em-
ployee ". . . who . . . receives a personal injury arising out of and in
the course of his employment . . . whether within or without the com-
monioealth 9 . . . shall be paid compensation."
The Defense Bases Act has somewhat modified this coverage. An em-
ployee injured outside the United States of America and thereby en-
titled to benefits under 42 U.S.C. § 1641, would not be covered by G. L.
c. 152. A Commonwealth employee, however, injured in Massachusetts
or outside of Massachusetts but within the United States would be en-
titled to benefits under G. L. c. 152 since, as presently interpreted, i^
the provisions of § 1651 would not apply to such an employee.
"2. Would your opinion as to any part of question 1 be different if
the individual in question were a citizen and bona fide resident of the
United States of America who (a) was specially employed by the Univer-
sity for the purpose of performing such service under the above contract
and whose employment is conterminous with said contract, (b) was spe-
cially employed by the University for such purpose but whose employ-
ment is not conterminous with said contract, or (c) was employed by the
University for other purposes and thereafter assigned to service under
the above contract?"
The answer to question one contained in this opinion v/ould not differ
on the basis of the additional facts stated in this question. These addi-
tional facts do, however, aptly illustrate the existence of two contracts —
the contract between the University and the individual as well as the
contract bet^veen the University and the United States Agency for In-
ternational Development. Under the first contract, the citizenship or
residence of the individual would not, of itself, unless this fact in some
way affected the employment relationship, deprive an individual of work-
men's compensation benefits under G. L. c. 152. If, on the other hand,
the individual is retained as an independent contractor, 1 1 he would re-
ceive no such benefits since he would not be "an employee of the com-
monwealth" within the meaning of G. L. c. 152, § 69.
What seems to complicate this matter is the presence of the second con-
tract wdth the federal government which is superimposed upon the first.
An employee derives specific benefits from the second contract while he
8 G. L. c. 75, § 14.
« * •
"All officers and employees, professional and non-professional, of the university
shall continue to be employees of the commonwealth irrespective of the source
of funds from which their salaries or wages are paid. They shall have the same
privileges and benefits of other employees of the commonwealth such as retire-
ment benefits, group insurance, industrial accident coverage, and other coverage
enjoyed by all employees of the commonwealth."
9 Emphasis supplied.
1 0 Note 4 Supra.
■ilEckert's Case, 233 Mass. 577 (1919). Winslow's Case, 232 Mass. 458 (1919).
P.D. 12 209
is engaged in employment under that agreement. 12 He cannot at the
same time be eligible under the state compensation plan. Complete cov-
erage, not duplication, is intended.
Dealing directly with question two above, the individual described in
subsection (a) would not be covered by G. L. c. 152 while he is em-
ployed outside the United States and his employment is conterminous
with the second contract. In the case of the two individuals described
in subsection (b) and (c) above, their eligibility for benefits under the
state compensation plan would terminate while they were covered by
the federal plan.
Very truly yours,
Edward W. Brooke
G. L. C. 31 , § 2A does not authorize the director of civil service to estab-
■ lish age requirements for applicants.
February 25, 1965.
Hon. Malcolm C. Webber, Chairman, Massachusetts Commission
Against Discrimination.
Dear Sir: — You have requested my opinion of whether that portion
of G. L. c. 151B, § 4 (1), which makes it an unlawful employment prac-
tice for an employer to discriminate against an individual because of age,
by implication, repealed or rendered void the following statutes: G. L,
c. 31, §§ 2A, 13, 19A, 19B, 20, 20A, 20C, 22, 22A, 24; G. L. c. 74, § 24A.
When it inserted the prohibition against age discrimination into
c. 15 IB, the General Court specifically provided that the prohibition
should not be held to repeal "any other law of the Commonwealth re-
lating to discrimination because of age." St. 1950, c. 697, § 9. At that
time, the age provisions of c. 15 IB did not apply to the Commonwealth
or its political subdivisions or agencies and so had no effect upon any of
the quoted statutes. Id., § 1. When this exemption was removed in 1962,
2t, 1962, c. 627, there was no indication of any purpose to alter the sav-
ing clause of § 9.
It mxight be argued, however, that the 1937 legislation which previ-
ously had made age discrimination in employment unlawful (St. 1937,
c. 367, § 2, adding G. L. c. 149, §§ 24A-24J),'had itself repealed all in-
consistent statutes, such as those in question here. Assuming that each
of the statutes to which your inquiry relates is so inconsistent, each such
statute other than G. L. c. 31, § 22 and § 24 has been enacted or re-
enacted with its supposed inconsistency subsequent to the 1937 legis-
lation.
General Laws
C. 31 5 2A Stat. 1939 c. 238 § 11
703 5
38
288
115
167 1
Provision
Enactment 0
§ 2A
Stat.
1939
13
1945
19A
1941
19B
1949
20
1959
20A
1952
20c
1952
22A
1946
§24A
1958
167 2
221
C. 74 S 24A 1958 154
1 2 This has in mind the territorial limitation previously discussed.
210 P.D. 12
In addition, there is implicit in the amendments to G. L. c. 31, § 22 and
§ 24, which were enacted subsequent to 1937, a recognition that the bal-
ance of these sections, including the parts here in question, remains fully
effective. (St. 1939, c. 238, §§ 29, 31; St. 1946, c. 345; St. 1949, c. 642,
§ 2; St. 1954, c. 627, § 4; St. 1956, c. 247.) Accordingly, it is my consid-
ered judgment that each statute to which your inquiry relates has not
been repealed or rendered void either by the provisions of c. 151B,
which relate to age, or by G. L. c. 149, §§ 24A-24J.
On the other hand, as has been pointed out above, since 1962, in the
absence of a contrary legislative policy, the age provisions of c. 15 IB
apply to government agencies, of which the civil service commission is
one. General Laws, c. 31, § 2A does not, in my opinion, evince a con-
trary policy; and accordingly does not authorize the director of civil
service to promulgate age qualifications which are discriminatory within
the meaning of c. 15 IB. Similarly, the director cannot, except pursuant
to G. L. c. 15 IB, § 24, determine what are bona fide occupational quali-
fications or otherwise promulgate rules or regulations concerning age
which conflict with or derogate from the full exercise by the Massachu-
setts Commission Against Discrimination of its powers under c. 15 IB.
Each of the other statutes in question enacts a policy or rule specifically
dealing with age, which, as stated above, exists irrespective of any con-
trary policy in c. 15 IB. Section 2A, on the other hand, is a general au-
thorization to the director to establish standards for the various civil
service positions. Clearly the director cannot exercise this authority in a
way inconsistent with the principles and policies of c. 31; and these prin-
ciples and policies ought to be interpreted so as to harmonize with other
provisions of the General Laws whenever it is reasonable to do so.
The Massachusetts Commission Against Discrimination is the agency
entrusted with the responsibility of administering the Commonwealth's
policy against age discrimination in employment generally. Many of the
positions subject to § 2A are comparable to positions in private industry.
It is desirable that not only the development and refinement of the
meaning of the statute, such as the determination of bona fide occupa-
tional qualifications, but also the enforcement policies, be uniform. The
Legislature has invested the director of civil service with the responsibility
and power to oversee the imposition of age limitations in one narrowly
defined area. G. L. c. 31, § 24. Were the director already possessed with
general jurisdiction under § 2A to formulate age standards for jobs, the
specific authority given him in § 24 to approve certain age limitations
would be redundant and superfluous.
For the foregoing reasons, it is my considered opinion that § 2A of
c. 31 does not authorize the director of civil service to establish age re-
quirements for applicants.
Very truly yours,
Edward W. Brooke
P.D. 12 211
The Massachusetts Bay Transportation Authority, created by St. 1964,
C. 653, succeeds to the right to request advances from the Treasury
Department which xuas possessed by the Metropolitan Transit Au-
thority under §§ 13 a^id 13A of its governing statute and the treas-
urer of the Commonivealth may properly advance amounts re-
quested by the Authority's Board of Directors.
February 25, 1965.
Hon. Robert Q. Crane, Treasurer and Receiver General of the Com-
monwealth.
Dear Mr. Crane: — I have received your letters of February 8 and 17,
1965, wherein you request my interpretation of a provision of c. 563 of
the Acts of 1964, which chapter created the Massachusetts Bay Trans-
portation Authority. You have informed me that the Board of Directors
of the present Massachusetts Bay Transportation Authority has certified
that the now abolished Metropolitan Transit Authority operated at a
deficit for the calendar year of 1964 of $12,022,379.67; that no amount
is available in the reserve fund to meet the said deficit, but that
$11,000,000.00 has already been advanced to the earlier Transit Author-
ity by the Treasury Department; and that accordingly a further ad-
vance of $1,022,379.67 is necessary. In light of the fact that legislation
creating a new Authority has been enacted, you have asked my opinion
whether the Treasury Department may lawfully advance the additional
sum.
Chapter 544 of the Acts of 1947, which chapter created the Metropoli-
tan Transit Authority, provided for such advances under § 13:
". . . If as of the last day of December in any year the amount remain-
ing in the reserve fund shall be insufficient to meet the deficiency here-
inbefore referred to, the trustees shall notify the state treasurer of the
amount of such deficiency, less the amount, if any, in the reserve fund
applicable thereto, and the commonwealth shall thereupon pay over to
the authority the amount so ascertained. . . ."
Such amounts have been advanced directly from the State Treasury,
when sufficient funds have been available; otherwise, the Treasurer has
been authorized by § 13 to borrow whatever sums are necessary. Amounts
paid over to the Authority under this section have then been assessed
to the cities and towns which received service.
By c. 409 of the Acts of 1954, the General Court authorized the mak-
ing of advance payments throughout the year. Thereafter, the Legislature
provided that — when necessary to make such periodic payments — the
Treasurer could lawfully borrow on the credit of the Commonwealth
and issue interest-paying notes as security therefor. Thus, it is clear that
the types of advances made to the Metropolitan Transit Authority, and
the methods used to secure the money prior to assessment to the cities
and towns, were authorized by the General Court under St. 1947, c. 544,
and amendments thereto.
The Massachusetts Bay Transportation Authority is intended to be —
among other things — a replacement for the Metropolitan Transit Au-
thority. To this end, the Legislature has provided that all property
212 P.D. 12
owned, controlled by, or in the custody of the old Authority be trans-
ferred to the ownership, control or custody of the new. Debts, liabilities
and obligations are assumed, with adjustments made so that municipali-
ties which have not formerly been serviced will not be unfairly assessed.
(St. 1964, c. 563, § 20). Actions and proceedings remain unabated; or-
ders, rules and regulations continue in full force and effect; all con-
tracts and collective bargaining agreements are carried over and assumed
by the new Authority. (St. 1964, c. 563, § 22.) Apparently, it was the in-
tention of the General Court that public transportation and its adminis-
tration be disrupted as little as possible by the abolition of the Metro-
politan Transit Authority and the creation of the Massachusetts Bay
Transportation Authority.
In accordance with this desire for a smooth transfer of control, it is
clear that the General Court intended the new Authority to succeed
to the right to request advances from the Treasury Department which
was enjoyed by the Metropolitan Transit Authority under §§ 13 and
13A of its governing statute. This is specifically indicated in § 22 of St.
1964, c. 563:
". . . The rights of the Metropolitan Transit Authority to payments
from the commonwealth or others on account of operations or debt serv-
ice or other expenses under existing laws shall pass to the Massachusetts
Bay Transportation Authority hereunder and, notwithstanding any other
provision of this act, existing laws shall continue in effect with regard
to assessment of the same and other applicable means of raising the same."
Thus it would appear that the ne'^v Authority is entitled to advances
from the Treasury Department to meet deficits incurred in operations.
Without the right to secure such advances, transportation operations and
administration could suffer; the language of § 22 makes it clear that such
a result was not contemplated by the Legislature.
Accordingly, I advise you that you may properly advance to the Massa-
chusetts Bay Transportation Authority the amount requested by the Au-
thority's Board of Directors. This sum may be advanced directly from
the State Treasury, or may — under present legislation — be obtained
by borrowing if the necessary funds are not immediately available. The
question whether a two-thirds vote of the General Court Avas necessary
to carry over the authorization to raise funds by borrowing on the credit
of the Commonwealth is presently before the Supreme Judicial Court
and I have not addressed myself to it in this opinion.
Very truly yours,
Edward W. Brooke
P.D. 12 213
It is luithin the authority of the Commissioner of Mental Health to accept
patients in residence at the North Reading facility for participation
in programs of rehabilitation.
February 25, 1965.
Hon. Harry C. Solomon, M. D., Commissioner of Mental Health.
Dear Sir: — I have received your letter inquiring about the uses to
which you may put the North Reading State Sanatorium, transferred to
your department by c. 598 of the Acts of 1962.
In August of 1963, this office verbally informed you that your pro-
posal to use the North Reading facility for a daytime rehabilitation cen-
ter for mentally retarded patients was a proper use and within your au-
thority. More recently, you have asked my opinion regarding your pro-
jected use of the North Reading facility to accept patients in residence
as part of a program designed to rehabilitate the mentally retarded.
Chapter 598 of the Acts of 1962 authorized the Commissioner of Pub-
lic Health to transfer the above-mentioned facility to the Commissioner
of Mental Health. That transfer was accomplished shortly thereafter.
You have determined the needs of the department, and you conclude
that the best use of the facility is as a rehabilitation center.
The General Court has specifically contemplated and provided for the
treatment of mentally retarded citizens. To this end, c. 123, § 12 states:
"The department may establish and maintain free clinics for the feeble
minded. . . ."
and c. 123, § 10 provides:
"The department shall divide the commonwealth into districts, may
change the districts from time to time, and shall designate the state hos-
pitals to which mentally ill, epileptic and feeble minded persons . . .
shall be committed." (Emphasis supplied.)
Chapter 123, § 13A provides:
"Such of the powers and duties conferred or imposed upon the depart-
ment, relating to the cause and prevention of . . . feeblemindedness, as
the commissioner may determine may be exercised and performed by the
division of mental hygiene."
Thus, as seen, the Legislature has acted on the problem of the men-
tally retarded.
Furthermore, c. 123, § 12 authorizes the department to establish and
maintain clinics for the feebleminded or mentally retarded. As outlined
in your letter, you propose to carry out a program for the rehabilitation of
the mentally retarded, and legislative sanction of this plan has been
forthcoming in the form of an appropriation of money. It is, therefore,
my opinion that it is within your authority to accept patients in resi-
dence for participation in programs of rehabilitation.
Very truly yours,
Edward W. Brooke
214 P.D. 12
School co?nmittees are not limited to cash settlements of claims or judg-
ments and inay, if they desire, take out insurance to indemnify em-
ployees.
Where a judgment is recovered against a teacher in the employ of a
community irrespective of whether or not the school committee has
appropriated funds in anticipation of the judgment, the judgment
may be filed with the board of selectmen and thereafter the assessors
7nust see to the appropriation of funds to satisfy it.
An action by teji taxable inhabitants will lie under C. 71 § 34, requiring
towns to provide annually a sufficient amount of money for the sup-
port of public schools, to compel the town to place the amount of
the claim in the budget.
The act does not prohibit a school committee from putting funds in
its budget to pay the legal costs of a libel suit which involves one
of its teachers. A libel suit judgment could be paid out of funds
appropriated by the school committees in pursuance of the indemni-
fication of teachers provided by § lOOC.
February 25, 1965.
Hon. Owen B. Kiernan, Co?nmissioner of Education.
Dear Commissioner Kiernan: — You have recently asked my opinion
upon several questions concerning the effect of c. 41, § lOOC of the Gen-
eral Laws, as amended by c. 513 of the Acts of 1964.
Specifically, you have asked:
"Where the act provides for indemnification and does not specifically
provide for the purchasing of insurance, can insurance be taken out by
school committees for its employees or are they limited to a cash settle-
ment of a claim or judgment?"
It is my opinion that school committees may, if they wish, take out in-
surance to indemnify their employees and are not limited to cash settle-
ments of claims or judgments. Although § lOOC of c. 41, as amended by
c. 513 of the Acts of 1964, does not specifically mention the availability
of insurance for the indemnification of cases falling within its purview,
that section must be read in conjunction with § lOOA. Section lOOC sup-
plements the provisions of § lOOA, in view of the language of the first
sentence that the indemnification is "In addition to the indemnification
provided in sec. lOOA. . . ." It is appropriate, therefore, to read § lOOC
in the light of § lOOA.
Although § lOOA also has no express provision for insurance, it does
refer to insurance in its last sentence as follows:
"This section shall not apply in respect to so much of a claim against
an officer or employee as is covered by a policy of insurance effected by
the city or town under clause (1) of section five of chapter forty."
A reasonable interpretation of the above quotation is that it admits the
possibility of insurance for such situations as are covered in § lOOA.
Derivatively then, § lOOC being an addition to § lOOA, insurance should
be available for that section as well.
Furthermore, c. 40, § 5, providing for the appropriation of funds to
pay for indemnity insurance, having been applied to §§ 100, lOOA, lOOB
and lOOD, even though those sections also do not expressly provide for
insurance, may also be read as covering § lOOC, there being no basis for
P.D. 12 215
distinguishing that section from the other indemnification sections. A
reasonable conclusion is that whereas c. 40 provides for indemnification
insurance, failure to expressly provide for insurance in § lOOC cannot
be interpreted to preclude the availability of insurance for the situations
covered in that section. It is, therefore, my opinion that in view of the
authorization of indemnification insurance in c. 40 and the addition of
§§ lOOC to lOOA, the availability of insurance for § lOOA could be ex-
tended to include § lOOC.
You have also asked my opinion as to what action can be taken against
a school committee if, after finding that the act was committed while act-
ing as a teacher and proper counsel was hired, the school committee fails
to place the amount necessary to pay for the expenses or damages in its
budget.
It is my opinion that if the given plaintiff were to recover a judgment
against a teacher in the employ of the community, irrespective of whether
or not the school committee has appropriated funds in anticipation of
the judgment, the judgment, like any other judgment against a town,
may be filed with the board of selectmen and thereafter the assessors
must see to the appropriation of funds to satisfy it.
Your third question asks whether an action by ten taxable inhabitants
will lie under c. 71, § 34, requiring towns to provide annually a suffi-
cient amount of money for the support of public schools, to compel the
town to place the amount of the claim in the budget.
Chapter 71, § 34 provides that:
"Every city and town shall annually provide an amount of money suf-
ficient for the support of the public schools . . . upon petition to the Su-
perior Court, sitting in equity, against a city or town, brought by ten or
more taxable inhabitants thereof . . . alleging that the amount neces-
sary in such city or town for the support of public schools . . . has not
been included in the annual budget appropriations for said year, said
Court may determine the amount of the deficiency, if any, and may order
such city and all its officers whose action is necessary to carry out such
order ... to provide a sum of money equal to such deficiency. ..."
Involved in your inquiry is the question of whether or not the indemni-
fication of teachers under § lOOC falls within the language of c. 71, § 34,
providing for "the support of public schools." The Legislature appears
to have provided for the inclusion of indemnification within the wording
of c. 71, § 34. Section lOOC provides that:
"... a city, town or regional school district . . . shall, out of any
funds appropriated for the purpose of this section which appropriation
shall be made in the same manner as appropriations for general school
purposes, indemnify a teacher. . . ." (Emphasis supplied.)
A reading of that language permits the conclusion that funds for in-
demnification are to be dealt with in the same manner as funds for gen-
eral school purposes. Consequently, these funds may be included in
the budget within the purview of c. 71, § 34. It is my opinion, therefore,
that the provision of c. 71, § 34, allowing for the petition of ten texable
inhabitants to provide for support of the public schools, may be applied
to place the claim in the budget.
Your fourth question asks:
"Does this act prohibit a school committee from putting funds in its
budget to pay the legal costs of a libel suit which involves one of its
teachers?"
216 P.D. 12
It is my opinion that the answer to your question is in the negative.
The act provides:
"... a city, town or regional school district . . . shall . . . indemnify
a teacher . . . for expense or damages incurred by him by reason of an
action or claim against him arising out of negligence of such teacher or
other act of his resulting in accidental bodily injury to or death of any
person or in accidental damage to or destruction of property. . . . For
expenses or damages sustained by him by reason of an action or a claim
against him arising out of any other acts done by him while acting as
such teacher; provided in either case ... it shall appear . . . that such
teacher was . . . acting within the scope of his employment." (Empha-
sis supplied.)
The provision in the above section clearly denotes that a libel suit would
fall within that category. Subject to the remaining provision that the act
be accomplished in the scope of his employment, a libel suit judgment
could be paid out of funds appropriated by the School Committee in
pursuance of the indemnification of teachers provided by this section,
lOOC.
Very truly yours,
Edward W. Brooke
Chapter 708, § 1, as amended by St. 1964, c. 380, applies to both tem-
porary and permanent employees alike.
St. 1964, c. 580, deprives all persons, who voluntarily left their positions
in the service of the Commonwealth or any of its subdivisions to
serve in the military service prior to July 1, 1964, and who are dis-
charged subsequent to that date, of any and all privileges or rights
which St. 1941, c. 708 accorded them but which are not within the
current (c. 580) definition.
A party discharged before July 1, 1964, who has served in excess of four
years on a voluntary basis, would not come within the language of
c. 708, as amended, and could not claim the benefits of the act.
A person who would not qualify for reinstatement after July 1, 1964J,
but has in fact, before that date, taken partial advantage of the avail-
able benefits is entitled to the benefits received. His failure to claim
the remainder of them before July 1, 1964, ivill bar a subsequent
claim.
February 26, 1965.
Hon. W. Henry Finnegan, Director of Civil Service.
Dear Sir: — I have received your letter of September 1, 1964, relating
to c. 580 of the Acts of 1964, which amended c. 708 of the Acts of 1941.
You have requested my opinion on several questions, the first being
whether or not c. 580 applies only to "permanent" (as contrasted with
"temporary") employees who enter the military or naval service after
July 1, 1964.
P.D. ]2 217
When World War II began, the General Court, wishing to protect
the civil service status of government employees who had or would enter
the military service, enacted c. 708 of the Acts of 1941, § 1 of which reads:
"Any person who after January first, nineteen hundred and forty, shall
have tendered his resignation from an office or position in the service of
the Commonwealth, or any political subdivision thereof, or othenvise ter-
minated such service, for the purpose of serving in the military or naval
forces . . . shall be deemed to be or to have been on leave of absence."
(Emphasis supplied.)
The exact language of that statute designates that any person resigning
from the service of the Commonwealth to serve in the military is within
the purview of the act. No distinction between temporary and permanent
employees was then made nor has the legislature seen fit to amend this
provision since its enactment in 1941. Therefore, it is my ojjinion that
the language of c. 708, § 1 applies to both temporary and permanent
employees alike.
You further requested my opinion as to
". . . whether or not Chapter 580 is in any way retroactive so that
persons now serving in the military or naval service in excess of four
years on a voluntary basis and who left their positions prior to July 1,
1964 for military service and who are released from the military or naval
service subsequent to July 1, 1964:
" (a) will be eligible for reinstatement to the permanent positions for-
merly held by them,
" (b) will be eligible for restoration to the eligible list,
" (c) will be eligible to take make-up competitive promotional examina-
tions."
For the purpose of minimizing the inequities and uncertainties that
arose from the previous definition of military service which allowed in-
determinate prolongation of that service and continuing eligibility
throughout its duration, however long, the legislature has seen fit to
amend St. 1941, c. 708. The new provision, c. 580 of the Acts of 1964,
redefines the definition of military service as follows:
"Service in the militai'y or naval forces of the United States shall not
be construed to include service for more than fovir years unless such fur-
ther period of service in excess of four years was involuntary service re-
quired by the government of the United States."
When c. 580 of the Acts of 1964 became the law of this Commonwealth
(July 1, 1964) the aforementioned redefinition of military service like-
wise became the law of Massachusetts. The purpose of the legislature is
manifestly clear and must be given fullest possible effect. Consequently,
all parties who entered military service after the effective date of c. 580,
and all parties then in the service who would be discharged subsequent
to that date are now to be governed by c. 708, as amended.
Therefore, in pursuance of the mandate of the legislature, it is my
opinion that the effect of the current statute is to deprive persons who
218 P.D. 12
were released from military service after the effective date of c. 580 from
claiming the benefits of the statute, unless such claims are made either
within two years after the date of discharge following four years of serv-
ice or within two years after a discharge date following a period of ad-
ditional involuntary military service beyond the four-year period.
Specifically, then, it is my opinion that c. 580 of the Acts of 1964 which
went into effect on July 1, 1964, deprives all persons, who voluntarily left
their positions in the service of the Commonwealth or any of its sub-
divisions to serve in the military service prior to July 1, 1964 and who
are discharged subsequent to that date, of any and all privileges or rights
which c. 708 of the Acts of 1941 accorded them but which are not within
the current (c. 580) definition of military and naval service. The language
of the General Court allows no other conclusion. Such persons do not
meet the yardstick of eligibility which c. 580 creates and they are not en-
titled to avail themselves of the benefits provided in the various sections
of c. 708.
You have also requested my opinion:
"As to whether any persons so serving prior to July 1, 1964 and were
released from military or naval service prior to July 1, 1964 but have not
yet requested reinstatement, restoration to lists, et cetera, but who still
have time to make such requests will be entitled to the various actions
referred to in Chapter 708 of the Acts of 1941, if it now appears that they
have served in excess of four years on a voluntary basis."
The provisions of legislation such as c. 708, which confers job preserva-
tion, reinstatement, and eligibility benefits, do not create a contractual
obligation which the Commonwealth is bound to honor unless a here-
tofore qualified person has actually entered into the scheme of conferred
benefits prior to July 1, 1964 (the date the amendments of 1964 became
effective). The General Court has always been free to amend or even to
repeal c. 708 of the Acts of 1941. In view of the unsatisfactory situation
of prolonging eligibility for benefits indefinitely, the legislature could
and did amend c. 708 in 1964 and in doing so it may have denied poten-
tial but unexercised benefits to individuals who qualified for benefits un-
der the broader provisions of c. 708. By virtue of the legislature's deci-
sion to amend, those individuals who did not claim the benefits of c. 708
before the enactment of c. 580 and its effective date, must be and are
now governed by the provisions of the existing law. In terms of your
question, a person falling within the purview of c. 708, who was dis-
charged before the effective date of July 1, 1964 and within the time
specified for making such requests, must qualify under the present law,
which is c. 580 above quoted. Consequently, the effect of the amendment
is that a party discharged before July 1, 1964, who has served in excess
of four years on a voluntary basis, would not come within the language
of c. 708, as amended, and could not claim the benefits of that act.
As a third question you have asked:
"As to whether permanent employees who remained in the military
or naval service on a voluntary basis for a period in excess of four years
and luere reinstated prior to July 1, 1964 but have not yet asked for a
veteran's promotional qualifying examination, restoration to lists, et
P.D. 12 219
cetera, although under Chapter 708 of the Acts of 1941, before being
amended by Chapter 580 of the Acts of 19(54, would be still eligible to
do so, may not be given such qualifying examination, et cetera."
In giving the new provisions their most reasonable construction, it is
my opinion that the legislature has provided that no veteran who served
in the military service in excess of four years on a voluntary basis may
claim the benefits granted by c. 708 after July 1, 1964, unless he or she
was qualified to do so within the terms of that act as amended. This would
apply equally to a claim for partial benefits or for all available benefits.
The fact that an individual has partially realized those benefits prior to
July 1, 1964 is immaterial. Where there has been a total or partial ac-
ceptance of the benefits provided by c. 708 before amendment by c. 580,
then to that extent c. 580 would not revoke such benefits. A complete
failure to claim the benefits of c. 708 will preclude a later claim after the
effective date of the amendment unless the claims within the limit of
c. 708 as amended by c. 580 of the Acts of 1964. It follows, therefore, that
a partial acceptance of benefits will not be revoked. However, any further
claims other than under the terms of the statute as amended must be dis-
allowed.
Specifically, then, in regard to your third question, it is my opinion that
the statute provides that a person who would not qualify for reinstate-
ment after July 1, 1964, but has in fact, before that date, taken partial
advantage of the available benefits is entitled to the benefits received.
His failure to claim the remainder of them before July 1, 1960 will bar
a subsequent claim.
A petition or application for reinstatement submitted prior to the
effective date of c. 580 of 1964, if made in accordance with the provisions
of c. 708 would be valid. A petition or application for reinstatement re-
ceived after July 1, 1964 must be acted on in accordance with c. 580 of
1964.
Very truly yours,
Edward W. Brooke
The establishment of an effective date six days after enactment of the
amended compensation plan is in complete accord xuith both the
purpose and the lans,nage of c. 31, § 47E, as amended by St. 1964,
c. 702.
February 25, 1965.
Hex. W. Henry Finnegan, Director of Civil Service.
Dear Sir: — In your letter of November 24, 1964, you have requested
my opinion as to the effect of c. 31, § 47E, as amended by c. 702 of the
Acts of 1964, that:
"Any amendment or change in such compensation plan shall become
effective within ninety days after the date on which such amendment or
change is made. ..."
Upon the determination of an effective date for an amended com-
pensation plan authorized under c. 31, § 47E as follows:
220 P.D. 12
"The director shall establish, with the approval of a board ... a
compensation plan for holders of positions referred to in section forty-
seven C and made subject to this chapter by said section or otherwise.
The director may, with like approval, make rules and regulations pro-
viding for the application and administration of said compensation plan.
The director, with like approval, may from time to time modify or change
said compensation plan or said rules and regulations."
You have presented this request for my opinion in terms of the follow-
ing facts:
"On September 22, 1964, the Welfare Compensation Board approved
the establishment of new salary ranges in the Welfare Compensation
Plan to be effective on September 28, 1964 and on September 25, 1964 a
letter and a copy of the new rates were sent to local mayors, boards of
selectmen, city and town managers, chairmen and directors of boards of
public welfare and chairmen of personnel boards informing them of the
resulting action to be taken for the welfare department employees in their
municipalities. (A copy of the September 25, 1964 letter and its attach-
ment are enclosed.)
"I have now been informed by the City Solicitor of Springfield that
Springfield will submit new appointments at the new rates, under protest,
and an action Avill be filed in Court to test the legality of our interpretation
of September 28, 1964 as the effective date rather than December 28, 1964
which is their interpretation of the effective date. (A copy of his letter
is enclosed.) This means that the city will pay the new rates to new em-
ployees but that persons who were employed on September 28, 1964 in
the Springfield Welfare Department will not be paid the new rates until
the legality of our interpretation of the effective date is reviewed by the
courts."
It is my opinion that in setting the effective date of September 28, 1964,
some six days after the enactment of the new salary ranges in the Welfare
Compensation Plan, you acted properly within the provision for estab-
lishing an effective date set out in c. 31, § 47E, as amended by c. 702
of the Acts of 1964.
The language of the statute itself is quite explicit in providing for the
establishment of an effective date. The statute says that "such compen-
sation plan shall be effective within ninety days after the date on which
such amendment or change is made. . . ." Emphasis supplied.) The lan-
guage of the statute providing for an effective date within ninety days is
unequivocal and it is unreasonable to conclude that the word "within"
can be taken to mean "after."' There is, therefore, no requirement that
the plan be effective only after the lapse of a ninety-day period. Such a
plan may bcome effective anytime within the ninety days following its
adoption.
In addition to the clarity of tlie statutory language itself, it is reason-
able to conclude from a study of the purposes of the enactment of c. 702,
Acts of 1964, that the setting of an effective date should not be delayed
any longer than necessary, and in no event should be delayed beyond
ninety days. In the event that the date chosen within the ninety-day pe-
riod is not early enough, provision has been made to set an even earlier
P.D. 12 221
date at the request of a city or town with approval of the Director. The
intent of the Legislature to provide for the earliest possible effective date
is made manifestly clear in the preamble to c. 31, § 47E, as amended by
c. 702 of the Acts of 1964:
"Whereas, the deferred operation of this act would tend to defeat its
purpose, which is to expedite any change in the compensation plan for
certain municipal employees in order to prevent undue hardships and
alleviate financial burdens, therefore it is hereby declared to be an emer-
gency law, necessary for the immediate preservation of the public con-
venience."
It would not be in keeping with the spirit of the amendment, as reflected
in the language of the preamble, to conclude other than that a change of
compensation plan could and should be made effective at any time within
a ninety-day period following its enactment.
On the facts you have stated, the establishment of an effective date six
days after enactment of the amended compensation plan would be in
complete accord with both the purposes and the language of c. 31, § 47E,
as amended by c. 702 of the Acts of 1964.
We have not yet received notice of the commencement of an action by
the City of Springfield to challenge the legality of your established effec-
tive date. It w'ould serve no useful purpose, in my opinion, to resort to the
enforcement procedures suggested by you, namely, G. L. c. 31, § 47E,
pending disposition of the suit which the City of Springfield has indicated
its intention to institute.
Very truly yours,
Edward W. Brooke
The Boston Architectural Center is a lawfully authorized institution of
higher education.
February 26, 1965.
Hon. Verne C. Edmunds, Executive Director, Higher Education Facilities
Commission.
Dear Mr. Edmunds: — You have requested my opinion as to whether
the Boston Architectural Center is "legally authorized" in Massachusetts
to provide a program of education beyond the high school.
I answer your question in the affirmative. Under G. L. c. 112, § 60C,
authorizing the granting of architect registration to qualified parties, it
is provided that:
"Every person applying to the board for registration shall submit with
his application to the board evidence of graduation from a recognized
high school or its equivalent. The applicant shall also submit satisfactory
evidence of (a) graduation from an accredited architectural school and
three years of practical training in offices of practicing registered archi-
tects; or (b) graduation from a non-accredited architectural school re-
quiring not less than four years in a curriculum approved by the board
and five years of practical training in offices of practicing registered archi-
222 P.D. 12
tects; provided, however, that not more than one year of school and office
training shall be concurrent; or (c) eight years of practical training in
offices of registered architects and one additional such year in training for
each year short of graduation from an architectural school approved by
the board, but not more than five additional years. . . ."
I am informed by the Board of Registration of Architects that the Bos-
ton Architectural Center is recognized by them as adequately satisfying
the provisions of § (b) of G. L. c. 112, § 60C. The Boston Architectural
Center, although non-accredited, does furnish a satisfactory five year cur-
riculum not only as to the "content of the examination but the technical
subjects as well." The Board of Registration of Architects approves the
education at the Boston Architectural Center as meeting the standards
established by that Board for certification as a registered architect. Con-
sequently, the education provided by the Boston Architectural Center
coupled with five years practical experience entitles an individual with
a certificate of registration from the Center to apply to the Board for
examination preparatory to becoming a registered architect.
Since the education provided by the Boston Architectural Center meets
the standards established by the Board of Registration of Architects and
is approved by them as satisfying the minimal educational requirements
for a registered architect, so as to allow an applicant to be considered eli-
gible for examination for certification as a registered architect, it is my
opinion that the Boston Architectural Center is a lawfully authorized
institution of higher education.
Very truly yours,
Edward W. Brooke
Temporary officers and employees appointed under the provisions of
c. 30, ^ 9 do not serve at the pleasure of the governor or other ap-
pointing authority. Since no particular method of removal is spe-
cified in the Perry Law, removal can he effected only pursuant to
c. 30, § 9, and must accordingly be "for cause".
I March 1, 1965.
J The Hon. John A. Volpe, Governor of the Commonwealth.
Dear Governor Volpe: — I have received your letter of February 11,
1965, wherein you request interpretation of certain provisions of G. L.
c. 30, § 59, the so-called Perry Law. That statute provides in relevant
part as follows:
'An officer or employee of the commonwealth, or 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 or for
misconduct in any elected or appointive public office, trust or employ-
ment at any time held by him, if he was appointed by the governor,
be suspended by the governor, whether or not such appointment was
subject to the advice and consent of the council or, if he was appointed
by some other appointing authority, be suspended by such aiuhority.
P.D. 12 223
whether or not such appointment was subject to approval in any man-
ner. . . . During the period of any such suspension, the appointing
authority may fill the position of the suspended officer or employee on
a temporary basis, and the temporary officer or employee shall have all
the poiuers and duties of the officer or employee suspended." (Empha-
sis supplied.)
G. L. c. 30, § 59, as amended by c. 528 of the Acts of 1964.
Thus — subsequent to exercise of the suspension power authorized by
this statute — the appointing authority may fill the position affected on
a temporary basis.
You have asked my opinion upon the following question relative to
the status of the temporary appointee:
"When an officer or employee of the Commonwealth has been sus-
pended under the provisions of Chapter 30, Section 59, and the Gov-
ernor or appointing authority has elected to fill the position of the
suspended officer or employee on a temporary basis, does such tempo-
rary officer or employee serve at the pleasure of the Governor or appoint-
ing authority?"
The provisions of G. L. c. 30, § 59 relate primarily to the officer or
employee who has been suspended. The statute sets forth who may be
suspended, and how such person must be notified. It provides for rein-
statement if criminal proceedings are terminated without finding or
verdict of guilty on any of the charges. In addition, the Legislature
has determined that the individual suspended shall receive no com-
pensation during the suspension period, nor shall such period be in-
cluded in calculating sick leave, vacation benefits or seniority rights.
The suspended official or employee is entitled to no pension or retire-
ment rights should he retire during the period of such suspension.
However, should he be reinstated, the official or employee shall receive
all compensation which would otherwise have accrued to him had he
not been suspended. The time of suspension is counted in determining
sick leave, vacation, seniority and other rights, and shall be considered
creditable service for retirement purposes.
On the other hand, the statute is virtually silent relative to the ten-
ure of temporary appointees, providing only that temporary appoint-
ments may be made, and that such temporary appointees shall have
all the powers and duties formerly exercised by and assigned to the
individual suspended. Since the suspended official or appointee is en-
titled to reinstatement should the criminal proceedings instituted
against him terminate without a finding of guilty, it follo"\\'s that any
temporary appointment which has been made in the interim would
expire upon such reinstatement. Otherwise, the status of temporary
appointees is not defined by the statute.
The intention of the General Court relative to the status of such
temporary appointees must therefore be determined by examination of
the treatment by the Legislature of appointed officers and employees in
general, and by analysis of the purposes of that part of the Perry Law
which authorizes temporary appointments. The fact that an appoint-
224 P.D. 12
ment is made by a given appointing authority does not in and of itself
vest in the latter the right to remove the appointee. "Power to remove
a public officer is not a necessary and inherent incident of the author-
ity to appoint. Frequently they are disjoined."
Opinion of the Justices, 216 Mass. 605, 606
Adie V. Mayor of Holyoke, 303 Mass. 295, 301
Service at the pleasure of an appointing authority is for the most
part not contemplated by the Massachusetts General Laws. Ordinarily,
public officials are appointed for specific terms, and their removal is
carefully regulated by law. The Legislature has provided that a public
officer appointed for any term by the Governor, "shall hold his office
during the term for which he is appointed and until his successor in
office has qualified, unless he is sooner removed in accordance with law.
(Emphasis supplied.)
Mass. G. L. c. 30, § 8
"Unless some other mode of removal is provided by law, a public
officer, if appointed by the governor, may at any time be removed by
him for cause. . . ." (Emphasis supplied.)
Mass.. G.L.c. 30, § 9
Thus public officials may generally rely upon holding their offices
for the given period of time designated by statute. Removal in most
cases may be effected only for cause, thus necessitating the giving of
timely notice to the official in question and the holding of a fair hear-
ing on the charges brought against him.
Ham v. Board of Police of the City of Boston,
142 Mass. 90, 95
Murphy v. Casey, 300 Mass. 232, 234
This general treatment — i.e., that public officers are appointed for
specific terms — is not altered by the occurrence of vacancies in offices.
"Any vacancy in any office, the original appointment to which is re-
quired by law to be made by the governor . . ., and for which no other
method of filling vacancies is expressly provided by law, shall be filled
for the unexpired term in the manner provided for an original
appointment. . . ,"
Mass. G. L. c. 30, § 10
Thus even when an office unexpectedly becomes vacant, a successor
is appointed for the unexpired term, and may be removed only in
accordance with law. Persons appointed pursuant to G. L. c. 30, § 10
for the purpose of filling vacancies do not serve at the pleasure of the
appointing authority.
Persons employed in the classified public service likewise do not serve
at the pleasure of their appointing authorities. Civil service appointees
are guaranteed unlimited tenure employment subject to the provisions
of c. 31 of the General Laws. General Laws c. 31, § 43 provides that such
appointees shall not be discharged or removed except for "just cause,"
PJ). 12 225
and includes the requirement that such appointees be given notice and
a hearing. Section 45 provides for judicial review of such removals.
Consequently, it is apparent that officers and employees of the Com-
monwealth are generally entitled to hold their positions for a given
period ol time specified in applicable statutes, unless removed for cause.
They do not serve at the unrestricted will of the person who has ap-
pointed them.
In light of the General Court's provisions for tenure of officers and
employees of the Commonwealth discussed above, a determinatoin must
be made whether it would be reasonable to conclude, under the provi-
sions of G. L. c. 30, § 59, that the Legislatuie intended a different
conclusions.
The primary purpose of the Perry Law is to suspend from office per-
sons in whom the public has lost confidence by reason of their having
been indicted. Such a suspension undoubtedly can have a disruptive
effect upon the functioning of the agency or department involved —
especially where a department head is concerned. Provision for appoint-
ment of a temporary officer or employee to fill the vacant position and
to have all the powers and duties formerly exercised by the permanent
employee clearly was included in order to render the indictment and
consequent suspension as harmless as possible to the continued efficient
working of the governmental agency.
The purpose of providing for a temporary appointee under these
circumstances is to continue the uninterrupted operation of the agency
affected and to maintain the status quo to the extent possible. I do
not believe that the General Court intended to enact a measure which
is contrary to ordinary treatment of State officials and employees and
which completely changes the nature of the specific office in question.
The temporary appointee is assigned all the powers and duties of the
officer or appointee who has been suspended. To exercise such powers
and fulfill such duties, as well as to maintain the/ stability of his posi-
tion or department, the temporary appointee should have the same
confidence in his position and independence from the appointing au-
thority which w^as enjoyed by the official or employee who has been
replaced. Where an office or position which has a specified term and
from which the incumbent may only be removed for catise is involved,
it is not likely that the Legislature would change the nature of such
office — even for a short period — simply because an incumbent has been
indicted.
It should not be forgotten that application of the Perry Law is not
restricted merely to State department heads. It extends to all appointed
officials and employees, whether appointed under the provisions of
c. 31 or otherwise. Temporary appontees may thus be installed at all
levels of governmental service. Ihe conclusion that such temporary
appointees served at the pleasure of their respective appointing authori-
ties could alter the nature and characteristics of a variety of State offices
and positions. I do not believe that the Legislature intended to effect
such changes by the few words relative to temporary appointments which
appear in c. 20, § 59.
226 P.D. 12
I am aware of the fact that certain "temporary" appointments are
authorized for periods of six months by the statutes governing civil
service. Such appointees may of course be removed without the necessity
of "just cause" and without resort to the removal machinery of §§ 43
and 45 of c. 31. However, such temporary appointments are provided
for and relate to the classified public service only. The word "temporary"
can be used in a variety of ways; the fact that it is used in one specific
manner in c. 31 cannot control its use in an entirely different context.
Were that part of the Perry Law which authorizes the making of
temporary appointments intended to effect great changes in the posi-
tions involved, the General Court would presumably have so provided
in specific and unmistakable terms. Absent such clear language, I can-
not conclude that the Legislature actually intended to provide for arbi-
trary removal from positions to which tenure of a certain duration has
formerly attached. Considering that the purpose of such temporary ap-
pointments is to permit offices and positions to function without dis-
ruption, it would not be likely that the Legislature would seriously
alter the characteristics of such offices.
The temporary appointees in question are in my opinion assigned
a fixed term of office. That term extends to the termination date of
the term held by the official or employee who has been suspended, or
to the date of conclusion of the litigation favorable to the individual
involved which would entitle the former incumbent to reinstatement
under the law.
In view of the above discussion, it is my opinion that temporary offi-
cers and employees appointed under the provisions of c. 30, § 59 do
not serve at the pleasure of the Governor or other appointing authority.
Since no particular method of removal is specified in the Perry Law,
removal can be effected only pursuant to c. 30, § 9, and must accord-
ingly be "for cause."
Very truly yours,
Edward W. Brooke
The State Treasurer may lawfully proceed to transfer the specified por-
tion of the revenue received under G. L. c. 64 C, § 6, to the Massa-
chusetts Bay Transportation Authority in accordance with the pro-
visions of G. L. c. 64 C, § 28(b) and c. 58, § 25B, to be used by the
Authority to meet cost and contract assistance obligations of said
Authority entered into under authority of G. L. c. 161.
March 3, 1965.
Hon. William C. Maiers, Clerk of the House of Representatives.
Dear Sir: —I have received a copy of your order of February 3, 1965,
wherein you request my opinion upon the following question:
"Notwithstanding the provisions of the first paragraph of Section 25B
jf Chapter 58 of the General Laws and of paragraph (b) of Section 28
of Chapter 64C of the General Laws, is it lawful for the state treasurer
to transfer a portion of the revenue received under the provisions of
P.D. 12 227
Section 6 of Chapter 64C of the General Laws to the Massachusetts Bay
Transportation Authority to be used by said Authority to meet cost
and contract assistance obligations of said Authority entered into under
authority of Chapter 161 of the General Laws?"
Chapter 563 of the Acts of 1964 provides that a percentage of the
excise taxes collected by the Commonwealth on cigarettes under the
provisions of G. L. c. 64C, § 6 w'ould be devoted to meet certain ex-
penses incurred by the newly organized Massachusetts Bay Transpor-
tation Authority. Approximately one-fourth of the cigarette excise taxes
collected, less an amount sufficient to reimburse the Commonwealth
for expenses of administering the chapter, is earmarked to be used to
meet the requirements of G. L. c. 58, § 25B [G. L. c. 64C, § 28 (b) ].
The said requirements of G. L. c. 58, § 25B are as follows:
"The state tax commission shall, as hereinafter provided, certify to
the state treasurer for payment, from that portion of the proceeds of
the excise on cigarettes as authorized by paragraph (b) of section
twenty-eight of chapter sixty-four C, the following: —
" (a) From time to time, when required, the contract assistance to
the Massachusetts Bay Transportation Authority provided under section
twenty-eight of chapter one hundred and sixty-one A; . . .
" (c) On or before April fifteenth of each year, the amount deter-
mined by the commission to be payable in accordance with this para-
graph (c) to the Massachusetts Bay Transportation Authority, . . ."
It is apparent, therefore, that the Legislature has authorized use of
a portion of the receipts from cigarette excise taxes for the purpose
of meeting certain expenses incurred by the Massachusetts Bay Trans-
portation Authority. Accordingly, the State Treasurer must make the
revenue transfers specified, unless it be found for one reason or another
that the provisions of the Act in question could not properly be en-
acted by the General Court.
Several questions relating to the constitutionality of c. 563 of the Acts
of 1964 have just been resolved by the Supreme Judicial Court. In
Massachusetts Bay Transportation Authority v. Boston Safe Deposit
and Trust Company, [decided February 25, 1965 — citation not avail-
able], the Court addressed itself to the adequacy of standards regulating
the operations of the Authority, especially those regulating disburse-
credit of the Commonwealth to finance or to guarantee operations of the
Authority; and to the validity of the apportionment of net transporta-
tion costs among the seventy-eight cities and towns which comprise the
transportaton area. I am assuming from the citations included in the
Order that your request relates solely to the propriety of use of cigarette
excise taxes, and does not extend to funds which are to be borrowed.
Therefore, I am addressing myself only to the question of the validity
of the provisions authorizing use of such taxes.
It is clear from the opinion of the Supreme Judcial Court that the
Legislature may constitutionally provide — as it has done — that a por-
tion of the excise taxes in question are to be devoted to Transportation
Authority purposes. A public interest is served by creation of an Author-
228 P.D. 12
ity to develop and administer transportation programs. "Provisions em-
powering the Authority to cooperate with private enterprise to accom-
plish the public purpose are not made invalid by resulting incidental
private advantage." (P. 4.) (Citations will be to the above-mentioned
Supreme Judicial Court opinion.) Standards set up by the General Court
to control the functioning of the Authority were — the Court ruled —
adequate from a constitutional viewpoint. (Pages 5-15.)
The Court has left no doubt that the Authority has been properly
constituted and that public money may lawfully be used to support its
operations.
"We think that there is no reasonable likelihood that under c. 161 A
public funds will be paid to a private company whose particular oper-
ations do not greatly serve the public need, so that in the particular
instance the private advantage would be principally served. If such a
possibility exists, however, it does not establish that the statute is un-
constitutional. The Legislature has decided that contracting with pri-
vate companies is an appropriate means for meeting the public need
for transportation. Such contracts are incidental to the general plan.
They are means for public ends, just as are the contracts for construct-
ing school buildings and the buildings themselves when built. . . ."
(Page 13.)
In addition, the Court ruled that standards regulating action to be
taken by the Executive Office for Administration and Finance provided
reasonable statutory guidance for the making of the financial assistance
contracts authorized by the Act. (Pages 15-19.)
The middle portion of the Court's opinion deals with the validity of
the provisions of the Act which authorize borrowings on behalf of the
Authority by the State Treasurer, and consequently does not relate to
the question posed in your Order. The final section of the opinion is
addressed to the method developed by the Legislature by which net
transportation costs are to be apportioned among the various cities and
towns. It was held that such method was a reasonable means of accom-
plishing the desired result.
"We discern nothing arbitrary in the assessment of the costs of local
service. The basis of apportionment of losses to population and to routes
is the general benefit to all inhabitants of an efficient public transporta-
tion system. The provision for a ten year period for gradual shift of
loss computations for the fourteen cities and towns from the present
method to the new method appears a suitable means of accomplishing
a reasonable change. Apportionment of costs of debt service on a differ-
ent basis for the fourteen cities and towns from that applicable to the
sixty-four cities and towns is reasonable. It leaves the burden of pre-
existing debt where it was when originally incurred." (Page 32.)
Thus the Supreme Judcial Court has indicated that the Massachu-
setts Bay Transportation Authority has been lawfully created and its
functioning properly regulated by the General Court: that public funds
may be used to support the Authority's operations, despite the fact that
a portion of such funds may eventually be received by private companies;
and that the system of apportionment of costs among the seventy-eight
P.D. 12 229
municipalities is a reasonable means of financing the Authority. In light
of these rulings by the Supreme Judicial Court, it is my opinion that the
State Treasurer may lawfully proceed to transfer the specified portion of
the revenue received under G. L. c. 64C, § 6 to the Transportation Au-
thority in accordance with the provisions of G. L. c. 64C, § 28 (b) and
c. 58, § 25B.
Very truly yours,
Edward W. Brooke
The Board of Agriculture is not prohibited by the provisions of G. L.
c. 268A, § 8A, from submitting to the Governor, for his consider-
ation for appointment as Commissioner of Agriculture, the name
of one or more of the members of said Board as part of panel of
' three or more names from which the appointment is to be made
under G. L. c. 20, § 1.
There is no specific prohibition in c. 268A which prevents a member of
the Board from voting on his own name or upon other applicants
for the same panel.
The Commissioner of Agriculture may submit to the Board of Agricul-
ture the name of a member of the Board as Director of a Division,
for their approval as required by G. L. c. 20, § 6.
March 4, 1965.
Hon. Donald L. Crooks, Chairman, Board of Agriculture.
Dear Mr. Crooks: — You have requested my opinion as to whether
the Board of Agriculture is barred by the provisions of c. 268A, § 8A
of the General Laws from submitting to the Governor, for his consid-
eration for appointment as Commissioner of Agriculture, the name of
one or more of the members of said Board as part of the panel of three
or more names from which the appointment is to be made under G. L.
c. 20, § 1.
The ineligibility created in § 8A applies only to appointment or
election by the members of such commission or board. (Emphasis
supplied.)
Nomination to a panel from which the Governor appoints is not in
itself an appointment or election to an office or position, biu merely a
first step in a process over which the board has no further control or
power of final decision. It is therefore my opinion that the board is not
barred by this section from submitting the names of one or more of
its members as part of such panel for the consideration of the Governor,
if in its opinion such persons are qualified therefor.
You ask further whetlier a member of the board m.ay vote on the
submission of his own name, or upon that of other applicants for
submission.
Chapter 268A, dealing with the conduct of public officials and em-
ployees, is primarily directed toward the conduct of public officials and
employees as affected by purely private financial interests. It is not
230 P.D. 12
directed to the financial interest that an employee has in public em-
ployment as such. (Conflicts opinion No. 42, April 26, 1963.)
There is, in my opinion, no specific prohibition in c. 268A which
prevents a member of the board from voting on his own name or upon
other applicants for the same panel.
This is a matter for the member's own sense of propriety. He should,
however, bear in mind the provisions of § 23 of c. 268A (Standards of
Conduct) which oblige public officials and employees to avoid the
appearance of seeking unwarranted privileges and conduct which gives
basis for the impression that they are unduly influenced by the rank or
position of any person, or raises public suspcion that they are acting in
violation of their trust.
You ask, finally, whether the Commissioner of Agriculture may submit
to the Board of Agriculture the name of a member of the Board as
Director of a Division, for their approval, as required by G. L. c. 20, § 6.
The reasoning applied to your first question applies to this question
also. Since the appointment of the Director is made by the Commis-
sioner, the prohibition contained in § 8A does not apply, and mere
recommendation for approval by the board is not forbidden.
Very truly yours,
Edward W. Brooke
Reimbursement by the Commonwealth for reasonable travelling and
other expenses is authorized to an individual who has been retired
and is receiving a pension from the Commonwealth and is a mem-
ber of a board whose members receive no additional compensation-
for services on said board and also to an individual who has been
retired and is receiving a pension from the Commonwealth in the
performance of duties requested by the head of a state department.
March 4, 1965.
Hon. Joseph Alecks, Comptroller, Commission on Administration and
Finance.
Dear Mr. Alecks: — You have requested my opinion upon the question
of the effect of G. L. c. 32, § 91 that:
"No person while receiving a pension or retirement allowance from
the commonwealth or from any county, city, town or district, shall,
after the date of his retirement be paid for any service rendered to the
commonwealth or any county, city, town or district. . . ." (Emphasis
supplied.)
Upon the provisions of G. L. c. 252, § 2 providing as follows:
"The board (State Reclamation Board) shall serve in the department
of Agriculture, and the members thereof shall receive no additional
compensation for service on said board, but shall be entitled to their
reasonable travelling and other expenses incurred in the performance
of their duties."
P.D. 12 231
More specifically, you have asked:
"1. May an individual who has been retired, and is receiving a
pension from the Commonwealth and is a member of a board, whose
members thereof receive no additional compensation for services on
said board, be reimbursed by the Commonwealth for his reasonable trav-
eling and other expenses incurred in the performance of his duties?
"2. May an individual who has been retired and is receiving a pension
from the Commonwealth be reimbursed for expenses incurred in the
performance of duties requested by the head of a state department?"
It is my opinion that the answers to both questions are in the affirma-
tive.
It is a general rule of statutory construction that the express mention
of one matter excludes by implication other similar matters not men-
tioned. In the present case, the applicability of G. L. c. 232, § 91 is
explicitly restricted by its terms to payments for any service rendered.
The statute makes no mention of payment for expenses incurred in
rendering any such service; there is therefore no reason to infer that a
prohibition of any such payments was intended. Consequently, it is rea-
sonable to conclude that the individual receiving a pension, who is a
member of the State Reclamation Board, should be entitled to reim-
bursement of expenses in the performance of such duties, as specifically
provided in c. 252, § 2.
In answer to your second question, the same principles would apply,
the only difference being the absence of any express statutory provision
for reimbursement of expenses. Nevertheless, assuming that the depart-
ment head has such authority to agree to the reimbursement of expenses,
such reimbursement w^ould not be barred by c. 32, § 91, even though
compensation for services would be prohibited unless the situation came
within one of the statutory exceptions.
Very truly yours,
Edward W. Brooke
In light of the recent Act affecting the statutory powers of the Executive
Council (St. 1964, c. 740), henceforth, appointments, salary increases,
and personnel upgradings zvithin the Division of Construction of
the Metropolitan ^District Commission no longer require approval
by the Executive Council.
March 4, 1965.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District
Commission.
Dear Mr. Whitmore: — I am in receipt of your letter of Februai7 9,
1965, relative to executive approval of appointments, salary increases and
personnel upgiadings in the Division of Construction of the Metro-
politan District Commission.
Pursuant to c. 375 of the Acts of 1962 and to certain regulations adopted
by the Water Supply Commission, it has been required that all personnel
232 p.D. 12
appointments, salary increases and upgradings over |3500 receive the
approval of both the Governor and the Executive Council. Chapter 583
of the Acts of 1947 abolished the Water Supply Commission and trans-
ferred its functions to a Division of Construction established under the
Metropolitan District Commission. In light of the recent Act affecting
the statutory poM'crs of the Executive Council (St. 1964, c. 740), you
have requested my opinion as to whether the appointments, increases
and upgradings in question must still receive Council approval.
Chapter 740 of the Acts of 1964 repeals certain statutory powers of
the Executive Council which related to appointments and other activity
within the executive branch of government. "Executive department" is
defined in § 1 of the Act as including, among other things, "all depart-
ments, divisions, boards, bureaus, commissions, institutions, councils and
offices of state government and of county government, and any instru-
mentality or agency within or under any of the foregoing," and expressly
excludes the legislative and judicial departments.
There can be no doubt that both the Metropolitan District Commis-
sion and the Division of Construction established under it conform to
the above definition and must be considered parts of the executive de-
partment, as that term is defined in the Act.
Section 3 of the Act provides in relevant part as follows:
"Subject to Section 2 of this Act and except as required by the Con-
stitution of the Commonwealth, so much of each provision of the General
Laws and of any special law as requires the advice and consent of the
council to any appointment in the executive department, or to the fixing
of any salary, or other compensation for services rendered, in the execu-
tive department — is hereby repealed." (Emphasis supplied.)
The requirement of Execvitive Council approval for personnel appoint-
ments and for salary increases in the Division of Construction originated
in c. 375 of the Acts of 1926, a special law enacted by the General Court.
The above-quoted language repeals those parts of the Act which required
such Executive Council approval, and consequently removes from the
Council jurisdiction to approve the appointments and salary increases
in question.
"Personnel upgradings" as such are not specifically mentioned in St,
1964, c. 740. However, § 4 of the Act contains a general repealer of all
provisions relating to Executive Council approval of actions within the
executive department.
"Subject to Section 2 of this Act and except as required by the con-
stitution of the Commonwealth, so much of each provision of the General
Laws and of any special law as requires the advice and consent of the
council with respect to any action or omission to act hy the governor or
by any officer, agency or instrumentality in the executive department . . .
is hereby repealed." (Emphasis supplied.)
The Metropolitan District Commission is an agency within the executive
department, and personnel upgradings are actions by that agency which
heretofore required Executive Council approval under St. 1926, c. 375.
The general repealer quoted above removes from the earlier Act all
P.D. 12 233
references to Council approval of actions within the executive branch of
government. Although personnel upgradings are never specifically re-
ferred to in the 1964 Act, they are included in the general provisions
of § 4.
Accordingly, it is my opinion that henceforth, appointments, salary
increases and personnel upgradings within the Division of Construction
of the Metropolitan District Commission no longer require approval by
the Executive Council.
Very truly yours,
Edward W. Brooke
The requirement contained in C. 132A, § 3, as to approval by the Exec-
. utive Council, has been repealed by the enactment of St. 1964, c. 740,
March 5, 1965.
Hon. Charles H. W. Foster, Commissioner of Natural Resources.
Dear Commissioner Foster: — You have requested my opinion as to
whether approval of the Governor's Council is required for the purposes
of the sale or exchange of land, the granting of easements, and the taking
of land by eminent domain, as provided in c. 132A, § 3.
"The commissioner may, with the approval of the governor and council,
sell or exchange any land acquired under this section which is his judg-
ment can no longer be advantageously used for purposes of recreation
or held for purposes of conservation. He may, with like approval, author-
ize the construction and maintenance, on any land under control of the
department, of towers, poles, wires, pipes, and structures necessary for
the purpose of transmitting electric power. . . ."
Section 4 of c. 740 of the Acts of 1964 specifically provides that:
"Subject to Section 2 of this Act and except as required by the Con-
stitution of the Commonwealth, so much of each provision of the General
Laws and of any special law as requires the advice and consent of the
council with respect to any action or omission to act by the governor or
by any officer, agency or instrumentality in the executive department,
including without limitation, any deposit, borrowing, loan, investment,
endorsement, validation, surety or bond, or any lease, license, purchase,
acquisition, sale, conveyance, disposition or transfer, or any contract or
other agreement, or any permit or license, or any rules or regulations,
is hereby repealed."
The language of the above-quoted section is clear. In so far as c. 132A,
§ 3 requires approval of the Council, that requirement is repealed by the
subsequent enactment of § 4, c. 740 of the Acts of 1964.
Very truly yours,
Edward W. Brooke
234 P.D. 12
Chapter 161 A, § 18, exempts the Massachusetts Bay Transit Authority
from compliance with the requirements of c. 152, § 25A(4). Since
the Authority has complied luith the other requirements of c. 152,
§ 25 A, and since it has been exempted from requirements of § 25A(4),
the Authority should therefore be granted a license for the privi-
lege of being a self-insurer.
The assessment of c. 152, § 25A(4), as waived by c. 161A, § 18, is to be
absorbed by the General Fund.
March 5, 1965.
Hon. James J. Gaffney, Jr., Chairman, Division of Industrial Accidents.
Dear Mr. Gaffney: — In light of my opinion of January 28, 1965,
that c. 161A, § 18 supersedes c. 152, § 25A (4), you have requested a sup-
plemental opinion on the following question:
"1. Does such a waiver of payment require the Division of Industrial
Accidents to refuse the granting of a license to the Massachusetts Bay
Transit Authority for the privilege of being a Self-Insurer under the
provisions of Mass. G. L. c. 152, § 25 (a) (2) on the basis that it will be
unable to meet the requirements set forth in § 25 (a) (4)?"
I answer your question in the negative. Although c. 152, § 25A (4)
requires that
"Such expenses as shall be . . . necessary to carry out the provisions of
this chapter relating to self-insurance shall be assessed against all self-
insurers. . . ."
it is my opinion that c. 161 A, § 18 exempts the Massachusetts Bay Transit
Authority from compliance with that requirement. This does not mean,
as you have stated, that "it will be unable to meet the requirements set
forth in Section 25 (a) (4)," but rather that it is exempted from the neces-
sity of having to meet that requirement. In that sense there is no inability
to perform the requirement, since the statutory exemption amounts to a
waiver of the given requirement for the Massachusetts Bay Transit
Authority. Consequently, it is my opinion that, since the authority has
complied with the other requirements of c. 152, § 25 A, and since it has
been exempted from the requirements of § 25A(4), it should therefore
be granted a license for the privilege of being a self-insurer.
In your second question you have asked:
". . . may the assessment from which the Massachusetts Bay Transit
Authority is exempted be considered as an uncollectible item and thus
a part of the expenses as shall be determined by the Department of
Administration and Finance as necessary to carrying out the provisions
of this Chapter relating to Self-Insurers OR shall such a waiver of pay-
ment be absorbed by the General Fund?"
It is my opinion, in view of the exemption of c. 161A, § 18, that the
assessment provided by c. 152, § 25 A (4) should be absorbed by the
general fund. Accordingly, I answer your second question in the affirma-
tive.
P.D. 12 236
The interest of the general public in public transportation necessitates
that the operation of the Massachusetts Bay Transit Authority be allowed
as much relief as possible from the expenses of management and admin-
istration. This was clearly the purpose of the Legislature in enacting
c. 161 A, § 18 and such a purpose must be retained to give full effect to
that section.
I am therefore of the opinion that, to effectively pursue such a purpose
and still allow the effective operation of the self-insurance program, the
assessment of c. 152, § 25A (4), as waived by c. 161A, § 18, is to be
absorbed by the general fund.
Very truly yours,
Edward W. Brooke
In order to properly calculate an urban renewal assistance grant under
G. L. c. 121, §§ 26DDD to 26FFF, the Division should deduct the
portion of the cost of the Peabody School contributed by the State
and should then divide this figure by two in order to arrive at the
sum owing to the municipality.
March 10, 1965.
Hon. John J. Carney, Deputy Commissioner^ Division of Urban Renewal.
Dear Mr. Carney: — You have asked my opinion as to the proper
method of calculating an urban renewal assistance grant under G. L.
c. 121, §§ 26DDD to 26FFF.
Your letter states that the Riverview project in Cambridge "is shared
two-thirds federal and one-third local," and that "ordinarily the state's
share would be the maximum permitted by section 26FFF, subsection (b)
or one-half of the local share." However, you go on to say that because
"an examination of the accounts of this project disclosed that the federal
authorities permitted a non-cash credit to the City of Cambridge for the
construction of the Peabody School near the noted project site," you
will deduct from the urban renewal assistance grant "that portion of the
school credit which the City of Cambridge is receiving from the Com-
monwealth, namely 30 per cent of the school building construction cost
through another state agency, the School Building Assistance Commis-
sion. . . ."
These facts raise the question whether the Division of Urban Renewal
should or should not include as a basis for state reimbursement so much
of the cost of a local facility as was subsidized by another agency of the
Commonwealth, where such subsidized portion of the cost was credited
as a local grant in aid by federal authorities.
It is my opinion that you should not include the state-subsidized por-
tion of the cost of the local facility in computing the sum payable to the
City of Cambridge.
Under federal law, every contract for federal capital grants requires
what are termed "local grants in aid" equal at least to the total of one-
third of the "aggregate net project costs" (in the case of two-thirds basis
projects, 42 U.S.C. § 1454).
236 P.D. 12
A "local grant in aid" for purposes of the federal law may include
"assistance by a state, municipality, or other public body, or . . . any other
entity" and may include the provision, at their costs of public buildings
or other public facilities. (42 U.S.C. § 1460(d).) (A subsidy contributed
by another federal agency must, however, be excluded in determining
the amount credited as a "local grant in aid." 42 U.S.C. § 1460 (d).)
Thus, for purposes of federal law, it is immaterial in determining if
the cost of a facility qualifies as a local grant in aid, despite the fact that
a portion of such cost came from the state rather than the city.
However, the Division of Urban Renewal must act in conformity with
§ 26FFF of G. L. c. 121. The federal law is material only in so far as it
may be incorporated therein by reference.
Section 26FFF of G. L. c. 121 reads as follows:
"The total land assembly and redevelopment or urban renewal assist-
ance grant for any approved federally-aided project as defined in clause
(a) shall not exceed one half of the local share of the contribution re-
quired from the municipality under the federal capital grant contract or
more than one sixth of the net project cost when the municipality pays
for administrative planning and legal expenses as a part of the gross
project cost." (Emphasis supplied.)
The City of Cambridge apparently argues that "one-half of the local
share of the contribution required from the municipality under the
federal capital grant contract" means "one-half of the local grant in aid
under the federal capital grant contract." However, the use of the words
"local share" and "from the municipality" strongly suggest that § 26FFF
means the actual contribution of the city itself, and does not include
portions of cost received from the Commonwealth.
As you point out, any other interpretation would result in a somewhat
unusual windfall, and would seem to be contrary to the purpose of the
statute, which is to reimburse localities for costs incurred by them.
Under the foregoing interpretation, your Division should deduct the
portion of the cost of the Peabody School contributed by the state in
order to compute "the local share of the contribution required from the
municipality under the federal capital grant contract," and should then
divide this figure by two in order to arrive at the sum owing to the City
of Cambridge.
Your letter of December 8, 1964 suggests that you may plan to take
one-half of the total federally-allowed local grant in aid, and then sub-
tract from it the entire Peabody School state subsidy, in order to arrive
at the sum due Cambridge. It is my opinion that the latter-described
method would be incorrect under the statute.
Very truly yours,
Edward W. Brooke
P.D. 12 237
The several boards of trustees who serve in the Department of Mental
Health are under the exclusive supervision and control of the Com-
missioner. However, the trustees retain the specific authority given
them by c. 123, §§ 27, 28 and 29, and their independent judgment
in these matters cannot be controlled, but they are not authorized
to compel any action by the Commissioner, but only to suggest, to
recommend, to report and to encourage.
March 10, 1965.
Hon. Harry C. Solomon, M.D., Commissioner of Mental Health.
Dear Doctor Solomon: — You have asked my opinion as to whether
the members of, and the several boards of trustees who serve in the
Department of Mental Health are under the jurisdiction and control of
the Commissioner of Mental Health.
In order to answer your question, it is necessary to consider the lan-
guage of several sections of cc. 19 and 123 of the General Laws.
Chapter 19 of the General Laws deals with the organization of the
Department of Mental Health.
Section 1 states that:
". . . [the] commissioner of mental health . . . shall have the exclusive
supervision and control of the department. All action of the department
shall be taken by the commissioner or, under his direction, by such
agents or subordinate officers as he may determine. . . ."
(As amended by St. 1938, c. 486, § 2.)
Section 4 states:
"The commissioner may organize in the department such divisions as
he may determine. He shall appoint and may remove such agents and
subordinate officers as he may deem necessary. . . ."
(As amended by St. 1959, c. 215. § 2.)
Section 5 states that:
"The boards of trustees of the following public institutions shall serve
in the department: Belchertown state school, Massachusetts mental health
center (Boston psycopathic hospital), Boston state hospital, Danvers state
hospital, Foxborough state hospital, Gardner state hospital, Grafton state
hospital, Walter E. Fernald state school, Medfield state hospital, Metro-
politan state hospital, Monson state hospital, Norfolk state hospital,
Northampton state hospital, Taunton state hospital, Westborough state
hospital, Worcester state hospital. Gushing hospital, Paul A. Dever state
school and Wrentham state school."
(As amended by St. 1959, c. 486, § 5.)
Chapter 123 deals with the commitment and care of the mentally ill,
epileptic, other mental defectives, alcoholics and drug addicts.
Section 3 provides:
"The department shall have supervision and control of all public insti-
tutions for mentally ill, epileptic or mentally deficient persons and of all
238 P.D. 12
persons, including alcoholics and drug addicts, received into any of said
institutions. It shall have general supervision of all private institutions
for mentally ill, epileptic or mentally deficient persons and of all persons,
including alcoholics and drug addicts, received into said institutions.
It shall supervise and control any institution placed under it by the
governor with the advice and consent of the council, and when so directed
by the governor it shall assume and exercise the powers of the trustees of
any state hospital in any matter relative to the conduct or management
thereof. . . ."
(As amended by St. 1956, c. 715, § 8.)
Section 4 provides:
"The commissioner shall administer the laws relative to persons in
institutions under his general supervision."
(As amended by St. 1938, c. 715, § 8.)
Section 7 states:
"The department shall provide for the efficient, economical and humane
management of the state hospitals. It shall establish by-laws and regula-
tions, with suitable penalties, for the government of said state hos-
pitals. . . ."
(As amended by St. 1954, c. 598, § 1.)
Section 9 provides:
"The department and the trustees of the state hospitals, or their rep-
resentatives, shall meet semi-annually for consultation and to promote
harmonious action."
(As amended by St. 1909, c. 50A, § 13.)
Section 25 lists the state institutions under the control of the depart-
ment and includes therein by name all the institutions having boards of
trustees.
Section 26, which formerly provided for supervision of state hospitals
by the trustees, was repealed by St. 1938, c. 486, § 11.
Section 27 gives the trustees certain corporate powers to hold and
manage trust funds for the benefit of the institution and inmates.
Section 28 provides that:
"When a vacancy in the position of superintendent of a state hospital
occurs, the trustees shall appoint to such vacancy from a panel of not
less than three names submitted by the commissioner, a physician. . . .
[having certain prescribed qualifications.] If the trustees fail to make an
appointment . . . within a period of sixty days . . ., the commissioner
shall appoint a superintendent qualified as provided above. . . ."
It also provides that under certain conditions the trustees may remove
a superintendent, with the approval of the department. (As amended by
St. 1957, c. 482, §4.)
P.D. 12 239
Section 29 states:
" (a) The trustees of each state hospital shall visit and familiarize them-
selves with their respective state hospitals, and may from time to time
make suggestions to the department as to improvements therein, espe-
cially such as Avill make the administration thereof more effective, eco-
nomical and humane.
" (b) All trustees shall have free access to all books, records, and ac-
counts pertaining to their respective state hospitals, and shall be admitted
at all times to the buildings and premises thereof.
" (c) They shall keep a record of their doings and shall record their
visits to the state hospitals in a book kept there for that purpose. They
shall transmit promptly to the department a copy of the proceedings of
each meeting.
" (d) They may personally hear and investigate the complaints and
requests of any inmate, his attorney, guardian, conservator or next friend,
or any officer or employee of the state hospital. If they deem any such
matter of sufficient importance, after determining what, if anything,
should be done relative thereto, they shall make written report of their
determination to the department.
" (e) They may at any time cause the superintendent or any officer
or employee of their respective state hospital to appear before them and
answer any questions or produce any books or documents relative to the
state hospital.
" (f) They may encourage the establishment of mental health centers
or clinics in any community and inform the public of measures that
may be taken to jDrevent mental disease and thus reduce mental hospital
admissions."
(As amended by St. 1954, c. 598, § 5.)
It is a cardinal rule of statutory construction that statutes and their
component parts are to be construed to give effect to each part, if possible,
in conformity with the general intent of the legislation, as indicated first
and foremost by the language of the statutes themselves.
"A law is the best expositor of itself and every part of an act is to be
taken into view for the purpose of discovering the mind of the legislature."
Pennington v. Coxe, 2 Cranch 33, 52; 2 L. Ed. 199, 205.
United States v. Freeman, 44 U.S. 556, 565; 11 L. Ed. 724, 728.
Sections 1 and 5 of c. 19 quoted above make it clear that the boards of
trustees serve in the department under the exclusive supervision and
control of the commissioner.
This supervision and control is very complete and far-reaching so far
as the administration of the department is generally concerned.
It is the commissioner who takes action personally through such subor-
dinates as he may determine, (c. 19, § 1.) It is the commissioner, there-
fore, who has supervision and control of all the institutions in the depart-
240 P.D. 12
ment. (c. 123, § 3.) It is the commissioner, in effect, who provides for
the management of the state hospitals, and establishes by-laws and regu-
lations, (c. 123, §7.)
It is my opinion that the trustees are under the supervision and control
of the commissioner, when they are involved in any of these functions.
This conclusion is required by the clear letter of the law.
However, the principle that meaning should be given to every part of
a statute, if possible, requires the qualification that the trustees retain
the specific authority given them by c. 123, §§ 27, 28 and 29, and the
conclusion that the supervision and control of the superintendent does
not give him the power to control their independent judgment in these
matters.
Chapter 123, § 28 spells out the respective powers and duties of the
commissioner and the trustees in regard to the matters included, and
the trustees are not under the control of the commissioner in respect to
the limited power of appointment and removal therein given them.
The trustees also retain the powers and duties spelled out in c. 123,
§ 29. It is to be noted, however, that the trustees are not authorized by
this section to compel any action by the commissioner, but only to sug-
gest, to recommend, to report and encourage.
Very truly yours,
Edward W. Brooke
Performance by administrative officers in the executive department of
what may be referred to as functions of a "quasi-judicial" nature
does not in and of itself transform the said officials into judicial
officers, as that term is used in the Constitution of the Common-
wealth, and Executive Council approval is no longer necessary for
their appointments.
Hon. Elliot L. Richardson^ Lieutenant Governor of the Commonwealth,
March 12, 1965.
Dear Sir: — On February 9, 1965, you requested my opinion upon
two questions affecting the authority of the Executive Council:
"1. Does the requirement of advice and consent of the Council to the
appointment of 'judicial officers' extend to the appointment of the mem-
bers of quasi-judicial bodies?
"2. If so, what agencies and instrumentalities of the Commonwealth
are to be deemed quasi-judicial bodies for purposes of the Council's
power of confirmation?"
As set forth in my letter of February 11, 1965, a formal opinion of
the Attorney General was not rendered in response to these questions,
since similar questions raised in the case of Thomas C. Healey, et al.
v. Treasurer and Receiver General, et al. had recently been argued
before the Full Bench of the Supreme Judicial Court and a decision by
that tribunal was expected shortly.
P.D. 12 241
On March 5, 1965, the Supreme Judicial Court decided the Healey
case together with the companion case of Clarence A. Barnes, et al v.
Secretary of the CommonioeaUJi, et al. In its opinion, the Court upheld
the validity of St. 1964, c. 740, the act, passed by initiative petition,
which reduced the statutory powers of the Executive Council. Address-
ing itself to the charges that the act in question contravened the Con-
stitution of the Commonwealth, the Court commented:
"In so far as the contention is m-ulc that Chaj)tcr 740 improperly
covers matters excluded by Article 48, Initiative, II, section 2, the sub-
stantive sections of Chapter 740 are sections 3 and 4, both of which
contain a saving clause, 'Subject to section 2 of this act and except as
required by the constitution of the Commonwealth.' Any other consti-
tutional argument fails because the petitioners have no standing to raise
such questions where no rights of theirs have been impaired."
Accordingly, the Court did not specifically treat the question of the
necessity of Executive Council approval of appointments to "quasi-judi-
cial" agencies; therefore, I consider it appropriate to deal with that
subject matter at this time.
Part II, Chapter 2, section 1, Article IX of the Constitution of the
Commonwealth provides that appointments of judicial officers shall
receive the approval of the Executive Council.
"All judicial officers, the solicitor-general, coroners, shall be nominated
and appointed by the governor, by and with the advice and consent of
the council; and every such nomination shall be made by the governor,
and made at least seven days prior to such appointment."
(As amended by Arts. XVII and XIX of the Amendments.)
The term "quasi-judicial bodies" is normally used to refer to admin-
istrative agencies which have been authorized by the Legislature to
conduct hearings and to render decisions which affect the rights of
specific individuals — e.g., boards empowered to conduct adjudicatory
proceedings by G. L. c. 30A, the State Administrative Procedure Act.
The question to be determined, therefore, is whether the members of
such agencies are to be considered "judicial officers" within the meaning
of Part II, Chapter 2, section 1, Article IX of the Constitution of
Massachusetts.
Judges are members of the judicial department of government and —
in this Commonwealth — ordinarily hold their offices for life.
". . . All judicial officers, duly appointed, commissioned and sworn,
shall hold their offices during good behavior, excepting such concern-
ing whom there is different provision made in this constitution; pro-
vided nevertheless, the governor, with consent of the council, may re-
move them upon the address of both houses of the legislature. . . ."
(Constitution of the Commonwealth, Part II, Chapter 3, Article I.)
Members of administrative agencies, on the other hand, are a part of
the executive branch, and their right to hold office is treated far differ-
ently from that of judicial officers. Most administrative officers are
appointed for a fixed term of years. Upon expiration of such term, the
Governor may remove the officer by the simple expedient of appointing
a successor. No recourse to the Legislature is necessary.
242 P.D. 12
Administrative agencies are creatures of the General Court, and may
be controlled by the General Court. The Legislature has complete
authority to establish how the agency is to function, and what persons
are to make up its membership. The Constitution of the Commonwealth
does not affect or limit the power of the General Court to constitute
administrative agencies.
Thus, the Legislature may establish fixed terms of office, or even pro-
vide that administrative officers may be removed at pleasure. It may
require approval of the Executive Council relative to appointments, or
it may dispense with such approval. Judicial officers obviously are treated
in an entirely different manner.
". . . This grant of power to the General Court to erect and constitute
courts, broad as it is, does not include the tenure of judges of such
courts. That is fixed by the Constitution itself. . . . The tenure of office
of judges as thus settled by the Constitution is imperative and final. It
cannot be enlarged, limited, modifield, altered or in any way affected by
the General Court."
Opinion of the Justices, 271 Mass. 575, 579-580
The fact that administrative officers in the executive department per-
form what may be referred to as functions of a "quasi-judicial" nature
does not in and of itself transform the said officials into judicial officers.
The General Court has vested executve department administrators with
authority to make certain quasi-judicial determinations (subject to review
by the judiciary) for the purposes of taking advantage of administrative
expertise and of easing the burden on the Commonwealth's judicial
system — not for the purpose of creatng a new body of Courts. Executive
department administrators have a quasi-legislative function as well, since
they frequently promulgate rules and regulations; but it can hardly be
said that by so doing the administrators become members of the Gen-
eral Court or a part of the legislative branch of government. Likewise,
executive department administrators do not become judges simply by
conducting the type of adjudicatory proceeding authorized by certain of
the Commonwealth's statutes.
I am aware of the fact that section 2 of Chapter 740 of the Acts of
1964 exempts from the provisions of the chapter five quasi-judicial
bodies. There is nothing in the record to indicate why the drafters of
the initiative petition which eventually resulted in the act in question
felt that it was necessary or desirable to exempt only these agencies.
Suffice it to say, it was not because the Constitution of the Common-
wealth requires special treatment for such agencies.
Accordingly, in light of the above, it is my considered opinion that
members of quasi-judicial bodies are not "judicial officers" as that term
is used in the Constitution of the Commonwealth, and that approval of
the Executive Council is no longer necessary for their appointments.
Because of this conclusion, it is not necessary to address myself to your
second question.
Very truly yours,
Edward W. Brooke
P.D. 12 243
The portion of a proposed statute which required public school children
to recite each morning the pledge of allegiance to the flag, and which
imposes criminal penalties for failure so to do, is beyond the power
of the Legislature to enact. If enacted, such a statute would be un-
constitutional and void.
March 15, 1965.
Hon. Thomas A. Chadwick, Clerk of the Senate.
Dear Sir: — You have requested my opinion ot the constitutionality
of a proposed statute which reads as follows:
"ORDERED, That the opinion of the Attorney General be requested
by the Senate on the following cjucston of law: Would current House
document No. 481, a copy of which is hereto attached, and which is
now pending before the Senate, be constitutional if enacted into law?"
It is my opinion that to the extent such a statute would require school
children to recite the pledge, it would be unconstitutional and void.
The question of the validity of such a law was adjudicated over twenty
years ago in West Virginia Stale Board of Education v. Bamette, 319
U.S. 624 (1943) . The holding of that case is clear:
"We think the action of the local authorities in compelling the flag
salute and pledge transcends constitutional limitations on their power
and invades the sphere of intellect and spirit which it is the purpose of
the First Amendment to our Constitution (whose principles are made
applicable to the state through the Fourteenth Amendment) to reserve
from all official control." Id. at 642.
The factual distinction between the law involved in Bamette and the
one to which your question relates are insignificant. The principles
enunciated in Bamette apply equally to both. Nothing which has inter-
vened since that decision has weakened or cast doubt upon the continu-
ing vitality of these principles.
It is, accordingly, my considered judgment that the portion of the
proposed statute set forth above which requires public school children
to recite each morning the pledge of allegiance to the flag, and which
imposes criminal penalties for failure so to do, is beyond the power of
the Legislature to enact. If enacted, such a statute would be unconsti-
tutional and void.
This is not to say that it is improper for schools to attempt to edu-
cate their pupils about the great heritage of the Nation, or to seek to
instill into them patriotism and love of country. Quite the contrary is
true. A significant part of this heritage, however, and one of which we
are justly proud, is that the dissenter, whether in matters of ethics,
religion or policy, however noxious his views may appear to the major-
ity, cannot be and will not be punished merely because he holds such
views.
The profession of a personal attitude is meaningful only if it is sin-
cere. To coerce a child to make such a profession by repeating, by rote,
a pledge of allegiance to the flag which may contradict the thoughts
harbored within his heart can scarcely be expected to change the child's
244 P.D. 12
attitude. "To believe that patriotism will not flourish if patriotic cere-
monies are voluntary and spontaneous instead of a compulsory routine
is to make an unflattering estimate of the appeal of our institutions to
free minds." Id. at 641.
Very truly yours,
Edward W. Brooke
The Armory Commission may lawfully hire a consultant to survey and
appraise possible areas and facilities as replacements for the Irving-
ton Street Armory, subject to the limitations on use of funds con-
tained in St. 1962, c. 717.
March 16, 1965.
Major General Joseph M, Ambrose, The Adjutant General, Mass.
ARNG.
Dear General Ambrose: — You have requested my opinion upon the
following question:
"May the Armory Commission expend money received from the Mas-
sachusetts Turnpike Authority as a partial payment for the taking of
the Irvington Street Armory property for the purpose of employing a
consultant to survey and appraise Army Reserve facilities as possible
replacement facilities for said Irvington Street Armory, under Chapter
716of the Acts of 1962?"
You have informed me that by virtue of the proposed merger of the
Army Reserve into the Army National Guard there has arisen a need
for immediate expansion of State military facilities. Plans for future
armory construction must now be developed, and decisions made as to
the advisability of use of present Army Reserve locations for future
National Guard purposes. Since the Armory Commission has no regular
engineering staff, the Commission wishes to hire a consultant for a tem-
porary period to examine possible armory sites, the said consultant to be
compensated from funds received by the Commonwealth as a result of
the taking of the Irvington Street Armory.
By St. 1962, c. 717, the General Court provided for disposition of cer-
tain funds paid by the Massachusetts Turnpike Authority upon the
taking by eminent domain of the Irvington Street Armory,
"Funds paid by the Massachusetts Turnpike Authority for the taking
by eminent domain of the state armory, located at Irvington Street in
the city of Boston, together with all land and appurtenances thereto,
shall be paid into the state treasury and may be expended by the armory
commission for the acquisition of sites and the erection and equipping
of armory facilities to replace said armory. . . ." (Emphasis supplied.)
The Commission is also authorized by the act in question to expend
whatever federal funds may be available for the purpose stated above,
and to use the amount remaining from the appropriation for armory
construction contained in Item 8262-01 of St, 1961, c, 544, § 2.
P.D. 12 245
It is clear from the above language that the General Court intended
the funds paid as damages for the taking of the Irvington Street Armory
to be used for the purpose of construction of armory facilities to replace
the facilities which had been lost. The Armory Commission is authorized
to expend such funds to acquire sites and to erect and equip replacement
facilities. Acquisition of sites necessarily involves selection of such sites.
Intelligent selection of appropriate locations is a task which is best accom-
plished by individuals who are trained in such matters. The legislative
directive to the effect that new sites are to be acquired by the Commis-
sion necessitates selection of areas and extends to the Commission the
right to hire skilled persons to assist in such selection. Such authorization
is consistent with the general provision of G. L. c. 33, ^ 126. that the
Commission "shall designate the location of armories and air installations
... to be constructed."
Use of such personnel cannot, however, be unlimited under the provi-
sions of St. 1962, c. 717. A portion of your letter reads as follows:
"It is essential, therefore, that the Armory Commission immediately
survev and appraise the existing Army Reserve facilities in Massachusetts,
as well as to survey sites for new armories, in order to develop a logical,
efficient and economical facilities plan for the Commonwealth."
I gather, therefore, that the Armory Commission plans quite an extensive
examination of potential military sites throughout the Commonwealth.
This type of general survey cannot, in my opinion, be conducted with
the funds allocated by St. 1962, c. 717. That act specifically provides that
the sums paid over by the Turnpike Authority may be used to replace
the Irvington Street Armory. The General Court has not authorized
use of these funds for the kind of broad investigation apparently con-
templated in the sentence quoted above. Such a general survey is un-
doubtedly within the authority vested in the Commission by c. 33 of the
General Laws; but the restrictive language of St. 1962, c. 717 does not
permit use of the funds referred to therein for such purposes. Further
resort to the Legislature may well be necessary to secure an appropriation
for a full-scale study of potential military sites.
Accordingly, it is my opinion that the Armory Commission may law-
fully hire a consultant to survey and appraise possible areas and facilities
as replacements for the Irvington Street Armory, subject, however, to
the limitations set forth above upon the functioning of such a consultant.
Very truly yours,
Edward W. Brooke
246 P.D. 12
The acquisition, by eminent domain, of property currently under the
control of the Metropolitan District Commission by the Govern-
ment Center Commission would not require payment of damages,
although the Center Commission may, if it so desires, enter some
arrangement to furnish valuable consideration.
March 16, 1965.
Hon. Jeremiah Sundell, Chairman, Government Center Commission.
Dear Mr. Sundell: — You have requested my opinion on the question
of whether or not the Government Center Commission is responsible
for the payment of damages for the acquisition of property currently
under the control of the Metropolitan District Commission, as provided
for by c. 685, § 4 of the Acts of 1962, as follows:
"The Commission shall after consultation with the Boston Redevelop-
ment Authority, take by eminent domain under the provisions of chapter
79 of the General Laws, or acquire by purchase or otherwise, all of the
land in the City of Boston within the area bounded by Ashburton Place,
Somerset Street, Cambridge Street and Bowdoin Street, for the purpose
of clearing, developing and erecting thereon a State Office Building,
provided, that the Commission shall not be required to demolish the
building occupied by the Metropolitan District Commission." (Emphasis
supplied.)
More specifically, you have asked, "Is the Government Center Com-
mission required to pay damages, at the fair market value or on any
other basis, to the Metropolitan District Commission for the acquisition
of the land and buildings located at 20 Somerset Street, Boston, Massa-
chusetts, presently under the jurisdiction and control of the Metropolitan
District Commission?"
Although c. 685, § 4 of the Acts of 1962 specifically provides that the
acquisitions by eminent domain authorized by that section be accom-
plished under the provisions of c. 79, providing in part for the award of
damages, this does not necessitate the award of damages in all cases.
It is my opinion, in view of the recent holdings of the Supreme Judicial
Court in the cases of Worcester v. Commonwealth, 345 Mass. 99 and
Mass. Turnpike Authority v. Commonwealth, 1964 Adv. Sh. 849, that
G. L. c. 79, § 6, allowing damages for an eminent domain taking, would
not be applicable to the instant case.
It is a well-settled principle in this Commonwealth that land owned
or used by a municipality or a public authority in its public capacity
may be taken and transferred by the Legislature to another public agency
without the payment of compensation. Lowell v. Boston, 322 Mass. 709,
731; Opinion of the Justices, 322 Mass. 745, 752. The implementation
by the Government Center Commission of its authority under G. L.
c. 685 would accomplish the transfer of the land of a public authority,
the Metropolitan District Commission, to another public agency. Conse-
quently, although G. L. c. 685 incorporates G. L. c. 79 by reference, the
latter provision cannot be extended to include the facts of the instant
case and, therefore, compensation would not be available.
P.D. 12 247
In so far as G. L. c. 685 of the Acts of 1962 provides for the acquisition
of said property by purchase, the option to use that method rests with
the Commission. Absent a contrary provision, the term "purchase" must
be interpreted in its normal manner. Black's Law Dictionary, Fourth
edition, at page 1399, defines "purchase" as the "transmission of prop-
erty ... by voluntary act and agreement, founded on a valuable consid-
eration." (Emphasis supplied.) It would therefore be incumbent upon
the Commission to provide the valuable consideration necessary to acquire
the property by purchase, if it should choose to act in that manner.
In conclusion, on the facts that you have stated, I am of the opinion
that taking the said property by eminent domain would not require
payment of damages, although the Commission may, if it so desires,
enter some other arrangement to furnish a valuable consideration in
exchange therefor.
Very truly yours,
Edward W. Brooke
The Commissioner of Insurance must either reopen the hearing which
was concluded on January 5, 1965, or give notice of a new hearing
in order to consider any new filing resubmitted xoithin a reasonable
time after the original filing has been disapproved.
March 16, 1965.
Hon. C. Eugene Farnam, Commissioner of Insurance.
Dear Commissioner Farnam:— You have asked my opinion as to
whether under G. L. c. 176A, § 6 you can give further consideration to
a rate filing, which is resubmitted within a reasonable time after the
original filing has been disapproved, without reopening the public
hearing that was originally held thereon. In submitting this request you
assume that the resubmitted filing will be altered and amended in accord-
ance with your opinion in connection with the original filing.
The opinion and decision which was promulgated by you and filed
in your office on February 1, 1965 disapproved the proposed rate increases
filed by the Massachusetts Hospital Service, Inc. In the decision you
state that you would be prepared to accept for consideration a shorter
projection as a basis for rates. You also mention that there was no evi-
dence in the transcript to support the proposed 2% provision for con-
tribution to statutory reserves and that the record disclosed no reason
for the present method of distributing costs and of allocating expenses
between Blue Cross and Blue Shield. In your conclusion, you find that
the filing, as a whole, is specious and does not meet the statutory require-
ments necessary to justify the rate increases proposed.
General Laws c. 176 A, § 6 states that:
"No such contracts or rates shall be approved until after a public
hearing . . . held within thirty days of the date of the filing of a copy
of the form of such contracts or rates with the commissioner. . . . No con-
tracts shall be approved if the benefits provided therein are unreasonable
in relation to the rate charged, nor if the rates are excessive, inadequate
or unfairly discriminatory. . . . Any subscriber, non-profit hospital service
248 P.D. 12
corporation or other person aggrieved by an action, order, finding or
decision of the commissioner under this section may, within twenty days
from the fihng of such memorandum thereof in his office, file a petition
in the supreme judicial court for the county of Suffolk for a review of
such action, order, finding or decision. . . . The court shall have juris-
diction in equity to modify, amend, annul, reverse or affirm such action,
order, finding or decision, and shall uphold the commissioner's action,
order, finding or decision if supported by the weight of the evidence."
In the case of Massachusetts Medical Service v. Commissioner of Insur-
ance, 344 Mass. 335, 339, the Suj^reme Judicial Court was concerned with
a disapproval of rates under G. L. c. 176B. Under that statute a hearing
is not required, but the court, nevertheless, stated that, "It is appropriate,
if not necessary, that there be by the administration, rather than in court,
the hearing in respect of rates which is necessary at some stage of the
administrative-judicial process surely to meet constitutional require-
ments."
From the language contained in the Massachusetts Medical Service case,
supra, it is apparent that a new hearing is required under the circum-
stances as you have presented them. There are questions which you have
indicated in your opinion and decision of February 1, 1965 that need
to be answered. Also, there may well be objections to any rate increases
proposed by Blue Cross. It is only at a public hearing that these answers
and objections can be recorded. Even though the new filing may be
altered and amended to conform with your previous opinion, the public
should be given an opportunity to examine the proposal and express its
views, either favorably or unfavorably.
It is, therefore, my opinion that you must either reopen the hearing
which was concluded on January 5, 1965, or give notice of a new hearing
in order to consider any new filing resubmitted by the Massachusetts
Hospital Service, Inc.
Very truly yours,
Edward W. Brooke
The provisions of St. 1964, c. 727, § 32 supersede c. 337, § 20 of that Act
and, therefore, the Massachusetts Board of Regional Community
Colleges may transfer funds within and among subsiding accounts.
March 23, 1965.
Hon. Kermit C. Morrissey, Chairman, Massachusetts Board of Regional
Community Colleges.
Dear Mr. Morrissey: — You have requested my opinion regarding the
fiscal autonomy bill for the Massachusetts Board of Regional Community
Colleges, c. 727, § 32 of the Acts of 1964, as follows:
"Notwithstanding any other provision of law to the contrary, the gen-
eral court shall annually appropriate such sums as it deems necessary
for the maintenance, operation and support of each regional community
college; and such appropriations shall be made available to each regional
community college by the appropriate state officials for expenditure
P.D. 12 249
through allotment, transfer within and among subsidiary accounts,
advances from the state treasury in accordance with the provisions of
sections twenty-four, twenty-five and twenty-six of chapter twenty-nine,
or for disbursement on certification to the state comptroller in accord-
ance with the provisions of section eighteen of said cliapter twenty-nine
as may from time to time be directed by the board or by a dean, or other
officer of a regional community college designated by the board."
More specifically you have asked, "do the provisions of c. 737, § 32
of the Acts of 1964 supersede the provisions of c. 337, § 20 of the Acts
of 1964?" Chapter 337, § 20 of the Acts of 1964 provides:
"The provisions of . . . section fifteen ... of this act shall not apply
to expenditures from appropriations made imder this act for the Uni-
versity of Massachusetts, the division of state colleges of the board of
trustees of state colleges, the New Bedford Institute of Technology, the
Lowell Technological Institute of Massachusetts, and the Bradford Durfee
College of Technology; nor shall the provisions of section nine B or
section twenty-nine of chapter twenty-nine of the General Laws, or any
provision of section six or section eight of this act apply to said expendi-
tures which are inconsistent with any provision of the General Laws
specifically regulating the expenditure of public funds at each of said
institutions."
Section 15 of c. 337 of the Acts of 1964 referred to above provides:
"The budget director, notwithstanding the provisions of section twenty-
nine of chapter twenty-nine of the General Laws, is hereby directed to
limit the transfer of funds between subsidiary accounts, established as
provided in section twenty-seven of said chapter twenty-nine, to those
transfers required to meet unforeseen emergencies where fimds other-
wise are not available to protect the public interest. The budget director
shall file forthwith, on the approval of any such transfer, a copy of the
authorization with the house and senate committees on ways and means."
I answer your question in the affirmative.
Although the provisions of c. 37, § 20 of the Acts of 1964, approved
April 30, 1964, do not include the Regional Community Colleges in the
list of institutions to which § 15 of that act shall not apply, the subse-
quent enactment on July 9, 1964 of c. 737, § 32 indicates the Legisla-
ture's intent to also authorize fiscal autonomy for the Regional Com-
munity Colleges.
In this situation the chronology of the two acts is of the essence.
Whereas the General Court in its wisdom has seen fit to pass a subse-
quent act specifically providing fiscal autonomy for the regional com-
mimity colleges to transfer funds within and among subsidiary accounts,
the Legislature must be deemed to have acted with knowledge of its
earlier pronouncement of April 30, 1964. That the Legislature was aware
of its prior pronouncement is confirmed by the express language of c. 737,
§ 32 that it be applicable "notwithstanding any other provision of law
to the contrary." By that language the Legislature has manifested not
only its awareness of the prior provision, but its willingness to expand
the scope of c. 337 to include the regional community colleges in the
grant of fiscal autonomy.
250 P.D. 1?
Consequently, in view of the enactment of c. 737, § 32 subsequent to
c. 337, § 20, and the express language that c. 737 be applied notwith-
standing any contrary provisions of law, it is my opinion that the pro-
visions of c. 737, § 32 of the Acts of 1964 supersede c. 337, § 20 of those
acts and, therefore, that the Massachusetts Board of Regional Commu-
nity Colleges may transfer funds within and among subsidiary accounts.
Very truly yours,
Edward W. Brooke
"Satisfaction" as appearing in G. L. c. 79, § 37 , as most recently amended,
means lohere the check of the Commonwealth is received by the
person entitled thereto or his attorney or agent, and, absent any act
by the condemnee which delays payment, additional interest must
be awarded from the date of judgment to the last day of the month
prior to the month in which satisfaction is paid, at the rate of six
per cent per annum.
March 24, 1965.
Re: Eminent Domain — Tax Apportionment as Damages — Interest
Thereon - (General Land Corp., et al, [Suffolk 458625] A. G. 78184).
Hon. Francis W. Sargent, Commissioner of Public Works.
Dear Commissioner Sargent: — This letter is in reply to your letter
in part on the above subject, dated February 24, 1965, received by this
Department March 3. On page four of that letter you requested my
opinion on the following questions:
1. According to Section 37 of Chapter 79 of the General Laws, as
most recently amended, it states that 'a judgment . . . shall bear interest
at the rate of six per cent per annum from the date of the entry of such
judgment to and including the last day of the month prior to the month
in which satisfaction therefor is paid.' What is meant by 'satisfaction
paid'? Is it the date the check issues from the Treasurer of the Common-
wealth or the actual date of payment to the person entitled thereto?"
2. "In order to permit the Board of Commissioners to process the
damages awarded under the above judgment (Francis J. Sawyer) , should
additional interest be computed on the judgment from the date com-
puted by the Court to and including your definition of the date satis-
faction is paid to the person entitled thereto?"
In answer to the first question it is my opinion that, for the purpose
of computing interest pursuant to Section 37 of Chapter 79, satisfaction
is paid when the check of the Commonwealth is received by the person
entitled thereto or his attorney or agent. The case of Vaughn v. Demoine,
330 Mass. 83, states that interest is to be paid "to the date of payment."
It is my opinion that payment requires receipt by the person entitled
therto or by his duly authorized agent.
In answer to the second question it is my opinion that, absent any
act by the condemnee which delays payment, additional interest must
be awarded from the date of the judgment to the last day of the month
prior to the month in which satisfaction is paid. Such interest payment
P.D. 12 251
shall be computed at the rate of six per cent per annum on the total
amount of the decree of judgment. That total amount of a judgment
decree Avill be the sum of the land damage award and the tax adjustment
and interest thereon and costs.
Implicit in your letter is concern over whether or not interest is
payable upon the award for taxes assessed on the property taken. You
have also expressed concern over confusion which has arisen regarding
three "Opinions" of Attorneys General dealing with this question.
It is my opinion that interest is payable upon that portion of a damage
award allocated to taxes.
Section 12 of Chapter 79 of the General Laws provides in part:
". . . the damages for the taking shall include an amount separately
determined and stated which shall be estimated to be equal to that por-
tion of the tax assessed upon the property in the year it is taken . . ."
[emphasis supplied]
The Opinon of the Attorney General dated March 11, 1954 to which
you referred states: "It was obviously the Legislature's intention to add
a new element of damages to be taken into consideration in the dis-
position of land damage cases arising under this Chapter."
The Opinion of the Attorney General dated January 15, 1965 to which
you refer states on page four: "the word 'damages' is used by some to
describe the total amount paid to the former owner of the property,
including the damage award, interest thereon, taxes and costs . . ."
[emphasis supplied]
Therefore, as used in Section 12 of Chapter 79 of the General Laws,
local real estate taxes on the taken property for the balance of the
calendar year in which a taking is made shall be considered an element
of damages.
Section 37 of Chapter 79 provides, "Damages under this chapter shall
bear interest . . ." Since the balance of local real estate taxes is an
element of damages, interest is payable on that portion of an award
allocated to taxes.
The letter from this Department to the Comptroller of the Common-
wealth dated February 1, 1965 to which you referred dealt with a par-
ticular fact situation in the unusual case captioned above. The title and
other complications of that case were set forth in said February 1, 1965
letter to the Comptroller, the provisions of which are herewith ratified
and confirmed except for the paragraph numbered 4 on page three
thereof, which w^as in error and is inconsistent with the opinion expressed
in the preceding paragraph of this letter.
•
Very truly yours,
Edward W. Brooke
252 P.D. 12
Pursuant to St. 1963, c. 660, the new valuation statute did not become
effective until January 1, 1965, and the Department of Education's
calculations concerning State aid grants for the payments which
relate to the year 1964 must he made in accordance with the 1945
statute, and later payments made in accordance with the valuations
prescribed by the 1963 statute.
March 25, 1965.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Sir: — On March 12, 1965, you requested my opinion upon the
following question:
"What valuation or valuations are to be employed for computing
Chapter 70 Aid for the 1964-65 school year?"
Pursuant to § 18 of c. 58 of the General Laws, State Aid amounts are
distributed to the various municipalities proportionally to the sum
imposed upon such municipalities as taxes. Chapter 559 of the Acts of
1945 established a basis for apportionment of state and county taxes;
by c. 660 of the Acts of 1963, the Legislature enacted a new apportion-
ment statute, changing the valuations placed upon property in the cities
and towns and thus altering the amounts of taxes to be paid.
In an opinion rendered to you on June 29, 1965, I indicated that
the new valuation statute was not to take effect until January 1, 1965.
At that time I advised you as follows:
"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. 559.
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 distribu-
tion or by the fact that significant changes in valuation may have been
made. . . ."
This ruling is, in my opinion, dispositive of your present question.
Since the new valuation statute did not become effective until January 1,
1965, it is clear that amounts to be paid over for periods of time prior
to that date cannot be calculated on the basis of the new law. I realize
that this may create certain difficulties for your Department, since State
Aid grants are made on a schedule based upon the school year rather
than upon the calendar year. But the statutory language does not permit
P.D. 12 253
a different result. It is the apparent legislative intention that calcula-
tions be made on a pro rata basis, with payments which relate to the
year 1964 made pursuant to the 1945 statute, and later payments made
in accordance with the valuations estabUshed by St. 1963, c. 660.
Very truly yours,
Edward W. Brooke
Persons operating scalp treatment establishments and specializing solely
in scalp work on both male and female clientele are not "hairdres-
sers" and are not subject to the provisions of G. L. 112, ^%87T
through 87 KK.
March 26, 1965.
Hon. Irene E. Bode, Chairman, Board of Registration of Hairdressers.
Dear Madam: — You have asked my opinion as to whether those oper-
ating scalp treatment establishments and specializing solely in scalp work
on both male and female clientele are engaged in the business of "hair-
dressing" and are therefore subject to G. L. c. 112, §§ 87T through 87KK.
T assume that by "scalp treatment establishments" you mean estab-
lishments offering treatment to aid the growth of hair or to prevent the
loss of it (commonly known as trichology) and by "scalp work" you
mean work on the scalp for such purpose.
General Laws, c. 112, § 87T defines "hairdressing" as follows:
" 'Hairdressing', arranging, dressing, curling, waving, cleansing, cutting,
singeing, bleaching, coloring, or similarly treating the hair of any female,
or perfomiing work as a cosmetologist as defined in section eighty-seven F,
or any combination of any of the foregoing, but not including the removal
of superfluous hair or skin blemishes by direct application of an electric
current or any treatment of the bust."
"Cosmetologist" in turn is defined in § 87F of said c. 112 as follows:
" 'Cosmetologist', any person, who, with hands or mechanical or elec-
trical apparatus or appliances, or by the use of cosmetic preparations,
antiseptics, tonics, lotions, or creams, engages for compensation in any
one or any combination of the following practices, to wit: — Massaging,
cleansing, stimulating, manipulating, exercising, beautifying the scalp,
face, neck, arms, bust or upper part of the body, manicuring the nails,
or removing of superfluous hair, by the tise of electricity or otherwise,
about the body of any female, but not about the body of any male."
The Legislature has limited the Board of Registration of Hairdressers
to registering and regulating the business of those persons engaged in the
activities set forth in G. L. c. 112, § 87T, namely: "Demonstrators" of
articles and equipment used in hairdressing; "hairdressers" (defined
above); "instructors" in the teaching of hairdressing and manicuring;
"operators" in hairdressing or any of its branches under supervision;
"manicurists" in cutting, trimming, polishing, tinting, coloring or cleans-
ing nails; "students" of hairdressing or manicuring. Furthermore, the
254 P.D. 12
Legislature has limited the activities of those persons registered as to
place, namely, beauty shops or schools for the teaching of hairdressing,
and as to persons, upon females only. Also, throughout G. L. c. 112, the
Legislature refers to the activities of those registered by the Board in
such terms as "beautifying" and "beauty culture" and to the products
used by them in such terms as "beauty preparations" and "cosmetic
preparations."
Accordingly, it seems clear that the Legislature intended that the
Board regulate the activities of only those engaged solely in practices
designed for the beautification of females in beauty shops or beauty
schools. It is equally clear that the functions of those engaged in the
business of trichology, while employing some of the practices of hair-
dressing, such as scalp massage, are not primarily designed for beautifica-
tion purposes nor for the female exclusively.
The services of these establishments, while available to and often used
by females, are advertised primarily for the use of males and are not
referred to as "beauty shops."
It is my opinion that those engaged in scalp work of the type you
describe are not hairdressers and are not subject to the provisions of
G. L. c. 112, §§ 87T through 87KK. This does not mean that such
persons are not subject to other provisions of law respecting the prac-
tice of physical therapy and the practice of medicine, which questions are
not here considered.
Very truly yours,
Edward W. Brooke
The establishment of a uniform system of control and accounting, for
equipment owned by the Commonwealth, would be a proper under-
taking by the comptroller. However, such authority cannot be ex-
tended to include the delegation of powers which he does not him-
self possess.
March 26, 1965.
Hon. Joseph Alecks, Comptroller, Commission on Administration and
Finance.
Dear Mr. Alecks: — I have received your letter of March 1, 1965,
requesting my opinion on the legality of certain proposed procedures
to be promulgated by your division in developing a uniform system of
control and accounting for equipment owned by the Commonwealth.
In your letter you indicate that it is your intent, "in the case of equip-
ment other than motor vehicles, to prescribe standard forms for reporting
to the head of each state agency information pertaining to damage to
such equipment or its loss, when it is missing or stolen. Also to provide
that he will determine whether there is liability for such damage or
loss, and, if so, determine the amount of damages and assess the indi-
vidual or firm involved. If they do not pay or wish to compromise the
matter, he is then to refer the case to your office."
P.D. 12 255
The authority of the Comptroller in this context is set forth in G. L.
c. 7, §§16 and 17.
General Laws c. 7, § 16 provides that:
"The comptroller shall design and install an accounting system for
the commonwealth. . . . He may revise such . . . system from time to time."
General Laws c. 7, § 17 provides that:
"He shall have full authority to prescribe, regulate and make changes
in the methods of keeping and rendering accounts. He shall establish in
each such department, office, commission and institution a proper system
of accounts, which shall be uniform so far as is practicable. . . . He shall
provide such safeguards and systems of checking as will ensure, so far
as possible, the proper collection of all revenue due the commonwealth.
In view of the language of these sections setting out the authority of
the Comptroller, it is my opinion that the establishment of a uniform
system of control and accounting for equipment owned by the Common-
wealth would be proper. General Laws c. 7, § 6 authorizes the Comp-
troller to design and install an accounting system as well as to make
revisions of any such system. In addition, G. L. c. 7, § 17 provides the
Comptroller with authority to establish such an accounting system in a
uniform manner. Clearly then, the proposed system would fall within
the authority granted by these sections and would be a proper under-
taking by the Comptroller.
As a second aspect of your proposed new system, you have suggested
that the head of each State agency determine whether there is liability
for damage or loss and, if so, to determine the amount of damage or
loss and assess the individual or firm involved.
It is my opinion that such portion of the proposed new system would
be beyond the purview of the authority of the Comptroller, as set forth
in the statutes cited above. The determination of liability for damage
is a legal determination to be made by the Court, should litigation ensue.
There is no statutory or other basis for allowing such authority to be
delegated to department heads or to the Comptroller himself. The respon-
sibility in this area rests with the Court and is not an appropriate area
for action by department heads.
Consequently, although the Comptroller is specifically authorized to
develop uniform systems of accounting and control, that authority cannot
be extended to include the delegation of powers which he does not him-
self possess. It is therefore my opinion that the second aspect of your
proposed system would not be legal.
The answer to your first two questions renders unnecessary an answer
to your third question.
Very truly yours,
Edward W. Brooke
256 P.D. 12
// the Board of Regional Community Colleges chooses not to seek review
by means of a petition for a writ of certiorari under G. L. c. 294, § 4,
a decision of the Civil Service Commission relative to the reinstate-
ment of an employee is final and binding.
April 8, 1965.
Hon. Kermit C. Morrissey, Chairman, Massachusetts Board of Regional
Community Colleges.
Dear Mr. Morrissey: — I have received your letter of February 24,
1964, which relates to the question of re-employment by your Board of
one Jo;;eph Doherty, a former fireman-janitor at the Massachusetts Bay
Community College. You have informed me that on January 19, 1964,
a full hearing was held by your Board on four charges which had been
levied against the said Mr. Doherty — neglect of duty, insubordination,
conduct unbecoming a public employee and chronic absenteeism. On the
basis of the evidence submitted, it was voted unanimously to dismiss
Mr. Doherty.
The employee thereupon requested review of the Board's decision by
the Civil Service Commission pursuant to G. L. c. 31, § 43 (b). The matter
was heard on October 27, 1964 by a hearing examiner appointed by the
Commission. On January 13, 1965, the Commission voted to adopt the
findings of the hearing examiner as the findings of the Commission, and
found the employee guilty of all charges set forth by the appointing
authority. The Commission, however, also voted to modify the penalty
which had been imposed from discharge to suspension for three months
without compensation, effective June 20, 1964. In light of these facts,
you have requested my opinion whether the ruling of the Civil Service
Commission is final in this matter and whether further legal redress of
any kind is available to the Board of Regional Community Colleges.
In an opinion rendered on September 29, 1964 to Mrs. Lauretta L.
Kellaher, Acting Secretary of the Civil Service Commission, I advised
that the provisions of G. L. c. 30, § 9B are applicable to maintenance
employees of your Board, and that such employees are entitled to the
safeguards of G. L. c. 31, §§ 43, 45 and 46A in the event of attempted
removal or other action by the appointing authority affecting their posi-
tions. Accordingly, Mr. Doherty was clearly entitled to have his discharge
reviewed by the members of the Civil Service Commission. (See G. L.
c 31, § 43(b).)
The Commission is authorized to affirm, reverse or otherwise modify
the action of the appointing authority.
". . . The decision of the commission shall be in writing and notice
thereof sent to all parties concerned within ten days after the filing of
the report. If the commission finds that the action of the appointing
authority was justified such action shall be affirmed; otherwise, it shall
be reversed and the person concerned shall be returned to his office or
position without loss of compensation. The commission may also modify
any penalty imposed by the appointing authority." (Emphasis supplied.)
P.D. 12 257
G. L. c. 31, § 43 (b), as amended by St. 1962, c. 205.
Thus it was consistent with the authority vested in the Civil Service
Commission to affirni the finding of the appointing authority that the
employee in question was guilty as charged, but to modify the penalty
imj:)osed from discharge to suspension.
Absent further proceedings, the ruling of the Commission is binding
upon the appointing authority. Your Board is not entitled to seek review
in the district court under G. L. c. 31, § 45, since the provisions of that
section are available to aggrieved employees only. The Board may, how-
ever, proceed pursuant to § 4 of c. 249 of the General Laws, which section
provides that a "petition for a writ of certiorari to correct errors in pro-
ceedings which are not according to the course of the common law may
be presented to a justice of the supreme judicial court, and he may, after
notice, hear and determine the same." The petition must be filed within
two years of the close of the proceedings to be reviewed. In such proceed-
ings the Court oidinarily reviews qviestions of law only, and is not likely
to substitute its judgment for decisions which are discretionary.
Mayor of Medford v. Judge of First District Court of Eastern Middlesex,
249 Mass. 465, 468.
Should your Board choose not to avail itself of this remedy, the
ruling of the Civil Service Commission is final and determinative of
Mr. Doherty's status. An employee who has been unlawfully removed
may proceed to regain his position pursuant to the provisions of G. L.
c. 31,§46A.
"The supreme judicial court shall have jurisdiction of any petition
for a writ of mandamus for the reinstatement of any person alleged to
have been illegally discharged, removed, suspended, laid off, transferred,
lowered in rank or compensation, or whose office or position is alleged
to have been illegally abolished under this chapter; provided, that such
petition shall be filed in said court within six months next following
such allegedly illegal discharge, removal, suspension, laying off, transfer,
lowering in rank or compensation, or abolition of his position, unless
said court for cause shown extends the time. . . ."
The recent decision of the Supreme Judicial Court in Commissioner
of the Metropolitayi District Commission v. Director of Civil Service,
1964 Mass. Adv. Sh. 1345, in no way vests discretion in your Board to
deny reinstatement to the employee in question. That decision affirmed
the right of a given appointing authority to refuse to appoint a disabled
veteran for the reason that the veteran's past conduct had been such
as to render him unsuitable for the position. But the present matter
involves an employee who has already received an appointment, and
who is consequently entitled to hold his position imless removed in
accordance with strict statutory provisions. The appointing authority is
without discretion to vary such provisions in removal cases.
Accordingly, if your Board chooses not to seek review by means of a
petition for a writ of certiorari under G. L. c. 249, § 4, the decision of
the Civil Service Commission relative to the reinstatement of Mr. Joseph
Doherty is final and binding.
Very truly yours,
Edward W. Brooke
258 P.D. 12
Pursuant to St. 1958, c. 647 and G. L. c. 79, the Department of Public
Works has the authority and duty to pay the awards voted on Sep-
tember 7 , 1960, for the takings voted July 11, 1960, and recorded in
Barnstable County Registry of Deeds on July 19, 1960.
April 12, 1965.
Re: Taking by Eminent Domain — South Cape (Popponesset) Beach,
Mashpee - Ch. 647 of 1958 and Ch. 635 of 1962.
Hon. Francis W. Sargent, Commissioner of Public Works.
Dear Commissioner: — By letter, dated March 24, 1965, you asked my
opinion of whether the Department of Public Works has the authority
to pay certain awards voted in 1960 as a result of land acquisition under
Chapter 647 of the Acts of 1958 or whether that authority was with-
drawn by Chapter 635 of the Acts of 1962.
Chapter 647 of Acts of 1958 authorized the Commissioner of Public
Works on behalf of the Commonwealth to acquire by purchase or gift
or to take by eminent domain under Chapter 79 of the General Laws
. . . the whole or any portion of the properties comprising South Cape
Beach also known as Popponesset Beach.
You advised that the Department of Public Works made such takings,
recorded under date of July 11, 1960, of three parcels.
Section 1 of Chapter 635 of the Acts of 1962 provides in part:
"Upon the delivery to the commissioners of public works ... by all
the owners, except the town of Mashpee, ... of releases of all claims . . .
and of agreements for the dismissal of any . . . court proceedings [arising
from the July 11, 1960 takings] . . . [the] commissioners . . . are hereby
authorized and directed to reconvey to such owners . . .". (Emphasis
supplied.)
You advise in your letter of March 3, 1965 that releases and dismissals
set forth in Chapter 635 of the Acts of 1962 cannot be obtained from all
of the former owners.
It is my opinion that in Section 1 of Chapter 635 of the Acts of 1962
the Legislature has clearly stated a condition precedent to any recon-
veyance to the former owners of the property taken July 11, 1960. That
condition precedent is the delivery of the releases and agreements de-
scribed above from all of the former owners except the Town of Mashpee.
The condition precedent has not been fulfilled. The sixth paragraph
of your letter of March 3, 1965 indicates that it will not be fulfilled.
It is my opinion that under the provisions of Chapter 647 of Acts of
1958 and Chapter 79 of the General Laws, the Department of Public
Works has the authority and duty to pay the awards voted on September
7, 1960 for the takings voted July 11, 1960 and recorded in Barnstable
County Registry of Deeds on July 19, 1960.
Very truly yours,
Edward W. Brooke
P.D. 12 259
Chapter 16, § 5(h) does not require that a contractor appeal the decision
of the Department of Public Works to the Board of Contract Appeals
as a prerequisite to instituting a suit, but it does, however, set out
the procedure which is available to a contractor who desires to take
advantage of the same.
Hon. Francis VV. Sargent, Commissioner, Department of Public Works.
April 23, 1965.
Dear Commissioner: — I have your letter of February 19, 1965, in
which you have requested my opinion as to whether or not the Depart-
ment of Public Works may promulgate Rules and Regulations which
woidd require a contractor, as a condition precedent to instituting a
Chapter 258 petition for damages, to appeal all decisions of the Depart-
ment based on claims to the Board of Contract Appeals, acting through
its Hearing Examiner. You state that said proposed Rules and Regulations
are intended to implement Gen. Laws c. 16, § 5, and are to be promul-
gated pursuant to c. 30A.
Chapter 16, § 5 defines the powers and duties of the Commission. Said
section contains the following additional language:
"In addition to exercising the powers and performing the duties as-
signed to it by law, the commission shall have the following powers and
duties. . . ." (Emphasis supplied.)
Pursuant to Chapter 16, § 5 (b), the Commission "shall act as a board of
contract appeals, and shall approve or disapprove all claims made under
contract with the department. To assist the commission in performing
this function, the commissioner . . . shall appoint a . . . hearing exam-
iner. . . .
"The hearing examiner shall hear all claims by contractors from deter-
minations of the department, and shall, after hearing, render to the com-
mission a report of the matter including a recommendation as to the
disposition of the claim. Said examiner shall at the request of the con-
tractor or of the department or on his own motion summon witnesses
and require production of books and records and take testimony under
oath. . . ."
It should be noted that nowhere in the above mentioned paragraphs
is there an express statutory mandate that a contractor must appeal his
claim to the Board of Contract Appeals and the hearing examiner, as a
condition precedent to bringing suit against the Commonwealth under
a Chapter 258 petition. The absence of such an express direction leads
me to the conclusion that the Department cannot make such a procedure
compulsory. As the Court itself has stated:
"It is not for us, however, judicially to impose rigid standards and re-
quirements which the Legislature has not seen fit clearly to impose . . .
and which the legislative history suggests may have been intentionally
omitted." Pacella v. Metropolitan District Commission, 339 Mass. 338,
346.
260 P.D. 12
It should be borne in mind that when the Legislature has intended
that an individual appeal to a higher board prior to being able to insti-
tute a civil proceeding, it has explicitly so stated. Thus, in c. 31, § 43:
"Before any action affecting employment or compensation referred to
in the preceding sentence is taken, the officer or employee shall be given
... a full hearing before the appointing authority. . . .
"If within five days after receiving written notice of the decision of the
appointing authority the person so discharged . . , shall so request in
writing, he shall be given a hearing before a member of the commis-
sion. . . .
"[T]he facts as found by the commission, shall be subject to judicial
review by the municipal court of the city of Boston. . . ."
Section 45 provides:
"Within thirty days after action by the commission on a hearing pro-
vided for in section forty-three, the person who was discharged . . . may,
if said action was affirmed by the commission, bring a petition in the
municipal court of the city of Boston. . . ." (Emphasis supplied.)
Clearly, under said section an individual who did not avail himself
of the opportunity to obtain a hearing before the commission, would not
be able to bring a petition in court. His failure to exhaust his adminis-
trative remedy would be fatal.
When the Legislature has required an exhaustion of administrative
remedies, the court required that the same be followed.
Thus, in Board of Selectmen of Truro v. Outdoor Advertising Board,
346 Mass. 754, the plaintiff brought a bill for a declaratory judgment.
Chapter 93, § 29A requires that:
"within thirty days after notification to the city or town, the board
shall have received written objection to an application for a permit, such
permit shall issue only after consideration by the board of such objec-
tion, and whenever, within thirty days after notification to the city or
town, the board shall have received written notice of intention to appear
in opposition to the application, the board shall issue such permit only
after a public hearing on due notice to the applicant and the city or
town. . . ."
The town neither filed written objections nor stated its intention to
appear in opposition. The Court stated at 758:
"The selectmen have not pursued their administrative remedies before
the board. . . ,"
and dismissed the petition.
There are several additional factors which have led me to the above
conclusion.
1. The history of the Rules adopted to implement c. 16, § 5 demon-
strates the fact that said section is indeed ambiguous.
P.D. 12 261
Chapter 16, § 5 was enacted and became effective on November 15,
1963. On March 25, 1964, following a public hearing as required by
c. 30A, the Conmiission adopted a set of Rules which provided that:
"The determination of any officer or employee of the Department of
Public Works (Department) of any controversy arising under any con-
tract may be appealed by the contractor to the Public Works Commis-
sion (Commission) who shall act as a Board of Contract Appeals. . . ."
Rule I. (Emphasis supplied.)
An examination of the records of the Department has revealed that,
pursuant to said Rules, approximately 65 contractors have availed them-
selves of this procedure, whereas approximately 35 have not and have,
instead, instituted suit directly pursuant to c. 258.
On December 30, 1964, the Commission, without a public hearing,
voted to alter the Rules as follows:
"The determination of the Department shall he final unless appealed
by the contractor to the Commission acting as a Board of Contract Ap-
peals. . . ." (Paragraph II). (Emphasis supplied.)
It should thus be noted that the Rules adopted contemporaneously
with the enactment of c. 16, § 5, which Rules w^ere intended to imple-
ment said statute, gave a contractor the option of appealing to the Com-
mission or instituting suit at once. According to the Rules which the
Commission proposed on December 30, 1964, however, a contractor no
longer will have such an option; the proposed Rules would require that
he appeal to the Commission as a condition precedent to instituting suit.
Since both sets of Rules are intended to implement the same statute, it
is quite obvious that said statute cannot be interpreted both so as to
give a contractor an option to appeal to the Commission or institute a
suit and to require that he appeal to the Commission as a condition prece-
dent to bringing such suit.
That tAvo such diametrically opposed interpretations of the same statute
have been arrived at indeed demonstrates that said statute is ambiguous.
The Court has indicated the manner in which one may ascertain the
meaning of an ambiguous statute:
"Significance in interpretation may be given to a consistent, long con-
tinued administrative application of an ambiguous statute . . . especially
if the interpretation is contemporaneous with the enactment. . . . The
best proof, of course, of a consistent administrative interpretation is the
administrative body's regulations, or its published written decisions or
interpretations. . . ." Cleary v. Carchillo's Inc., 64 Adv. Sh. 633, 637-638.
2. The Legislature, in enacting § 5 (b) , authorized the appointment
of "a person of legal training and experience" as a hearing examiner
to hear appeals. Had the Legislature intended that a hearing before an
examiner was a condition precedent to the right to bring suit under c. 258,
it surely would have provided for more than one hearing examiner. The
number of claims presently made to the Department (approximately
100), including those submitted for hearing (approximately 65) and those
commenced via a c. 258 petition (approximately 35) demonstrate the
262 P.D. 12
physical impossibility of having one man hear all claims. It should be
borne in mind that each claim by a contractor consisted of from 1-10
disputed items.
3. Section 5 (b) states that the
"board of contract appeals . . . shall approve or disapprove all claims
made under any contract with the department. To assist the commission
in performing this function . . . there shall be a hearing examiner who,
after hearing, shall make a recommendation as to the disposition of the
claim. . . ." (Emphasis supplied.)
The Legislature, in enacting § 5 (b) as it did, must have been aware
of the fact that a department has no authority to settle claims, absent
authorization by the Legislature.
"[I]f there is any power on the part of a State agency to settle claims
against the Commonwealth by virtue of the statute permitting claims to
be enforced by petition against the Commonwealth, under said c. 258
we think it is clear that that power can be exercised only after the petition
is brought. . . ." George A. Fuller Co. v. Commonxvealth, 303 Mass. 216,
221.
Once a petition is brought, the Attorney General is vested with the author-
ity of representing the state departments, officers and commissions (c. 12,
§ 3), and only he may settle claims.
It should be noted that said section gives the Board of Contract Appeals,
acting through its Hearing Examiner, a very limited power of rev^iew- AH
that it is authorized to do is to approve or disapprove the claims that
have been appealed to it; it may not resolve or settle them.
One of the main purposes of statutes requiring administrative review
of an agency decision prior to going to Court is to allow the reviewing
body to resolve the controversy in such a manner so that resort to the
Courts is unnecessary. This necessarily requires that said reviewing body
have a more flexible and discretionary reviewing authority than merely
to approve or disapprove all claims.
In contract actions brought against the Department, seldom does a
Petitioner receive the exact amount of damages which he seeks. The final
decision involves an adjustment of the claims and amounts involved.
To require a hearing of all claims, which hearing must result in either
a "Yes" or "No" answer to the claims, might seldom resolve the contro-
versy. Resort to the Courts will, therfore, inevitably ])e necessary, thus
defeating the purpose of having administrative review.
4. Section 5 (b), as originally worded, stated that:
"Such hearings shall be conducted as adjudicatory proceedings under
chapter thirty A."
In July 1964, the Legislature amended said wording and exempted the
hearings from the requirements of c. 30A. Said hearings were no longer
to be conducted as adjudicatory hearings with their attendant formality.
P.D. 12 263
It should also be noted that, according to § 5 (b):
"Said examiner shall at the request of the contractor or of the de-
partment or on his own motion summon witnesses and require the pro-
duction of books and records and take testimony under oath. . . ." (Em-
phasis supplied.)
Neither the contractor, Department, nor Hearing Examiner is required
by said statute to request the summoning of witnesses. If neither the con-
tractor nor Department so requests, and the Examiner does not so move
on his own, there may in fact be no hearing. Thus, to adopt an inter-
pretation of a statute requiring a contractor to appeal to the Commission
and have a hearing before the Hearing Examiner, as a condition prece-
dent to instituting a suit, even though by the very same statute there
would be no witnesses at said hearing unless one of the parties voluntarily
so m^oved, might indeed render the hearing meaningless, except for com-
plying with the requirements of the statute in having a hearing.
This legislative change indicates, I believe, the fact that the Legislature
recognized that a hearing was not a condition precedent to instituting
a suit.
It is, therefore, my opinion that c. 16, § 5 (b) does not require that one
appeal the Department's decision to the Board of Appeals, as a prereq-
uisite to instituting a suit. Said action does, however, set out the proce-
dure which is available to a contractor who desires to take advantage of
same.
Very truly yours,
Edward W. Brooke
A so-called "pen gun" which fires tear gas capsules in the form of a bullet,
is within the definition of a "firearm", G. L. c. 140, § 121, and there-
fore a license to carry as provided by G. L. c. 140, § 131, and a per-
mit to purchase, as specified in § 131 A of the same chapter, are
necessary.
April 26, 1965.
To: The Commissioner of Public Safety.
The Commissioner of the Boston Police Department.
The Chiefs of Police of all Cities and Towns in the Com-
monwealth.
Gentlemen: — It has come to my attention that tear gas guns in the
shape of fountain pens are being sold in the Commonwealth by different
companies.
This so-called "pen gun" fires tear gas capsules in the form of a bullet.
The gun itself has a firing pin and a chamber about three quarters of an
inch in length. The capsule is placed in the chamber and fired by pull-
ing back on the firing pin and releasing it so that it strikes the capsule
in the same manner that any pistol, revolver, or other weapon does.
Several members of my staff have visited the ballistics lab at State
Police Headquarters and Avitnessed a demonstration with the same type
264 P.D. 12
of pen gun. A blank bullet was placed in the chamber instead of a tear
gas capsule and was fired. The firing pin struck the detonating point of
the blank and went all the way across the room, indicating that a real
bullet could possibly be fired from such a "pen gun."
Further study of the so-called "pen gun" reveals that it is extremely
dangerous Avhen fired at very close range. When fired directly at the eyes
it may cause injury to them. If fired at a distance of less than three feet,
it can cause blindness temporarily and perhaps permanently.
General Laws, Chapter 140, Section 121 defines firearms as a pistol,
revolver or other weapon of any description loaded or unloaded, from
which a shot or bullet can be discharged and of which the length of
barrel, not including any revolving, detachable or magazine breech, is
less than eighteen inches.
It is my opinion that the above definition includes the so-called "pen
gun," and therefore a license to carry as provided by Section 131 of
Chapter 140 of the General Laws, and a permit to purchase, as provided
in Section 131 A of the same chapter, are necessary.
Very truly yours,
Edward W. Brooke
One's right to apply under the so-called "grandfather clause" of St. 1963,
c. 604, expired on December 31, 1964.
April 27, 1965.
Mrs. Helen C. Sullivan, Director of Registration.
Dear Mrs. Sullivan: —On February 18, 1965, you requested my opin-
ion on behalf of the Board of Registration of Radio and Television
Technicians upon the following question:
"Can a person who has already received a Technician license under
the so-called 'grandfather clause,' Chapter 604, Acts of 1963, and now
realizes he must have a master technician license to operate on his own,
acquire one by merely sending in an additional $5?"
In 1963, the General Court created a board of registration to govern
the business of radio and television repairing, and provided that, with
certain exceptions, "no person shall engage in the business of or act
as a radio and television technician directly or indirectly, unless he is
licensed." [G. L. c. 112, § 87RRR.] Because of the hardship which might
potentially be caused persons already engaged in the business, the Leg-
islatiue eased the effect of the licensing provisions by including a so-
called "grandfather clause":
"Notwithstanding the provisions of section eighty-seven PPP to eighty-
seven VW, inclusive, of chapter one hundred and twelve of the Gen-
eral Laws, inserted by section two of this act, any person loho files an
application for a license as a technician or a master technician with the
board of registration of radio and tele-vision technicians at any time
prior to December thirty-first, nineteen hundred and sixty-four, on a
form furnished by said board, containing a written statement that he is
P.D. 12 265
engaged in the business of repairing and maintaining radio and tele*
vision receivers in the commonwealth on the date of said application
and furnishes evidence that he is and is found to be of good moral
character, and pays the appropriate license fee as provided in section
eighty-seven UUU, shall, without examination or compliance with any
other provision of sections eighty-seven PPP to eighty-seven VVV, inclu-
sive, be granted and issued such license by the board. Any such license
shall expire one year from the date of issuance." (Emphasis supplied.)
St. 1963, c. 604, § 4, as amended by St. 1964, c. 110.
Thus, persons already engaged in the business of repair of radio and
television receivers could, prior to the year 1965, receive either a tech-
nician or a master technician license, or both, simply by timely applica-
tion and by meeting the more lenient requirements of the grandfather
clause.
It is clear, however, that rights to apply under the above grandfather
clause expired on December 31, 1964. The expiration date under the
original act was June 30, 1964, which date was extended an additional
six months by St. 1964, c. 110. Thus prospective applicants were given
more than a year in which to file the necessary material.
The privilege of applying under the grandfather clause no longer
exists. Henceforth, all applicants must comply with the provisions of
the registration law and the rules and regulations of the Board. Pos-
session of one license cannot in and of itself enable the licensee to secure
a different license at his pleasure. The fact that certain licensees mis-
construed the effect of the clause in question cannot extend a statutory
provision beyond the date specified by the Legislature for its termination.
Accordingly, it my opinion that, as a result of the expiration of the
grandfather clause, the answer to your question must be in the negative.
Very truly yours,
Edward W. Brooke
The Department of Education may lawfully provide that a degree from
an accredited college or university be a condition to appointment
as a supervisor of attendance, but individual school cojnmittees are
not authorized to establish educational requirements in the absence
of action by said department.
April 28, 1965.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Doctor Kiernan: —In your letter of March 16, 1965, you have
requested my opinion relati\e to the authority of the Department of
Education and of local school committees to require a degree from an
accredited college or university as a condition to appointment as a
supervisor of attendance. You have asked the following three questions:
"1. Is the Massachusetts Department of Education authorized to make
a degree from an accredited college or university a requirement for
standards of qualifications for supervisors of attendance under Chapter
77, section 12?
266 P.D. 12
"2. Does the mandatory appointing responsibility imposed on a
School Committee by Chapter 77, section 12, grant it the authority to
require a degree from an accredited college or university for appoint-
ment to the position of supervisor of attendance?
"3. Does Chapter 77, section 12, last amended 1948, supersede Chap-
ter 31, section 6A, last amended 1935?"
Resolution of these problems requires consideration of the relation-
ship between G. L. c. 31, § 6A and G. L. c. 77, § 12, and of the intent
of the General Court in enacting such measures. Section 6A of c. 31
relates to the imposition of educational requirements for appointments
to positions within the civil service, and provides as follows:
"No rule or regulation shall be made setting up educational require-
ments as a condition of taking a civil service examination except in
respect to professional and other positions for which such requirements
are expressly imposed by statute and to the extent of the requirements
so imposed." (Emphasis supplied.)
Thus, despite the general rule tliat educational requirements may not
be imposed as a condition to the taking of a civil service examination,
the Legislature has provided for an exception for those cases in which
the Legislature itself determines that educational requirements are de-
sirable. Section 6A was added to c. 31 by St. 1935, c. 228, and has not
been amended since that year.
In 1873, the General Court provided for the appointment of truant
officers (now called supervisors of attendance) by the school commit-
tees of the several cities and towns. [St. 1873, c. 262, § 2.] As amended
by § 1 of c. 184 of the Acts of 1928, this law (now G. L. c. 77, § 12)
provided as follows:
"Every school committee shall appoint and fix the compensation of
one or more supervisors of attendance, who may be eitJher male or
female, and shall make regulations for their government. Such super-
visors shall not receive fees for their services. The committees of two or
more towns may employ the same supervisors of attendance."
In 1948, this section was further amended:
"Every school committee shall appoint, make regulations governing
and fix the compensation of one or more supervisors of attendance, who
may be either male or female, and who shall meet such standards of
qualification for such work as shall he established by the department of
education. Such supervisors shall not receive fees for their services. The
committees of two or more towns may employ the same supervisors of
attendance."
Mass. G. L. c. 77, § 12, as amended by St. 1948, c. 573, § 5.
Accordingly, some thirteen years after the enactment of the statute gen-
erally restricting the imposition of educational requirements, the Leg-
islature provided that — in the case of supervisors of attendance — "stand-
ards of qualification" might be established by the Department of
Education.
P.D. 12 267
When c. 31, § 6A and c. 77, § 12, as amended, are read together, the
legislative intent becomes apparent. The latter is not intended to super-
sede the former, btit to complement it. It is clear that the General Court
intends to treat the position ol: supervisor ot attendance as one for
which educational requirements may be imposed, and thus as within
the exemption contained in c. 31, § 6A. The desire of the Legislature
to treat supervisors of attendance as professionals who must meet cer-
tain strict standards is by no means unreasonable.
". . . an attendance officer is an important adjunct to the public school
system. ... It seems apparent that the Legislature intended that a super-
visor of attendance should be, to all intents and purposes, an officer
connected with the public schools, charged with serious and important
duties that have an intimate relation with that duty imposed upon the
school committee by § 37 of said c. 71. . . ."
Ri7ig\. City of Wobiirn, 311 Mass. 679, 692-693
That the amendment effected by St. 1948, c. 573, § 5 was meant to raise
the standards applicable to supervisors of attendance becomes apparent
by reference to the following section of the 1948 Act, which provides
that "Nothing in section twelve of chapter seventy-seven of the General
Laws shall affect the rights or status of any supervisor of attendance in
office on the effective date of this act." Such protection of persons already
holding the positions affected would clearly have been unnecessary had
the requirements for qualification not been increased.
I am aware that the exception clause contained in c. 31, § 6A refers
specifically to requirements which are "expressly imposed by statute."
I do not believe, however, that this language necessitates that educa-
tional requirements actually be spelled out by the General Court in
order to relieve a particular position from the limitations of § 6A. It
is entirely consistent with sound administrative practice for the Legis-
lature simply to provide that standards shall be established and then to
delegate to the Department the working out of the specific requirements
to be imposed.
General Laws c. 77. § 12, as amended, authorizes the Department of
Education to establish standards of qualification. Admittedly, reference
is not made specifically to educational standards. However, it is my
opinion that it would be reasonable — in light of the nature of the
position involved, and its close relationship to the public school system
— for the Department to impose requirements which are educational in
character. The requirement of a degree from an accredited college or
imiversity would certainly be within the discretion of the Department.
Section 12 of c. 77 does not. however, authorize the individual school
committees to establish educational requirements in the absence of ac-
tion by the Department of Education. Under this statute, a school com-
mittee is vested with authority to appoint attendance supervisors, to
fix their compensation and to regulate the performance of their duties.
The right to establish qualifications for the holding of such positions
cannot be implied from such authorization. However, it is clear from
the above that the Department of Education may lawfully provide that
268 P.D. 12
an accredited college or university degree be a condition to appointment
as a supervisor of attendance.
Very truly yours,
Edward W. Brooke
Aynounts of awards of damages need not be included in the Order of
Taking required by G. L. c. 79, § 1, but these shall be included
in the Notice of Taking required by G. L. c. 79, § 7C.
April 28, 1965.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District
Commission.
Re: Order of Taking by Eminent Domain — Inclusion of Award
Therein,
Dear Commissioner Whitmore: — Reference is made to your letter
of April 23, 1965, requesting my opinion on whether the law requires
the inclusion in a land taking order of the amounts of awards of dam-
ages which have been made by the Commission after appraisals in ac-
cordance with Chapter 79 of the General Laws as amended.
The contents of an order of taking are set forth in Section 1 of Chap-
ter 79 of the General Laws. There is no language in that section of the
statute which could be construed to require any agency exercising the
power to take property by eminent domain to include in its order of
taking the amounts of awards of damages which have been made by it
after appraisals in accordance with the other provisions of said Chapter
79.
Your attention is respectfully invited to Section 7C of said Chapter 79
as inserted therein by Section 3 of Chapter 579 of the Acts of 1964. That
section directs that a notice of taking shall be sent those whose property
has been taken or who are otherwise entitled to damages. It further
requires that such notice shall be in writing and ijiter alia shall state
the amount of damages awarded for such taking.
It is my opinion that the amounts of awards of damages made by the
Metropolitan District Commission after appraisals in accordance with
the provisions of Chapter 79 of the General Laws, as amended, shall not
be included in the order of taking required by Section 1 of said Chapter
79, but shall be included in the notice of taking required by Section 7C
of said Chapter 79.
Very truly yours,
Edward W. Brooke
P.D. 12 269
The Treasurer of the Commonwealth is not authorized to distribute
funds, pursuant to G. L. c. 70, § 3, unless and until the Commis-
sioner of Education informs him, or a court of competent jurisdic-
tion rules, that tJie reports required under c. 72 have been filed
with the Commissioner's office in accordance with applicable pro-
visions of the General Laws.
April 29. 1965.
Hon. Robert O. Crane, Treasurer and Receiver General of the
Commonwealth.
Dear Sir: — You have requested my opinion of whether the money
which would otherwise be payable to the City of New Bedford under
G. L. c. 70, § 3, may be withheld by you as a result of the certification
by the Commissioner of Education that returns of that City have not
been' filed with his office in accordance with G. L. c. 72, § 6.
General Laws c. 72, § 6 provides as follows:
"A town whose report and returns do not reach the office of the com-
missioner on or before August fifteenth shall forfeit ten per cent of the
sum to which it would otherwise be entitled under chapter seventy; if
they do not reach said office before September first, the entire sum shall
be retained by the state treasurer and added to the amount to be dis-
tributed under chapter seventy. For cause, the commissioner may grant
an extension of time to any town."
According to the facts which you have given me, the Commissioner
has certified to you that he has granted an extension of time to New
Bedford to file reports in accordance with c. 72, but that such reports
have not yet been filed. New Bedford has brought legal proceedings
seeking a declaration that the information sought by the Commissioner
was not authorized by c. 72, and that, accordingly. New Bedford's fail-
ure to provide the information was not prejudicial to it. The Commis-
sioner's demurrer to the bill was sustained and New Bedford's appeal
therefrom is now pending before the Supreme Judicial Court.
It is my opinion that you are not authorized to distribute funds, pur-
suant to G. L. c. 70, § 3, unless and until the Commissioner informs
you or a court of competent jurisdiction rules that the reports required
under c. 72 have been filed with the Commissioner's office in accordance
with applicable provisions of the General Laws. To date, no such infor-
mation has been given or ruling issued.
It will be of interest to you to note that in the aforementioned pro-
ceedings New Bedford petitioned the Superior Court to "enjoin and
restrain the respondents [including the Commissioner] from taking any
action, pending the outcome of the petitioner's appeal to the Supreme
Judicial Court in this matter, which would deprive the City of New
Bedford of any school aid to which it is entitled under chapter seventy."
This Motion for Injunction was denied.
Very truly yours,
Edward W. Brooke
270 P.D. 12
The practice of distributing free milk does not adhere to the minimum
price requirements fixed by the Milk Control Commission, and is
in violation of c. 94A, § 14(d). Consequently it is an appropriate
subject for further actio?! by said Commission.
April 30, 1965.
Hon. George W. Killion, Secretary, Milk Control Commission.
Dear Mr. Killon: — You have requested my opinion relative to the
subject of free milk being distributed either upon presentation of a
coupon and payment of the container deposit or with or without coupons
by a milk dealer through his representative or the local "Welcome
Wagon plan."
More specifically, you have asked "whether this offer and the giving
of free milk is a violation of Section 14 (d) of Chapter 94 A of the
General Laws or any other section of said Chapter 94A and as such
would constitute grounds for legal action."
That the production and distribution of milk are affected with a
paramount public interest cannot be doubted; and, in view of the seri-
ous nature of that public interest, the regulation of milk has become
a subject of special statutory concern.
Under the provisions of G. L. c. 94A, § 2 (2) the Milk Control Com-
mission is authorized to both investigate and regulate, among other
things, "all matters pertaining to . . . the production . . . storage . . .
disposal, distribution and sale of milk within the commonwealth, and
to the establishment and maintenance of reasonable trade practices rela-
tive to milk . . ." In the exercise of this responsibility, it is incumbent
upon the Milk Control Commission to establish prices which will be
most beneficial to the public interest and to prescribe the means of dis-
tribution that will best protect the milk industry.
Inasmuch as the Commission has the general authority to regulate
the sale and distribution of milk under G. L. c. 94A, § 2 (2) and it is
charged with protecting both the public and the industry in that con-
text, it is reasonable that the distribution of free milk be a proper sub-
ject for their action. Consequently, in view of their authority and re-
sponsibility, it is reasonable that they could find the distribution of
free milk as repugnant to trade practice and therefore act to halt its
continuance.
In addition to the general regulatory powers of the Milk Control
Commission, there are certain specific trade practices which have, by
statute, been expressly prohibited. These are contained in c. 94A, § 14,
Paragraph (d) of that section provides:
"No person shall sell within the commonwealth any milk, or render
any service in connection with the sale or distribution of milk, at a
price less than the cost of such milk or service, including, in the case of
milk sold, the original purchase price thereof, and in every instance all
regular direct or indirect elements of cost of service, physical handling
and financial investment in the milk in question. No milk dealer shall
use any method or device, whether by discount or rebate, free service.
P.D. 12 271
advertising allowance, or by a combined price for such milk, together
with another commodity or service, as a result of which the total price
for the milk and other commodity or service is less than the aggregate
of the jjrices for the same when sold or offered for sale or performed
separately, or otherwise. In the case of any person effecting sales of milk
which has not been purchased, there shall be included as a part of the
cost of such milk, in lieu of the original purchase price thereof, an
amount equal to the purchase price Avhich would have been payable
under this chapter or under similar provisions of earlier law and the
orders, rules and regulations of the commission made thereunder, if
stich person had purchased such milk within the commonwealth,"
Consequently, even were it alleged that the Commission's general au-
thority not be sufficient, the language of § 14 clearly precludes the dis-
tribution of milk on any basis wherein the price of the milk would be
less- than the cost of the milk, including the original purchase price
and all regular direct or indirect elements of cost of service, physical
handling and financial investment. It is impossible to imagine that the
distribution of free milk covdd possibly satisfy these provisions. There
is no price whatsoever and therefore no reflection on any basis of the
cost of the milk.
In view of this failure of the practice of distributing free milk to
to adhere to the minimum price requirements fixed by the Commission,
it is my opinion that such practice violates c. 94A, § 14 (d) and would
be an appropriate subject for further action by the Milk Control
Commission.
Very truly yours,
Edward W. Brooke
Tlie Gas Regulartory Board's considerations and decisions cannot law-
fully be reviewed or overruled by the Cornmission of the Department
of Public Utilities.
The Public Utilities Commissioners do not have fiitancial control over
the Gas Regulatoiy Board.
The determination as to the independence of a given agency from the
department in which it has been placed is made upon the basis of
the character and functions of the agency in question, and upon
consideration of practicality in administrative operations and
relationships.
May 4, 1965.
Hon. George J. Coogan, C/iairman, Board Regulating Installation of
Gas Piping and Gas Appliances in Buildings.
Dear Mr. Coogan: —I have received your letter of March 19, 1965,
relative to the status of the Gas Regulatory Board created by c. 737 of
the Acts of 1960. That chapter provided in part as follows:
"There shall be in the department [of Public Utilities] a board con-
sisting of the chairman of the commission or a representative from his
department designated by him, the commissioner of public safety or a
272 P.D. 12
representative from his department designated by him and the com-
missioner of pubHc heakh or a representative from his department des-
ignated by him. . . ."
The Board is authorized and directed to promulgate uniform rules and
regulations to govern gas fitting in buildings in the Commonwealth,
and provisions relating to the adoption of such rules and regulations
are included. By c. 623 of the Acts of 1962, the General Court added
further provisions relative to the issuance of gas fitters' licenses by the
Board. In order to resolve the present dispute over the autonomy of the
Gas Regulatory Board, you have requested my opinion whether consid-
erations and decisions of the Board may lawfully be reviewed or over-
ruled by the Commission of the Department of Public Utilities.
The chapter which created the Gas Regulatory Board (St. 1960, c.
737) was enacted as an emergency law, effective October 28, 1960. It is
apparent that the General Court determined that the traditional method
of regulation of gas fitting by the cities and towns individually was no
longer adequate to ensure a sufficiently high level of safety throughout
the Commonwealth. Accordingly, the Legislature provided in § 4 of
the 1960 act that all by-laws and ordinances of cities and towns relating
to gas fitting within buildings were thereby annulled. Henceforth, the
rules and regulations promulgated by the Board would be applicable
in all municipalities, and treatment of gas fitting would be uniform in
all places in the Commonwealth. Shortly thereafter, the licensing re-
quirements referred to above were added, and authority to examine
applicants and to issue licenses was vested in the Gas Regulatory Board.
The Board was made a part of the administrative structure of the
Commonwealth. Its rules and regulations must be adopted in accord-
ance v/ith the provisions of G. L. c. 30A, the State Administrative Pro-
cedure Act. The Board has been given the responsibility of hearing ap-
peals from rulings interpreting its regulations, and decisions rendered
by the Board on such matters are subject to review under c. 30A as
adjudicatory proceedings. [G. L. c. 25, § 12H.]
In light of the purpose for which the Board was created, and the
provisions enacted to govern its procedures, it is my opinion that the
Legislature intended the Board to operate independently, and not to be
subject to the supervision and control of the Commission of the Depart-
ment of Public Utilities. The individuals who sit upon this Board
become aware of practical problems and develop an expertise to an
extent which would be impossible for Public Utilities Commissioners
burdened with a wide variety of responsibilities. Persons who deal with
the Board are protected by carefully developed statutory procedures
contained in both c. 25 and c. 30A.
Were the Commission of the Department of Public Utilities to be
empowered to overrule the Gas Regulatory Board on matters clearly
placed by statute within the jurisdiction of the latter, there would be
little point to the existence of such a Board. I do not believe that the
General Court would have authorized the Board to issue licenses and
to promulgate regulations if the Public Utilities Commissioners re-
tained the right to revoke such licenses and to nullify such regulations.
P.D. 12 273
It is my opinion that such administrative confusion was not contem-
plated, and that the responsibility of regulating gas-fitting operations
within the Commonwealth is vested in the first instance in the Gas
Regulatory Board. Such jurisdiction should, in my view, be exercised
independently of the Commission of the Department of Public Utilities.
Likewise, it is my opinion that the Public Utilities Commissioners
are not meant to have financial control over the Board. The General
Court has consistently made separate appropriations for the use of the
Board. The w^ork assigned to the Board is of a nature that requires
certain appropriations, and I find no legal or practical reasons for ruling
that such funds should be channeled through the Department of Pub-
lic Utilities. Financial control of the Board by the Department could
conceivably enable the latter to influence decisions which are the re-
sponsibility of the Board.
I am aware that the Legislature has placed the Board within the
Department of Public Utilities, and has not specifically indicated that
it is not to be subject to Department control (G. L. c. 25, § 12H) . The
placing of the Board within a department in and of itself casts no light
upon the status of the Board, since the governmental structure of the
Commonwealth requires that all State bodies be assigned to one or an-
other of the twenty departments of government. And the context is such
that it was not necessary for the Legislature expressly to exempt the
Board from Department supervision. Comparison should be made with
G. L. c. 25, § I2F, which governs the Department's commercial motor
vehicle division, and which states that the division shall be "under the
general supervision and control of the commission." Such language does
not appear in connection with the Gas Regulatory Board.
Employees of the Department are subject in all instances to supervi-
sion by the Commission:
"The commission may assign to all officers and employees appointed
or employed under the four preceding sections such duties as it shall
from time to time deem advisable, but all acts of such officers and em-
ployees shall be done under the supervision and control of, and subject
to revision by, the commission."
G. L. c. 25, § 10.
This provision does not apply to the Gas Regulatory Board, the mem-
bers of which are not employed under the section specified in the above
quotation. In addition, the Board must hire an examiner under c. 25,
§ 12J, and such examiner is not subject to the above § 10.
It should be noted that in other instances the General Court has
created independent agencies within departments which are not subject
to control by such departments, and yet has not included language
specifically exempting such agencies from outside control. See, for ex-
ample, c. 22, §§ 11 and 12, which sections place the Board of Elevator
Regulations and the State Boxing Commission within the Department
of Public Safety. A determination as to the independence of a given
agency from the department in which it has been placed cannot be made
solely on the basis of the failure of the Legislature specifically to provide
274 P.D. 12
that the agency shall be autonomous. It must be made upon the basis
of the character and functions of the agency in question, and upon con-
sideration of practicality in administrative operations and relationships.
The Gas Regulatory Board has been assigned specific functions which
are of substantial importance to the safety and welfare of the general
public. Provisions have been made to govern the carrying out of its
responsibilities. I do not believe — and I find nothing to indicate — that
the General Court intended the Board to function subject to the ap-
proval of the Commission of the Department of Public Utilities. Ac-
cordingly, it is my opinion that the Board was intended to act independ-
ently, and that its considerations and decisions may not lawfully be
reviewed or overruled by the Commission.
Very truly yours,
Edward W. Brooke
That portion of G. L. c. 123, § 101 , which required advice and consent
of the Executive Council for discharges effected pursuant to said
section has been repealed by St. 1964, c. 740.
May 5, 1965.
Hon. Keesler H. Montgomery, Executive Secretary, Executive Council.
Dear Mr. Montgomery: — I am in receipt of your letter of April 1,
1965, which relates to petitions for releases from state hospitals pursuant
to § 101 of c. 123 of the General Laws. You have requested my opinion
as to whether the initiative petition approved by the electorate in the
general election of November, 1964 [St. 1964, c. 740] removes from the
Executive Council the responsibility of approval of such discharges.
Prior to the effective date of St. 1964, c. 740, G. L. c. 123, § 101 pro-
vided as follows:
"If a person indicted for murder or manslaughter is acquitted by the
jury by reason of insanity, the court shall order him to be committed
to a state hospital or to the Bridgewater state hospital during his natural
life. The governor, with the advice and consent of the council, may dis-
charge such a person therefrom when he is satisfied after an investigation
by the department [of mental health'] that such discharge will not cause
danger to others." (Emphasis supplied.)
Thus, discharge of a person committed under § 101 depended upon a
determination by the Governor, with such determination subject to
approval or disapproval by the Executive Council.
Chapter 740 of the Acts of 1964 repealed — with a few exceptions —
all portions of the general and special laws which provided for Executive
Council approval of actions and decisions taking place within the execu-
tive branch of government. Responsibility for certain executive actions
which was formerly shared by the Governor and the Council is now
vested in the Governor alone. Your present question is clearly decided by
§ 4 of the new Act:
P.D. 12 275
"Subject to Section 2 of this Act and except as required by the Con-
stitution of the Commonwealth, so much of each provision of the General
Laws and of any special law as requires the advice and consent of the
council with respect to any action or omission to act by the governor or
by any officer, agency or instrumentality in the executive department , . .
is hereby repealed."
Chapter 123 is not exempted by § 2 of St. 1964, c. 740, and approval by
the Executive Council of discharges under § 101 is not required by the
Massachusetts Constitution. Accordingly, it is my opinion that that por-
tion of c. 123, § 101 which required the advice and consent of the
Executive Council for discharges effected pursuant to its provisions must
now be treated as repealed.
Very truly yours,
Edward W. Brooke
A function tendered to a person "whose office or employment is in any
law enforcement, regulatory or investigatory body or agency of the
Commonwealth ," for xvhich invitations have been issued, but for
which no tickets have been sold nor contributions solicited, is not,
in and of itself, a violation of G. L. c. 268, § 9 A. However, if
amounts are to be, or have been, solicited especially for a gift, there
would indeed be a failure to abide by the Testimonial Dinner Law.
May 8, 1965.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District
Commission.
Dear Commissioner Whitmore: — You have requested my opinion
relative to the legality of a function to be held in your honor on Sunday,
May 9, 1965. I understand that the gathering, to be sponsored by the
Republican City Committee of Newton, is for the purpose of noting your
long public service as Alderman and Mayor of Newton, member of the
House of Representatives of the Commonwealth and Commissioner of
the Metropolitan District Commission. Although invitations for the
gathering have been issued, tickets as such have not been sold nor con-
tributions solicited. However, you have informed me that it is planned
to present you with a gift at some point during the evening. On the
basis of these facts, you have asked whether the planned function is a
violation of General Laws, chapter 268, section 9A, the so-called "Testi-
monial Dinner Law."
General Laws, chapter 268, section 9A provides as follows:
"No person shall sell, offer for sale, or accept payment for, tickets or
admissions to, nor solicit or accept contributions for, a testimonial dinner
or function, or any affair, by whatever name it may be called, having a
purpose similar to that of a testimonial dinner or function, for any
person, other than a person holding elective public office, w^hose office
or employment is in any law enforcement, regulatory or investigatory
body or agency of the commonwealth or any political subdivision thereof.
"Whoever violates any provision of this section shall be punished by
a fine of not more than five hundred dollars."
276 P.D. 12
Accordingly, it is apparent that the statute is directed primarily at the
sale of tickets or other solicitation of contributions for such gatherings.
It does not prohibit the actual holding of dinners or other functions
as such. In addition, the fact that a criminal penalty may be imposed
requires that the law be strictly construed.
There can be no doubt that in your present position you conform
to the statutory reference to persons "whose office or employment is in
any law enforcement, regulatory or investigatory body or agency of the
commonwealth. . . ." The Metropolitan District Commission has been
assigned its own police force, and consequently must clearly be considered
a law enforcement agency. Likewise, there are regulatory aspects to the
Commission's functionings, since the Commission is responsible for the
supplying of water to a number of Eastern Massachusetts communities.
However, on the basis of the facts contained in the first paragraph of
this opinion, it is my conclusion that the scheduled gathering is not, in
and of itself, a violation of the Testimonial Dinner Law. Tickets have
not been sold or offered for sale. Contributions have apparently not been
accepted or solicited. The function that has been planned does not appear
to have violated the provisions of General Laws, chapter 268, section 9A
in any way.
I would, nevertheless, point out the following with regard to the gift
to be presented. Payment of the cost of the gift from the treasury of the
Newton Republican City Committee does not by itself violate the statute.
But solicitation of contributions for the treasury for the purpose of pur-
chasing the gift would be the equivalent of seeking and accepting con-
tributions for the testimonial gathering as such, and therefore vs^ould be
a circumvention of the Testimonial Dinner Law. Consequently, should
the Committee vote to purchase a gift from funds already available in
its treasury — funds not earmarked specifically for such a gift — there
would be no violation. On the other hand, if amounts have been solicited
especially for the gift, there would indeed be a failure to abide by the
Testimonial Dinner Law.
Accordingly — with the sole proviso relative to the contemplated gift
set forth above — it is my opinion that the planned function in your
honor does not violate General Laws, chapter 268, section 9A.
Very truly yours,
Edward W. Brooke
P.D. 12 277
In accordance with St. 1960, c. 774, § 2, upon certification by the Com-
missioner of Administration that a project has actually been com-
pleted, the Comptroller must make the transfer of funds desired to
Item 8261-20. "Substantially complete" does not mean "completed."
Transfer of funds from the contingency reserve (item 8260-68 of St. 1959,
c. 604 § 2) of an amount sufficient to meet the cost of furnishings and
equipment to be purchased (1958 Item 8259-45) is a practical and
justified means of completing a project which has been authorized
and may lawfully be effected.
May 19, 1965.
Hon. Horace M. Chase, Director of Building Construction.
Dear Mr. Chase: —I have your letters of March 3, 1965 wherein you
request interpretation of portions of certain Special Capital Outlay stat-
utes. Your first letter relates to a request made by you on January 27,
1965, with the approval of the Commissioner of Administration, that
the Comptroller transfer the sum of $390,000.00 from item 8261-05 of
section 2 of c. 774 of the Acts of 1960 to the contingency reserve account
established by item 8261-20 of that section. Your second letter refers
to a request of February 4, 1965, also approved by the Commissioner,
that the sum of S277,894.00 be transferred from a contingency reserve
created by item 8260-68 of c. 604 of the Acts of 1959 to item 8259-45,
an account relating to the construction and equipping of the third sec-
tion of a science center for the University of Massachusetts. You have
asked whether the Comptroller may lawfully make the requested trans-
fers. Since different questions are presented by the prospective transfers,
I will treat with them separately.
1) Item 8261-20 of St. 1960, c. 774, § 2 established a contingency re-
serve account for the purpose of covering "unexpected contingencies in
the cost of projects authorized by this act. . . ." The item further provides:
". . . that when a project authorized by this act has been determined
to be completed by the commission on administration and finance [now
the Commissioner of Administration], the comptroller, with the approval
of said commission, may transfer the unencumbered balance to this
item."
The Commissioner has certified that the project authorized by item
8261-05 of this section (construction and equipping of a natural resources
laboratory and classroom building) is now "substantially completed."
Certain change orders presently being considered may or may not even-
tuallv be approved; but funds are available to pay for whatever changes
may be necessary. The sum of $390,000.00 remains as surplus over and
above what may be required to meet possible obligations, and you have
requested the Comptroller to transfer this amount to the contingency
reserve referred to above.
It is clear that no transfer may lawfully be made under the authority
of item 8261-20 on the basis of a certification that a project is "substan-
tially complete." The item requires a determination by the Commis-
sioner that a project has been "completed"; anything short of such a
certification will not satisfy what is apparently a condition precedent
278 P.D. 12
to the making of the requested transfer. The phrase "substantially com-
pleted" could be applied to projects which are in a variety of stages;
transfers of funds made on the basis of "substantial completion" could
conceivably deprive projects which are actually unfinished of sums nec-
essary to finance their completion. The Comptroller is not only entitled
to insist upon a certification of completion under item 8261-20, but
actually lacks authority to transfer funds unless such certification is made.
However, upon certification by the Commissioner that a project has
actually been completed, the Comptroller must — in my opinion — make
the desired transfer of funds. Determinations as to completion are to
be made by the Commissioner. The General Court has not indicated
that such responsibility is to be shared or is to be subject to review in
any way. I do not believe that the Legislature intended the Commis-
sioner's decision to be checked, and perhaps reversed, by an official whose
duties are virtually entirely ministerial.
It would be completely inconsistent with prior practice for the Leg-
islature to vest in the Comptroller authority to make decisions of a
substantive nature. Comptrollers — both in government and in private
business — have traditionally been assigned duties of a ministerial nature
exclusively. The Supreme Judicial Court has indicated that the Comp-
troller may operate in an advisory capacity in certain areas, but that
generally he lacks decision-making authority.
Ward v. Comptroller of the Commonwealth, 345 Mass. 183, 185-186
O'Connor v. Deputy Commissioner and Comptroller
of the Commonweatlh, 1965 Mass. Adv. Sh. 329, 331
The Comptroller is without investigative and other facilities neces-
sary to review a determination by the Commissioner relative to com-
pletion of a project. Considering the probable inability of the Division
of the Comptroller to make a decision of this nature, and the traditional
practice of assigning to the Division ministerial tasks of an accounting
nature only, I am convinced that the General Court did not intend to
vest in the Comptroller the right to overrule the Commissioner on the
question of transfer of funds.
I am aware that item 8261-20 provides that the Comptroller may
transfer the unencumbered balance, and that the word may is fre-
quently used to indicate the existence of discretion. However, in certain
instances, the word may will not be construed as permissive.
". . . The word 'may' ordinarily construed is permissive and not man-
datory. In the construction of statutes when applied to a public officer
in connection with a duty to be performed it is construed as 'must' or
'shall,' if such appears to have been the intention of the Legislature. . . ."
Attlehoro Trust Company v. Commissioner of Corporations
and Taxation, 257 Mass. 43, 51
No particular public interest appears which would be protected by
establishing the Comptroller as a reviewing agent of the wisdom of
transfer of funds. It is likely that the General Court used the word may
to indicate that the transfers in question could lawfully be made despite
P.D. 12 279
the general provisions relative to transfers of unexpended receipts con-
tained in G. L. c. 29, § 56. The word has not, in my opinion, been used
in order to vest in the Comptroller discretion to refuse to make a trans-
fer after the Commissioner has properly certified that the project in
question has been completed.
2) In 1956 the General Court authorized and appropriated funds
for the preparation of plans for a science building for the University of
Massachusetts [St. 1956, c. 711, § 2, item 8157-33]. In succeeding years,
the Legislature appropriated amounts for the construction, furnishing
and equipping of the various sections of the building. |2,734,000.00 was
apj)ropriated in 1957 for construction and for the purchase of furnish-
ings and equipment. Use of federal funds was authorized, as well as use
of any amounts remaining from the 1956 appropriation.
In 1958 and 1959, amounts were appropriated for construction and
equipping of the third section of the building, and in 1960 an appro-
priation was made for the fourth section. [St. 1958, c. 650, § 2, item
8259-45; St. 1959, c. 604, § 2, item 8260-25; St. 1960, c. 774, § 2, item
8261-09.] Each item authorized use of federal funds and amounts re-
maining from previous appropriations for the building.
The project is now close to completion. However, furnishings and
equipment must still be purchased for the fourth section. You have
informed me that an additional $277,894.00 over and above the appro-
priation for the fourth section will be necessary. This amount is avail-
able in item 8260-68 of St. 1959, c. 604, § 2, a contingency reserve estab-
lished to cover unexpected expenses encountered on projects authorized
by special capital outlay acts passed between 1952 and 1958. You have
requested transfer from this contingency reserve of an amount sufficient
to meet the cost of the furnishings and equipment to be purchased,
such amount to be placed in item 8259-45 of St. 1958, c. 650, § 2.
This actually is an indirect way of using fimds which have been allo-
cated as reserves for the third section of the building to meet expenses
incurred in the furnishing and equipping of the fourth section. Thus
limitations placed upon the contingency reserve in question will in one
sense be exceeded, since the reserve was created to relate to acts passed
between 1952 and 1958, and funds are now sought from it to defray
expenses incurred under a 1960 statute.
However, I do not believe that such a transfer is improper, or iniinical
to the intentions of the General Court. The primary purpose to be
achieved is the construction and equipping of a science building for the
University of Massachusetts. As an alternative to appropriating a huge
sum at one sitting for the project, the Legislature chose to appropriate
amounts periodically as construction proceeded. The language contained
in these various appropriation items to the effect that amounts appro-
priated by previous statutes are to be carried over to the extent that
funds remained unexpended indicates that the Legislature intended to
finance a complete project rather than a series of individual structures.
Funds are now available in the contingency reserve established by
item 8260-68 of St. 1959, c. 604, § 2. This reserve was established to
"cover unexpected contingencies in the cost of projects authorized by
280 P.D. 12
this act and by [chapter] ... six hundred and fifty of the acts of nine-
teen hundred and fifty-eight." Amounts may therefore lawfully be trans-
ferred from it to the 1958 item in question [item 8259-45], as you have
requested. The transferred funds may then be used to meet any ex-
penses which may be incurred under item 8259-45. The surplus which
then remains may — by the terms of the items involved — be carried
over to St. 1959, c. 604, § 2, item 8260-25 and from there to St. 1960, c.
774, § 2, item 8261-09, at which point it may be used to purchase fur-
nishings and equipment for the fourth section of the science building.
Sums appropriated for one portion of the project in question remain
unused while another portion cannot be completed because money is
not available. Such a result could not have been intended by the Gen-
eral Court. Transfer of funds from a contingency reserve as set forth
above is a practical and justified means of completing the project which
has been authorized. Accordingly, it is my opinion that the transfer re-
quested in your memorandum of February 4, 1965 may lawfully be
effected.
Very truly yours,
Edward W. Brooke
State and local police retain ftdl jurisdiction regarding criminal offenses
committed on land deeded to the United States of America and re-
ferred to as the new Cape Cod Federal Reservation, and have con-
current jurisdiction with the United States Rangers over the offense
of Disorderly Conduct.
May 19, 1965.
Hon. Richard R. Caples^ Commissioner of Public Safety.
Dear Commissioner Caples: — I have received your letter of February
10, 1965, requesting my opinion on numerous questions involving the
jurisdiction of federal, state and local police on the new Cape Cod fed-
eral reservation.
You state that on April 2, 1963, land was deeded to the United States
of America to be used as a reservation; that it was provided in the deed
that the interest of the United States was to be proprietary only and
that the Commonwealth of Massachusetts shall continue to exercise all
the jurisdiction, power and authority possessed by it over and within
said land. In addition, you state that the jurisdiction of the reservation
is under the Department of the Interior, supervision being by the U. S.
Rangers who are allowed to make arrests on the reservation for disor-
derly conduct.
On these facts you ask:
"1. What is the jurisdictional position of the state and local police
relative to criminal offenses committed on the reservation?"
In our General Laws there is only one section that specifically deals
with the problem of jurisdiction over land acquired by the United States
Government in this Commonwealth. Those provisions are set out in
G. L, c. 1, 8 7, as follows:
P.D. 12 281
"The United States shall have jurisdiction over any tract of land within
the commonwealth acquired by it in fee for the following purposes: for
the use of the United States bureau of fisheries, or for the erection
of a marine hospital, custom office, post office, life-saving station, light-
house, beacon light, range light, light keeper's dwelling or signal for
navigators; provided, that a suitable plan of such tract has been or shall
be filed in the office of the state secretary within one year after such
acquisition of title thereto. But the commonwealth shall retain concur-
rent jurisdiction with the United States in and over any such tract of
land to the extent that all civil and criminal processes issuing under
authority of the commonwealth may be executed thereon as if there had
been no cession of the jurisdiction, and exclusive jurisdiction over any
such tract shall revest in the commonwealth if such tract ceases to be
used by the United States for such public purpose."
It is doubtful that the Cape Cod Reservation in question falls wathin
the purposes specified in G. L. c. I, § 7 for the use of such land and
thereby docs not fall within the operation of that statute. Nevertheless,
it is my opinion that, although this statutory reservation of concurrent
jurisdiction is not applicable, the reservation of jurisdiction in the grant
itself would allow the same result.
On the basis of the express reservations in the deed, as you have
stated them, it is my opinion that there is, in fact, jurisdiction retained
in the Commonwealth of Massachusetts to act in all civil and criminal
matters. Consequently, state and local police would retain full jmisdic-
tion regarding criminal offenses committed on the reservation.
As a second question you have asked:
"2. May the state and local police arrest offenders on the reservation
for the offence of Disorderly Conduct?"
My answer to your second question is in the affirmative. As I have
indicated, the reservation in the Commonwealth of all jurisdiction, pow-
er and authority over and within said land clearly has no limitations
either express or implied. The fact of having expressly granted to the
U. S. Rangers the authority to arrest for disorderly conduct is not in
any way in diminution of the state and local authority also so to act.
Rather, it is the grant of a specific concurrent jurisdiction to the U. S.
Rangers, in addition to the already extant authority in the state and
local police.
It is therefore my opinion that the power, jurisdiction and authority
of the state and local police has not been restricted and, in addition, the
U. S. Rangers have been given limited authority to arrest for disorderly
conduct. Concurrent jurisdiction exists for arresting offenders on the
reservation for disorderly conduct.
As a third question you ask:
"3. If the United States Rangers first become aware of the commis-
sion of acts of Disorderly Conduct, may they bypass the requirements of
federal law by utilizing the state and local police for the convenience
of the United States Rangers?"
282 P.D. 12
General Laws c. 147, § lA provides that:
"Upon requisition of the commanding officer or other person in charge
of a reservation of the United States of America, the commissioner, or
the mayor or the selectmen of any city or town the territory of which
adjoins or includes, in whole or in part, such reservation, may provide
police officers, who shall perform such police duties within such reser-
vation as such commanding officer or other person may assign to them,
and who shall, while on such assignment, have the authority, immuni-
ties and privileges that they would have while acting as duly appointed
and qualified police officers elsewhere within the commonwealth." (Em-
phasis supplied.)
It is my opinion that the answer to your third question is in the
affirmative. The provisions of the above-quoted chapter, authorizing the
head of the reservation to request police assistance from the Commis-
sioner of Public Safety and adjoining cities and towns, would, in effect,
allow the U. S. Rangers to bypass the requirements of Federal law by
utilizing state and local police to act. However, it must be noted that
although the making of the request is authorized, compliance with the
request is not mandatory. The statute provides that the Commissioner
or local officials "may provide police officers." There is no requirement
that they must so provide. Consequently, the ability of the U. S. Rangers
to "bypass" Federal regulations by utilizing state or local police is lim-
ited by the retention of discretion in the Commissioner and the local
officials as to whether or not to provide police officers.
Accordingly, it is my opinion that there is no basis for either state
or local police being utilized for the "convenience" of the U. S. Rangers.
The necessity of both state and local police to assist in the prevention
and punishment of acts of disorderly conduct in conjunction with the
U. S. Rangers is one to be determined principally by their duty to act
and the public interest involved.
As a fourth question you have asked:
"4. If the offence of Disorderly Conduct is committed in the presence
of the United States Rangers and local and state police, which organiza-
tion could legally make the arrest?"
I have stated in answer to your previous three questions that the juris-
diction to act in cases of disorderly conduct is concurrent among the
state, local and federal enforcement agencies. Consequently, if the offense
of disorderly conduct were to be committed in the presence of all three
law enforcement groups, all three would be legally authorized to act.
As a fifth question you have asked:
"5. If the local or state police made the arrest in the above cited in-
stance, would they be attempting to operate in a field from which they
have been excluded by a paramount assertion of power by the Federal
Government?"
I answer your fifth question in the negative. Since the deed, as you
have reported it, expressly retains in the Commonwealth the unrestricted
right to continue "to exercise all of the jurisdiction, power and authority
P.D. 12 283
possessed by it over and within said land," it is my opinion that if the
state or local police make the arrest hypothecized, they would not be
operating in a field from which they have been excluded by a paramount
assertion of federal power. This is true in view of the express reservation
of authority to the state and the absence of any language restricting the
exercise of that authority. There is no indication whatever from the lan-
guage you have quoted in the deed that any such paramount assertion
of power was desired or intended.
As a sixth question you ask:
"6. Has the field of regulation over the reservation on Cape Cod
relative to the offence of Disorderly Conduct been occupied by the Fed-
eral Government?"
In view of the answers to your first five questions, it is clear the an-
swer to this question is in the negative.
As a seventh question you ask:
"7. If a felony, e.g., murder, is committed on the reservation on Cape
Cod, which authority would conduct the investigation, the federal au-
thority or the local and state police?"
Your statement of facts does not indicate that the authority of the
U. S. Rangers is any more extensive than that of concurrent jurisdiction
with state and local officials for the offense of disorderly conduct. There
is also no indication that the U. S. Rangers have any authority whatever
to act in felony cases. Consequently, since the authority, power and
jurisdiction is retained in the Commonwealth, this must be taken to
include all civil and criminal jurisdiction on the reservation.
It is my opinion, therefore, that the local or state police would have
the authority to conduct the investigation of any felony, subject to the
possibility of federal action in appropriate circumstances.
Very truly yours,
Edward W. Brooke
"Residence" pursuant to G. L. c. 6, § 78, connotes only bodily presence
as an inhabitant of the Commonwealth and does not require the
establishment of a residence with any intent to make it a fixed or
permanent home.
May 20, 1965.
Hon. Francis A. Harding, Commissioner of Rehabilitation,
Massachusetts Rehabilitation Commission.
Dear Commissioner Harding: — I am in receipt of your letter of
March 31, 1965, requesting my opinion on the eligibility of two appli-
cants for the services of your Commission relating to the residency re-
quirement of G. L. c. 6, § 78.
284 P.D. 12
General Laws c. 6, § 78 provides in part:
"The commission shall provide vocational rehabilitation services. di-
rectly or through public or private rehabilitation facilities to any handi-
capped person (1) who is a resident of the state at the time of filing his
application therefor. . . ." (Emphasis supplied.)
You have specifically asked my opinion as to the applicability of the
above-quoted residence requirement to one party of Cambridge, Massa-
chusetts, whom you have described as follows:
"Miss is a 27 year old single woman, who is a native of Formosa,
and a graduate assistant and doctoral candidate at Massachusetts Insti-
tute of Technology in the department of Nutrition. She has an ortho-
pedic condition involving some instability of her right knee which was
operated on unsuccessfully in Iowa last summer, and which may need
some physical therapy and possibly surgery, according to Massachusetts
General Hospital orthopedic clinic. She receives |350 a month for her
work as an assistant, but her Massachusetts Institute Technology Grant
Insurance does not carry any pre-existing condition. We have checked
with the International Institute who knows of no other resource for this
kind of case. Miss is here on a student visa (F) and is apparently
not committed to returning to Formosa. Her own plans for the future
are not really decided."
and to Mrs. of Cambridge, Massachusetts, whom you also de-
scribe.
"Mrs. is a 24 year old married woman who is a citizen of Malaya
and whose husband, also a citizen of that country, is a student at Har-
vard Graduate School of Education where he is studying on a Ford Foim-
dation Scholarship of $450.00 per month which is to cover all their
expenses.
"Mrs. was referred to Massachusetts Rehabilitation Commis-
sion by the Boston Guild for the Hard of Hearing for vocational coun-
seling and possible help with a hearing aid since she has had a recent,
gradual loss of hearing. She is a housewife at present and trained in
Taiwan as a pharmacist but cannot practice in this country.
"Mr. and Mrs. are here on an exchange visa, DSP-66, Category
J., which we understand is not the same as a student visa; it allows them
to work in this country if necessary. However, the recipient of the Ford
Foundation Scholarship is committed to returning to his homeland and
practicing in his field for five years upon completion of training — in
this case, June, 1967. His wife, of course will accompany him."
The language of G. L. c. 6, § 78, is clear as to the qualifications of
applicants for rehabilitation. Among other things, it specifically pro-
vides that the applicant for the Commission's services must be a resident
of the State at the time of filing his application. "The term 'residence'
appearing in our statutes has been construed as one of flexible meaning,
depending upon the phraseology of the particular statute, the relation
of the term to the remaining words employed, and the aim and object
intended to be accomplished by the legislature." Cambridge v. West
P.D. 12 285
Springfield, 303 Mass. 63, 67 and cases cited therein. In so far as this
statute requires "residence" in the Commonwealth, that word must be
construed according to its normal meaning. The phraseology, context
and purpose of the statute do not afford a basis for any other construction.
Residence as that term is defined by Black's Law Dictionary is "a
factual place of abode. It requires only bodily presence as an inhabitant
of a place." There is no requirement in establishing a residence that the
party do so with any intent to make it a fixed or permanent home.
Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 444. In that
sense, residence is not synonymous with domicile. An individual may
have any number of residences; although he can have only one domicile.
In the cases of Miss and Mrs. , there is some doubt as
to whether or not they will remain in this Commonwealth. However,
although that fact might influence a determination of their domicile,
it is not relevant to the determination of their residence. Both of them
may, so long as they are physically present in Massachusetts, have resi-
dence here, even though they have no domicile and may not be able to
establish the same.
Consequently, on the facts that you have given, since both Miss
and Mrs. have been and are living here in the Commonwealth,
it is my opinion that they are residents of this Commonwealth and do
satisfy the requirements of G. L. c. 6, § 78.
Very truly yours,
Edward W. Brooke
The Board of Registration in Medicine may legally license a physician
to practice in Massachusetts provided that it determines that the
standards prescribed by the state where such physician is licensed
meet the requirements of this Commonwealth as administered by
said Board.
May 20, 1965.
Hon. DAvm W. Wallwork, M.D., Secretary, Board of Registration in
Medicine.
Dear Sir: — You have requested my opinion as to whether the Board
of Registration in Medicine may legally license a physician to practice
medicine in Massachusetts, by endorsement of his existing license to
practice in Pennsylvania.
Your precise question is:
". . . Did the Legislature intend that the Board register by endorse-
ment an applicant who was registered in another state simply upon a
written examination or upon a written examination by the Board of
the State in which the original license was granted?"
You have pointed out that c. 365 of the Acts of 1946 provides in part
as follows:
"The Board may, without examination, grant certificates of registra-
tion as qualified physicians to such persons as shall furnish with their
286 P.D. 12
applications satisfactory proof that they have the qualifications required
in the Commonwealth to entitle them to be examined and have been
licensed or registered upon a written examination in another state whose
standards, in the opinion of the Board, are equivalent to those in the
Commonwealth. . . ." (Emphasis supplied.)
The said c. 365 does not specifically require that the written examina-
tion in another state be conducted by a state agency. It is therefore
necessary for the Board to inquire into the standards of the Common-
w^ealth of Pennsylvania in order to ascertain, in its opinion, whether
such standards are equivalent to those in this Commonwealth. Such
inquiry should disclose whether the physician licensed in Pennsylvania
meets the requirements established by your Board. Under the statute,
the opinion of the Board of Registration in Medicine is the controlling
factor. Inasmuch as the emergency preamble of the said c. 365 recites
that the purpose of the act is to provide for reciprocal registration of
physicians, it is incumbent upon the Board of Registration in Medicine
to ascertain that the standards for registration in Pennsylvania are
equivalent to our own, and thereby to formulate its opinion as to the
qualifications of the applicant for registration.
In view of the above discussion, it is my opinion that the Board may
properly register the applicant provided that the Board, in its discre-
tion, determines that the standards of Pennsylvania satisfactorily meet
the requirements of this Commonwealth as administered by the Board
of Registration in Medicine.
Very truly yours,
Edward W. Brooke
House Bill No. 3578, an exercise of the police power which changes gen-
eral provisions of law but which leaves specific contracts and duties
unaltered is constitutional in its amended form.
May 21, 1965.
Hon. John A. Volpe, Governor of the Commonxvealth.
Dear Governor Volpe: — You have requested my consideration of
House Bill No. 3578 entitled, "AN ACT TO PERMIT DOMESTIC
INSURANCE COMPANIES TO WITHDRAW FROM THE BUSI-
NESS OF INSURANCE AND CONTINUE AS BUSINESS CORPORA-
TIONS." This measure was passed by the Senate and House of Repre-
sentatives earlier this month, but was returned by you to the General
Court because of certain constitutional questions which had been raised.
The Act has now been amended, and has once again reached your desk
for signature. In light of the history of this legislation, you have asked
for my opinion relative to the constitutionality of the measure as amended.
House 3578 amends section 44 of Chapter 175 of the General Laws by
adding three new paragraphs. The new paragraphs provide that any
solvent domestic stock insurance company may — after reinsuring its
outstanding risks and claims with another avuhorized insurance com-
pany — elect to continue as an ordinary business corporation by filing
with the Secretary of the Commonwealth articles of amendment which
P.D. 12 287
state the nature of the business to be transacted. If the Secretary finds
that the changes conform to law, he shall endorse his approval upon the
articles of amendment; thereafter, the corporation may carry on busi-
ness under its amended powers. A company wishing to take advantage
of the new provisions must give sixty days' notice of its intention to the
Commissioner of Insurance, and must satisfy the Commissioner that all
of its insurance contract obligations will be fully assumed by a solvent
company approved by the Commissioner.
The Commissioner of Insurance may request any company which
wishes to reinsure its obligations under this section to establish a con-
tingency fund in trust in such amount as the Commissioner considers
necessary to assure a full discharge of all such obligations. The amount
of funds held in trust shall be increased or decreased as the Commis-
sioner requires. If the corporation does not place the necessary funds
in trust, the company which has assumed the obligations shall be re-
sponsible for transferring to the trust w'hatever amounts the Commis-
sioner may require.
Prior to amendment, House 3578 provided that a corporation which
reinsured pursuant to the new Act would continue to be liable only on
those obligations which were not subject to reinsurance. This provision
has now been changed so that the corporation remains liable on all of
its outstanding obligations, irrespective of whether they have or have
not been reinsured. The company retains the right to prosecute and de-
fend suits, and to hold and dispose of property without being limited in
any way by the provisions of this Act.
There can be no doubt that the measure prior to amendment impaired
rights which had vested in individuals under lawful contracts, and thus
violated provisions of both the Federal and the State Constitutions. The
bill in its initial form permitted an insurance company to reinsure its
obligations and transfer liability on an insurance contract from itself
to another company. Although provision was made for the keeping of
a trust fund to guarantee payment of obligations, the amount of the
fund — and, in fact, the question whether the fund need be created at
all — was left to the Commissioner of Insurance.
Thus, the Legislature enacted a measure which would, in effect, have
abrogated a lawful contract and substituted a new and different contract
in its place. As such, it would have been a clear violation of the "con-
tract clause" of the Federal Constitution and the 'due process" clauses
of the Federal and State Constitutions.
United States Constitution, Art. I, § 10; Amend. XIV
Massachusetts Declaration of Rights, Arts. 1, 10 and 12
The fact that policyholders may not be affected adversely by the contract
change imposed upon them would not validate the Act in its original
form. "The obligations of a contract are impaired by a law which ren-
ders them invalid, or releases or extinguishes them. . . ." (Emphasis
supplied.)
Home Building ir Loan Assoc, v. Blaisdell, 290 U. S. 398, 431
The measure has now been amended so that the corporation which
reinsures pursuant to the Act is no longer relieved from liability on any
288 P.D. 12
of its outstanding insurance contracts. Although an insurance company
may — pursuant to the Act — elect to continue in an altogether different
business capacity, it remains liable as before on all of the insurance
contracts into which it has entered. Thus, a policyholder who contracted
with the corporation while it was engaged in the business of insurance
retains all rights to proceed against the corporation for the full amount
of the policy — notwithstanding the fact that the business purposes of
the corporation may have been altered. Although the Legislature may
have authorized alteration of a company's business, it has in no way
changed or otherwise interfered with the contract itself.
I am aware of the fact that the insurance business is subject to a high
degree of regulation, and that the Act in question would permit insur-
ance companies to enter fields which are not so strictly supervised. In
one sense, therefore, the risk of a policyholder could possibly be in-
creased, since the company to which he looks for payment is no longer
so rigidly controlled. This, however, cannot be said to constitute an im-
pairment of contractual rights. The Constitution prohibits the varying
of the law which binds parties to perform a given agreement.
Blaisdell, supra, at p. 429
It does not prevent the Commonwealth from enacting a measure unre-
lated to the contract which might incidentally have the effect of decreas-
ing the value of the contract to one of the parties.
No person has a vested right in any general rule of law or policy of
legislation which would entitle him to insist that such law or policy
remain unchanged.
Munn v. State of Illinois, 94 U. S. 113, 134
Chicago & Alton Railroad Company v. Tranbarger, 238 U. S. 67, 76
Accordingly, parties to contracts may not ordinarily rely upon immunity
from change in general law.
Gross v. United States Mortg. Co., 103 U. S. 477, 488
It is clear that no party can insist that the laws of Massachusetts relative
to insurance companies remain the same. The Legislature can — within
the limits of the police power — regulate the insurance business as it
sees fit, and alter those regulations as it deems necessary.
The General Court considers the Act in question to be necessary and
proper legislation. Contractual rights are not impaired by an exercise
of the police power which changes general provisions of law but which
leaves specific contracts and duties unaltered. Accordingly, in light of
the above, it is my considered opinion that House Bill No. 3578, in its
amended form, is constitutional.
Very truly yours,
Edward W. Brooke
P.D. 12 289
The commitment of a person to a penal institution is invalid where it
appears that the treatment center is not actually established; the
parole board does not have authority to continue supervision over
the individual and cannot return him to a branch treatment center.
May 24, 1965.
Hon. Joseph F. McCormack, Chairman, Parole Board.
Dear Sir: — Your predecessor in office has asked my opinion as to
whether or not the Parole Board has the authority to continue under
supervision the cases of the following men:
1. John Alexander — Committed on December 5, 1957, to the Branch
Treatment Center at Walpole.
2. Edmund L. Croake — Committed on April 17, 1959, to the Branch
Treatment Center at Walpole.
3. Donald S. Dupree — Committed on January 30, 1958, to the Branch
Treament Center at Walpole.
4. Gerald D. Gendron — Committed on or about January 31, 1958,
to the Branch Treatment Center at Concord.
5. Albert Lester — Committed on January 28, 1959, to the Branch
Treatment Center at Concord.
6. Wisner Litchfield — Committed on February 7, 1958, to the Branch
Treatment Center at Norfolk.
7. Chester F. Mancinelli — Committed on May 29, 1958, to the Branch
Treatment Center at Walpole.
8. Raymond A. Merrill — Committed on January 16, 1958, to the
Branch Treatment Center at Walpole.
9. Joseph E. Muse — Committed on November 27, 1957, to the Branch
Treatment Center at Concord.
10. Henry W. McLaughlin — Committed on September 11, 1958, to
the Branch Treatment Center at Walpole.
Your predecessor stated that all the above mentioned 10 individuals
were committed to the various branch treatment centers as sexually
dangerous persons. The request further stated that all these men have
been granted parole permits on the term sentences from the branch
treatment centers. It is to be noted that none of the branch treatment
centers at which the above ten individuals were committed had actually
been established at the time that the above individuals were committed
there.
In a prior opinion of the Attorney General requested by Cornelius J.
Twomey, Chairman of the Parole Board, involving one John W. Glynn,
a similar set of facts and a similar request were presented to me. Pursuant
to the then Chairman's request, I rendered my opinion that:
"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
290 P.D. 12
commitment of a person to a penal institution was invalid where it
appeared 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."
The status of the law has not been altered since my opinion relative
to John W. Glynn. Therefore, the permits granted by your Board to
the aforementioned ten men are invalid, and your Board is powerless
to effect the same so as to return those persons to a branch treatment
center.
Although it is my opinion that the original commitments of the above
mentioned ten men were invalid under G. L. c. 123A, in view of the
Opinion in the case of Commonwealth v. Page, 339 Mass., 313, I direct
your attention, as did the Supreme Judicial Court in such case, to G. L.
c. 123, §§ 1, 50, 51, which provide remedial and protective action for a
person "in danger of causing physical harm to himself or to others . . .
or . . . likely to conduct himself in a manner which clearly violates the
established laws, ordinances, conventions or morals of the community."
Very truly yours,
Edward W. Brooke
The head of a department, division or agency may determine the mone-
tary amount of damage or loss to state equipment and thereafter
request reimbursement and receive the same and execute proper
receipt or releases on behalf of the Commonwealth. Heads of de-
partments or agencies are empowered to so proceed against patients
or inmates for loss, damage or injury to property, and employment
of such authority is loithin their own discretion upon the facts
presented to them.
May 25, 1965.
Hon. Joseph Alecks^, Comptroller.
Dear Mr. Alecks:—! have received your letter of March 31, 1965,
requesting additional advice on questions arising out of my earlier opin-
ion of March 26, 1965.
In your letter of March 1, 1965, you requested my opinion on two
questions: First, the legality of a proposed uniform system of control
and accounting and, second, the question of whether or not the head
of a state agency may determine the existence of liability for damage or
loss to state equipment, and, if so, determine the amount of damages
and assess the individual or firm involved.
Your most recent letter relates to that portion of my prior opinion
regarding the scope of the authority of an agency head. In summarizing
my earlier opinion you say:
P.D. 12 291
"Your opinion states that the head of a department, division or agency
does not have the authority under the law to take action in the following
instances:
"1. When property, which is under his control and jurisdiction, is
damaged, lost or destroyed to determine the monetary value of such
loss or damage.
"2. When it is known who caused the damage or loss, to send an in-
voice to the said individual to reimburse the Commonwealth for the
amount of damage or loss."
This interpretation of my earlier opinion is not completely correct.
You originally asked whether it was legal for the agency head to
"determine whether there is liability for such damage or loss, and, if
so, determine the amount of damages and assess the individual or firm
involved." (Emphasis supplied.)
I replied that "the determination of liability for damage is a legal de-
termination to be made by the Court. . . ."
In view of the conjunctive nature of your request, there was no
necessity of expressly dealing with the remaining two sections of the
original question, since the system as therein described would have been
improper once an initial determination of liability was made. However,
that was not to say that the procedures of determining the monetary
value of such loss or damage or of sending an invoice requesting reim-
bursement were not within the authority of an agency head, per se.
Nor was it to say that in a proper system they might not be employed.
Rather, it was my opinion that the use of those procedures in conjunc-
tion with the determination of liability, itself improper, would therefore
also be improper.
There is nothing in our General Laws which would preclude an
agency head from either determining the monetary value of the loss or
billing the party who caused the damage or loss, when such party is
known.
It is my opinion, therefore, that authority does exist for the head of
a department, division or agency to determine the monetary amount
of damage or loss and thereafter request reimbursement and receive the
same and execute proper receipt or release on behalf of the Common-
wealth. Consequently, it would be appropriate that this office be notified
only when there is a dispute as to either the existence of liability, the
amount of the claim and /or the refusal to pay, such as would require
the services of this office or a determination by litigation.
In such a situation the office of the Attorney General should be re-
quested by the head of the department, division or agency to take such
action as may be necessary to protect the interest of the Commonwealth.
All necessary information, facts and copies of reports concerning said
matter should also be forwarded to the Attorney General.
As a second question you have asked:
"If a department head knows that the loss, damage or injury to the
property was caused by an inmate or patient of the Commonwealth, is
292 P.D. 12
there responsibility on the part of the department head to proceed
against such patient or inmate?"
Before answering your question, it is important to delineate precisely
what you mean by the word "proceed." As a result of discussions of
this matter with a representative of your department, I am informed that
you have used the word "proceed" in your question to mean simply the
determination of the monetary amount of damage or loss and the issu-
ance of an invoice for reimbursement — nothing more.
Keeping in mind such narrow interpretation of the word "proceed,"
it is essential to determine whether or not there exists any authority in
the department or agency heads to "proceed" against patients or inmates
for loss or damage to Commonwealth property.
A reading of our General Laws fails to disclose any prohibition against
department heads proceeding against patients or inmates in the same
manner as they would against other parties who lose or damage Com-
monwealth property. Consequently, it is my opinion that such authority
must be implied as being one of those necessary and proper to the effec-
tive execution of the general duties of the given department or agency.
So far as the question of what precise responsibility rests with the
given department or agency to exercise that authority is concerned, this
cannot be determined by means of a sweeping generalization. Rather,
it is my opinion that the decision to proceed against any given patient
or inmate is an administrative decision that can best be made by the
administrator charged with that responsibility. The exercise of such an
authority, where it will depend extensively on the facts and circum-
stances of the particular situation, must be discretionary with those
department or agency heads.
It is my opinion, therefore, that the department or agency heads do
have the authority to "proceed" against patients or inmates for loss,
damage or injury to property and that the employment of that authority
is within their own discretion upon the facts presented to them.
Very truly yours,
Edward W. Brooke
The five per cent and one per cent sums due to the Commonwealth
under G. L. c. 147, %% 40 and 40 A may only be collected at the site
of a "live" fight including those sums paid to the promoter for "tele-
vision or broadcasting" rights luith respect to this "live" fight.
May 25, 1965.
Hon. Herman Greenburg, Chairman, Massachusetts State Boxing
Commission.
Dear Sir: —I am writing in response to your letter of May 19, 1965,
in which you state that a Boston promoter is presenting a boxing show
in the Boston Garden on Tuesday, May 25, 1965, which will be beamed,
via closed circuit television, into other places located in Massachusetts.
P.D. 12 293
You request my opinion of whether the five percent and one percent
sums due to the Commonweahh under G. L. c. 147, §§ 40 and 40A from
the sale of tickets should be collected from the receiving locations.
The boxing show in question will feature two welterweight contenders
and will be a so-called "imder-card," with the main attraction to be a
viewing, via closed circuit TV from Lewiston, Maine, of the Liston-Clay
Heavyweight Title Fight. The "under-card" will take place "live" at
the Boston Garden, to which the televised Liston-Clay match will be
brought by television. In addition, under an agreement with the Boston
Garden Arena Corporation, both the "under-card" and the Clay-Liston
Fight in Lewiston will be shown via closed circuit IV at the Boston
Arena.
It is my understanding that arrangements may be made to transmit
the under-card to other locations in Massachusetts, to be shown prior to
the Clay-Liston Fight.
It is my opinion that the five percent and one percent sums imposed
by G. L. c. 147, §§40 and 40A cannot be collected on ticket sales and
admissions at the locations where the under-card and Clay-Liston Fight
are shown on closed circuit television. The sums should be collected,
however, with respect to ticket sales and admissions at the Boston Garden.
These sums are imposed on "every licensee holding or conducting" a
boxing match. The Clay-Liston Fight in Lewiston, Maine, is obviously
not being held or conducted by a "licensee" within the meaning of the
statute (viz: someone licensed to conduct matches in Massachusetts under
G. L. c. 147, § 32) . There is, in fact, no law in this state permitting the
Commonwealth or the boxer's fund to share in the proceeds of out-of-
state bouts which are shown here via closed circuit television.
The local "under-card" is, on the other hand, being conducted by a
Massachusetts "licensee," who, therefore, is subject to payment of the
sums imposed by G. L. c. 147, §§40 and 40A with respect to that bout.
Under the statutory provisions, these excises are imposed ujjon the "total
gross receipts from the sale of tickets or from admission fees" and also
upon the "total amount paid or to be paid for television or broadcasting
rights" (the latter quoted language is from G. L. c. 147, § 40, only. The one
percent under G. L. c. 147, § 40A is of "the total gross receipts . . . from
television or broadcasting.") The local promoter is thus liable for the
Commonwealth's share of any sums paid for "television or broadcasting"
rights with respect to his "under-card" (as well as for the Common-
wealth's share of the gate) . In my opinion the term "television" rights
includes any sum or sums paid or to be paid for the privilege of receiv-
insr and showinsr the "under-card" event on closed circuit television.
Section 40 was written before closed circuit television became a major
financial factor in boxing and provides for payment of the state's share
to the State Treasurer twenty-four hours before the fight. As most closed
circuit arrangements call for the owner of the rights to share in the
gate at the receiving location, such advance payment in full may be
impossible. Nevertheless, the Commonwealth is entitled to its share of
any amounts paid for these rights with respect to the "under-card"
event, and its share should be collected as expeditiously as circumstances
permit.
294 P.D. 12
The requirement that a "licensee holding or conducting" any profes-
sional bout pay to the State Treasurer five percent of "total gross re-
ceipts from the sale of tickets or from admission fees" was first adopted
by the Legislature in 1920 (St. 1920, c. 619, § 11). The language of the
provision has remained unchanged since then insofar as the five percent
on tickets and admissions is concerned; but in 1952 and 1956 the law
was expanded to include television and broadcasting rights (1952, c.
203; St. 1956, c. 660).
While the statute does not specifically state that the tickets and admis-
sions in question relate only to the live fight itself the Legislature could
not have envisaged application of the statute to tickets or admissions to
televised showings via closed circuit. The concepts and practices associ-
ated with closed circuit television are comparatively new, and the most
recent amendment of G. L. c. 147, § 40 in 1956, preceded the widespread
acceptance of this device. Closed circuit television combines the box
office techniques of a live performance with the visual technique of
television and motion pictures. It is neither fish nor fowl. To try to ex-
tend the provisions of Section 40 and 40A as now written to admissions
to closed circuit showings would present a host of complex problems.
For example, if a tax is imposed on the gate at a receiving location,
is it appropriate also to tax the share of gate paid to the licensee and
fighters for the "television rights?" Moreover, G. L. c. 147, §§ 40 and
40A as now written cannot be applied to out-of-state bouts, such as the
Clay-Liston fight, which is the area of greatest importance. The wide-
spread use of closed circuit television has so completely altered the
economics of boxing that an immediate overhaul of our existing law is
needed. To attempt to stretch our present statute in the case of this
minor "under-card" event to cover a situation that it was never designed
to cover will merely, in my opinion, cause confusion and, still worse,
may postpone action with respect to needed statutory change.
I might add that under G. L. c. 147, §§ 40 and 40A, the Boxing Com-
mission has power to alter the five percent and one percent sums in the
case of a match which is an "incidental feature in an event or enter-
tainment of a different character." In view of the entirely incidental
character of the "under-card," if the Commonwealth were to attempt
to share in the receipts at locations receiving the (non-taxable) Clay-
Liston Fight on the basis of its control over the "under-card," there could
be serious problems with respect to pro-rating the taxes were the Com-
mission to attempt to do so. From a practical point of view, collection
of the full taxes on the live box at the Boston Garden is likely to be as
advantageous to the Commonwealth as collection of a heavily discounted
tax there and at locations throughout the Commonwealth.
Accordingly, it is my considered opinion that the five percent and one
percent sums payable under G. L. c. 147, §§ 40 and 40 A may only be
collected at the site of the "live" Boston Garden Fight including those
sums paid to the promoter for "television or broadcasting" rights with
respect to this "live" fight.
Very truly yours,
Edward W. Brooke
P.D. 12 295
"Milk dealer" referred to in subparagraph (b) of § 4, c. 94A, G. L.,
means a grocery store or market, and unless exempted from the
license requirement of § 4(a), a "milk dealer" would be required to
obtain a license and would be similarly subject to the provisions of
§§ 5 and 9.
June 7, 1965.
Hon. George W. Killion, Secretary, Milk Control Commission.
Dear Mr. Killion:— I have received your letter of May 12, 1965
requesting my opinion on the following questions. You have asked:
1. Is a "store" as defined in Section 1 of the Milk Control Law, G. L.
c. 94A, a "milk dealer", and, if so, subject to the provisions pertaining
to licensing under Sections 4, 5 and 9 of said c. 94A?
2. Has the dictum in Cumberland Farms, Inc., vs. Milk Control Com-
mission, 340 Mass. 672, any effect upon the statutory references above?
Treating your second question first, it is my opinion that the answer
is in the negative. In its decision of the case of Cumberland Farms v.
Milk Control Commission, 340 Mass. 672, the Supreme Judicial Court,
after a consideration of §§ 10-12 of G. L. c. 94 A, concluded that those
sections were to be read together and that they comprised, as a unit, a
price-fixing system. Accordingly, the Court, in its construction of the
phrase "milk dealer," as it appears in § 1 1 of c. 94A, stated at page 680:
"We are of [the] opinion that the scope of the phrase must be limited
by resort to the overall legislative scheme of §§ 10 through 12. . . . We
conclude that the words 'milk dealers,' in § 11, mean wholesale dealers
and not grocery stores, markets or the like, . . ." (Emphasis supplied.)
Nevertheless, despite the fact that the court concluded that "milk
dealer," as used in §§ 10-12, meant wholesale dealers and not grocery
stores or markets, the court also considered that the concept of a "milk
dealer" could, in appropriate circumstances, include giocery stores and
markets. In refusing to limit the scope of the phrase "milk dealer" to
the confines of the case before it, the court in express language stated
that:
"Standing alone, the phrase 'milk dealers' might very well include
grocery stores, markets and the like."
The conclusion is inescapable therefore that the court did not fully con-
strue the term "milk dealer" and that it would be open to future
interpretation.
Accordingly, it is my opinion that the decision of that case did not
decide the question that you have herein raised. The decision in that
case upon the scope of the words "milk dealer" is restricted to the use
of that phrase in the context of §§ 10-12. The Supreme Court, in une-
quivocal language, admitted the possibility of a broader construction of
"milk dealer" and, accordingly, expressly limited their decision to a
consideration of only §§ 10-12.
With regard to your first question, it is essential, in view of the ap-
proach taken by the Supreme Judicial Court in the Cumberland Farms
296 P.D. 12
Case, supra, to confine the interpretation of any language in c. 94A to
the sjDecific sections wherein that language is employed. In the instant
situation, you have asked that the phrase "milk dealer" again be con-
strued, this time in terms of its usage in §§ 4, 5 and 9 of c. 94A, to deter-
mine whether or not that usage might include a "store" as defined in
§ 1 of c. 94A.
Section 1 of c. 94A defines "milk dealer" and "store" as follows:
" 'Milk dealer', any person, irrespective of whether such person is also
a producer or an association of producers, who, on his own account or
on behalf of producers, is engaged within the commonwealth in the
business of receiving, purchasing, pasteurizing, bottling, processing, dis-
tributing or otherwise handling milk. No owner or operator of a hotel
or restaurant who sells milk consumed on the premises where sold, and
does not purchase or receive milk from producers, and no producer who
delivers raw milk only to a milk dealer, shall be deemed a milk dealer
for the purposes of this chapter."
" 'Store', includes a grocery store; dairy products store or any similar
mercantile establishment at which milk is sold for consumption off the
premises."
Although c. 94A defines the terms "milk dealer" and "store" separately,
this does not compel the conclusion that they are mutually exclusive
concepts. In fact, the use of two separate terms reflects the operational
dichotomy of the industry and the necessity, in many instances, of dis-
tinguishing between wholesale milk dealers, retail milk dealers and other
milk dealers who may be bottlers, distributors, purchasers, or retailers.
As a result of this necessity for treating with these different groups of
"milk dealers," it is not surprising that the Legislature set up a semantic
distinction, between "milk dealers" and "stores." It is apparent that the
operations of these two particular types of milk dealers are distinct and,
accordingly, the regulation of both groups must be treated separately.
Unfortunately, the use of the term "milk dealer" applies to both
groups; for, as the Supreme Judicial Court noted, a grocery store or
market might well be a "milk deaJer," in the appropriate circumstances.
This has led to the type of problem found in the Ciimberland Farms
Case; the problem of determining to whom a particular regulation has
reference.
Clearly, a grocery store or market at which milk is sold for consump-
tion off the premises is run by a person who is engaged in the business
of distributing, selling and handling milk. Thus, the definition of "milk
dealer" may, without conflict, be applied to encompass a "store." The
inclusion of two definitions in the statute illustrates the possibility of
situations where these two types of dealers could not be dealt with iden-
tically nor be subject to the same form of regulation. Absent the inser-
tion of two definitions, it might be concluded that the provisions of c.
94A applied to all milk dealers alike. This obviously cannot be possible.
Consequently, it is my opinion that the draftsmen of this statute,
rather than establishing two mutually exclusive categories, intended to
P.D. 12 297
demonstrate that for the purposes of certain portions of the statute, a
delineation -would be required between "stores" as "milk dealers" and
other types of "milk dealers." Such a distinction was made in the Cum-
berland Farms case regarding the provisions of §§ 10-12 and it is my
ojjinion that a similar distinction must be made regarding §§ 4, 5 and 9.
The context of §§ 4, 5 and 9 present another opportunity to re-examine
the scope of the content of "milk dealers." The scope of the phrase must
be determined according to its intended usage in regard to the purposes
of the licensing power of the Commission set out in §§ 4, 5 and 9,
Section 4 of G. L. c. 94 A provides in part:
" (a) No milk dealer, except as provided in subsection (b) , shall
within the commonwealth buy or receive milk from producers or others,
or sell or distribute milk, or pasteurize, bottle, package or otherwise
process milk for sale, unless he is duly licensed as provided in this chap-
ter, and no milk dealer shall buy milk from or sell to another milk
dealer who, being required to be licensed, is not so licensed, or in any
way deal in or handle milk w4iich he has reason to believe has previously
been dealt in or handled in violatian of any provision of this chapter,
or of any order, rule or regulation made thereunder.
" (b) The commission, provided it shall first determine that such
action will not adversely affect market conditions relative to milk, may
by its order exempt from the operation of all or any portion of this chap-
ter any milk dealer who purchases milk only from a licensed milk
dealer, and whose only sales of milk are at a store."
The above-quoted section sets out the requirement of a license for all
"milk dealers." The only exception to that requirement is contained in
sub-paragiaph (b) of v;4 providing for the exemption of certain quali-
fied parties at the Commission's discretion. A party under sub-paragraph
(b) Avho purchases only from a licensed dealer and whose only sales of
milk are at a store is also a milk dealer according to the language of
that section. Giving to that language its normal construction and at the
same time keeping in mind the practical realities of the milk industry,
it is reasonable to conclude that the "milk dealer" who may be exempted
under § 4 (b) from the licensing of § 4 (a) is the retail store or market.
Obviously, the only milk dealer whose only sales are at a store is a
storekeeper.
Consequently, it is my opinion that the "milk dealer" referred to in
sub-paragraph (b) of § 4 is the grocery store or market. Therefore, unless
exempted from the license requirement of § 4 (a) , a "milk dealer" would
be required to obtain a license and would be similarly subject to the
provisions of §§ 5 and 9.
Very truly yours,
Edward W. Brooke
298 ' P.D. 12
A land disposition agreement in the form of a "deed and indenture"
proposed to be entered into between the Lowell Technological In-
stitute and the Lowell Redevelopment Authority, the provisions of
which purport to prevent the Commonwealth from exercising its
sovereign poioers would be invalid and not acceptable to the
Commonwealth.
June 7, 1965.
Hon. Martin J. Lvdon, President, Lowell Technological Institute.
Re: Lowell Technological Institute —
Lowell Redevelopment Authority
Proposed Land Disposition Agreement.
Dear Sir: —By letter dated May 25, 1965, you forwarded to me for
review and approval a land disposition agreement in the form of a "deed
and identure" proposed to be entered into between the Lowell Techno-
logical Institute of Massachusetts and the Lowell Redevelopment
Authority.
In your letter of transmittal on behalf of the Trustees of Lowell Tech-
nological Institute you requested my opinion on the following questions:
"1. Should the trustees approve and sign the agreement submitted by
the Lowell Redevelopment Authority and accept the conditions enu-
merated therein?
"2. If approved and signed by the trustees, would you find the condi-
tions acceptable for the Commonwealth?"
By Item 8065-16, Chapter 640, Acts of 1964 the Legislature appropri-
ated funds for the acquisition by Lowell Technological Institute of cer-
tain land from the Lowell Redevelopment Authority, a public body,
corporate and politic, organized under Chapter 121 A of the General
Laws of the Commonwealth. The acquisition of said land without any
conditions or restrictions and controls attached thereto would be within
the authority of the Board of Trustees under the powers granted to it
by Chapter 75A of the General Laws.
Chapter 75A of the General Laws provides in part in
Section 1:
"The institute . . . shall be governed solely by the Board of Trustees
whose authority, responsibility, rights, privileges, powers and duties spe-
cifically conferred by this chapter shall be the same as those customarily
and traditionally exercised by governing boards of institutions of higher
learning. In exercising such authority, responsibility, rights, privileges,
powers, and duties, said board shall not in the management of the affairs
of the institute be subject to, or superseded in any such authority by any
other state board, bureau, department or commission except as herein
provided."
Section lA:
"The Trustees may except as to the duties or powers granted under
section one, two, three and six delegate their authority or any portion
P.D. 12 299
thereof to the president or other officers of the institute whenever in
their judgmnt such delegation may be necessary or desirable."
Section 8:
"The Trustees shall have authority to assent to federal laws designed
to benefit the institute and to enter into agreements or contracts with
the federal government or agencies thereof, as well as into agreements
or contracts with agencies of other governments, other colleges and uni-
versities, foundations, corporations, interstate compact agencies and indi-
viduals where such agreements or contracts in the judgment of the
trustees ^vill promote the objectives of the institiUe."
Those Sections 1, lA and 8 of said Chapter 75A (M.G.L.) confer
broad discretionary powers on the Board of Trustees to enter into con-
tracts and agreements. In exercising those powers the Board of Trustees
must be guided by the law governing re-delegation of duties and respon-
sibilities assigned to it by its enabling statute.
An agency to which a particular function has been delegated may not
re-delegate the task of performing that function. An agency has only
tliose powers conferred by the statiue creating it or which may be reason-
ably necessary to accomplish the purposes of the statute. Attorney Gen-
eral V. Trustees of Boston Elevated Ry. Co., 319 Mass. 642, 655 (1964).
Scannell v. State Ballot Law Commission, 824 Mass. 494.
By implication, therefore, the agency may hire necessary employees
to perform tasks of a ministerial, clerical or even investigative nature.
Fhiet v. McCabe, 299 Mass. 173, 180 (1938). Ring v. City of Woburn,
311 Mass. 679, 687 (1942).
Only acts of a ministerial nature may be re-delegated by the agency.
Discretionary or quasi-judicial decisions must be made by the agency,
itself. A re-delegation of the decision-making power is unlawful as an
exercise of governmental power without legislative authority.
"I think there is no escape from the principle that public officers who
have duties imposed upon them by law must perform those duties, and
persons who do not have duties imposed upon them by the law are not
authorized to perform the duties imposed upon others." 5. Opinion of
the Attorney General, 1920, p. 628, 629.
Section 2 of the agreement under consideration provides inter alia
that prior to the construction of any "Additional Improvements on the
Property" site plans and working drawings therefor must be submitted
to the Redevelopment Authority for its approval and to the City of
Lowell Planning Department for it concvuTence. The same Section 2
further states that its provisions shall be covenants running with the
land. However urgent or desirable the Trustees might consider it, the
provisions of said Section 2 would prohibit any construction without
prior approval of the Lowell Redevelopment Authority.
The determination of the nature and extent of additional improve-
ments of Lowell Technological Institute is an important responsibility
of the Board of Trustees. It is not the type of duty that could be accu-
rately described as ministerial and tlierefore lawfully be re-delegated.
300 P.D. 12
Abdication by the Trustees of that responsibility by permitting the
Lowel Redevelopment Authority to control its exercise would constitute
an unlawful surrender of the sovereign powers of the Commonwealth.
Opi7iion of the Justices, 341 Mass. 760, 784 (1960).
Section 6 (ii) of the agreement under consideration provides that
the Trustees shall comply with such terms and conditions relating to
the use and maintenance of such land and improvements as the Rede-
velopment Authority determines necessary to carry out the purposes and
objectives of the Plan and of Chapter 121 of the General Laws. That
provision attempts to delegate to the Lowell Redevelopment Authority
discretion and responsibility vested in the Board of Trustees by the
Legislature. Such a delegation of authority would be unlawful.
The Board of Trustees have plenary powers to enter into a contract
for the purchase of the subject land on mutually acceptable conditions.
However, the Board of Trustees cannot contract to re-delegate or trans-
fer to another the powers, responsibilities or discretion vested in said
Board by the General Court.
It is my opinion that the agreement proposed by the Lowell Rede-
velopment Authority would be invalid because its provisions would pvu-
port to prevent the Commonwealth from exercising its sovereign po'wers.
Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528, 552 (1942) .
It is my opinion that the Trustees of Lowell Technological Institute
should not approve or sign the agreement submitted by the Lowell Re-
development Authority in the form submitted by your letter of May 25,
1965. If approved and signed by the Trustees certain conditions included
in said proposed agreement in its present form would not be acceptable
to the Commonwealth.
Very truly yours,
Edward W. Brooke
The Department of Public Safety and the Massachusetts Port Authority
may agree to the furnishing of State Police assistance at any of the
Authority's projects or facilities, including Logan Airport, where
the Authority can insist that police assistance be furnished pursu-
ant to the agreement of June 1, 1959; additional personnel may be
sent to the Airport pursiiant to the Authority's enabling act or c.
22, § 9K, but the Authority cannot require that State Police person-
nel be made available under those statutes. If agreements are reached,
the Authority retains the right to approval of all persojinel assigned
— and may refuse to compensate officers xvho have not been approved.
The Authority cannot require State Police to patrol the Mystic River
Bridge or the Port properties if the Department is not willing to
supply personnel.
June 8, 1965.
Hon. Richard R. Caples, Commissioner of Public Safety.
Dear Commissioner Caples: —I have received your letter of May 11,
1965, relative to certain legal relationships existing between the Depart-
P.D. 12 301
ment of Public Safety and the Massachusetts Port Authority. You have
requested my opinion on fourteen questions involving interpretation of
the Port Authority's enabling statutes, §§ 9J and 9K of c. 22 of the Gen-
eral Laws, and a written agreement entered into by the Department and
the Authority on June 1, 1959. The specific questions appear in the
body of this opinion.
Before addressing myself to your fourteen questions, I believe that a
brief examination of the present status of applicable laws and relevant
agreements would be of assistance.
The Massachusetts Port Authority, created in 1956 by c. 465 of the
Acts of that year, operates certain airport properties (Logan Airport
and Hanscom Field) , the Mystic Bridge and the port properties formerly
controlled by the now dissolved Port of Boston Commission. Control of
the Sumner Tunnel was originally vested in the Port Authority, but has
since been transferred to the Massachusetts Turnpike Authority. [St.
1958, c. 598, § 10.]
The Legislature provided in the Port Authority's enabling statute
that the Authority could request assistance from certain state and local
departments and agencies ^vith regard to the operation of the properties
placed under its control.
". . . The Authority may call upon the department of public works,
the metropolitan district commission, the department of commerce, the
department of public safety, the planning board of the city, and such
other state or city boards, commissions, divisions or agencies as may be
deemed advisable for the purposes of assisting in making investigations,
studies, surveys and estimates, and in policing the projects, and the
Authority may arrange for payment for such services and expenses of
said agencies in connection therewith. . . ." (Emphasis supplied.)
St. 1956, c. 465, § 23, as amended by St. 1958, c. 599, § 11
Thus, the Authority is authorized to request the aid of the State Police,
among others, in policing all of its projects.
In 1959, the General Court made more specific provisions for the use
of State Police officers by the Massachusetts Port Authority. By St. 1959,
c. 274, the Legislature added §§ 9 J and 9K to c. 22 of the General Laws.
Section 9J governs the furnishing of State Police service at the Logan
Airport, and provides in part as follows:
"The Commissioner [of public safety] is hereby authorized and directed
to enter into an agreement with the Massachusetts Port Authority for
police service to be furnished to the Authority by the department at
the General Edward Lawrence Logan International Airport. Said agree-
ment shall fix the legal responsibility pertaining to the operation and
maintenance of such service. . . ." (Emphasis supplied.)
This section further requires that provision be made for such items as
costs of retirement, compensation of injured officers, sick leave and other
benefits, and that the agreement expressly state that expenses incurred
by the Department in supplying police service thereunder are to be paid
by the Authority.
302 P.D. 12
Section 9K, on the other hand, is not limited in its effect simply to
the Logan Airport.
"The commissioner may appoint and organize a state police force of
such size as he and the Authority may agree upon, in addition to any
other force authorized by law, to be assigned to the Massachusetts Port
Authority to meet the requirements of section twenty-three of chapter
four hundred and sixty-five of the acts of nineteen hundred and fifty-
six, as amended by section eleven of chapter five hundred and ninety-
nine of the acts of nineteen hundred and fifty-eight. The officers of the
state police force, so appointed and so assigned, shall have the same
powers and be subject to the same qualifications, orders or restrictions
as officers appointed under the provisions of section nine A. During such
assignment, such officers, in the performance of their duties, shall be
subject to the control of the commissioner, but shall perform such police
duties as may be requested by the Authority. , . . All assignments and
reassignments to the Authority hereunder and under section nine A,
except as the commissioner shall determine that an emergency exists or
is threatened, shall be subject to the approval of the Authority." (Em-
phasis supplied.)
By providing that the police force referred to in ^ 9K would be used to
meet the requirements of St. 1956, c. 465, § 23 and St. 1958, c. 599, § 11,
which sections refer to all of the Authority's projects, the Legislature
indicated that the police assistance furnished under § 9K could be as-
signed to any of the Authority's properties, and need not be limited —
as is the case under § 9J — to the Logan Airport. In addition, the refer-
ences to c. 22, § 9A (relating to additional appointments to the Division
of State Police), and the provisions with regard to the interchangeability
of officers appointed under §§ 9A and 9K, demonstrate that officers des-
ignated for duty under § 9K may be special appointees in the sense tised
in c. 22, § 9A, rather than regular State Police personnel. Such would
not seem to be the case with § 9J, which section appears to contemplate
the use of members of the regularly selected State Police force. Thus the
title affixed to St. 1959, c. 274 is inaccurate, since properties other than
Logan Airport may be affected.
On June 1, 1959, the Department of Public Safety and the Massachu-
setts Port Authority entered into an agreement relative to policing
Logan Airport as called for by c. 22, § 9J. It was therein agreed that
the Commissioner of Public Safety would assign to the Airport such
officers of the State Police as might be requested by the Authority. The
Authority agreed to be responsible for payment of the persons assigned,
and retained the right to disapprove any police officer recommended
for duty. It was also provided that "any time after one year from the
date upon which the agreement takes effect, either party may cancel
said agreement upon giving written notice ninety (90) days in advance
of the date upon which said party desires to cancel the agreement."
Since the date of this agreement, the Department of Public Safety has
supplied State Police officers to the Port Authority to perform duties
not only at the Logan Airport, but at the port properties and the Mystic
River Bridge as well. Disagreements between the Department and the
Authority have arisen with respect to the continued use of State Police
P.D. 12 303
officers at Authority projects. The Department apparently insists that
it lacks legal authority to provide State Police officers for any Authority
property other than the Logan Airport. In addition, I understand that
you intend to cancel the above-described agreement relative to the Logan
Airport at midnight on August 12, 1965, and have already given written
notice to this effect. In light of the above, you have requested advice
upon fourteen questions relating to the legal authority and responsi-
bilities of your Department and the Port Authority, which questions I
will treat with separately.
"1. Under General Laws, chapter 22, section 9J, the Commissioner of
Public Safety is authorized and directed to enter into an agreement with
the Massachusetts Port Authority. Does this section make it mandatory
upon the part of the Massachusetts Port Authority to enter into an
agr.eement with the Commissioner of Public Safety?"
Section 9J of c. 22 provides that the Commissioner is authorized and
directed to enter into agreement with the Massachusetts Port Authority
with regard to the furnishing of State Police service at the Logan Air-
port. In the light of related statutory provisions, I can only conclude
that the General Court used the word "directed" advisedly, and intended
that the reaching of such an agreement be mandatory on the part of
both your Department and the Authority. At no other point has the
Legislature used the word "directed" in connection with Department —
Authority negotiations or arrangements, either in § 23 of the Authority's
enabling statute or in c. 22, § 9K. It is clear that, by inserting the word
in § 9J, the Legislature intended to remove from the parties involved
all discretion as to whether to conclude the described agreement.
Should such a mandatory construction not be given to the section,
this part of the statute becomes a virtual nullity. The Authority may
request assistance from the Department pursuant to the terms of its
enabling act, and further statutory provision of a permissive nature
would add nothing. Rather, it appears that — in connection with the
policing of the Logan Airport — the General Court has now required
that the parties cooperate, and has withdrawn any authority formerly
vested in them to refuse to do so. The fact that details of the agreement
have been left to the parties represents simply a delegation of adminis-
trative diuies, not a legislative determination that the parties are to
be empowered to have no agreemnt at all.
"2. LTnder General Laws, chapter 22, section 9J, the Commissioner of
Public Safety and the Massachusetts Port Authority did enter into an
agreement for the policing of the Logan International Airport at East
Boston, Massachusetts. A copy of that Agreement is attached hereto.
Under this agreement, may the Massachusetts Port Authority request
the State Police officers to police any facility or project of the Massachu-
setts Port Authority other than the said Logan International Airport at
East Boston?"
The agreement referred to includes a preliminary clause which refers
to the authority vested in the Commissioner by c. 274 of the Acts of
1959 "to enter into an agreement with the Authority for police services
at the General Edward Lawrence Logan International Airport in East
304 P.D. 12
Boston, Massachusetts." It is then specifically provided that the Com-
missioner "shall assign to police said Airport such number of troopers
and superior officers of the Massachusetts State Police as may from time
to time and upon reasonable notice be requested by the Authority."
Other references to the Airport appear throughout.
By its very terms, the agreement is clearly limited to the Logan Airport,
and was presumably entered into for the purpose of complying with the
directive of c. 22, § 9J. I am aware that certain provisions of the agree-
ment are suggestive of clauses appearing in § 9K, and may well have
been drafted with such clauses in mind. But the effect of the agreement
cannot be expanded beyond its clear terms. The agreement of June 1,
1959 relates solely to the Logan Airport, and does not authorize the
Port Authority to request police assistance at other projects which it
controls. It should be emphasized, however, that this limitation relates
only to the specific agreement, and does not affect rights vested in the
Authority by other statutory provisions.
"3. Is the force of State Police officers appointed and organized in
accordance with the Agreement authorized by General Laws, chapter 22,
section 9J or under section 9K?"
As discussed above, the agreement of June I, 1959 relates solely to the
Logan Airport, and accordingly was apparently entered into pursuant
to c. 22, § 9J.
"4. Does General Laws, chapter 22, section 9K authorize the Massa-
chusetts Port Authority to request that the State Police officers assigned
under the agreement made under General Laws, Chapter 22, section 9J
to perform police service at any other facility or project of the Massa-
chusetts Port Authority than at Logan International Airport, East Bos-
ton, Massachusetts?"
The agreement relates solely to police service at the Logan Airport.
However, it is clear that c. 22, § 9K authorizes the Authority to request
police assistance for its other properties — as, in fact, does the Authority's
enabling statute. Although § 9K would not permit the Authority to
insist that officers assigned to Logan Airport pursuant to the agreement
be available for other projects as well, nothing would prevent the De-
partment from agreeing to use the same personnel at all places. Such
personnel could — under the Authority's enabling statute — be regular
State Police officers; or they could — under c. 22, § 9K — be especially
appointed by the Commissioner for such duties. In either event, the
providing of State Police assistance for Authority properties other than
Logan Airport must be subject to agreement by both parties, and cannot
be reciuired by the Authority or imposed by the Department.
"5. If the Massachusetts Port Authority requests the State Police to
do police service at the facilities or projects of the Massachusetts Port
Autliority, other than the Logan International Airport, is the Commis-
sioner of Public Safety required to organize another State Police force
under the authority of General Laws, chapter 22, section 9K?"
If the Department agrees to furnish police assistance to facilities other
than the Logan Airport, two choices are available to the Commissioner.
P.D. 12 305
He may act pursuant to St. 1956, c. 465, § 23, as amended, and provide
regular State Police personnel, either in connection with the Logan Air-
port detail or independent therelrom. Or he may, pursuant to c. 22,
§ 9K, appoint a special force for such properties, subject to the approval
of the Authority. Proceeding under the 1956 act, however, the Commis-
sioner cannot impose personnel upon the Authority, since the latter can
withdraw its request for assistance and refuse to compensate the per-
sons assigned. The question whether a separate force assigned under c.
22, § 9K is desirable is a subject for consideration by and agreement
between the parties.
"6. Absent a determination by the Commissioner that an emergency
exists or is threatened, may the Commissioner lawfully assign any mem-
ber of the State Police to duty with the Massachusetts Port Authority at
Logan International Airport, without the prior approval of the Massa-
chusetts Port Authority?"
The issue is resolved by par. 6 of the agreement, which paragraph
provides in part that "[n]o trooper or officer shall be assigned to this
detail without the approval of the Authority." The Commissioner also
agreed to replace any person assigned upon written request by the Au-
thority to do so. Clearly, prior approval of assignments of personnel by
the Authority is required. Shoulcl the Commissioner resort to par. 4 and
increase the Logan Airport detail on the basis that an emergency exists,
the Commissioner's determination that an emergency exists, or is threat-
ened must be reasonable under the circumstances and cannot be arbitrary.
"7. Absent a determination by the Commissioner that an emergency
exists or is threatened, may the Commissioner lawfully assign any mem-
ber of the State Police to duty at any of the facilities or projects of the
Massachusetts Port Authority other than Logan International Airport,
without the prior approval of the Massachusetts Port Authority?"
As indicated above in connection with questions 5 and 6, the Com-
missioner may not assign State Police officers to Authority projects with-
out the approval of the Authority. Authority approval of assignments
to Logan Airport under the agreement is required by par. 6 of that
agreement. Assignments to projects pursuant to c. 22, § 9K require Au-
thority approval under the terms of that section. Likewise, assignment
of personnel pursuant to § 23 of the Authority's enabling act depends
upon agreement by both of the parties involved. Once again, a deter-
mination by the Commissioner that an emergency exists or is threatened
must be a reasonable determination.
"8. If the Commissioner, absent a determination by him that an emer-
gency exists or is threatened, should assign a member of the State Police
to duty with the Massachusetts Port Authority at Logan International
Airport without the prior approval of the Massachusetts Port Authority,
may the Massachusetts Port Authority lawfully refuse to pay the com-
pensation of such member while so assigned?"
Since the agreement entered into pursuant to c. 22, § 9J requires
Authority approval of assignments, the Authority may lawfully refuse
to compensate persons assigned without such approval. Should the Com-
306 P.D. 12
missioner choose to appoint personnel to the Logan Airport under § 9K,
such appointments would likewise be subject to Authority approval
under the terms of that section, and the Authority would not be liable
for compensation absent the giving of such approval.
"9. If the Commissioner and the Massachusetts Port Authority be un-
able to agree upon the size of the State Police Force, may either the
Commissioner or the Massachusetts Port Authority unilaterally deter-
mine the size of such police force to be so assigned, and the Massachu-
setts Port Authority lawfully be required to pay the entire compensation
of each of the members of such force?"
The size of the force to be assigned at the Logan Airport pursuant
to c. 22, § 9J (and the related agreement) may be determined unilater-
ally by the Authority, since par. 1 of the agreement provides that per-
sonnel shall be assigned in such number as the Authority shall request.
However, personnel to be assigned under St. 1956, c. 465, § 23, as
amended, or under c. 22, § 9K — be they assigned to Logan Airport or
to other Authority properties — are subject to whatever other agreements
the parties may reach, and can neither be required by the Authority nor
imposd by the Department. Should the Department attempt to assign
personnel arbitrarily under either of these statutes, such personnel need
not be compensated by the Authority.
"10. Inasmuch as paragraph three of section 10 of the agreement pur-
ports to give either party the right to cancel that agreement, is that
agreement valid in view of the first sentence of General Laws, chapter
22, section 9J?"
Since the agreement entered into pursuant to c. 22, § 9J is required
by the General Court, it follows that the parties may not lawfully deter-
mine to have no agreement at all. Accordingly, the parties may not
simply rescind the agreement. However, nothing prevents the parties
from altering this agreement consistent with the statute, or even from
entering into a new agreement. The provision in par. 10 of the agree-
ment which allows either party to cancel upon ninety days' written
notice is not — in and of itself — void, since the parties may lawfully
arrange for such notification relative to alteration of the existing agree-
ment. Should such notice be given, however, the parties must negotiate
a new agreement in order to conform with the mandatory provisions
of c. 22, § 9J. Absent a decision by the Department and the Authority to
have a new agreement or to alter the existing one, the present agree-
ment must remain in force and cannot be terminated by either party.
"11. Inasmuch as the Agreement does not set forth a police force of
the size as the Commissioner and the Massachusetts Port Authority
agreed upon, but rather left it to be determined unilaterally by the
Massachusetts Port Authority, is the agreement valid and in compliance
with the law?"
As suggested above in connection with question 1, the General Court
has provided in c. 22, § 9J that there shall be an agreement between the
Department and the Authority, and has left the working out of the
details of that agreement to the parties involved. Included among such
P.D. 12 307
details is the determination of size of the force. Such delegation is clearly
consistent with sound administrative practice, and in no way renders
the ao;reenient or the statute authorizing it invalid. Likewise, the fact
that the parties chose to vest the responsibility in the Port Authority
alone in no way represents an abuse of discretion or a contradiction of
legislative intent. Accordingly, it is clear that the agreement of June 1,
1959 between the Department of Public Safety and the Massachusetts
Port Authority is wholly valid and in compliance with law.
"12. Absent a determination by the Commissioner that an emergency
exists or is threatened, but a determination by the Commissioner that
the number of State Police officers at the Logan International Airport,
at the request of the Massachusetts Port Authority, is inadequate to per-
form the amount of police service required at the Logan International
Airport, and as a result the citizens of the Commonwealth, the Airlines,
and the users of Logan International Airport are being put in constant
jeopardy and being deprived of normal public safety measures, may the
Commissioner unilaterally increase the force and lawfully require the
Massachusetts Port Authority to pay the entire compensation for each
member?"
The agreement dated June 1, 1959 between the Department and the
Authority, entered into pursuant to c. 22, § 9J sets forth that the Authority
is to detennine the number of officers to be assigned thereunder. Like-
wise, officers cannot be assigned under § 9K without Authority approval.
Both the cited agreement and the applicable statutes provide that —
in the absence of a reasonable determination by the Commissioner that
an emergency has arisen — the responsibility of judging what is necessary
for the efficient policing of the Logan Airport is to be vested solely in
the Port Authority.
"13. Under paragraph 5 of the Agreement, the State Police officers
assigned as set forth above shall be governed by the Rules and Regula-
tions of the Uniformed Branch, Massachusetts State Police. Under Rule
5.19 of the Rtdes and Regulations, a 'Troop Commander' is a commis-
sioned officer with the rank of Captain. Under Rule 14.1, commissioned
officers will be assigned such troops or detachments as the commissioner
may direct. If, under the agreement, the Massachusetts Port Authority
requests the Commissioner to assign any given number of men to the
Massachusetts Port Authority, may the Commissioner unilaterally deter-
mine the rank and grade of the State Police so assigned?"
The initial determination as to rank and giade of officers assigned to
aid the Port Authority rests with the Commissioner. In so far as the
Airport properties are concerned, clause #1 of the agreement of June 1,
1959 provides that you shall assign troopers and superior officers to the
Airport as requested by the Authority. With respect to the remaining
properties operated by and within the jurisdiction of the Authority, the
appointment and assignment of State Police officers is subject to the
agreement of the Authority and your Department, as more particularly
set forth in my response to question ^^4 and my discussion relating to
St. 1956, c. 465, S 23, as amended, set forth above.
308 P.D. 12
"14. If the answer to the above is in the affirmative, may the Massachu-
setts Port Authority legally refuse to approve the assignment of the officer
merely because the officer holds a higher rank in the Uniformed Branch,
Massachusetts State Police, than they wish to pay compensation for?"
This inquiry is answered by my response to question 13.
The variety and complexity of the statutory provisions affecting these
matters, as well as the effect of the agreement of June 1, 1959, can easily
result in a substantial degree of confusion and a real threat to continued
safety at Port Authority projects. It is certainly understandable that dis-
agreements as to the interpretation of the applicable laws could arise.
However, the above responses represent a construction of the statutes
and agreements at issue, and hopefully may lead to a solution of present
difficulties consistent with the intentions of the General Court.
In general terms, it would appear that the Department and the Author-
ity may agree to the furnishing of State Police assistance at any of the
Authority's projects, including the Logan Airport. If such agreements are
reached, the Authority retains the right of approval of all personnel
assigned — and may refuse to compensate offi.cers who have not been
approved. However, it is clear that the Authority cannot require State
Police to patrol the Mystic River Bridge or the port properties if the
Department is not willing to supply personnel.
The Authority may, on the other hand, insist that police assistance be
furnished at Logan Airport pursuant to the agreement of June 1, 1959.
Additional personnel may be sent to the Airport pursuant to the Author-
ity's enabling act or c. 22, § 9K, but the Authority cannot require that
State Police personnel be made available under those statutes. Despite
the fact that there must be an agreement under c. 22, § 9J, the Authority
retains the right — in accordance with the terms of the agreement — to
approve all personnel assigned thereunder.
Very truly yours,
Edward W. Brooke
Pursuant to G. L. c. 112, § 66, the fitting of contact lenses to the human
eye constitutes the practice of optometry, and is therefore barred to
opticians.
June 9, 1965.
Hon. John E. Quinn, M.D., Secretary,
Board of Registration in Optometry.
Dear Sir: — I am in receipt of your request for my opinion on the
following questions:
"1) Does the fitting of contact lenses to the human eye constitute the
practice of optometry as defined by Chapter 112, Section 66, of the
General Laws?
"2) May persons who are neither registered optometrists nor physicians
or surgeons lawfully fit contact lenses to the human eye?"
P.D. 12 309
In view of the lack of judicial interpretation in this Commonwealth
of the questions presented, I am grateful for the thorough background
material presented to me by your board, counsel for the Massachusetts
Society of Optometrists and counsel for the Guild of Prescription Opti-
cians of America, Inc.
I will answer your questions in the order presented.
Chapter 112, § 66 of the General Laws provides:
"The practice of optometry, as referred to in sections sixty-seven to
seventy-three, inclusive, is hereby defined to be the employment of any
method or means, other than the use of drugs, for the diagnosis of any
optical defect, deficiency or deformity of the human eye, or visual or
mu-scular anomaly of the visual system, or the adaptation or prescribing
of lenses, prisms or ocular exercises for the correction, relief or aid of
the visual functions."
Inasmuch as the fitting of contact lenses, by definition, involves "the
adaptation ... of lenses . . . for the correction, relief or aid of the visual
functions," such fitting constitutes the practice of optometry under the
statute. The definition of "adaptation" to include "fitting," in this
context, is widely supported by the opinions of several courts. Keating v.
Sturges, 372 S.W.2d (Mo.) 104, 113. New Jersey State Board of Optom-
etrists V. Reiss, 198 A.2d (N. J. Super.) 816, 822. State of Oregon ex rel.
Reed v. Jnzirian, 228 Ore. 619. Accordingly, I answer your first question
in the affirmative.
The second question involves a more complicated problem of statu-
tory construction. Under G. L. c. 112, § 68, the practice of optometry
is limited to qualified registered optometrists. However, G. L. c. 112, § 73
provides that "Sections sixty-six to seventy-two A, inclusive, shall not
apply to physicians and surgeons . . . or to persons who neither practice
optometry nor profess to practice optometry but who sell spectacles, eye-
glasses or lenses, either on prescription ... or as merchandise." (Emphasis
supplied.) The right of physicians and surgeons to practice optometry
under c. 112, § 73 is unconditional and absolute. On the other hand,
the right as it extends to persons who sell spectacles, eyeglasses or lenses
[opticians] appears to be conditioned on the proviso that they not prac-
tice optometry generally. (Unless the word "generally" is supplied, the
statute would be self-contradictory for it would provide that sellers of
eyeglasses and like merchandise may practice optometry as long as they
belong to a class that does not practice it.) The real question, therefore,
is whether the fitting of contact lenses is included in the practice of
optometry generally or whether it falls within the exception in favor
of persons "^vho sell spectacles, eyeglasses or lenses." I am of the opinion
that the fitting of contact lenses involves the general practice of optom-
etry and is, therefore, barred to opticians.
It is a settled rule of statutory construction that exceptions are to be
strictly construed. Opinion of the Justices, 254 Mass. 617, 620-621.
Endlich, INTERPRETATION OF STATUTES, 742.
310 P.D. 12
I am mindful of the statement contained in your letter of March 19:
"The proper fitting of contact lenses requires a thorough knowledge of
ocular physiology and anatomy, because the lens must be fitted so as to
least disturb the normal physiology of the eye. The use of diagnostic
instruments and fluorescent liquid is helpful in this respect, but in addi-
tion, there is required the exercise of sound professional judgment based
on appropriate training and experience." The fact that the qualifications
for optometry, as established by statute, are considerably higher and
more exacting than those set for opticians (see G. L. c. 112, § 68.
Cf. c. 112, §§ 73C-73L.), supports the view that the Legislature did not
intend opticians to fit contact lenses.
I call your attention to G. L. c. 112, § 73C, defining an optician as one
"who prepares and dispenses lenses, spectacles, eyeglasses and appliances
thereto to the intended wearer thereon on written prescriptions from a
duly registered physician or optometrist, and, in accordance with such
prescription, interjects, measures, adapts, fits, and adjusts such lenses,
spectacles, eyeglasses or appliances thereto to the human face for the aid
or correction of visual or ocular anomalies of the human eye." (Emphasis
supplied.) This statute should be compared with G. L. c. 112, § 66,
which contains the following definition of optometry: "The adaptation
or prescribing of lenses, prisms, or ocular exercises for the correction,
relief, or aid of visual functions." In § 73C, the phrase "to the human
face" modifies and restricts the words "interprets, measures, adapts, fits,
and adjusts," whereas in § 66 the word "adaptation" is not restricted by
a similar phrase. The fitting of contact lenses involves fitting lenses
directly to the "eye," rather than to the "face" as eyeglass frames are fitted.
It is my opinion, therefore, that while optometrists, physicians and
surgeons may adapt lenses to the face (e.g., eyeglasses) or to the eye
(contact lenses), opticians may adapt them only to the face.
Accordingly, I answer your second inquiry in the negative.
Very truly yours,
Edward W. Brooke
The phrase, "the duties of which are described," as found in St. 1963;
c. 775, refers to those duties ichich the Dictionary of Occuptional
Titles sets out in its job descriptions.
"Title" as contained in the Act refers to a single title, and classifications
are to be made with reference to a single title.
June 15, 1965.
Reverend Hubert C. Callaghan, S. J., CJiairman, Personnel Appeals
Board.
Dear Father Callaghan: — I have received your letter of April 23,
1965, requesting an opinion regarding c. 775 of the Acts of 1963. Chapter
775 provides for a professional salary schedule for state employees. The
pertinent portion of the chapter is quoted below:
"For the pvirposes of this section, the words 'professional position' shall
mean any title in the office and position classification plan of the common-
P.D. 12 311
wealth (1) the specifications for which require (a) a consistent exercise
of discretion and judgment in a formal and well-organized field of knowl-
edge, and (b) academic study, training, or experience of a scope and
character commensurate with the duties of the office or position, and
(2) the duties of which are described under a title classified as a pro-
fessional occupation under code numbers 0-00 to and including 0-39.99
in the 'Dictionary of Occupational Titles', prepared by the Employment
Service in the United States Department of Labor, a copy of which is on
file in the bureau of personnel."
You have asked the following questions:
"1. Should the language, 'the duties of which are described . . .' be
interpreted to mean the duties which are described in the official job
description for the classification in question, or should it be interpreted
to mean the duties of the position as they actually exist when there is
some degree of variance between such duties in practice and the same
duties as described in the official job description?
"2. Should the above mentioned language where the statute reads,
'. . . under a title classified as a professional occupation . . .,' be inter-
preted to mean that if all or a major portion of the duties of the classifica-
tion are not found to be described under a single title within the code
numbers indicated in the statute, the classification in question may not
be found to be professional under Chapter 775? Or should this language
be interpreted in such a way that if all or a major portion of the duties
of the position is not found to be described under a single title in the
'Dictionary of Occupational Titles,' yet is to be found under two or
more titles of the Dictionary, such classification may be found to be pro-
fessional under the provisions of Chapter 775 of the Acts of 1963?"
With regard to your first question, the phrase "the duties of which
are described" refers to those duties which the Dictionary of Occupational
Titles sets out in its job descriptions. These are duties "described . . .
in the 'Dictionary of Occupational Titles' . . ." and, as such, are the
duties recited in the above-quoted c. 775. That some variance exists
between the official job description and "such duties in practice" clearly
does not derogate from the plain meaning of the words in the legislative
enactment. Therefore, it is my opinion that the phrase refers to the
official job description for the classification in question.
With regard to your second question, the phrase ". . . under a title
classified as a professional occupation , . ." employs singular, as opposed
to plural, language throughout. In addition, should "a title" be read as
"titles," the effect would be to broaden the concept of professional posi-
tion beyond the descriptions of each of the individual listings of duties
as set out in the Dictionary of Occupational Titles. Should this approach
be taken, the result would go beyond the Legislature's contemplation
much less its expressed intention. It is therefore my opinion that "a title"
refers to a single title and that classifications are intended to be made
with reference to a single title.
Very truly yours,
Edward W. Brooke
312 P.D. 12
// it appears that a trailer, located on realty taken by the exercise of
eminent domain, has neither lost its identity by being placed on
the land nor that its removal would cause material damage to the
land or the trailer itself, such trailer is not part of the land taken
by eminent domain and the Commonwealth may not pay an award
of damages for or to said trailer because it did not acquire title
thereto.
June 18, 1965.
Hon. Francis W. Sargent, Commissioner,
Department of Public Works.
Re: Anthony and Judy Torosian, Auburn,
Worcester County, Layout 5437,
Parcel 2-80.
Dear Commissioner Sargent: — By letter of May 28, 1965, you have
asked if the trailer on land involved in the above-captioned taking is
subject to such a lien as would require the Department of Public Works
to recognize the conditional vendor of said trailer as entitled to payment
of part of the award of damages.
To reply to your question first requires consideration of the second
paragraph of said May 28th letter which states:
"Parcel 2-80 was owned at the time of the taking by Anthony and
Judy Torosian who were living in a trailer permanently affixed to the
ground on a concrete block foundation and permanently connected to
water and electrical service, [emphasis supplied]
This quotation contains the erroneous conclusion of law that the trailer
is real property and subject to the exercise of the power of eminent
domain.
"Where the chattel is so affixed to the realty that its identity is lost,
or where it cannot be removed without material injury to the realty
or to itself, the intent to make it a part of the realty may be established
as a matter of law." Bay State York Co. v. Marvix, Inc., 331 Mass. 409,
119 N.E. 2d 727. Also see Stone v. Livingston, 222 Mass. 192, 110 N.E. 297.
From the facts stated in your letter it does not appear that the trailer
in question has either lost its identity by being placed on the land or
that its removal would cause material damage to the land or the trailer
itself. The exercise of due care in disconnecting utility services and lifting
the trailer from the concrete blocks upon which it now rests would
prevent damage of any property involved. It is also to be noted that the
trailer has not been taxed as realty by the Town of Auburn in which
it is located.
In the case of Medford Trust Co. v. Priggen Steel Garage Co., 174 N.E.
126, steel garages were placed on the land. Two were placed atop con-
crete piers and one of these two was fastened to the piers with nuts and
bolts and a concrete floor was poured. The only way to remove the latter
garage was to remove the bolts and break the concrete floor. In that case
the Supreme Judicial Court found that the garages remained personalty
P.D. 12 513
because they were not so affixed to the reaky that their identity was
lost and because they could be removed without material injury to the
real estate or themselves.
Whether an article is personalty or realty is a mixed question of fact
and law and the intent of the parties is determined from their action.
See Ferdinand v. Earle. 241 Mass. 92, 184 N.E. 603. The fact that prop-
erty is bought on conditional sale, even if imknown to the mortgagee,
has some tendency to show that the landowner did not intend it to
remain permanently. Med ford Trust Co. v. Priggen Steel Garage Co.
supra. See also Walker Dishwasher Corporation v. Medford Trust Co.,
279 Mass. 33, 180 N.E. 517. The conditional sales agreement between
Mr. and Mrs. Torosian and the General Electric Credit Corporation,
described in your May 28th letter, is evidence of the intent of the parties
to consider the trailer as personalty.
"Although it may have been within the contemplation of the parties
that the chattel be attached to the realty, where articles are sold on the
condition that the title shall not pass until they are paid for, or until
some other condition is fulfilled, their annexation to the realty of the
purchaser does not render them a part of the realty and irremovable,
but an agreement preserving the character of the articles as personalty
or reserving the right of removal is implied." 36A Corpus Juris 2nd pp.
620, 627.
It is my opinion that the General Electric Credit Corporation is not
entitled to payment of part of the award of damages arising from the
above-captioned taking because the trailer of which it was the condi-
tional vendor or its assignee was not part of the real estate taken by
eminent domain. It is my further opinion that the Commonwealth may
not pay an award of damages for or to said trailer because it did not
acquire title thereto by its order of taking parcel 2-80 of layout 5437 in
Worcester County. Not being a part of the interest in the realty taken
by the Commonwealth, the trailer should be removed from the real
property within a reasonable time at the expense of its owner.
The above obviates the necessity of an answer to the question con-
tained in your letter.
Very truly yours,
Edward W. Brooke
The Board of Bank Incorporation has the authority to approve the
petition of the Rockland Trust Company to move its present branch
office from one location to another in the toiun of Cohasset.
June 21, 1965.
Hon. John B. Hynes, Chairman, Board of Bank Incorporation.
Dear Commissioner Hynes:— I have your request of June 8, 1965,
wherein you ask my opinion whether or not the Board of Bank Incor-
poration has the authority to approve the petition of the Rockland
Trust Company, a Plymouth County Bank, to move its present branch
314 P.D. 12
office from one location to another in the Norfolk County Town of
Cohasset. Specifically, you have inquired whether the recent legislative
enactments concerning branch banking across county lines in any way
affects the special authorization granted to the Rockland Trust Com-
pany by c. 100, Acts of 1932, to maintain a branch office in the Town
of Cohasset.
The legislative history concerning the establishment of branch offices
by trust companies has moved from an early prohibition restricting
branch offices to the city or town wherein its main office was located
(c. 355, Acts of 1902) to the present limitations contained in G. L. c.
172, § 11, which states:
(a) After such notice and hearing as the board may proscribe, a
trust company may, with the approval of the board, establish and oper-
ate one or more branch offices in the city or town where its principal
office is located, or in any other city or town in the same county having
no commercial banking facilities or having banking facilities which, in
the opinion of the board, are inadequate for the public convenience. . . .
" (b) With the approval of the board of bank incorporation, such
corporation may change the location of its principal office or any branch
office, when the public convenience so requires, to any place where a
branch office may be established and operated by it, and, with like
approval, the former principal office of the corporation may thereafter
be operated as a branch office. . . ,"
Chapter 100, Acts of 1932, authorized the Board of Bank Incorporation
to permit the Rockland Trust Company to maintain a branch office in
the Town of Cohasset. At the time this act was passed, trust companies
were restricted to branch offices in the city or town wherein their main
offices were located. In 1956 the Board of Bank Incorporation permitted
the Rockland Trust Company to move its location from 48 South Main
Street to a new location at 1 1 South Main Street in the ToAvn of Cohasset.
The General Laws had been amended at this time to restrict branch
offices to locations in the county wherein the main office was located.
In the case of Commonwealth v. Welosky, 276 Mass. 398 (1931) , the
Supreme Judicial Court set forth a rule to be observed in statutory con-
struction. The Court stated at page 401 that:
"Statutes are to be interpreted, not alone according to their simple,
literal or strict verbal meaning, but in connection with their develop-
ment, their progression through the legislative body, the history of the
times, prior legislation, contemporary cutsoms and conditions and the
system of positive law of which they are part. . . ."
It seems quite apparent that the grant of authority contained in c.
100, Acts of 1932 must be read in conjunction with the provisions of
G. L. c. 172, § 11. The Legislature has never in its wisdom seen fit to
expressly repeal the exception granted to the Rockland Trust Company
to operate a branch office in Norfolk County. There is little doubt that
the legislative intent was, and still is, to permit the Rockland Trust
Company to maintain a branch office in the Town of Cohasset.
P.D. 12 315
It is my opinion that the Board of Bank Incorporation does have the
authority to approve a change of location of the branch office of the
Rockland Trust Company in the Town of Cohasset. The final decision
as to the actual location of any new branch office is, of course, within
the discretion of the Board of Bank Incorporation, guided by the require-
ments of the public convenience.
Very truly yours,
Edward W. Brooke
The Massachusetts Executive Committee for Educational Television does
not have independent authority to determine the rate structure for
. member systems, an operating budget, and number, qualifications
and reimbursement for employees.
The Committee's secretarial and clerical employees fall within Civil
Sei~uice jurisdiction, and it is not free to pay personnel salaries with-
out regard to the salary schedules in Chapter 30, §§ 46 and 46B of
the General Laws.
The committee is not compelled to process its business transaction
through "other divisions of the state government," but its expendi-
tures, in so far as they are from funds appropriated to it by the
General Court, are subject to the provisions of G. L. c. 29, § 18.
June 23, 1965.
Hon. Owen B. Kiernan, Commissioner of Education.
Dear Commissioner Kiernan: — I have received your recent letter for-
malizing the request of the Massachusetts Executive Committee for Edu-
cational Television for my opinion regarding the following questions:
"I. Whether the Executive Committee, under Chapter 567, Acts of
1960, has the authority to determine, independent from any other state
agency or department or division, the rate structure for member systems,
an operating budget sufficient to permit effective operation, and the num-
ber, qualifications and reimbursement for employees of the Massachu-
setts Executive Committee for Educational Television?
"2. Whether secretarial or clerical employees of the Massachusetts Ex-
ecutive Committee for Educational Television must be members of the
Civil Service?
"3. Whether business transactions authorized by the Massachusetts Ex-
ecutive Committee for Educational Television must be processed through
other divisions of the state government; or whether, under those appli-
cable laws governing any authority or state sub-division, it can carry on
its own business transactions?
"4. Since the salary and expenses, etc. of the committee are paid out
of a trust fund known as the Educational Television Program Fund and
nothing has been paid by legislative appropriation, whether or not the
Executive Committee is free to pay personnel what it feels they are en-
316 P.D. 12
titled to without regard to the salary schedules contained in Chapter 30,
sections 46 and 46B of the General Laws?"
Chapter 567 of the Acts of 1960 abolishes the Massachusetts Board of
Educational Television and rewrites G. L. c. 71, §§ 13F through 131,
inclusive, by replacing the Board of Educational TTelevision with the
Executive Committee. In so doing, G. L. c. 71, §§ 13F through 131,
delineates the powers of the Executive Committee and determines the
Committee's relationship to other state agencies.
The Legislature has charged the Committee with the duty of admin-
istering and coordinating broadcasts of educational programs to supple-
ment the courses of study in elementary and high schools. (G. L. c. 71,
§ 13F.) In order to perform this function, the Legislature vested the
Committee with certain necessarily concomitant powers among which
is the authority to contract and make payments for the furnishing of
the educational programs.
"In order to carry out its duties . . . [the committee] may —
(b) Prepare programs, enter into agreements providing for the fur-
nishing of programs. . . ."
G. L. c. 71, § 131.
This authority to contract must be construed liberally in order to give
effect to § 131 (e), which empowers the committee to:
"Do all acts and things necessary or convenient to carry out the pur-
poses for which the committee is created."
Consequently, the Committee has authority to enter into agreement
covering the costs of programing with city and town school committees
which, according to the terms of § 13F, may contribute in an amount
not to exceed one dollar per pupil. The Committee determines, as a pre-
liminary matter, exactly what the contribution or "rate" will be. This
decision is, however, subject to the approval of the Department of
Education.
The legislative title of c. 567 of the Acts of 1960 places the Committee
within the Department of Education. That title reads as follows:
"An act abolishing the Massachusetts Board of Educational Television
and establishing in the Department of Education an Executive Com-
mittee for Educational Television." (Emphasis supplied.)
Accordingly, the text of the act provides for the Board of Education's
approval of the Committee's determinations.
"Subject to the approval of the board of education, the executive com-
mittee for educational television shall act in matters pertaining to edu-
cational television. . . ." (Emphasis supplied.)
G. L. c. 11, § 13G.
"Matters pertaining to educational television" encompass the collect-
ing of contributions or fixing of rates charged member systems, hence are
P.D. 12 317
subject to review by the Board of Education and cannot be determined
by the Committee acting independently ol any other authority. The
same must be said about all the other activities reterred to in your first
question. Because the singular purpose of the activities reterred to in
question number one is programing, it involves acts "pertaining to edu-
cational television"; thus, it is "subject to the approval of the Board of
Education." Moreover, on the question of making personnel decisions,
§ 13G specifically provides:
". . . Said committee shall recommend to said board of education the
appointment of such professional personnel as is necessary to carry on
the work of the committee, and may recom.mend the appointment of
such clerical, engineering, legal or other assistants as it deems necessary.
. . ." (Emphasis supplied.)
It is, therefore, my opinion that the answer to your first question must
be in the negative.
The Civil Service Commission's ability to classify certain positions,
among them secretarial and clerical personnel, arises from G. L. c. 31,
§ 3, which provides:
"Subject to the approval of the governor and council, the commission
from time to time shall make . . . rules which shall regulate the selection
and employment of persons to fill positions in the official service of the
commonwealth. . . ."
Since the General Court established the Executive Committee to pro-
vide educational programs for elementary and high schools, the em-
ployees of the Committee are in the service of the Commonwealth, hence
subject to any rules that the Civil Service Commission promulgates pur-
suant to G. L. c. 31, § 3, unless specifically exempted.
That the Civil Service Rules do govern the status of clerks and secre-
taries is apparent since Rule 3 states:
"All persons ... in any of the following offices and positions and
classes of positions, . . . are subject to the Civil Service Law and Rules
. . . Class 3. Clerks, secretaries. ..."
It is, therefore, my opinion that the Executive Committee's secretarial
and clerical employees fall within Civil Service jurisdiction. Accordingly,
I answer your second question in the affirmative.
This conclusion necessarily determines my opinion on the fourth ques-
tion you have asked of me; for, the rates of compensation provided by
G. L. c. 30, § 46 and 46B apply to personnel who are classified as being
subject to Civil Service regulations. The fact that the actual payments
made to employees are — at you indicate in posing the request — from
the Program Fimd does not alter the jurisdiction of the General Court
to piescribe Civil Service salaries for those employees of the Committee
that fall within Civil Service classifications. It is, therefore, my opinion
that the Committee is not free to set the salary of any employee who is
within Civil Service jurisdiction without reference to G. L. c. 30, §§
46 and 46B.
318 P.D. 12
To the extent that employees classified as being within the purview
of Civil Service by Civil Service Rule 3 are involved in the first question
of yovir request, there are further limitations on the Committee's inde-
pendence to determine reimbursement for their employees.
The Committee may receive payments of money from school com-
mittees, organizations, or individuals which take advantage of the educa-
tional broadcasts. Section 13H specifically provides that these monies
received shall be paid into a trust fund known as the Educational Tele-
vision Program Fund. These receipts then are not paid into the general
fund of the Commonwealth because the terms of G. L. c. 29, § 2 excepts
from the general fund:
". . . revenue required by law to be paid into a fund other than the
general fund and revenue for or on account of . . . trust funds. . . ."
G. L. c. 29, § 2.
Consequently, the Committee in expending the Fund need not comply
with G. L. c. 29, § 18, which requires a warrant and certification by the
Comptroller, nor the constitutional provision for an Executive Council
vote on the warrant. To this extent, the Committee need not process its
business transactions through "other divisions of the state government."
However, in so far as the Committee's expenditures are from funds
appropriated to it by the General Court, compliance with G. L. c. 29,
§ 18 would be a necessity.
Very truly yours,
Edward W. Brooke
The solicitation of funds for the Blind is regulated in Massachusetts by
G. L. c. 69, %% 25 A through 23 E, and any organization, not specifi-
cally exempted by § 25E, is required to request and obtain a license
as provided by § 25 JB.
June 24, 1965.
Hon. John F. Mungovan, Director, Divisio?i of the Blind.
Dear Director Mungovan: — I have received your letter of March
24, 1965, requesting my opinion on the legality of a solicitation by the
Donna Fund of the American Foundation for the Blind. You have stated
the following as facts:
"The American Foundation for the Blind has recently conducted a
direct mail solicitation of many residents of Massachusetts under the
name of 'Donna Fund of American Foundation for the Blind, Inc.',
State Street Bank and Trust Company, P. O. Box 20, Boston Massachu-
setts, 02101.
"The American Foundation for the Blind did not request or obtain
a license for this fund raising appeal from the Division of the Blind."
The solicitation of funds for the Blind is regulated in Massachusetts
by G. L. c. 69, §§ 25A through 25E. Section 25B of said chapter provides
in part as follows:
P.D. 12 319
"No person shall . . . solicit funds, for the benefit of any blind person
or group of blind persons, without a license under section 25A."
The only exceptions to the licensing requirement of § 25B are con-
tained in § 25E, which provides in part:
"Sections 25A to 25D inclusive, shall not apply to the Perkins institu-
tion and Massachusetts School for the Blind, to the Catholic Guild for
the Blind, or to any organization incorporated under the laws of the
Commonwealth prior to January first, nineteen hundred and thirty-
eight."
On the facts as you have stated them, it is clear that the Donna Fund
of the American Foundation of the Blind is not one of those organiza-
tions specifically exempted by § 25E from the coverage of the prior sec-
tions. Accordingly, despite the high value that must be placed on the
furthering of such worthwhile efforts as are engaged in by the American
Foundation for the Blind, they are nevertheless required to request and
obtain a license as provided by § 25B.
Regarding the Donna Fund solicitation itself, it is my opinion that
where no license was obtained, there was no compliance with our laws.
Accordingly, the Donna Fund of the American Foundation for the Blind
did violate the provisions of G. L. c. 69, §§ 25 A through 25E.
Very truly yours,
Edward W. Brooke
Chapter 581 of St. 1956 transferred the sidewalks which lie within the
limits of Ocean Avenue, Revere, to the care and control by the
Metropolitan District Commission.
June 28, 1965.
Hon. Howard W^hitmore, Jr.^ Commissioner, Metropolitan District
Commission.
Dear Commissioner Whitmore: — I am in receipt of your letter of
May 13, 1965, wherein you request my opinion on the inclusion of side-
walks in the transfer of Ocean Avenue, Revere to the Metropolitan Dis-
trict Commission.
Specifically, you have asked:
"Does Chapter 581 of the Acts of 1956, wherein Ocean Avenue, Revere
was transferred to care and control by the M.D.C., include the sidewalks
on said Ocean Avenue in addition to the highway of said Ocean Avenue,
Revere?"
Chapter 581 of the Acts of 1956 provides in part:
"For the purpose of connecting certain boulevards and parkways pres-
ently under the care and control of the metropolitan district commission,
and for the further purpose of providing continuous connections or
320 P.D. 12
feeder roads to certain portions of the state highway system within the
metropolitan area. . . .
"Said commission is . . . authorized and directed to take over the care,
control and maintenance of Ocean Avenue in the city of Revere. . . ."
To reply to your question it is necessary that the intent of the Legis-
lature in promulgating this transfer be deduced from the prior history
of the roadway in question.
By c. 445, Acts of 1931, § 3, the Department of Public Works was
directed to widen and reconstruct Ocean Avenue, Revere. That section
provided:
"The department is hereby further directed to widen and reconstruct
Ocean Avenue in the city of Revere. . . . When the work authorized by
this section shall have been completed, said way shall become a city way
and shall be kept in good condition and repair by said city of Revere.
Acting under the legislative authorization of the above-quoted section,
the Department of Public Works did widen and reconstruct Ocean
Avenue; in so doing, the department constructed new sidewalks. I have
examined the layout plan of Ocean Avenue which you have provided
("Plan of Road in the City of Revere, Suffolk County, dated January
25, 1933.") It is clear from the plan that the sidewalks lie within the
limits of the way. Widening the roadway necessitated, by implication,
the reconstruction of the sidewalks. Having satisfied the mandate of c.
445 as to the improvements, said property, roadway and sidewalks were
turned over to the City of Revere in conformance with the direction em-
bodied in the last sentence of § 3, c. 445 of the Acts of 1931.
Ocean Avenue and its sidewalks remained under the control and care
of the City of Revere until 1956, when, by c. 581 of the Acts of 1956,
the Legislature directed that care, control and maintenance of Ocean
Avenue be undertaken by the Metropolitan District Commission.
In the absence of any contrary legislative expression, the care and
control of Ocean Avenue, Revere, included the sidewalks. This was true
under c. 445 of the Acts of 1931 when the property was transferred to
the Department of Public Works, and was also true by virtue of that
same act when the property was transferred to the City of Revere. Con-
sequently, in the absence of contrary language in c. 581, Acts of 1956,
the care and control of the sidewalks which lie within the limits of
Ocean Avenue is transferred to your Commission.
Accordingly, I answer your question in the affirmative.
Very truly yours,
Edward W. Brooke
P.D. 12 321
// a factual determination is made that an employee is one having police
powers under c. 90, § 29, who suffered injury through no fault of
his own in the actual performance of his duty, the Registrar is
authorized to pay hiju, out of the Highway Fund, his reasonable
hospital, medical and surgical expenses attributable to such injury.
June 28, 1965.
Hon. Richard E. McLaughlin, Registrar of Motor Vehicles.
Dear Registrar McLaughlin:—! have received your letter of May
17, 1965, requesting my opinion as to the applicability of c. 16, §§ 10
and 11, providing for the payment of hospital expenses to registry em-
ployees ^vith police powers in the following circumstances.
You state that:
"^V^e have had a Motor Vehicle Examiner sustain injuries while per-
forming clerical w^ork associated with his law enforcement activities and
have been requested to pay him for the time which he has lost as well
as for his doctor's and medical bills. However, the injury was not sus-
tained "\vhile he was examining or investigating a motor vehicle violation
or accident."
General Laws c. 16, § 10 provides as follows:
"The registrar of motor vehicles may authorize the payment, out of
the Highway Fund, of the reasonable hospital, medical and surgical
expenses of any employee in the registry of motor vehicles having police
powers under section twenty-nine of chapter ninety who is temporarily
or permanently disabled, either mentally or physically, by reason of in-
juries sustained through no fault of his own in the actual performance
of his duty."
The language of the above-quoted provision, in setting out the re-
quirements for its applicability, states that the employee be one "having
police powers under section 29 of chapter 90." From the facts as you
have stated them, I conclude that a Motor Vehicle Examiner is an em-
ployee having police powers under c. 90, § 29. Such Motor Vehicle
Examiner would therefore be within the purview of the provisions of
c. 16, § 10.
Chapter 16, § 10 requires that the injury to such employee be "sus-
tained through no fault of his own in the actual performance of his
duty." No distinctions between clerical, examining or investigative duties
are drawn in the statute.
Accordingly, it is my opinion that if you make a factual determination
that the employee in question is an employee, having police powers
under c. 90, § 29, who suffered the injury through no fault of his own
in the actual performance of his duty, you are authorized to pay him,
out of the Highway Fund, his reasonable hospital, medical and surgical
expenses attributable to such injury.
Very truly yours,
Edward W. Brooke
322 P.D. 12
Pursuant to c. 29, § 59, the Treasurer of the Commonwealth is to report
lost or destroyed interest-bearing bonds to the Governor and Council.
The requirement of c. 29, § 42, providing for the annual examination
of the value of notes and securities in charge of the State Treasurer
by a committee of the Executive Council, has been repealed by the
enactment of St. 1964, c. 740.
June 28, 1965.
Hon. Robert Q. Crane, Treasurer and Receiver General of the
Commonwealth.
Dear Sir: —I have received your letter of May 12, 1965, requesting
my opinion on the effect of c. 740 of the Acts of 1964, repealing the
statutory powers of the Governor's Council, upon c. 29, § 42, providing
for the annual examination of the value of notes and securities in charge
of the State Treasurer by a committee of the Governor's Council.
Specifically, you have asked:
". . . will you kindly advise me whether a committee of the council
shall continue to examine the securities within the State Treasurer's
office and if they are to continue such examination, to whom should the
committee report?"
Section 4 of c. 780 of the Acts of 1964 provides in part:
"Subject to section 2 of this act and except as required by the Con-
stitution of the Commonwealth, so much of each provision of the Gen-
eral Laws and of any special law as requires the advice and consent of
the council with respect to any action or omission to act by . . . any
officer ... in the executive department, including without limitation,
any . . . investment . . . sale . . . disposition or transfer ... is hereby
repealed."
In defining "advice and consent," section one of c. 740 of the Acts
of 1964 provides:
"As used in this Act, the phrase 'advice and consent of the council'
shall include without limitation, approval, advice, consent, and advice
and consent, however phrased in the General Laws and in any special
law of the Commonwealth." (Emphasis supplied.)
Chapter 29, § 42, providing for the annual examination of notes and
securities by a committee of the Governor's Council, states in part:
"The governor shall . . . appoint a committee of the council, which
shall examine the value of the notes and securities . . . and report
thereon to the governor and council, who may direct him to sell or col-
lect notes or securities . . . and to reinvest the proceeds. . . ."
Although the phraseology of c. 29, § 42 does not expressly use the
words "advice" or "advice and consent," it is my opinion that the lan-
guage of section 42, that the committee of the executive council shall
examine and report, is to the same effect. From a reading of the statute,
it is apparent that the purpose of the committee's report is to inform
the Governor and make recommendations with respect to the disposition
P.D. 12 323
of the notes and securities. In that sense then, the report of the commit-
tee is advisory and therefore within the purview of § 1 of c. 740 of the
Acts of 1964, defining "advice and consent," and consequently within
the scope of § 4 of that Act, repealing the requirement of their advice.
It is my opinion that the advisory power of the committee of the
council in this context falls within the purposes of the referendum. I,
therefore, answer your question in the negative. The committee of the
Council, heretofore prescribed by c. 29, § 42, shall not be required to
examine the notes and securities nor to report, as a prerequisite to action
bv the Governor.
As a second question you have asked:
"Under said section 59 of Chapter 29, should this office continue to
report lost or destroyed interest bearing bonds to the Governor and
Council as stated therein?"
Section 59 of c. 29 provides:
"If it appears to the governor and council that any interest-bearing
bond of the commonwealth identified by number and description has,
without bad faith upon the part of the owner, been lost or destroyed,
wholly or in part, they shall, under regulations and with restrictions as
to time and retention for security or otherwise prescribed by them, order
the state treasurer to issue a registered duplicate of such bond, payable
at the same time, bearing the same rate of interest as the bond lost or
destroyed, and so marked as to show the number and date of the original
bond. If such bond was of a class or series which has been called in for
redemption before the application for a reissue, it shall be paid, with
such interest only as would have been paid if the bond had been presented
in accordance with such call."
The provisions of the above-quoted statute granting authority to the
Governor and Council to issue bond duplicates is not affected by the
provisions of c. 740 of the Acts of 1964. There is no requirement, express
or implied, in c. 29, § 59 that the "advice and consent" of the Governor's
Council is a prerequisite to the ordering of the duplicate bonds. The
function of the Council, therefore, in this situation is not one of those
intended to be repealed by the referendum.
Moreover, the effect of c. 740 in repealing certain of the powers of
the Governor's Council, was in no way intended to relieve the Treasurer's
office of its responsibility in this context. Even assuming, for the pur-
poses of argument, that the effect of c. 740 was to somehow bar the
power of the Council relative to the issuance of duplicate bonds, this
would not relieve your office of its responsibility to report to the Council
and, in any event, to the Governor.
Consequently, I answer your second question in the affirmative. The
Treasurer's office should continue to report lost or destroyed interest-
bearing bonds to the Governor and Council as provided in c. 29, § 59.
Very truly yours,
Edward W. Brooke
INDEX TO OPINIONS
PAGE
Accelerated Highway Program:
Powers of Board of Project Review under St. 1963 c. 822 §9. . 96
Settlement of land damage claims under St. 1962 c. 782 and St.
1963 c. 822 196
Taking of land for highway maintenance purposes. ... 98
Adjutant General of Massachusetts:
Hiring of consultants to survey and appraise replacement fa-
cilities for Irvington Street Armory under St. 1962 c. 716. . 244
Administration and Finance, Executive Office for:
Disclosure of financial interest in land sold or leased to Com-
monwealth. 175
Establishment of uniform system of control and accounting for
state equipment 254
Financial assistance contracts of Massachusetts Bay Transpor-
tation Authority 226
Pension rights of widow of judge 148
Powers of state agency heads as to liability for damage to or loss
of state equipment 254, 290
Professional salary schedule for state employees under St. 1963
c. 775 310
Purchases by state agencies 56
Recruitment of professional personnel by state agencies. . . 117
Reimbursement of retired state employee for expenses incurred
in subsequent state service 230
Transfer of funds under Capital Outlay Statutes. . . . 277
Vacations for state employees. 146
Administrative law:
Interpretative regulations of administrative agencies. . . 152, 259
Advertising:
Contraceptives. 61
Firearms, sale of 103
Public hearing of State Racing Commission 120
Age requirements:
For candidate for elective office 40
For civil service position. 209
For license as plumber 171
For license as radio and television technician under "grandfather
clause" 90,155,159
Interpretation of "not over forty-five years of age". ... 57
326 P.D. 12
PAGE
Agriculture, Department of:
Effect of retirement from state service on right to reimburse-
ment for expenses incurred in subsequent service in Department. 230
Milk, sales of 270, 295
Nomination of member of Board of Agriculture as Commis-
sioner or as Director of a Division 229
Poultry, business of buying and selling 163
Powers of Commissioner and Board of Agriculture. ... 52
Aliens:
Registration as pharmacist 83
Armory Commission:
Hiring of consultants to survey and appraise replacement fa-
cilities for Irvington Street Armory under St. 1962 c. 716. . 244
Assembly, place of:
Bowling alley as a 82
Attorney General:
Opinions 77
Powers as to claims against Commonwealth 259
Powers as to claims of Commonwealth 290
Ballot Law Commission, State:
Powers as to review of nomination papers 40
Validity of nomination following improper but unprotested
placement of candidate's name on primary ballot. . . . 107
Bank Incorporation, Board of:
Branch banking across county lines 313
Berkshire Rehabilitation Center:
Eligibility to receive equipment from Massachusetts Rehabilita-
tion Commission. 94
Bidding, competitive:
Eligibility of contractors 194
Purchases and contracts for purchases by state agencies. . . 56
Renegotiation of public contracts 77
Blind, Division of the:
Solicitation of funds for the blind without license. . . . 318
Blue Cross-Blue Shield:
Rate filings for hospital insurance. 247
Boston Architectural Center:
As an institute of higher education 221
P.D. 12 327
PACE
Boston Harbor:
Public rights in 163
Boston University:
Authority to issue bachelor of science degree. .... 100
Bowling alley:
As a "public hall" or "place of assembly" 82
Boxing Commission, State:
Tax on sale of tickets and admission fees to boxing matches on
closed-circuit television 292
Bridges:
Powers and duties of Metropolitan District Commission and
Massachusetts Port Authority under St. 1964 c. 682. . . . 132
Building Construction, Division of
Transfer of funds under Capital Outlay Statutes. . . . 277
Cambridge, City of:
Calculation of urban renewal assistance grants for Peabody
School 235
Cape Cod Reservation:
Jurisdiction of federal, state and local police. .... 280
Capital Outlay Statutes:
Transfer of funds. 277
Charles River:
Construction of bridge under St. 1964 c. 682 132
Chelsea River:
Public rights in 156
Children:
Commitment to school for emotionally disturbed children. . 116
Pledge of allegiance to flag in schools 243
Required use of protective eye devices in schools. ... 48
Civil Service, Division of:
Age requirements for employment 57, 209
Department of Education, application of civil service laws to
employees of 79, 189, 315, 129
Municipal police departments, reorganization of. ... 201
Probationary period of employment 42, 94
Regional Community Colleges, application of civil service laws
to employees of 105
328 P.D. 12
PAGE
Reinstatement of dismissed employees 105, 256
Veterans' preferences 42
Veterans, reinstatement of. 216
Welfare Compensation Plans 44, 219
Commitment:
Claims against patients for loss of or damage to state property. 290
Commitment of emotionally disturbed children to special school. 116
Commitment of sexually dangerous person to treatment center
not yet established 289
Discharge of criminal defendants under commitment. . . 149
Transfer of patients committed to state hospitals. . . . 130
Competitive bidding:
Eligibility of contractors 194
Purchases and contracts for purchases by state agencies. . . 56
Renegotiation of public contracts. 77
Comptroller's Bureau:
Certification of expenditures by Massachusetts Executive Com-
mittee for Educational Television 315
Establishment of uniform system of control and accounting for
state equipment 254
Powers of state agency heads as to liability for damage to or
loss of state equipment 254, 290
Reimbursement of retired state employee for expenses incurred
in subsequent state service 230
Transfer of funds under Capital Outlay Statutes 277
Conflict of Laws:
Licenses to carry firearms. 91
New Hampshire Sweepstakes 84
Constitutionality:
Constitutional powers of Governor's Council. 149, 231, 233, 173, 190
Conversion of domestic insurance companies into business corpo-
rations. 286
Penalty for advertising contraceptives. 61
Pledge of allegiance to flag by school children 243
Suspension of public officers and employees indicted for mis-
conduct in office 38
Taking of land for highway maintenance purposes. ... 38
Transfer of revenue from cigarette excise taxes to Massachusetts
Bay Transportation Authority 226
Use of public funds for purchase of equipment to be used by
private organizations under St. 1956 c. 602 94
P.D. 12 329
PAGE
Consultants:
Hiring of to survey and appraise replacement facilities for
Irvington Street Armory under St. 1962 c. 716 244
Retired state employees as 143
Consumers' Council:
Referral selling schemes 108, 160
Contact lenses:
Fitting of as optometry 308
Contraceptives:
Advertising of. 63
Contracts, public:
Appeal of decisions of Department of Public Works to Board of
Contract Appeals as a prerequisite to judicial remedies. . . 259
Between public agencies 205, 132, 300, 167
Competitive bidding requirements in contracts to purchase
supplies 56
Effect of contractor's non-payment of withholding taxes. . . 56
Extra-work-order payments, approval of by Governor's Council. 149
Financial assistance contracts of Massachusetts Bay Transpor-
tation Authority. 226
Prequalilication of contractors 194
Renegotiation. 77
Repair or restoration of work performed which is damaged or
destroyed by unusually severe weather 128
Correction, Department of:
Deductions from prison sentences 187
Effect of commitment of prisoner to treatment center not yet
established 289
Corrupt Practices Act:
Political contributions by public officers and employees. . 112
Courts, jurisdiction of:
Appeal of decision of Department of Public Works by contrac-
tor 259
Appeal of transfer by patient committed to state hospital. . 130
Crime Commission, Massachusetts:
Political contributions by public officers and employees. . . 112
Defense Bases Act:
Employment under as affecting workmen's compensation cover-
age of state employee 205
330 P.D. 12
PAGE
Disclosure laws:
Financial interest in land sold or leased to Commonwealth. . 175
Discrimination, Massachusetts Commission Against:
Age requirements for civil service positions 209
Applications for plumber's licenses 171
Domicile:
Married woman whose husband is absent on military service. 75
Persons eligible for vocational rehabilitation services. . . 283, 101
Drugs:
Prescriptions for "harmful" and "caution" drugs. ... 61
Subleasing of fountain area within drugstore. .... 83
Use of narcotics in treatment for drug addiction. . . . 104
Easement, public:
Erection of fences by owner of servient estate. . . . . 109
Education, Department of:
Allocation of powers within Department 79, 315
Blind people, solicitation of funds for 318
Civil service laws, application of 189, 79
Emotionally disturbed children, commitment to schools for. 116
Higher education, institutions of. 221
Lowell Technological Institute 140, 198
Public schools, employees of 265, 214
Public schools, pledge of allegiance to flag in 243
Public schools, state aid to 269, 252, 235
Public schools, use of protective eye devices in 48
Southeastern Massachusetts Technological Institute. . . 164, 179
State colleges 129
University of Massachusetts 35, 205, 277
Educational institutions:
Boston Architectural Center 221
Boston University. 100
Institutions under control of Department of Education. See
Education, Department of.
Institutions under control of Department of Mental Health. 237
Massachusetts Bay Community College 256
Regional community colleges 105, 248, 256
Elections:
Absentee ballots 75
Appointment of public employee as Registar of Voters. . . 109
P.D. 12 331
PAGE
Effect of minority and ineligibility to vote on right to file nomi-
nation papers 40
Nomination by ward and town committees 110
Nomination by "write-in" votes 110
Nomination following improper but unprotested placement of
candidate's name on ballot 107
Political contributions. 112,275
Voting residence of married woman 75
Electrologists, Board of Registration of:
Expiration of licenses; fees therefor 67
Licensing and regulation of physician's assistant 65
Elevator Regulations, Board of:
Postponement of application for variance. 144
Eminent domain:
Fixtures on land taken 312
Inclusion of amount of damages awarded in order of taking. 268
Interest on land damages 182,250
Land damage payments, approval by Governor's Council of. 156
Land damage payments under St. 1958 c. 647 258
Land damage payment for public land taken by Government
Center Commission 149
Land damages for improvement of navigation in tideland flats. 246
Land taking for highway maintenance purposes 98
Land takings by state agencies, approval by Govenor's Council
of 126,234
Powers of Board of Project Review under St. 1963 c 822 §9. . 96
Settlement of land damage claims under St. 1962 c. 782 and St
1963 c. 822 196
Employment, public:
See Civil Service, Division of; Public Service.
Enforcement of laws:
Activities connected with New Hampshire Sweepstakes. . . 84
In Cape Cod Reservation. 280
On Property of Massachusetts Port Authority. . . . _ 300
Suppression of civil disturbances 124
Engineers:
Application by registered engineer for certificate as engineer-in
training 180
Educational requirements. 100
Effect of "grandfather clause" on registration 180
332 P.D. 12
PAGE
Equipment and supplies:
Establishment of uniform system of control and accounting for
Commonwealth equipment 254
Powers of state agency heads as to liability for damage to or loss
of state equipment 254, 290
Purchase of by state agencies 56, 94, 35
Executive Council:
Interpretation of "advice and consent" 69, 190
Powers as to appointments and removals in Executive Depart-
ment 135,149,231
Powers as to appointment of notaries public, justices of the
peace, masters in chancery and public administrators. . . 173
Powers as to appointment of quasi-judicial officers. . . 240, 173
Powers as to approval of extra- work-order payments to con-
tractors 149
Powers as to approval of land acquisition by state agencies. 233, 126
Powers as to approval of land damage payments 149
Powers as to approval of Treasurer's warrants. . . . 149, 190
Powers as to discharge of criminal defendants committed to state
hospitals. 274
Powers as to expenditures of Massachusetts Executive Committee
for Educational Television 315
Powers as to securities in State Treasury and lost or destroyed
interest-bearing bonds. 322
Powers under Constitution 240, 149, 173, 190, 274
Repeal of statutory powers 233,231,322,126,
135, 149, 240, 274, 173
Executive Office for Administration and Finance:
Disclosure of financial interest in land sold or leased to Com-
monwealth. 175
Establishment of uniform system of control and accounting for
state equipment 254
Financial assistance contracts of Massachusetts Bay Transpor-
tation Authority. 226
Pension rights of widow of judge 148
Powers of state agency heads as to liability for damage to or loss
of state equipment 254, 290
Professional salary schedule for state employees under St. 1963
c. 775 ' 310
Purchases by state agencies 56
Recruitment of professional personnel by state agencies. . . 117
Reimbursement of retired state employee for expenses incurred
in subsequent state service. 230
P.D. 12 333
PAGE
Transfer of funds under Capital Outlay Statutes. . . . 277
Vacations for state employees. 146
Eyes:
Fitting of contact lenses 308
Required use of protective eye devices in schools 48
Farmers Agricultural Cooperative Trading Society:
As a buyer and seller of poultry 163
Firearms:
Advertising for sale of 103
Collectors of. 91
Out-of-state licenses to carry 91
"Pen guns" as 263
Firemen:
Powers and duties of fire chief to assist in suppression of civil
disturbance 124
Fixtures:
Trailer on land taken by eminent domain 312
Flood Control:
Tax consequences of removal of buildings from flood control
area under St. 1957 c. 616 119
Funds, public:
Approval of expenditures by Governor's Council. . . 149, 190
Expenditures by Armory Commission for consultants, under St.
1962 c. 716 244
Expenditures by Department of Education for aid to schools.
252, 269
Expenditures by Department of Public Works under St. 1963 c.
732 142
Expenditures by Massachusetts Executive Committee for Edu-
cational Television 315
Expenditures by Metropolitan District Commission under St.
1964 c. 682 132
Expenditures by Massachusetts Rehabilitation Commission. . 69
Expenditures by school committees to indemnify employees. . 214
Expenditures by Trustees of University of Massachusetts. . . 35
Expenditures by Youth Service Division for pay in lieu of va-
cation leave 146
Reimbursement for expenses incurred by state officer receiving
state pension. 230
Reimbursement for expenses incurred for education of emotion-
ally disturbed children 116
334 P.D. 12
PAGE
Transfer of funds by Massachusetts Board of Regional Com-
munity Colleges 248
Transfer of funds to Massachusetts Bay Transportation Au-
thority 211,226,234
Transfer of funds under Capital Outlay Statutes. . . . 277
Urban renewal assistance grants 235
See Eminent Domain; Pinchases of equipment and supplies.
Funds, solicitation of:
Solicitations for the blind. 318
Testimonial dinners 275
Gas Regulatory Board:
Gas fitting 152
Powers of Board and of Public Utilities Commissioners. . . 271
Government Center Commission:
Payment of damages for public land taken under St. 1962 c. 685. 246
Governor:
Appointments and removals in Executive Department. . 149, 135
Appointment of judges 149, 240, 173
Appointment of notaries public, justices of the peace, masters in
chancery and public administrators 173
Appointment of quasi-judicial officers 240, 173
Approval of commitments of emotionally disturbed children to
special schools. 116
Approval of land acquisition by state agencies 126, 233
Constitutionality of law authorizing domestic insurance com-
panies to become business corporations 286
Removal of public officer and employee indicted for misconduct
in office 38
Removal of public officer or employee appointed to fill vacancy. 222
Governor's Council:
Interpretation of "advise and consent" 69, 190
Powers as to appointments and removals in Executive Depart-
ment 135,149,231
Powers as to appointment of notaries public, justices of the
peace, masters in chancery and public administrators. . . 173
Powers as to appointment of quasi-judicial officers. . . 240, 173
Powers as to approval of extra-work-order payments to contrac-
tors 149
Powers as to approval of land acquisition of state agencies. 233, 126
Powers as to discharge of criminal defendants committed to state
hospitals. 274
P.D. 12 335
PAGE
Powers as to approval of land damage payments. . . . 149
Powers as to approval of Treasurer's warrants, . . . 149, 190
Powers as to expenditures of Massachusetts Executive Committee
for Educational Television 315
Powers as to securities in State Treasury and lost or destroyed
interest-bearing bonds. 322
Powers under Constitution 240, 149, 173, 190, 274
Repeal of statutory powers 233, 231, 322, 126,
135, 149, 240, 274, 173
Hairdressers, Board of Registration of:
Application of "hairdresser" laws to scalp treatment establish-
ments. 253
Higher Education Facilities Act:
Qualification of Southeastern Massachusetts Technological Insti-
tute under. 164
Higher Education Facilities Commission:
Boston Architectural Center as an institute of higher education. 221
Highways:
Inclusion of sidcAvalks in transfer of Ocean Avenue in Revere
to Metropolitan District Commission under St. 1956 c. 581. . 319
Powers of Board of Project Review under St. 1963 c. 822 §9. . 96
Prequalification of contractors. 194
Settlement of land damage claims under St. 1962 c. 782 and St.
1963 c. 822 196
Taking of land for highway maintenance purposes. ... 96
Hospitals, state:
Acquisition of land for 126
Claims against patients for loss of or damage to state property. 290
Commitment of prisoner to treatment center not yet established. 289
North Reading State Sanatorium. 213
Powers of Commissioner of Mental Health over boards of trus-
tees 237
Powers of Governor's Council as to discharge of criminal de-
fendants under commitment 274
Transfer of patients between. 130
Hospitals, veterinary:
As "kennels" for licensing purposes 59
House of Representatives:
Constitutionality of transfer of revenue from cigarette excise
taxes to Massachusetts Bay Transportation Authority. . . 226
336 P.D. 12
PAGE
Imprisonment:
Claims against prisoners for loss of or damage to state property. 290
Deductions from prison sentences. 187
Indictment of public officer or employee:
Removal under Perry Law 38, 222
Industrial Accidents, Division of:
Application of workmen's compensation laws to state employee
working under Defense Bases Act 205
Application of workmen's compensation self-insurance require-
ments to Massachusetts Bay Transportation Authority. . 192, 234
Initiative Petition:
Proposed Massachusetts Sweepstakes 92
Repeal of statutory powers of Governor's Council. . 126, 149, 173,
240, 233, 231, 274, 322, 135
Insurance, Division of:
Classification of risks for motor vehicle insurance 63
Conversion of domestic insurance companies into business corpo-
rations. 286
Rate filings for hospital insurance 247
Irvington Street Armory:
Hiring of consultants by Armory Commission to survey and ap-
praise replacement facilities under St. 1962 c. 716. . . . 244
Judges:
Appointment of 240, 149, 173
Pensions for 148
Quasi- judicial officers. 173, 240
Jurisdiction of Courts:
Appeal of decision of Department of Public Works by contractor. 259
Appeal of transfer by patient committed to state hospital. . . 130
Kennels:
Licensing requirements 59
Labor and Industries, Department of:
Application of workmen's compensation laws to state employee
working under Defense Bases Act 205
Application of workmen's compensation self-insurance require-
ments to Massachusetts Bay Transportation Authority. . 234, 233
Meetings of Commission of Labor and Industries, power to call. 172
Land, Public:
Acquisition and sale of by Department of Natural Resources. 233
Acquisition of by Department of Mental Health. . . . 126, 200
P.D. 12 337
PAGE
Conditions in conveyance to Common^vealth. .... 298
Flood control area, removal of buildings from 119
Public easement, erection of fences in by owner of servient
estate. 109
Sales and leases of to Commonwealth 175, 233, 126
Tideland flats, public rights in 156
See Eminent Domain.
Law Enforcement:
Activities connected with New Hampshire Sweepstakes. . . 84
Ip Cape Cod Reservation. 280
On property of Massachusetts Port Authority 300
Suppression of civil disturbances 124
Licenses:
Electrologists 65, 67
Firearms 263,103,91
Hairdressers 253
Kennels 59
Milk Dealers 295
Optometrists. 308
Pharmacists 83
Physicians. 285
Plumbers 171,54
Poultry businesses. 163
Professional engineers and surveyers 100, 180
Racing 185,120,52
Radio and television technicians 264, 159, 155, 90
Solicitation of funds for the blind 318
Lieutenant Governor:
Powers of Governor's Council 149, 240, 190
Lotteries:
New Hampshire Sweepstakes 84
Proposed Massachusetts Sweepstakes 92
Referral selling schemes 108, 160
Lowell Redevelopment Authority:
Powers as to land transferred to Lowell Technological Institute. 298
Lowell Technological Institute:
Conditions in deed to land acquired by Institute. . . . 298
Power of trustees under St. 1964 c. 357 to classify jobs and to
change salaries and job descriptions 140
338 P.D. 12
PAGE
Married women:
Voting residence of 76
Massachusetts Bay Community College:
Reinstatement of dismissed employee by Civil Service Commis-
sion 256
Massachusetts Bay Transportation Authority:
Advancement of public funds to 211,226
Application of Workmen's compensation self-insurance require-
ments to 234,192
A.ssumption of rights and powers of Metropolitan Transit Au-
thority 211
Massachusetts Commission Against Discrimination:
Age requirements for civil service positions 209
Application for plumber's licenses 171
Massachusetts Crime Commission:
Political contributions by public officers and employees. . . 112
Massachusetts Executive Council for Educational Television:
Powers under St. 1960 c. 567 315
Massachusetts Hospital Service, Inc.:
Rate filings with Commissioner of Insurance 247
Massachusetts Port Authority:
Construction of bridge on Charles River under St. 1964 c. 682. 132
Law enforcement by State Police. 300
Massachusetts Rehabilitation Commission:
Eligibility of non-residents for vocational rehabilitation services.
101, 283
Powers of Commissioner and Advisory Council under St. 1956
c. 602 69
Purchase of equipment for use of private organization under St.
1956 c. 602 94
Medicine, Board of Registration in:
Licensing of physician already licensed in another state. . . 285
Meetings:
Commission of Labor and Industries, power to call. . . . 172
Governor's Council, necessity of to approve Treasury warrants. 190
Mental Health, Department of:
Acceptance of patients in residence at North Reading State
Sanatorium 213
P.D. 12 339
PAGE
Acquisition of land from United States Division of Surplus
Property. 200
Acquisition of land without approval of Governor's Council. 126
Patient's appeal of transfer from one state hospital to another. 130
Powers of Commissioner over boards of trustees of state insti-
tutions within Department 237
Recruitment of professional personnel 117
Metropolitan Area Planning Council:
Agreements with other governmental agencies. .... 167
Use of Federal funds 167
Metropolitan District Commission:
Appointments, salary increases and personnel upgradings with-
out approval of Governor's Council 231
Construction of bridge on Charles River under St. 1964 c. 682. 132
Inclusion of amount of damages awarded for land taken in order
of taking. 268
Inclusion of sidewalks in transfer of Ocean Avenue in Revere to
Metropolitan District Commission under St. 1956 c. 581. . . 319
Testimonial dinners. 275
Metropolitan Transit Authority:
Transfer of rights and powers to Massachusetts Bay Transpor-
tation Authority. 211
Milk Control Commission:
Distribution of free milk 270
Interpretation of "mlik dealer" 295
Minors:
Appointment to civil service positions 209
Licensing as plumbers. 171
Licensing as radio and television technicians. . . . 159, 155, 90
Nomination for elective office. 40
See children.
Motor vehicles:
Liability insurance 63
Use of on University of Massachusetts property 35
Motor Vehicles, Registry of:
Payment of medical expenses of Registry employees with police
powers. 321
Powers of Deputy Registrar during vacancy in office of Registrar. 138
Reproduction of seal of Commonwealth by private persons. . 73
Vacation time as affecting length of probationary period of em-
ployment. 94
340 P.D. 12
PAGE
Municipalities:
Municipal Light Boards, job classifications and salaries of em-
ployees of. 169
Powers as to preservation of peace 124
Powers as to state highways financed under St. 1963 c. 822 §9. 96
Reorganization of police departments 201
Urban renewal assistance grants 235
Welfare Compensation Plans 219,44
See Public Schools.
Narcotics:
Use of in treatment for drug addiction 104
Natural Resources, Department of:
Acquisition and sale of land without approval of Governor's
Council 233
Tax consequences of removal of buildings from flood control
area under St. 1957 c. 616 269
Navigation:
Public rights in tideland flats 156
New Bedford, City of:
Distribution of state aid to public schools prior to filing of
report under G. L. c. 72 269
New Hampshire:
Sweepstakes 84
Nomination for public office:
By ward and town committees 110
Effect of improper but unprotested placement of candidate's
name on ballot 107
Effect of minority and ineligibility to vote 40
"Write-in" candidates. 110
North Reading State Sanatorium:
Acceptance of patients in residence 213
Optometry, Board of Registration in:
Fitting of contact lenses 308
Parole Board:
Effect of commitment of prisoner to treatment center not yet
established 289
Peabody School:
Calculation of urban renewal assistance grants for. . . . 235
P.D. 12 341
PAGE
Pensions:
Rights of state officer receiving state pension to reimbursement
for expenses 230
Rights of widow of judge 148
Perry Law:
Constitutionality 38
Grounds for suspension of public officers and employees. . . 38
Removal of public officer or employee appointed to fill vacancy. 222
Personnel and Standardization, Bureau of:
Recruitment of professional personnel by state agencies. . . 117
V'acations for state personnel 146
Personnel Appeals Board:
Professional salary schedule for state employees under St. 1963
c. 775 310
Pharmacy, Board of Registration in:
Advertising of contraceptives 61
Prescription by podiatrist of "harmful" and "caution" drugs. 61
Registration of alien as pharmacist 83
Sub-leasing of fountain area within drugstore 83
Physician:
Distinguished from podiatrist. 61
Licensing and regulation of electrologist in physician's employ. 65
Licensing of physician already licensed in another state. . . 285
Use of narcotics in treatment for drug addiction 104
Plumbers, Board of State Examiners of:
Application form for license, contents of 171
Number of apprentices which may be hired by master plumber. 60
Renewal date for apprentice licenses 54
Podiatrist:
Distinguished from physician. 61
Prescriptions for "harmful" and "caution" drugs 61
Police:
Assistance from firemen in suppression of civil disturbance. . 124
Law enforcement in Cape Cod Reservation 280
Law enforcement in connection with New Hampshire Sweep-
stakes. 84
Law enforcement on property of Massachusetts Port Authority. 300
Medical expenses of Registry of Motor Vehicles employees with
police powers. 321
Reorganization of municipal police department 201
342 P.D. 12
PAGE
Political contributions:
Public officers and employees, contributions by 112
Testimonial dinners. 275
Poultry:
Business of buying and selling 163
Prisoners:
Claims against prisoners for loss of or damage to state property. 290
Commitment to treatment center not yet established. . . . 289
Deductions from prison sentences. 187
Discharge of criminal defendants under commitment. . . 274
Professional Engineers and Land Surveyers, Board of Registration
of:
Application by registered engineer for certificate as engineer-
in-training. 180
Educational requirements 100
"Grandfather clause". 180
Project Review, Board of:
Powers under St. 1963 c. 822 §9 96
Public authorities:
Lowell Redevelopment Authority 298
Massachusetts Bay Transportation Authority. . . 211,226,192,234
Massachusetts Port Authority 300, 132
Metropolitan Transit Authority 211
Public contracts:
Appeal of decisions of Department of Public Works to Board
of Contract Appeals as a prerequisite to judicial remedies. . 259
Between public agencies 205,132,300,167
Competitive bidding requirements in contracts to purchase sup-
plies 56
Effect of contractor's non-payment of withholding taxes. . . 56
Extra-work-order payments, approval of by Governor's Council. 149
Financial assistance contracts of Massachusetts Bay Transpor-
tation Authority 226
Prequalification of contractors 194
Renegotiation. 77
Repair or restoration of work performed which is damaged or
destroyed by unsually severe weather. 128
Public employment:
See Civil Service, Division of; Public Service.
P.D. 12 343
PAGE
Public funds:
Approval of expenditures by Governor's Council. . . . 149, 190
Expenditures by Armory Commission for consultants, under St.
1962 c. 716 244
Expenditures by Department of Education for aid to schools. 252, 269
Expenditures by Department of Public Works under St. 1963
c. 732 142
Expenditures by Massachusetts Executive Committee for Edu-
cational Television 315
Expenditures bv Metropolitan District Commission under St.
1964 c. 682. ' 132
Expenditures by Massachusetts Rehabilitation Commission. . 69
Expenditures by school committees to indemnify employees. . 214
Expenditures by Trustees of University of Massachusetts. . . 35
Expenditures by Youth Service Division for pay in lieu of va-
cation leave 146
Reimbursement for expenses incurred by state officer receiving
state pension. 230
Reimbursement for expenses incurred for education of emotion-
ally disturbed children 116
Transfer of funds by Massachusetts Board of Regional Com-
munity Colleges 248
Transfer of funds to Massachusetts Bay Transportation Au-
thority 211,226,234
Transfer of funds under Capital Outlay Statutes 277
Urban renewal assistance grants 235
See Eminent Domain; Purchases of equipment and supplies.
Public hall:
Distinguished from bowling alley. 82
Public Health, Department of:
Use of narcotics in treatment for drug addiction 104
Public land:
Acquisition and sale of by Department of Natural Resources. 233
Acquisition of by Department of Mental Health. . . . 126, 200
Conditions in conveyance to Commonwealth 298
Flood Control area, removal of buildings from 119
Public easement, erection of fences in by owner of servient
estate.
Sales and leases of to Commonwealth 175, 234, 126
Tideland flats, public rights in 156
See Eminent Domain.
344 P.D. 12
PAGE
Public Safety, Department of:
Bowling alley as a "public hall" 82
Firearm Laws 91, 263, 103
Law enforcement in Cape Cod Reservation 280
Law enforcement on property of Massachusetts Port Authority. 300
New Hampshire Sweepstakes. 84
Power of Board of Elevator Regulations to grant postponement
of application for variance 144
Powers and duties of fire chief to assist in suppression of civil
disturbance 124
Tax on sale of tickets and admission fees to boxing matches
on closed-circuit television 292
Public schools:
Indemnification of employees. 214
Pledge of allegiance to flag 243
Required use of protective eye devices 48
State aid 235, 252, 269
Supervisors of attendance. 265
Public service:
Appointment to public office or employment. . .149, 229, 240,
135,117,173,231
Educational requirements 265
Misconduct 38
Municipal Light Boards, employees of 169
Political contributions by persons in public service. . . 132, 275
Public "officer" distinguished from public "employee". . . 139
Removal or suspension from public office or employment. 149, 240,
231, 38, 135, 173, 222
Reimbursement for expenses 230, 321
Retirement; pension rights 143, 165, 230, 148
School Committees, employees of 165, 265
Vacations. 146
Wages and salaries 146, 169, 310, 140
Workmen's compensation, coverage under 205
See Civil Service, Division of.
Public Utilities, Department of:
Gas fitting. 152
Gas Regulatory Board, control over by Public Utilities Commis-
sioners. 271
Municipal Light Boards, employees of 169
P.D. 12 345
PAGE
Public Works, Department of:
Board of Project Review under St. 1963 c. 822 §9. ... 96
Contractor's appeal to Board of Contract Appeals as a pre-
requisite to judicial remedies 259
Contractor's duties as to work damaged or destroyed by weather. 128
Contractor's non-payment of withholding taxes as affecting state
contract 56
Contractors, prequalification of 194
Contracts, renegotiation of. 77
Dredging and filling of Winthrop Harbor under St. 1963 c. 732. 142
Fences erected within public easement by owner of servient
estate.
Land damage cases, settlement of under St. 1962 c. 782 and St.
1963 c. 822 196
Land damage payments under St. 1958 c. 647 258
Land damages for tideland flats 156
Land damages, interest on. 182,250
Land taking, fixtures included in. 312
Land taking for highway maintenance purposes 98
Purchases of equipment and supplies 56
Secretary of Public Works Commission 135
Purchases of equipment and supplies:
Competitive bidding requirements. 56
For use by private organization under St. 1956 c. 602. ... 94
Registration materials for vehicles used at University of Massa-
chusetts 35
Racing:
Powers of Department of Agriculture as to racing meetings in
connection with state or county fairs 52
See Racing Commission, State.
Racing Commission, State:
Additional racing dates 120
Distance from proposed track to nearest church, school or hous-
ing development. 185
Radio and Television Technicians, Board of Registration of:
"Grandfather clause" 90, 159, 155, 264
Licensing of employees of manufacturing company. ... 90
Rangers, United States:
Law enforcement in Cape Cod Reservation 280
Real Estate Review Board:
Powers. 196
346 P.D. 12
PAGE
Reciprocity:
Licenses to carry fireanns. 91
Licenses to practice medicine. 285
Reclamation Board, State:
Reimbursement for expenses incurred by member receiving state
pension 230
Regional Community Colleges, Massachusetts Board of:
Reinstatement of dismissed employee by Civil Service Commis-
sion 256, 105
Transfer of funds within and among subsidiary accounts. . . 248
Registration, Division of:
Electrologists: expiration of licenses; fees therefor. ... 67
Electrologists: licensing and regulation of physician's assistant
practicing electrolysis 65
Hairdressers: application to scalp treatment establishments. . 253
Optometrists: fitting of contact lenses. 308
Pharmacists: advertising of contraceptives 61
Pharmacists: prescription by podiatrist of "harmful" and "cau-
tion" drugs 61
Pharmacists: registration of aliens 83
Pharmacists: sub-leasing of fountain area within drugstore. . 83
Physicians: licensing of those already licensed in another state. 285
Plumbers: contents of application form 171
Plumbers: number of apprentices which may be hired by master
plumber 60
Plumbers: renewal date for apprentice licenses 54
Professional Engineers: application by registered engineer for
certificate as engineer-in-training 180
Professional engineers: educational requirements. . . . 100
Professional engineers: "grandfather clause" 180
Radio and television technicians: "grandfather clause". 90, 155,
159, 264
Radio and television technicians: licensing of employees of
manufacturing company 90
Veterinarians: licensing of veterinary hospitals as kennels. . 59
Registry of Motor Vehicles:
Payment of medical expenses of Registry employees with police
powers. 312
Powers of Deputy Registrar during vacancy in office of Registrar. 1 38
Reproduction of seal of Commonwealth by private persons. . 73
Vacation time as affecting length of probationary period. . . 94
P.D. 12 347
PAGE
Rehabilitation Commission, Massachusetts:
Eligibility of non-resident for vocational rehabilitation services.
101,283
Powers of Commissioner and Advisory Council under St. 1956
c. 602 69
Purchase of equipment for use of private organization under St.
1956 c. 602 94
Removal from public office or employment:
During probationary period 42, 94
Power of review by Civil Service Commission. . . . 105, 256
Powers of Governor's Council. 149, 135
Public officer or employee appointed to fill vacancy. . . . 222
Upon indictment for misconduct in office 38
Residence:
Married woman whose husband is absent on military service, . 75
Persons entitled to vocational rehabilitation services. . . 283, 101
Retirement:
Eligibility of retired persons for further state employment. 143, 230
Oral withdrawal of request for voluntary superannuation re-
tirement 165
Retroactivity:
Jurisdiction of Real Estate Review Board 196
Pensions for widows of certain judges. 148
Perry Law 38
Revere, City of:
Inclusion of sidewalks in transfer of Ocean Avenue to Metro-
politan District Commission under St. 1965 c. 581. . . . 319
Rockland Trust Company:
Branch banking across county lines 313
Schools:
Boston Architectural Center 221
Boston University. 100
Massachusetts Bay Community College 256
Powers of Department of Mental Health 237
Regional community colleges 105, 248, 256
See Education, Department of.
Seal of the Commonwealth:
Reproduction by private persons. 73
348 P.D. 12
PAGE
Secretary of the Commonwealth:
Appointment of public employee as Registrar of Voters. . . 109
Conversion of domestic insurance companies into business corpo-
rations 286
Filing of acceptance of nomination by "write-in" candidate;
power of ward and town committees to select candidates to fill
vacancies. 110
Powers as to filing of nomination papers 40, 107
Proposed Massachusetts Sweepstakes as a "question of public
policy" for submission to the voters 92
Seal of Commonwealth, reproduction of by private persons. . 73
Voting residence of married woman whose husband is absent on
military service 75
Senate:
Constitutionality of requirement that school children pledge
allegiance to flag 243
South Cape Beach:
Payment of land damages under St. 1958 c. 647 258
Southeastern Massachusetts Technological Institute:
Powers of Trustees 179
Qualification for Federal grant under Higher Education Fa-
cilities Act of 1963 164
Sports, regulation of:
Bowling 82
Boxing matches 292
Racing 52, 120, 185
Shooting matches. 91
State Ballot Law Commission:
Powers as to review of nomination papers. 40
Validity of nomination following improper but unprotested
placement of candidate's name on primary ballot. . . . 107
State Board of Retirement:
Oral withdrawal of application for voluntary superannuation
retirement. 165
State Boxing Commission:
Tax on sale of tickets and admission fees to boxing matches on
closed-circuit television 292
State Colleges, Division of:
Application of civil service laws to business managers. . . 129
P.D. 12 349
PAGE
State hospitals:
Acquisition of land for 126
Claims against patients for loss of or damage to state property. 290
Commitment of prisoner to treatment center not yet established. 289
North Reading State Sanatorium 213
Powers of Commissioner of Mental Health over boards of trustees. 237
Powers of Governor's Council as to discharge of criminal de-
fendants under commitment 274
Transfer of patients between 130
State Police:
Bowling alley as a "public hall" 82
Cape Cod Reservation 280
Firearms laws 91, 103, 263
New Hampshire Sweepstakes 84
Property of Massachusetts Port Authority 300
State Racing Commission:
Additional racing dates 120
Distance from proposed track to nearest church, school or hous-
ing development 185
State Reclamation Board:
Reimbursement for expenses incurred by member receiving state
pension 230
State Secretary:
Appointment of public employee as Registrar of Voters. . . 109
Conversion of domestic insurance companies into business corpo-
rations. 286
Filing of acceptance of nomination by "write-in" candidate;
power of ward and town committees to select candidates to fill
vacancies 110
Powers to filing of nomination papers 40, 107
Proposed Massachusetts Sweepstakes as a "question of public
policy" for submission to the voters 92
Seal of Commonwealth, reproduction of by private persons. . 73
Voting residence of married woman whose husband is absent on
military services 75
State Treasurer:
Distribution of public funds to Massachusetts Bay Transpor-
tation Authority 211,173
Distribution of state aid to public schools prior to filing of re-
port by municipality under G. L. c. 72 269
Oral withdrawal of application for voluntary superannuation
retirement. 165
350 p.D. 12
PAGE
Receipt of University of Massachusetts parking fees. ... 35
Securities in State Treasury and lost or destroyed interest-bearing
bonds. 322
Warrants, approval of by Governor's Council 149, 190
Warrants for expenditures by Massachusetts Executive Com-
mittee for Educational Television 315
Statutes:
Administrative interpretation of 152, 259
Constitutionality of. See Constitutionality.
Interpretation of exceptions to statutory provisions. . . . 308
Interpretation to give effect to each part 237
Retroactivity of 196, 38, 148
Sweepstakes:
New Hampshire Sweepstakes 84
Proposed Massachusetts Sweepstakes 92
Taxation:
Apportionment of state and county taxes 252
Effect of contractor's non-payment on contract with Common-
wealth. 56
Effect of removal of buildings from flood control area under St.
1957 c. 616 119
Exemptions for Massachusetts Bay Transportation Authority. 192
Sales of tickets and admission fees to boxing matches on closed-
circuit television 292
Transfer of cigarette tax proceeds to Massachusetts Bay Trans-
portation Authority 226
Television:
Licensing of television repairmen. .... 90, 159, 155, 264
Powers of Massachusetts Executive Committee for Educational
Television. 315
Tax on sale of tickets and admission fees to boxing matches on
closed-circuit television 292
Tenure in public service:
See Removal from public office or employment.
Thames River Valley Flood Control Compact:
Tax consequences of removal of buildings from flood control
area.
119
Tidelands:
Public rights in 156
Trade, regulation of:
Banks 313
P.D. 12 351
PAGE
Bowling alleys. 82
Contraceptives. 61
Insurance 286,63,247
Milk 270
Plumbers. 60
Referral selling schemes 108, 160
See Licenses.
Treasurer and Receiver General:
Distribution of public funds to Massachusetts Bay Transpor-
tation Authority 194, 173
Distribution of state aid to public schools prior to filing of re-
port by raimicipality under G. L. c. 72 269
Oral withdrawal of application for voluntary superannuation
retirement. 165
Receipt of University of Massachusetts parking fees. ... 35
Securities in State Treasury and lost or destroyed interest-bear
ing bonds. 322
Warrants, approval of by Governor's Council 149, 190
Warrants for expenditures by Massachusetts Executive Com-
mittee for Educational Television 315
University of Massachusetts:
Application of workmen's compensation laws to persons engaged
in employment under Defense Bases Act 205
Regulation of vehicles on University property; collection and
use of fees for such vehicles 35
Transfer of funds under Capital Outlay Statutes 277
Urban Planning Assistance Program:
Use of Federal aid by Metropolitan Area Planning Council. . 167
Urban Renewal, Division of:
Calculation of urban renewal assistance grants 235
Vacancy in public office:
Power of Governor to fill vacancy during suspension of public
officer 222
Powers of Deputy Registrar of Motor Vehicles during vacancy
in office of Registrar 138
Vehicles:
Motor vehicle liability insurance 63
Use of on University of Massachusetts property 35
See Registry of Motor Vehicles.
352 P.D. 12
PAGE
Veterans:
Preferences under civil service laws 42
Reinstatement in civil service positions 216
Veterinary Medicine, Board of Registration in:
Licensing of veterinary hospitals as kennels 59
Vocational rehabilitation:
Eligibility of non-residents for vocational rehabilitation services.
101, 283
Powers of Commissioner and Advisory Council under St. 1956
c. 602 69
Purchase of equipment for use of private organization under
St. 1956 c. 602 94
Water Resources, Division of:
Tax consequences of removal of buildings from flood control
area under St. 1957 c. 616 119
Welfare Compensation Plan:
Amount of payments by municipalities 44
Effective date of amended Plan 219
Winthrop Harbor:
Dredging and filling under St. 1963 c. 732 142
Workmen's compensation:
Application of self-insurance requirements to Massachusetts Bay
Transportation Authority. 192, 234
Application of state employee working under Defense Bases Act. 205
Youth Service, Division of:
Employment of former public officer retired for superannuation. 143
Vacation pay in lieu of vacation leave by member of Youth
Service Board. 146
1974
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