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

Public Document No. 12 



Ci)e CommonUjealtf) of 0^a0gacf)U0etts 



REPORT 



-ATTORNEY GENERAL 

/] l\ FOR THE 

Year ending June 30, 1966 



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PUBLTCATION OF THIS DoCCMEVT APFROVED BT Al FPED C RoLT^AND, SfATE' PCBCHASINO AGEST. 

1100-6-67-945378 Estimated, Cost Peb Copy: $4.54 



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CJje Commontuealtf) of ^aggacl)U0ett0 



Boston, December 7, 1966. 

To the Honorable Senate and House of Representatives: 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1966. 



Respectfully submitted, 

Edward W. Brooke, 

Attorney General. 



Clje Commontuealtl) oC Q^a0sacf)U0ett$ 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
EDWARD W. BROOKE 



First Assistant and Deputy Attorney General 
Edward T. Martin 



Assistant Attorneys Gf-neral 



Richard E. Bachman 

AlLEEN H. BeLFORD 

David Berman^ 
John S. Bottomly^^ 
William I. Cowin 
Nelson I. Crowther, Jr. 
Carmen L. Durso-° 
Samuel W. Gaffer 
Benjamin Gargill 
Bertha L. Gordon 
Frederic E. Greenman'' 
David W. Hays 
Robert L. Hermann 
Warren K. I\aplan 



Lee H. Kozol^ 
Margaret W. Lamb^ 
Carter Lee 
Paul F. X. Powers 
Theodore Regnante, Sr. 
John J. Roche 
Peter Roth® 
^^ ALTER J. Skinner^ 
David A. Thomas 
Herbert F. Travers, Jr. 
Herbert E. Tucker, Jr. 
David L. Turner 
Roger H. W^ood worth 



Assistant Attorney General: Director, Division of Public Charities 
James J. Kelleher 



Assistant Attorneys heneral assigned to Department of Public Works 



Burton F. Berg 
John A. Birknes, Jr." 
Augustus J. Camelio* 
Frank H. Freedman 
John J. Grigalus* 
Victor L. Hatem 
Foster Herman-^ 
Richard A. Hunt 
William A. Norris^^ 



Burton Peltz' 
Rudolph A. Sacco 
John E. Sheehy 
Julian Soshnick^ 
John E. Sullivan 
Fred D. Vlncent, Jr. 
James G. Walsh, Jr.^® 
John W. \\ right" 



Assistant Attorneys General ass''gned to Metropolitan District Commission 
Arthur S. Drinkwater Marion B. Phit.lipps-^ 

Robert B. Sheiber 
Assistant Attorneys General assigned to the Division of Employment Security 
Joseph S. Ayoub James N. Gabriel-" 

Robert N. Scola'^ 
Assistant Attorneys General assigned to Veterans' Division 
Levin H. Campbell' Glendora M. Putnam^" 

Chief Clerk 
Russell F. Landrigan 

Head Administrative Assistant 
Edward J. White 



1 Resigned, July 31, 1965 

2 Appointed, August 15, 1965 
' Appointed, August 16, 1965 

^ Resigned, September 25, 1965 
^ Appointed, January 2, 1966 
^ Appointed, January 3, 1966 
^ Resigned, January 14, 1966 
* Resigned, February 11, 1966 
8 Resigned, February 18, 1966 
10 Appointed, February 24, 1966 



1^ Appointed, February 14, 1966 
1^ Appointed, February 21, 1966 
"Resigned, March 1, 1966 
» Resigned, March 2, 1966 
15 Appointed, March 9, 1966 
i« Appointed, March 21, 1966 
" Appointed, April 4, 1966 
18 Resigned, April 8, 1966 
" Appointed, May 2, 1966 
20 Appointed, May 9, 1966 



P.D. 12 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
for the period July 1, 1965 — June 30, 1866 

Appro-priations 



Attorney General's Salary 

Administration, Personal Services and Expenses 

Veterans' Legal Assistance 

Claims, Damages by State Owned Cars 

Moral Claims ...... 

Capital Outlay Program, Equipment 



Total 



Expenditures 
Attorney General's Salary .... 

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

Claims, Damages by State Owned Cars 

Moral Claims ....... 

Capital Outlay Program ..... 

Total 

Income 
Fees — Filing Reports — Charitable Organizations 
Fees — Registration — Charitable Organizations 
Fees — Professional Fund Raising Counsel 
Miscellaneous ...... 

Total 



$ 22,500.00 

788,094.00 

18,600.00 

100,000.00 

8,000.00 

6,197.23 

$943,391.23 



$ 22,480.10 

787,039.80 

18,580.35 

100,000.00 

8,000.00 

4,714.12 

$940,814.37 



$ 13,049.00 

3,690.00 

120.00 

459.06 

$ 17,318.06 



Financial statement verified (under requirements of C. 7, S 19 GL), November 22, 
1966. 



By 



Approved for publishing. 



JOSEPH T. O'SHEA, 

For the Comptroller 



M. JOSEPH STAGEY, 
Comptroller 



P.D. 12 



Cije Commontoealtf) of 9ia0$acf)U0ett$ 



Department of the Attorney General 
Boston, December 7, 1966 

To the Honorable Senate arid 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 31,717, are tabulated as follows: 



Extradition and interstate rendition . 

Land Court petitions 

Land Damage cases arising from the taking of land: 

Department of Public Works 

Metropolitan District Commission 

Government Center Commission 

Department of Mental Health . 

Department of Natural Resources 

Department of Public Safety 

Department of Public Utilities . 

Massachusetts Maritime Academy 

Salem Teachers College 

Southeastern Massachusetts Technological Institute 

LTniversity of Massachusetts 
Miscellaneous cases, including suits for the 

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



collection of money due the 



Com' 



209 

158 

2,176 

151 

6 

1 

28 

1 

2 

1 

1 

9 

17 

15,535 

3,012 

2,276 

322 

6,-153 

603 

753 



Introduction 

This, my fourth Annual Report as Attorney General of the Common- 
wealth of Massachusetts, pursuant to G. L. c. 30, § 32, covers fiscal 
1966— the period July 1, 1965 through June 30, 1966. 

The work load of the Department of the Attorney General has 
continued to increase during fiscal 1966. The organization of the 
Department's legal staff into divisions has i)roven highly effective in 
proving expertise in the conduct of the legal affairs of the Common- 
wealth. It has enabled the Department to handle its increased case load 
eflEiciently and effectively. 

During the year the Department presented a substantial amount of 
proposed legislation to the General Court for its consideration. A list of 
bills proposed for the legislative year 1966 appears as "Exhibit A." 



P.D. 12 9 

Administrative Division 

The Administrative Division renders legal services of a wide and 
varied nature. Members of this Division are called on to represent 
constitutional officers and state agencies in civil litigation in almost 
every court of the Commonwealth, the United States District Courts, the 
United States Court of Appeals, and the United States Supreme Court. 
In addition the Division issues opinions to the constitutional officers and 
state agencies, renders opinions under the Conflict of Interest Law, G. L. 
c. 268A, advises the Governor on the constitutionality of pending 
legislation, and approves town by-laws. 

As the size and complexity of state government continues to increase, 
the need for more opinions of the Attorney General also increases. 

The following is a summary of the most important opinions issued by 
the Division during the past fiscal year. 

In response to inquiries of the Governor regarding the constitutionality 
of certain proposed legislation, which provided that each school day be 
opened with a period of silent meditation, the Attorney General made 
the following ruling. A 1963 opinion states that the practice of daily 
reading of the Bible in our schools, pursuant to Massachusetts statute, 
was in violation of the United States Constitution. This opinion was 
confirmed in the cases of Attorney General v. School Committee of 
North Brookfield, and Waite v. School Committee of Newton. The 
Attorney General was of the opinion, however, that this act, providing 
for "silent meditation," was not unconstitutional as "silent meditation" 
did not necessarily have the characteristics of a "prayer." Upon the 
issuance of the opinion the Governor approved the act which became 
G. L. c. 71, § lA. 

In another request the Governor asked an opinion of our office 
regarding the constitutionality of an act providing for the elimination of 
racial imbalance in the public schools. The original act established an 
Advisory Committee on Racial Imbalance and stipulated that no 
individual who has been listed as a member of a communist front 
organization in any state or federal document, shall be appointed to this 
Committee. It was the opinion of the Attorney General that this 
particular provision was in constitutional conflict with the equal protec- 
tion clause of the Fourteenth Amendment to the Constitution of the 
United States. However, it was his further opinion that the remaining 
portions of the act were constitutional. The Governor thereupon 
approved the bill. Massachusetts became the first state to pass such 
legislation. 

Two in rem suits have been instituted by the Division against John 
Cleland's Memoirs of a Woman of Pleasure (commonly known as Fanny 
Hill) and William Burrough's Naked Lunch. In 1964 the Superior Court 



10 P.D. 12 

ruled that Memoirs of a Woman of Pleasure was obscene. Early in 1965 
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 then claimed an appeal to the U. S. Supreme Court. In the 
1966 case Memoirs v. Massachusetts, the United States Supreme Court 
by a 6-3 Decision ruled that the book in question was not obscene. 

Similarly, in the case Attorney General v. A Book Named Naked 
Lunch, the trial judge sitting in Suffolk Superior Court declared the 
book obscene. On appeal by the publishers to the Supreme Judicial 
Court, the Court in 1966 ruled that the book was not obscene. See 1966 
Adv. Sh. 1177. 

At the request of the Governor the Division represented the Common- 
wealth in proceedings relating to the financially distressed New Haven 
Railroad. The Commonwealth's position has been defended successfully 
against the claims of creditors who seek to have the railroad liquidated 
in the Federal Bankruptcy Court in New Haven. The Division was 
instrumental in preventing the discontinuance of all passenger service as 
urged before the Interstate Commerce Commission by the railroad's 
creditors. It also urged that the Interstate Commerce Commission issue 
an order including the New Haven Railroad merger. Efforts continue in 
a variety of judicial and administrative proceedings to find a financially 
stable solution for the New Haven at the earliest possible date. 

The Division successfully defended the Commissioner of Commerce 
and Development in a suit questioning the constitutionality of G. L. c. 
30, § 59 (the "Perry Law") . This law provided for summary suspension 
of state employees who are indicted for action constituting misconduct 
while in office. The Supreme Judicial Court rejected the argument of the 
plaintiff that the act constituted an unconstitutional impairment of his 
contractual rights. It pointed out that contract rights are always subject 
to be frustrated by the proper exercise of the police power. 

The cases just cited are only a small portion of the litigation handled 
by the Division during this period. Many of these cases have involved 
questions of broad public impact. Generally, the largest amount of man 
hours spent in litigation concern specific problems of individuals in their 
dealings with the state agencies. While assuming the role of advocate for 
these agencies, the Department remains mindful of the rights of these 
individuals. Agencies which require the most frequent court representa- 
tion are the Civil Service Commission, the Alcoholic Beverages Control 
Commission, the Department of Public Utilities and the Board of 
Registration in Pharmacy. 

During this period, members of the Administrative Division formed a 
committee to submit to the Attorney General a report concerning the 
adoption of rules by agencies under the State Administrative Procedure 



P.D. 12 11 

Act, G. L. c. 30A. Since the passage of the Administrative Procedure Act 
in 1954, there has been varying compUance by the state agencies with 
the requirement pertaining to adoption of rules governing their own 
procedure under section 9 of the Act. This condition illustrated the need 
for a uniform set of rules to be used by all agencies. The Committee's 
report contained uniform rules for use in adjudicatory proceedings and 
adopting regulations. The rules were printed in pamphlet form and 
distributed to all agencies in March, 1966. The committee conducted 
several seminars to explain the contents of the pamphlet and to 
encourage the adoption of the rules as tailored to meet the agencies' 
needs. 

Civil Rights and Liberties Division 

The Civil Rights and Liberties Division continues to assist other state 
officials in the securing of the constitutional rights of all the Common- 
wealth's citizens. 

The following summary outlines the sensitive and often difficult issues 
that confront the members of this Division. 

In the 1963 report, the procedure for prosecuting allegedly obscene 
books formulated at a conference with the District Attorneys was 
discussed. It was agreed that enforcement of obscenity laws regarding 
books would be handled by civil proceedings against the books through 
the Attorney General's Office rather than by criminal proceedings against 
the seller. In the summer of 1965, it was called to our attention that six 
cases were pending against book sellers in courts throughout the Com- 
monwealth. To eliminate methods of prosecution which the county 
prosecutors already had agreed were sporadic and unfair, the Attorney 
General "nol prossed" these actions. 

Soon after the passage of the Federal Voting Rights Act of 1965, the 
state of South Carolina challenged the constitutionality of the Act in the 
U. S. Supreme Court in the case of South Carolina vs. Katzenback. 
Because the issue affected state requirements for voting, the Solicitor 
General requested the states to submit amicus briefs and to present 
arguments during the hearing on this suit. Our Department submitted an 
amicus brief and took the leadership in soliciting the Attorneys General 
of the other states to submit briefs, also. A total of eighteen states 
joined. Former Solicitor General Archibald Cox was appointed a Special 
Assistant Attorney General to join with the chief of this Division in 
presenting arguments for the Commonwealth and the other states. The 
unconstitutionality of the act was upheld. 

During the summer of 1965 allegations of police malpractices, growing 
out of arrests of a number of Negroes for alleged disorder, brought on a 
series of demonstrations on the steps of city hall in Springfield. 



12 P.D. 12 

As the tension increased members of this Division moved to the 
Springfield office to investigate and to make the presence of the Attorney 
General's Office felt in the community in whatever way possible. Amidst 
charges of bad faith on both sides and a call for the National Guard at 
the request of the city officials, a march was held without incident. The 
Police Commissioner of Springfield held hearings on the charges of police 
malpractice, subsequently dismissing them all. Although open hostility 
ceased, the results of the tensions generated were in evidence in the 
community for some time thereafter. 

One of the responsibilities of this Division is to represent the Massa- 
chusetts Commission Against Discrimination (MCAD), an agency re- 
sponsible for administering the Fair Practices Statutes. During the 
period covered by this report, the Commission was involved in several 
areas of litigation, the results of which may greatly enhance the 
effectiveness of the Commission's work. During this period the Commis- 
sion litigated 23 matters. The most important of these follow. 

A complaint was brought against a respondent real estate broker who 
allegedly discriminated in housing because of race. The Commission 
therefore brought an action for contempt of an order of the Superior 
Court to cease and desist, the order having been entered on the basis of a 
previous complaint. 

The court found discrimination on the facts but declined to rule the 
broker in contempt, as a matter of law, because the act was committed 
by an agent. The Commission appealed to the Supreme Judicial Court 
on this question. Should the Court decide that an individual cannot be 
held in contempt for his agent's act in these cases, legislation will be 
necessary to deal with such repeat offenders. 

In another housing case, MCAD v. Flynn, the Commission ordered the 
respondent real estate broker to place in each of his newspaper advertise- 
ments for a period of six months, or the next twenty-six advertisements, 
the language "equal opportunity listing." This order was upheld by the 
Superior Court. 

Another housing case currently on appeal to the Supreme Judicial 
Court involves the question whether the facts must show that a 
complainant was born outside the U. S. in order for the Commission to 
find discrimination on the ground of national origin. Our fair practices 
statutes sometimes use the term "national origin" and at other times 
"national ancestry," often both. It is our contention that in these 
statutes the terms are used interchangeably. 

During this period, the Fair Practices Statutes were amended to 
prohibit discrimination because of sex. As a result, over fifty banquet 
waitresses, members of a union of catering waitresses, filed a complaint 
against a union whose membership was restricted to banquet waiters. 



P.D. 12 13 

asking for full membership rights within that union. After protracted 
hearings, the matter was settled by an agreement which merged banquet 
waiters and banquet waitresses into the same union with equal rights. 

The Secretary of State requested an opinion on terminology used in G. 
L. c. 46, § 1, which states that a person's skin color must be recorded on 
all records of vital statistics. The Secretary was advised that although 
the term "color" is imprecise, the state's interest in record-keeping could 
not be at the expense of an individual's right to be described in a fair 
and reasonable manner. Accordingly, reasonable racial designation and 
reasonable designation of skin color both comply with the statute and 
must be accepted. 

Contracts Division 

The activities of the Contracts Division include the trial of highway 
and building construction cases; the approval of public contracts, bonds 
and leases; and legal research, preparation of briefs, memoranda and 
opinions on various contract problems. In addition the Division confers 
with officials from over 80 state agencies, advising them on the prepara- 
tion and drafting of contracts and leases affecting their departments. 
Generally, such early guidance procedures prevent later litigation from 
developing. 

The Division has processed approximately 1800 contracts and leases 
for the Commonwealth during this fiscal year. Each document must be 
thoroughly considered and approved in order that the Commonwealth's 
business may continue without interruption. 

During the course of the year the Division reviewed about 150 claims 
of sub-contractors to determine if the various departments may make 
direct payments against funds retained by the Commonwealth under G. 
L. c. 30, § 39F, or whether payment must be deferred until hearings are 
held. 

The Division continues its assignment of reviewing the form 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 approvals are issued if the review 
reveals that the form is in proper order. Files are maintained on the 
changes in membership of all 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 Commonw^ealth's housing program. Some 50 to 60 note issues come in 
each quarter, involving an average of 50 million dollars per quarter. In 
the last quarter, 57 housing authority contracts involving $48,224,000 in 
financial assistance loans were review^ed and approved. 

The Division also grants technical assistance and legal advice to state 



14 P.D. 12 

agencies on various matters requiring informal opinions. Following is a 
summary of some of the more important subjects which required either 
technical assistance or research in the preparation of memoranda by this 
Division. 

1. To the Department of Public Works concerning the publication 
of the number and names of contractors who have taken out 
plans and specifications prior to bidding ; 

2. To the Purchasing Department relative to omissions in bid 
information inquiries ; 

3. To the Sergeant-at-Arms about the source of his authority to 
enter into a proposed contract; 

4. To the Bureau of Building Construction concerning whether it 
could enter into a settlement of a claim ; 

5. To the Bureau of Building Construction concerning alleged price 
and bidding discrimination in washer-extractor bids. The Com- 
missioner of Administration and Finance undertook an investiga- 
tion of the matter ; 

6. Medfield State Hospital — litigation was avoided by bringing the 
parties together and obtaining the contractor's assent to replace 
defective flooring in the hospital wing. 

Litigation in the Division has been handled by three of the five 
attorneys who have devoted most of their time to trial work each week. 
The Division handled about 200 cases during this fiscal year, four of 
which are at some stage of appellate proceedings. The Division has 
obtained final action favorable to the Commonwealth before trial in 
approximately 130 cases since June, 1965. This was done through special 
pleadings which necessitated conferences, the drafting of pleadings, and 
preparation of briefs in support of motions and oral arguments by the 
trial attorneys. Some twenty trials before Auditors have been attended 
by staff members since June, also. The trials average two to four weeks 
and the matters in issue have been principally on the subject of extra 
work, delays, and allegedly arbitrary and capricious conduct on the part 
of the Commonwealth's agents. The Division has already been obliged to 
respond in two cases to depositions under new Rule 15 for oral 
discovery. 

A case of particular significance, which became a major victory for the 
Commonwealth, involved the construction of a 2 mile stretch of highway 
in Greenfield and Bernardston at a cost of more than $2,000,000. At issue 
was the contractor's responsibility for inspecting the site prior to 
submission of bids and the reliance that could be placed on the quantity 
estimates and proposal furnished by the Commonwealth. The language 
of the decision by the Supreme Judicial Court, which reinforced the 
existing law (namely that parties are bound by the provisions in such a 



P.D. 12 . 16 

contract), should prove invaluable to the defense of future construction 
cases involving representation of conditions existing at a job site. 

Another case decided in the Commonwealth's favor determined that 
the statute of limitations begins to run in a contract case not later than 
the date of the semi-final estimate. This was a major victory for the 
Division, resulting in a saving of $1,100,000. 

Several major cases involving large sums of money have been tried by 
the Division since 1965. In many instances they are still in litigation 
and, in view of the 'amounts involved, will undoubtedly be subject to 
appellate proceedings. 

Because of the volume and complexity of its cases, the Division has 
initiated a program of periodically reviewing all pending files. Analysis 
sheets containing the current status of each case is prepared. Where 
possible, cases are closed. As a result of the most recent review, fifty-nine 
files were closed because they were deemed inactive under Rule 85, or 
because parties assented to dismiss the Commonwealth as a party or 
discontinue the action altogether. 

Despite an increase in cases this past year, the Division has continued 
to carry on its litigation work at a rapid pace. The Administration's 
policy of "no settlement" has prevailed and disputed contract claims 
continue to be settled in court. 

Criminal Division 

In order to wage an effective attack against the forces of organized 
crime, the Criminal Division staff has been increased. Several investi- 
gators and Special Assistant Attorneys General have been added to the 
staff to help handle the voluminous workload of that Division. 

The Small Loans Case, initiated by this Administration in January of 
1964, continues to await trial. Hundreds of motions have been filed and 
many of them were argued by an Assistant Attorney General from this 
Division. Several motions remain to be heard before the case is finally 
tried. 

One problem which gained some notoriety was the extent of the illegal 
practice of dentistry throughout the Commonwealth. A great number of 
dental technicians were engaged in the practice of making dentures 
without a written prescription from a registered dentist. This practice 
resulted in injury to some of the citizens of the Commonwealth. 
Members of the Criminal Division worked closely with the Massa- 
chusetts Dental Society in an attempt to end these illegal practices. 
More than fifty persons were successfully prosecuted throughout the 
state. As a result of these prosecutions, the illegal practice of dentistry 
has been reduced to a bare minimum. 

Three members and a former member of the Executive Council were 



16 P.D. 12 

tried on conspiracy and bribery charges. In two other cases involving 
public ofl&cials, the parties were found guilty and sentenced to a term in 
the House of Correction. 

The number of extraordinary writs [writs of error, habeas corpus, 
mandamus, declaratory judgments, etc.] continues to increase. With each 
new decision handed down by the Supreme Court of the United States 
concerning constitutional rights, a different writ was filed usually by the 
same prisoner. However, the Criminal Division has been remarkably 
successful in opposing these writs. To handle this great volume of writs it 
has been necessary for Assistant Attorneys General in this Division to 
spend long hours in the library and many hours in court. 

The special section for complaints has handled well over 3000 cases 
during this past fiscal year. Headed by an Assistant Attorney General, 
the section meticulously processes each complaint. Often the complainant 
need only be directed to another source for assistance, while at other 
times extensive research is carried on. 

The Criminal Division continues to work very closely with all law 
enforcement officials. Memoranda concerning the effect of decisions of the 
Supreme Court on law enforcement are sent out periodically. In addition, 
an Assistant Attorney General lectures at the various police schools 
throughout the Commonwealth. 

The Division is striving to increase the cooperation between all law 
enforcement agencies and propose statutory provisions which will assist 
in the effort directed toward stemming the rising tide of crime. 

Eminent Domain Division 

The work of the Eminent Domain Division involves the legal proced- 
ures by which a private citizen's real estate may be taken by a public 
body for public use. The citizen is entitled to compensation for the fair 
value of the land taken and, if only part of his land is taken, to 
compensation for the resulting diminution in value of the balance. 

Under new legislation enacted in 1964 and proposed by this Adminis- 
tration, the taking agency, before making or recording the order to take, 
must have in its files an appraisal of the damage by a competent and 
qualified expert. With that appraisal in hand it then awards and notifies 
the property owner that it is ready to pay the full value of the damage, 
including the value of the part taken and any diminution in value to the 
remainder. If the property owner is not satisfied with this award, he may 
file a petition in the Superior Court for the assessment of his damages 
with a right to jury trial. The representation of the interests of the 
Commonwealth in this petition becomes the responsibility of the 
Eminent Domain Division. 



P.D. 12 17 

The landmark achievement of the Division during' this fiscal year has 
been the completion of a three-year study by the Highway Laws Study 
Commission, which has resulted in a new Highway Code (S. 885 of 
1966) for the consideration of the Legislature. The Code is a compilation 
of our highway laws stated in an organized fashion, not separated into 
many parts as in the existing law. This effort is the first successful 
attempt in 50 years to codify these laws. 

The Division has als^o published two manuals to assist lawyers and 
appraisers for the State in carrying out their duties. The MANUAL OF 
MASSACHUSETTS EMINENT DOMAIN APPRAISAL LAW is a 
compendium of the most frequently used Massachusetts laws in eminent 
domain. The MANUAL OF THE IPROCEDURES IN THE EMINENT 
DOMAIN DIVISION has been prepared at the request of the United 
States Bureau of Public Roads. 

The Division has worked constantly throughout this fiscal year to 
reduce the backlog of eminent domain cases in the courts. By the end of 
the first quarter, the Division had 837 cases. This figure rose to 971 by 
the end of 1965. But at the close of the fiscal year in June 1966, the 
Division had reduced the backlog to 711. This backlog consists mainly of 
current cases which have not yet reached their chronological turn on the 
court trial lists. 

Several members of the staff devote a large portion of their time to the 
reduction of this backlog. When the Division is ready for trial, each case 
is carefully analyzed, outside settlement authority and trial counsel are 
assigned, and an effort is made to expedite each case. When the 
Commonwealth and the petitioner are not far apart on their figures, the 
Division tries to promote an amicable settlement. 

Now that the Federal Government shares in the cost of most of our 
highway land takings, the Division works continually to meet the high 
standards of documentation required by Federal officials. Due to these 
requirements a special burden is placed upon our trial counsel and 
records keeping stafi^ so that no claim of the Commonwealth for any 
Federal payment will be jeopardized. 

When necessary the Division meets with officials of the Department of 
Public Works and of the United States Bureau of Public Roads to make 
certain that all reasonable requirements of both agencies are being met. 
Much time is spent by our personnel giving advice and help to the many 
other State agencies which have land-taking powers. The Division, in 
many instances, prepares and helps to file the taking orders and 
negotiates settlements. When all other means fail, the Division defends 
the Department of Public Works in Court. 

The Division also defends the Commonwealth's interests in all peti- 
tions filed in the Land Court for registration of land which borders on or 



18 P.D. 12 

affects public rights. The number of such cases in any given year 
averages close to 300. Some of these matters are tried out to a judicial 
conclusion; others are amicably agreed upon and the rights of the 
Commonwealth are protected by stipulation. All indications are that a 
heavy load of eminent domain cases will continue for several years. The 
Commonwealth has benefited greatly from a saving of interest payments 
due to rapid disposition of cases, and the practice of more thorough 
preparation procedures has brought about more favorable verdicts. 

Employment Security Division 

The Employment Security Division works closely with the Massachu- 
setts Division of Employment Security. The work of its staff involves 
the prosecution of delinquent employers and fraudulent compensation 
claimants resulting in the recovery of significant sums of money for the 
Commonwealth, which otherwise would not have been recovered. 

During this fiscal year members of the Employment Security Division 
waged an energetic and forceful program in handling all cases referred to 
its Division for criminal prosecution. At the same time, the Division has 
followed a policy of giving the erring individual, the corporation or the 
business entity, every opportunity to make payment before prosecution 
actually begins. Usually tw^o or three letters of warning coupled with 
scheduled office conferences held with the principals involved, afford the 
offender every possible opportunity either to make restitution or to 
otherwise explain his side of the case. In the past, employers have had a 
more lax and casual attitude toward paying state taxes and claimants 
have looked upon the Unemployment Compensation Fund as a means to 
supplement their weekly earnings when necessary with no fear of 
retribution. It is hoped that with our diligent prosecution of these 
offenders, employers will take a more serious attitude toward their state 
taxes, and the claimants halted in their attempts to defraud State 
agencies. 

During the fiscal year, 603 cases were handled by this Division. Of 
these, 445 cases remained from the previous year, while 158 cases, 
involving matters of both employer taxes and fraudulent claims, were 
referred to the Division for investigation and prosecution. A total of 
$95,221.90 was collected from employment tax cases and $49,257.80 
collected on fraudulent claims cases. Total monies recovered for the 
Commonwealth amounted to $144,477.69. 

By the end of the fiscal year the Division closed 232 of the 603 cases. 
Of this number 114 were employment tax cases and 115 fraudulent 
claims cases. A balance of 371 cases was left, 74 less than those 
remaining open from the previous year. 

At the beginning of the fiscal period, there were no cases pending in 



P.D. 12 19 

the Supreme Judicial Court. During the year, five cases were entered. 
Members of our staff argued three cases in behalf of the Director of the 
Division of Employment Security, in which the Supreme Judicial Court 
issued favorable decisions, in two, setting aside the decision in one. Two 
cases were pending in the Supreme Judicial Court at the end of the fiscal 
year. 

Finance Division 

The Finance Division is responsible for rendering legal assistance, 
usually at the appellate level, to the Department of Corporations and 
Taxation, the Division of Insurance, the Division of Banking and the 
Office of the Treasurer and Receiver General. In accordance with 
statutory provisions, a member of this Division sits on the Contributory 
Retirement Appeal Board and is currently serving as chairman, in 
addition to representing the Board in all litigation. Among the Board's 
'"clients" are the State Retirement Board and the Teachers Retirement 
Board. 

The following is a summation of the more important cases argued by 
this Division in behalf of the above agencies. 

Shinnecock, Inc. v. State Tax Commission — held that the taxable 
interest of a taxpayer in a ship is its cost less depreciation and the 
balance of a valid mortgage obligation. 

Cochrane v. State Tax Commission — held that benefits to a widow 
from a private pension plan were taxable under the inheritance statutes, 
whereas benefits from a government pension plan were not. 

Massachusetts Hospital Service, Inc. v. Commissioner of Administra- 
tion — This case involved the validity of the contract between Blue Cross 
and the participating hospitals. The agreement, approved by then 
Commissioner Waldron on December 31, 1964, provided for reimburse- 
ment for hospital services performed for Blue Cross subscribers. Since my 
last report (see 1965 Annual Report) all parties have agreed on a 
statement of facts. All briefs have been filed and arguments were 
presented to the Full Bench of the Superior Judicial Court on May 3, 
1966. 

Arkwright Mutual Insurance Co. v. Commissioner of Insurance — The 
Supreme Judicial Court ruled in favor of Arkwright reversing the 
decision of the Commissioner regarding the term "profits." As used in G. 
L. c. 175. § 80, "profits" does not include unrealized appreciation in the 
market of stocks. If the decision is upheld, millions of dollars of 
accumulated surpluses would be freed for investment in the stock 
market. The Commissioner requested an appeal of the decision in April, 
1966. 



20 P.D. 12 

Harding v. Commissioner of Insurance — Under ordinary circumstances 
this office takes the position that when a claimant is found to be entitled 
to a retirement benefit, the only function of the Insurance Commissioner 
is to compute the amount of the benefit. But in this particular case there 
was a flagrant disregard of the law by a local board, which compelled 
this Division to defend the position of the Commissioner in denying the 
claim. The Division was successful in its defense and the decision will 
prevent further abuse of the statutory requirement by local retirement 
boards. 

Tujts V. Commissioner of Banks — Involves a petition for a writ of 
mandamus challenging the ruling of an administrative board which 
permits savings banks 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. This office filed an appeal on the 
matter to the Supreme Judicial Court. The Court entered a rescript 
opinion ordering the petition dismissed because of the enactment of c. 
810, Acts of 1965, which rendered the case moot. A final decree 
dismissing the matter was entered April 6, 1966. 

During this fiscal year over one hundred fifty appeals were heard 
before the Contributory Retirement Appeal Board. A majority of the 
decisions are written by a member of this Division. The Division 
deserves much credit for shortening the waiting period between the time 
of filing the appeal and date of hearing, from a year and a half to 30 
days in many instances. This desirable result has been brought about 
through ''show cause" hearings to eliminate appeals which had little or 
no merit. Consequently, the Board was permitted to consider more fully 
those appeals with merit. 

In addition to its involvement in litigation, the Division also renders 
assistance to other divisions in the Department when research is required 
to draft formal opinions. Also within its sphere of responsibility are the 
rendering of informal advice and opinions, almost daily, to private 
citizens, in a myriad of situations pertinent to its area of activity. 

Industrial Accidents Division 

The Industrial Accidents Division is chiefly concerned with represent- 
ing the Commonwealth in workmen's compensation cases affecting state 
employees. Under the provisions of G. L. c. 152, § 69A, all payments of 
compensation benefits and disbursements for related medical and hos- 
pital expenses by the Commonwealth require the approval of the 
Attorney General. In all contested matters involving such claims, this 
Division appears for the Commonwealth before the Industrial Accident 
Board and in the courts when appeals are taken. 



P.D. 12 21 

During this fiscal year a total of 6455 accident reports were filed on 
state employees' claims. Most of these were of a nondisability type 
requiring the Division's approval for incurred medical bills. The Division 
approved 1042 disability claims for the payment of compensation 
benefits. The prompt approval of all proper claims avoids much unneces- 
sary litigation on claims which should be adjusted at their inception. It 
thus allows more time for the trial of those cases which warrant 
litigation. 

Total payments made by the Commonwealth on state employees' 
claims pursuant to G. L. c. 152, § 69A, including disbursements through 
voluntary agreements, Board decisions and lump sum settlements, for 
this past fiscal year: 

Industrial Accident Board (General Appropriation) : 

Incapacity Compensation $1,118,705.09 

Hospital Costs, drugs et. al. 205,242.79 

Doctor, Nurses et. al. 185,061.95 



$1,509,009.83 



Metropolitan District Commission: 

Incapacity Compensation $120,588.18 

Hospital and Medical Costs 43,142.17 



$163,730.35 



Total — All Disbursements 

Incapacity Compensation $1,239,293.27 

Hospital and Medical Costs 433,446.91 



$1,672,740.18 



The Division approved voluntary payment in 123 more disability 
cases than in the prior fiscal year. The total increase in expenditures on 
such claims in this fiscal year period over the prior year, was only 
$35,132.54. Significance of this slight rise becomes clearer when you take 
into account the 10% increase of the maximum weekly compensation 
payment for temporary total disability under § 34 of c. 152, which 
became effective in November, 1965. The hospital rate schedules on such 
cases continued to show a rise, also. The comparative statistics for the 
fiscal years 1965 and 1966, with the increase in payment of current 
claims, reflect a downward trend in the backlog of older cases. This 
relative leveling of costs has been made possible with the continued 
cooperation of the Industrial Accident Board through its chairman and 
the Director of the Public Employees' Section. 



22 P.D. 12 

Health, Education and Welfare Division 

The Division of Health, Education and Welfare is directly responsible 
for giving legal advice to four major departments of the Commonwealth: 
Public Health, Mental Health, Education and Public Welfare. 

The legal problems referred to the Division are as varied and complex 
as the many statutes presently administered by these departments. 

Health, Education and Welfare is proud of its participation in the first 
oral deposition taken in the Commonwealth under Rule 15 of the Rules 
of the Supreme Judicial Court. 

By designation of the Attorney General, the chief of the Division sits 
on the Records Conservation Board and the Records Study Commission 
created by chapter 42 of the Resolves of 1966. The Division also 
participated in the Mental Retardation Planning Project and is counsel 
to the Board of Higher Education. The attorney assigned to a board is 
required to make a constructive contribution at the Board's regular 
meetings and must be knowledgeable with respect to the procedures for 
holding and conducting administrative meetings. 

Litigation consumes most of the Division's time. Nearly 300 cases are 
presently pending, a good portion involving judicial review pursuant to 
G. L. c. 30A. A summation of pending litigation follows: 

1. Rate Cases: — The Industrial Accident Board, the Rate Setting 
Board for Convalescent and Nursing Homes, the Department of Public 
Welfare, and the Commissioner of Administration all set rates. The cases 
were tried and settled during the prior quarter. The Board has set 
inpatient rates in accordance with agreement but has, as yet, not set 
outpatient rates. 

A series of cases involving outpatient rates set by the Department of 
Public Welfare was scheduled for trial but counsel for the petitioner has 
indicated that the suits will be settled when new rates are issued. 

A suit against the Rate Setting Board is pending in the Superior Court. 
The establishment of the 1967 rates may well end this case. 

The hospital rate cases brought during the controversy over the 
establishment of the 1965 public assistance rates are still pending. Three 
of these cases have been successfully tried. The Court's decision is 
presently on appeal to the Supreme Judicial Court. 

2. Institutional Licensing: — The Department of Public Health 
licenses nursing homes and hospitals. By refusing to grant a new license 
or to renew an outstanding license, the department enforces compliance 
with safety and health regulations. At least nine cases are presently 
pending in this area. 



P.D. 12 23 

3. Prevention of Unsanitary Conditions: — The Supreme Judicial 
Court's decision in the Tewksbury case resulted in the Town of Clinton 
changing its dump to the sanitary land-fill method. The Town of Avon 
has been persuaded to do the same. Complaints have been received on 
the operation of the Peabody dump and investigation is in progress. 

Suit has been brought against the Cumberland Cattle Company 
involving possible contamination of the Attleboro municipal water 
supply. 

4. Air and Water Pollution: — Much has been said about air and water 
pollution. The Department of Public Health, on recommendation by 
the Division, issued its first water pollution order under G. L. c. Ill, 
§ oA. The order, in substance, requires the Town of Amesbury to imme- 
diately undertake a water pollution abatement program. 

The program to abate air pollution has developed slowly. In the past 
year, not more than two air pollution problems were referred to this ofl&ce 
by the Department of Public Health. 

5. Welfare Review Cases: — The Division defends decisions by the 
Department of Public Welfare in adjusting proceedings. 

The remaining cases are of a miscellaneous nature. For example, the 
Division is presently maintaining a suit for one of the state colleges to 
obtain a tax refund. In another suit, the Division is defending the 
Commonwealth in actions brought by the City of Boston to obtain 
welfare reimbursements. 

The various Departments normally file their own legislation. Most of 
the legislation filed by this Division is therefore remedial in nature. For 
instance, during 1965-1966, corrective legislation was drafted to remedy 
certain discrepancies in the original statute creating the Board of Higher 
Education. 

There has been in preparation for the last year a publication entitled: 
The Management of Administrative Records. Its purpose is to promote 
sound administrative practice through the adoption of orderly procedures 
for managing state records. 

Public Charities Division 

The Division of Public Charities carries out the authority of the 
Attorney General to represent the public interest in the administration of 
charities. These proceedings are largely concentrated in the Probate 
Courts. The Division represents the public interest in estates admin- 
istered by Public Administrators whereby money may be returned to the 
Commonwealth. The Division also considers petitions for the probate of 
wills of persons who leave no heirs surviving them. 



24 P.D. 12 

Accounts filed by trustees form the bulk of the matters handled by 
this Division. In some trusts the charitable interests have been vested in 
possession, and funds are being expended for charitable purposes. In 
others the charitable interests are vested, but in remainder, and are not 
to take effect until after the termination of life interests. In many trusts 
the charitable interests are contingent only, often remotely. 

The Division regularly reviews the accounts and questions any 
investments, charges or payments which do not appear to be proper. 
During this period we found that many trustees, some being large 
financial institutions, had improperly paid capital gains taxes in trusts 
where the entire principal has been or is soon to be devoted to charity. 
After a careful examination of the payments, we filed applications for 
abatements and refunds were obtained. 

In addition to the accounts filed in the Probate Courts, several 
thousand annual financial reports under G. L. c. 12, § 8F, were received, 
recorded, examined and filed. Several hundred applications for certifi- 
cates of registration under G. L. c. 68, §§ 19 to 31, were also handled. 

Among the cy pres cases handled by the Division the following were of 
most importance. 

The use of a small Post War Service Fund in Franklin for the 
purchase of a memorial organ in the new high school was approved by a 
decree of the Norfolk Probate Court. 

The Child and Family Service of Springfield, Inc. was permitted more 
beneficial use of the funds bequeathed to them by Albert A. Ball due to 
a decree obtained through close cooperation of this Division and persons 
representing the charity. 

In the Clinton H. Scovell estate arrangements were made, with our 
assistance, for distribution of a large amount of accumulated income to 
several charities interested under the will. 

We supported the right of the Mistick Side Girl Scout Council, Inc., 
the only duly authorized agency of the Girl Scouts of America in this 
area, to receive the bequest in the Edith M. Fox estate amounting to 
about $150,000. The testatrix had requested that the bequest be given to 
the Girl Scouts of Arlington. 

A petition was filed in the Essex Probate Court regarding the $2,000 
gift under the will of Samuel E. Sawyer for the Marsella Street Home. 
Many years ago the City ceased operation of the Home. Following legal 
proceedings, the income from the fund was used for the care of children 
aided by the Welfare Department of the City of Boston. In 1954 the 
State assumed the responsibilitv for the care of all poor and neglected 
children in the Citv. The income of the fund was no longer used. The 



P.D. 12 25 

petition asked for approval of the transfer of the fund to the State 
Department of Pubhc Welfare. The income would then be used for the 
benefit of children committed to the care of the Department from the 
City of Boston. 

In addition to handling the above mentioned cy pres cases, matters 
concerning the operation of charitable corporations is an important and 
time consuming function of this Division. In the proceedings for the 
dissolution of the Horace Moses Foundation, Inc. the transfer of all the 
assets of the corporation to an Ohio bank under an intervivos trust was 
protested. The Attorney General filed an answer asking that the transfer 
be declared invalid. The Ohio bank was joined as a party and an order 
requiring the Bank to return the funds to the corporation was requested. 

We supported the position taken by the American Jewish Historical 
Society, that it would not be a violation under the will of Lee M. 
Friedman to construct a building for the Society's use on the campus of 
Brandeis University. The provision of the gift in the Friedman will 
required that the Society retain a separate independent status. 

In another case the transfer of the funds of the Norfolk House, and 
certain other Roxbury charitable corporations, to the new Roxbury 
Federation of Neighborhood Centers was approved. 

In the Catherine Connolly estate in Norfolk the Division learned that 
the executor had filed a petition questioning the validity of the 
charitable gifts under the will. However, the Attorney General has not 
been made a party to the proceeding as required. The estate had earlier 
been inventoried at about S70,000. The residue was left to purchase 
clothing and lunches for the needy school children of the testatrix's birth 
place. Carraroe, Ireland. There was also a bequest for a drinking fountain 
there. 

A decree had been entered by way of compromise, providing that the 
gifts failed but that one-half the residue of the estate should be paid to 
the Galway County Council (which served the village of Carraroe, 
twenty-five miles away) to be used for the benefit of needy school 
children in Carraroe. The other half was directed to be divided between 
a nephew of the testatrix living there and to the estate of another 
nephew who had died here. The decree provided that S4,000 of the 
allotted residue be paid directly to the attorney for the nephew in 
Ireland in addition to $2,000 out of another bequest. 

A petition was filed by this Division attacking the validity of the 
decree because of the omission to make the Attorney General a party to 
the proceedings. 

Objections were also made to items in the first account of the executor 
of $10,000 for executor's fees and $3,000 for an attorney's fee in 



26 P.D. 12 

connection with the petition to which the Attorney General was not 
made a party. At a hearing on the account, a decree was approved 
reducing the charges by more than one-third. 

Among the many petitions considered for license to sell real estate was 
one in the estate of Irene A. Hyde relating to the Hotel Touraine. 
Another related to property on Washington Street, Boston, held by the 
trustees under the will of George Robert White. A petition by the Lotta 
M. Crabtree trustees to borrow from one of the funds held by them to 
pay the cost of making repairs to the Hotel Paramount property on 
Boylston Street, damaged in an explosion and fire in January, 1966, was 
approved. 

The most frequent problems handled by the Division in public 
administration concerned charges for services. In most cases the 
fees charged by public administrators are within reasonable limits. 
However, from time to time it is necessary to question the reasonable- 
ness of such charges. Usually there is a valid explanation. But in a few 
instances, despite explanations, we consider the fee to be excessive. In 
most such cases the objections are adjusted by compromise. When that 
cannot be done the matter is submitted to the Court and invariably our 
objections are sustained in whole or in part. 

Torts, Claims and Collection Division 

The Torts, Claims and Collection Division represents Commonwealth 
employees in tort actions brought against them. After a detailed 
investigation the Division assesses the liability upon the state employee 
and determines a reasonable amount for the damages involved. 

During the past fiscal year, except for motor tort claims, all litigation 
involving torts have resulted in findings or verdicts favorable to the state 
employee. 

G. L. c. 12, § 3B provides that the Attorney General shall defend state 
employees involved in an accident while operating a state owned 
vehicle. 

The amount of settlement for any motor tort claim occurring before 
April 7, 1966, was $10,000 for personal injury and $5,000 for property 
damage. At the request of this Division the Legislature enacted in the 
Acts of 1965, Chapter 890, an increase in the settlement amount to 
$25,000 for personal injury claims and $10,000 for property damage 
claims. This became effective for motor tort claims occurring after April 
7, 1966. The appropriation available for payment of tort claims under G. 
L. c. 12, §§§ 3B, 3C and 3D was $100,000 and was not increased 
accordingly for the past fiscal year. This Division points with under- 
standable pride to the fact that it has not had to seek a supplementary 
appropriation from the Legislature for payment of motor tort claims. 

During the past fiscal year records indicate that the average settle- 
ment for a motor tort claim, including verdicts and findings as a result of 
trials, was in the amount of $372.33. This figure compares favorably with 



P.D. 12 27 

average motor tort settlements for the previous fiscal year of $312.09, 
with due consideration for the increase in costs of repairs, medical and 
hospital costs and a trend of increased verdicts and findings by juries 
and judges. 

All correspondence is up to date, acknowledged and answered on a 
current basis and no litigant has been unreasonably delayed in trial or 
payment of claims. 

Under G. L. c. 12, § 3A, the Division is responsible for moral claims 
(damages occurring under circumstances which impose a moral and not a 
legal liability upon the Commonwealth) . A common type of moral claim 
is a deer crossing a highway and colliding with a motor vehicle. During 
the past year 21 such claims have been paid for an average settlement of 
$121.11. This compares favorably with similar settlements for the 
previous fiscal year in the average amount of $139.22. Seventy-six moral 
claims have been approved by this Division for a total amount of 
S4586.23. The average settlement was S60.34 while the average settle- 
ment for the previous fiscal year was $42.24. 

This Division is also responsible for the defense of claims arising from 
defects in state highways and Metropolitan District Commission boule- 
vards throughout the Commonwealth. Numerous claims have been made 
for alleged defects in state highways, but no liability exists under our 
present statutes. In two cases the facts warranted settlement in the 
amount of $1072.64. An average settlement of $536.32 was paid by the 
Department of Public Works upon recommendation of this Division. 

This 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 and for other obligations owed the 
Commonwealth. 

The following collections have been made in 916 cases during the 
period covered by this report. 
Department Number of Cases Amount of Money 



Mental Health 


133 


$171,455.11 


Public Health 


388 


206,037.80 


Public Works 


214 


27,792.55 


Metropolitan District Commission 


38 


10,889.76 


Public Safety 


34 


1,184.43 


Correction 


2 


104.53 


Education 


84 


8,620.32 


Labor and Industry' 


1 


65.00 


Public Utilities 


1 


400.00 


Public Welfare 


2 


90.00 


Natural Resources 


5 


2,359.00 


Youth Service 


1 


120.00 


Soldiers' Home 


1 


1.35.00 


Treasury 


6 


271.00 


University of Massachusetts 


1 


25.00 


Office of Secretary 


5 


225.00 




$429,775.43 



28 , P.D. 12 

There has been a significant increase during each year of our Adminis- 
tration in the sums collected for the Commonwealth in this area. 
Comparative figures may be found in the 1964 Annual Report. 

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 

The Veterans 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, available to them. The Veterans Division is available at all 
times to help veterans resolve any problems which 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. 

Exhibit A 

1966 Legislation Proposed by the Department of the Attorney General 

Conclusion 

The work of the Department of the Attorney General, as can be seen 
from this report, is varied and at times difficult and highly technical. It 
requires a staff of conscientious and able lawyers who are sensitive to 
their responsibilities. The members of the Department have continued to 
provide the Commonwealth with the finest legal service possible, and I 
am grateful to them for their dedicated efforts, just as I am grateful for 
the continued opportunity to join with them in serving the citizens of 
Massachusetts. 

Respectfully submitted, 

Edwakd W. Brooke, 
Attorney General. 



P.D. 12 29 

The Department of Mental Health may transfer voluntary patients to 
state, federal or private institutions, provided written consent of the 
patient is first obtained, and this power includes authorization to 
transfer to institutions in other states. 

July 7, 1965. 

Hon. James W. Dykens, M.D., Assistant Commissioner, Department of 
Mental Health. 

Dear Doctor Dykens: — I am in receipt of your letter of March 29, 
1965 requesting my opinion regarding the authority of the Department 
of Mental Health to transfer voluntary patients to state, federal or 
private institutions, once written consent of the patient has been 
obtained. 

Specifically, you have asked: 

"Does the department have the power to transfer any voluntary 
patient to or from any state, federal, or private institution within 
Massachusetts, provided that the Department has first obtained the 
written consent of the patient?" 

General Laws c. 123, § 20, par. 3, provides: 

"The department shall not transfer any person to or from an institu- 
tion licensed under sections 33 and 34A (private and federal institutions) 
. . . nor transfer any voluntary patient of any institution except with his 
written consent." 

It is clear from a reading of the above-quoted language that the 
answer to your first question is in the affirmative. The department is 
expressly authorized to transfer voluntary patients to or from federal or 
private institutions within Massachusetts, provided it has obtained their 
written consent. 

In so far as transferring voluntary patients to or from state institu- 
tions within Massachusetts is concerned, the only relevant provisions are 
in c. 123, § 20, par. 1. That section provides: 

"The department . . . may transfer to or from any hospital or school 
any patient . . . except that no patient shall be transferred between 
institutions while he is present as a voluntary patient. . . ." 

This section, although in substance precluding the transfer of volun- 
tary patients, makes no mention of the availability of consent to 
transfer. Logically, despite the absence of express statutory language on 
that point, where the original entry of the patient is voluntary, there is 
no reason why the patient may not also voluntarily consent to be 
transferred. 

It is my opinion therefore that, with respect to voluntary patients, 
they may be transferred to or from state hospitals within Massachusetts, 
provided their consent is first obtained. 

As a second question you ask: 

"Does the Department have the power to transfer any voluntary 
patient to an institution in another state, provided that the Department 
has first obtained the patient's written consent?" 



30 P.D. 12 

The provisions of c. 441 of the Acts of 1956 do not provide any 
detailed procedure to be followed in effecting the interstate transfer of 
patients. That chapter in Article III (b) states in part: 

". . . any patient may be transferred to any institution in another 
state whenever there are factors based upon clinical determinations 
indicating that the care and treatment of said patient would be 
facilitated or improved thereby." 

In view of the brevity and lack of detail of the above-quoted 
provision, it is reasonable to assume that it was the intent of the 
draftsmen that state law be applied whenever possible. This conclusion is 
confirmed by the language of various other sections of the compact 
expressly retaining in the individual party states authority to act 
pursuant to their own laws. 

Consequently, in view of the absence of guiding principles to be 
followed in effecting interstate transfers and the general tenor of the 
compact regarding the supremacy of state laws, it is my opinion that 
the applicability of the interstate transfer provisions of c. 441 to 
voluntary patients must be determined according to the law of Massa- 
chusetts. Accordingly, then, the provisions of G. L. c. 123, § 20 would be 
applicable and the written consent of voluntary patients would be 
required both for transfers to out-of-state federal or private institutions, 
as w^ell as for transfers to out-of-state public institutions. 

The answer to your second question, therefore, is in the affirmative. 
The Department of Mental Health does have power to transfer volun- 
tary patients to institutions in other states, provided the patient's 
written consent is first obtained. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



School committee expenditures for out-of-state travel which are neces- 
sary within the meaning of G. L. c. 71 § 34 do not require executive 
approval. 

July 8, 1965. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — I am in receipt of your letter wherein 
you request interpretation of the provisions of c. 248 of the Acts of 1964. 
This act amends G. L. c. 40, § 5, cl. (34) and relates, among other 
things, to executive approval of expenses for travel outside the Com- 
monwealth by municipal officers and employees. You have requested my 
opinion as to whether the requirement of executive approval inserted by 
the 1964 amendment applies to expenses for out-of-state travel by 
members of school committees. Prior to 1964, cl. (34) of the said § 5 
contained the following language: 

"(34) For the necessary expenses of municipal officers and employees 
of any particular department incurred outside the commonwealth in 
securing information upon matters in which the city or town is interested 



P.D. 12 31 

or which may tend to improve the service in such department, including 
attendance al state police schools conducted by the department of public 
safety, attendance at schools for the training of local police officers 
conducted by the Federal Bureau of Investigation, the Massachusetts 
Chiefs of Police Association, the Boston police department, the 
Worcester police department, the Springfield police department, and the 
metropolitan district commission police department, and attendance at 
courses at colleges and universities for the training of police officers, if 
such appropriation is specified to be and is limited to such expenses 
incurred as aforesaid. Such expenses may also be incurred anywhere 
within the commonwealth and in such case shall be chargeable against 
any appropriation made for the ordinary maintenance of the department 
incurring the same." 

The effect of the pre-1964 clause (34) of G. L. c. 40, § 5 on the out- 
of-state travel expenditures of a school committee was considered in Day 
V. Newton, 342 Mass. 568, which held that the Newton Board of 
Aldermen did not have power to delete an allowance in the school 
committee budget for travel by three committee members to a California 
educational conference. 

The court's decision was based on the overriding effect of G. L. c. 71, 
§ 34, which requires every city and town to provide annually an amount 
of money sufficient for the support of its public schools. Numerous court 
decisions have interpreted G. L. c. 71, § 34, to require a municipality to 
provide all the money "necessary" for the support of its schools; and in 
Day v. Newton, supra, the court held that the item for out-of-state 
travel was "necessary" within the definition of "necessary" established 
by the court, viz., the item was "reasonably deemed by the committee to 
bear a relation to its statutory mandate." (Emphasis supplied.) Day v. 
Newton, supra, 570. It will be noted that the court has made it clear that 
the school committee, not some other municipal authority or the court, is 
the judge of whether an expenditure is "necessary," at least so long as 
the school committee acts reasonably. Graves v. Fairhaven, 338 Mass. 
290, 293. 

In Day v. Newton, supra, the court said, at page 572, that appropria- 
tions: 

". . . which are 'necessary' for schools must be made in the amount 
that the committee requests. We assume that c. 40, § 5, cl. 34, is 
applicable inasmuch as it is a part of the basic statement of purposes for 
which a municipality may appropriate funds. Its intent as applied to the 
school committee is fully served when the committee designates in its 
budget the item for out-of-state travel as the clause requires, and the 
board of aldermen, or other appropriating body, makes the appropriation 
with that restriction, and no other, applying thereto." (Emphasis 
supplied.) 

By c. 248 of the Acts of 1964, the General Court amended cl. (34) of 
G. L. c. 40, § 5 so as to authorize expenditures for attendance at out-of- 
state training programs relating to special aspects of the duties of 



32 P.D. 12 

municipal officers or employees. Clause (34) of G. L. c. 40, § 5 now 
reads: 

" (34) For the necessary expenses of municipal officers and employees 
of any particular department incurred outside the commonwealth in 
securing information upon matters in which the city or town is interested 
or which may tend to improve the service in such department, including 
any training program or programs for municipal offi.cers or municipal 
employees, relating to special aspects of their duties and including 
attendance at state police schools conducted by the department of public 
safety, attendance at schools for the training of local police officers 
conducted by the Federal Bureau of Investigation, the Massachusetts 
Chiefs of Police Association, the Boston police department, the 
Worcester police department, the Springfield police department, and the 
metropolitan district commission police department and attendance at 
courses at colleges and universities for the training of police officers, 
authorized by the board of selectmen in a town, or by the town manager 
in a town having the same, by the mayor in a city, or by a city manager 
in a city having the same, if such appropriation is specified to be and is 
limited to such expenses as aforesaid. Such expenses may also be incurred 
anywhere within the commonwealth and in such case shall be chargeable 
against any appropriation of the department incurring the same. Total 
appropriations in any year under the provisions of this clause for the 
necessary expenses of municipal officers and employees of any particidar 
department incurred outside the commonwealth shall be limited to one 
one-hundredth of one per centum of the average assessed valuation in a 
city or town of the three preceding years." 

[The italicized portions indicate the additions made by the 1964 
amendment.] 

Prior to 1964, cl. (34) lacked any reference to authorization by a 
board of selectmen or other executive authority. This addition raises the 
question whether the Legislature limited the application of G. L. c. 71, 
§ 34, as construed in Day v. Newton, supra, so as to make school 
committee expenditures for out-of-state travel contingent upon their 
prior approval by city or town executive heads. 

In my opinion, c. 248 of the Acts of 1964 does not do this. The 
Legislature has the power to limit G. L. c. 71, § 34, or repeal it 
altogether. The fiscal independence of school committees is well estab- 
lished. To derogate from this fiscal independence, a clear indication of 
legislative intent is necessary. Absent such indication, G. L. c. 71, § 34 
continues to give to school committees power to require the appropriation 
of funds covering those expenditures for out-of-state travel that are 
"reasonably deemed by the committee to bear a relation to its statutory 
mandate." Day v. Newton, supra, 570. 

This conclusion is supported by the legislative history of c. 248. 
Entitled, "An Act authorizing the appropriation of funds to cover the 
cost of in-service training for certain municipal officers or employees," 
c. 248 was a redraft of H. 803, reported from the Joint Committee on 
Municipal Finance, in part, on H. 1171. Both H. 803, which was the 



P.D. 12 33 

petition of the Citizens for the Advancement of the Public Service, and 
H. 1171, the petition of the Massachusetts League of Cities and Towns, 
bore substantially similar titles, to wit: — (803) "An Act to permit Cities 
and Towns to assist municipal officers and employees in a career service 
through in-service training programs." H. 803 would have amended G. L. 
c. 71. § 34, to read, in part: 

"(34) For the necessary expenses of municipal officers and employees 
of any particular department ... in securing information upon matters 
in which the city or town is interested or which may tend to improve the 
services in such department, incliiding any training program or programs 
for mvnicipal officers or mnnicipal employccf^, authorized hi/ the hoard of 
selectmen in a town. . . ." [or other executive officers listed in c. 248.] 

Subsequently, after enactment in both branches, H. 803 was redrafted by 
the Crovcrnor's Office and returned by special message (H. 3291) in the 
form thereafter adopted by the Legislature as c. 248 of the Acts of 1964. 
One change made by the Governor's redraft was to reincorporate in the 
first sentence, after the word "including," an itemization of various 
authoriznd police training programs. Such roforppces bad theretofore been 
in G. L. c. 40. § 5, cl. (34) and presumably the Governor wanted to 
make it clear that authorization for them was not being withdrawn. As a 
result of this drafting change, the clause "authorized by the board of 
selectmen in a town . . ." ceased to follow directly after the words "any 
training program or programs for municipal officers or municipal em- 
plovee=." Hence, while in original H. 803 the "authorized by" clause 
probably modified "training program or programs," in the final draft it 
became isolated from "training program or programs," and assumed a 
location where it could be said to require prior authorization of any out- 
of-state travel expenditure by the designated authorities. 

The principal object of H. 803 and H. 1171 was to provide for in- 
service training for municipal emplovees with appropriate limitations. 
Therp is ro indication that any part of their object was to take away the 
traditional and long-established fiscal powers of school committees. The 
redraft of H. 803 by the Governor's Office, which resulted in the wording 
here ouostioned, was to make sure that programs for police training 
mithorized in the past would not be excluded by the amended bill and to 
make various technical improvements. Had the Legislature wanted to 
take the far-reaching step of placing school committee travel under the 
control of cHv or town executives, the Legislature could have said so in 
immistakable language. 

Accordingly. I am of the opinion that srhool committee expenditures 
for out-of-state travel which are "necessarv" within the meaning of G. L. 
c. 71. § 34, as interpreted in Day v. Newton, must continue to be 
provided bA^ cities and towns whether or not authorized by the board of 
selectmen or other town or municipal executives listed in c. 248 of the 
Acts of 1964. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



34 P.D. 12 

Children who reside on federal reservations within the Commonwealth 
and who attend local schools shall be included within the geographi- 
cal limits of such municipality for purposes of state aid to education. 

July 8, 1965. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have asked my opinion on the 
following question : 

"Can the Department of Education under Chapter 70 of the General 
Laws reimburse Chicopee for youngsters who live on the Federal 
installation at Westover Field and who attend Chicopee schools?" 

Chapter 70 of the General Laws is remedial in nature, and its purpose 
is "to promote the equalization of educational opportunity in public 
schools of the Commonwealth and the equalization of the burden of the 
cost of schools to the respective towns." 

This statement of purpose was inserted by c. 643 of the Acts of 1948 at 
which time the format of state aid to cities and towns was generally 
revised. The new formula is based upon the number of persons "between 
the ages of seven and sixteen in the several towns as determined in the 
registration of minors required by section two of chapter seventy-two 
. , ." (G. L. c. 70, § 4.) Section two of c. 72 of the General Laws requires 
that "the school committee of each town shall ascertain and record the 
names, ages and such other information as may be required by the 
Department of Education, of all minors residing therein between five 
and sixteen, and of all minors over sixteen who do not meet the 
requirements for the completion of the sixth grade of the public school of 
the town where he resides." 

Thus the question is: Are minors who reside on the federal installation 
at Westover residents of Chicopee for the purposes of such registration? 

It is my opinion that they are. The first purpose of c. 70 will be 
fulfilled by the fact that reimbursement to Chicopee for the costs of the 
education of the pupils in question will increase the total amounts 
available for education in Chicopee and thus improve the educational 
opportunities available to all Chicopee public school pupils. 

The second purpose of c. 70 is equally applicable. Failure to consider 
the school pupils who reside on the military reservation increases the 
burden on local taxpayers and is contrary to the express intent of the 
statute that the local burdens be equalized by state reimbursement of 
part of the per pupil cost of instruction. 

The opinion of the Attorney General (VI A. G. 593) given in 1921 
interpreting the old state aid statute is not controlling on the present 
facts and statutes. 

That opinion held that the Town of Harvard was not under any legal 
obligation to provide school facilities for children living on the Fort 
Devens federal reservation and, therefore, not entitled to count them for 
state aid purposes. The opinion relied primarily on Fort Leavenworth v. 
Lowe, 114 U.S. 525 (1885) and Opinion of the Justices, 1 Met. 580 
(1841). These decisions were based on the proposition that since Art. 1, 



P.D. 12 



35 



§ 8 of the Constitution of the United States gives Congress exclusive 
jurisdiction over "all places purchased by the consent of the Legislature 
of the state in which the same shall be" for the erection of forts, etc., 
that such places cannot be subject to state jurisdiction except as the 
state has specifically retained jurisdiction, and in that sense are not 
"within" the state. 

This construction is, of course, proper and controlling in case of 
conflict between federal and state jurisdiction. However, it must be 
remembered that in our federal system, the constitutions and laws of 
both the state and federal governments are to be construed as function- 
ing compatibly together and not at arm's length. 

The Fort Leavenworth case itself recognized this principle: 

"In their relation to the general government, the states of the Union 
stand in a very different position from that which they hold to foreign 
governments. Though the jurisdiction and authority of the general 
government are essentially different from those of the state, they are not 
those of a different country; and the two, the state and general 
government, may deal with each other in any way they may deem best 
to carry out the purposes of the constitution." 

The Supreme Court later stated in Silas Mason Co. v. Tax Comm., 302 
U.S. 186 (1937), that: 

". . . The mere fact that the Government needs title to property within 
the boundaries of a state {Kohl v. U.S., 91 U.S. 367) does not necessitate 
the assumption by the Government of the burdens incident to an 
exclusive jurisdiction. We have frequently said that our system of 
government is a practical adjustment by w^hich the national authority 
may be maintained in its full scope without unnecessary loss of local 
eflEiciency. In acquiring property, the federal function in view may be 
performed without disturbing the local administration in matters which 
may still appropriately pertain to state authority." 

In Independent School District v. Central Education Agency, 247 
S.W. 2d 597 (1952), the Texas Court of Civil Appeals upheld a Texas 
statute which specifically included the Fort Bliss Military Reservation in 
the El Paso school district for state aid purposes. The Court held that 
even though exclusive jurisdiction had been ceded to the United States, 
Fort Bliss in accordance with the statute and the action of the State 
Board of Education, had become part of the El Paso school district. The 
court stated at page 608: 

"We did not say, nor did we intend to say that, geographically 
speaking, a military reservation or other federal-owned lands could not 
be 'contained' within a school district. They may be so contained just as 
Fort Bliss may continue to be contained within El Paso county and 
within the state of Texas. 

"We fully agree with appellees that the purpose of section 5 of Article 
2922-16 was to equalize the financial burdens of school districts by 
making allowance for tax exempt property contained within the districts. 
This sound principle of tax equalization should be extended and not 



36 PD. 12 

restricted and we feel certain that the courts will not interfere with the 
application of this statute as intended by the legislature." 

The Fort Bliss Reservation was acquired by the United States from 
Texas under the same type of cession by which the Westover Reservation 
in Chicopee was acquired from Massachustts. 

The reasoning of the Texas Court is sound and, in my opinion is 
applicable to our Massachusetts statute. 

In the period since the 1921 Fort Devens opinion, the Federal 
Government has relinquished to the states a considerable amount of 
authority over federal reservations. It has given to the states the power 
to apply their own workmen's compensation laws [49 U.S. sts. at large, 
1938 (1936)] ; the right to collect taxes on gasoline on military reserva- 
tions [49 St. 1521-1522 (1936)]; and the right to collect income taxes 
from residents in federal areas [54 St. 1059]. 

The Massachusetts income tax law (G. L. c. 62, § 5A) imposes a tax 
on income earned "within the commonwealth" and this tax is assessed on 
federal employees at Westover Field, excluding any uniformed military 
personnel whom the statute itself excepts. 

It is thus clear that for income tax purposes both the Federal 
Government and Massachusetts regard Westover Field as being within 
the Commonwealth. 

At the time the decisions upon which the 1921 opinion relied were 
made, financial support of the public schools in Massachusetts rested 
almost entirely on the general property tax and thus it was quite 
appropriate to hold that once the local community lost the power to tax, 
it had no responsibility to render services and consequently no right to 
state aid. Today the situation is very different. Substantially every one 
of the other forty-nine states construes its state aid laws to include 
children residing on federal reservations. 

In my opinion, the clear intent of G. L. c. 70, § 4 is that children who 
reside on the federal reservation at Westover Field and who attend the 
Chicopee Schools be included within the geographical limits of Chicopee 
for purposes of state aid to education. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The state treasurer must look to the Commissioner of Education for a 
determination as to whether the state aid checks in the Treasurer's 
possession should be released. The releasing or withholding of such 
funds is to be determined on the Commissioner's decision as to 
whether or not a racial census is a part of the annual return of the 
municipality. 

July 9, 1965. 
Hon. Robert Q. Crane, Treasurer and Receiver General. 
Dear Treasurer Crane: — I have received your letter on June 29, 



P.D. 12 37 

1965, wherein you request my opinion of the effect of the recent decision 
of the Supreme Judicial Court in the case of School Committee of New 
Bedford v. Commissioner of Education. Specifically, your letter reads as 
follows: 

"Upon receipt of the copy of the Supreme Court Decision relative to 
the 'School Committee of New Bedford & others vs. Commissioner of 
Education & another,' could you please advise me whether or not as cited 
on ])agc 10, 3., 'The interlocutory and final decrees are reversed and the 
case is remanded to the Superior Court for further proceedings consistent 
with this opinion.' 

"May I now release two checks which have been held by me, as State 
Treasurer, to the City of New Bedford; and in view of your previous 
decision to me, whereby I was to withhold money issued under Chapter 
70 of the General Laws." 

Your questions must be answered in the light of certain background 
material. Early in 1964, Commissioner of Education, Owen B. Kiernan, 
determined that a to-called "racial census" would be desirable in order to 
furnish the department with information concerning racial patterns in 
the public schools throughout the Commonwealth. By an opinion 
rendered on February 10, 1964, I advised the Commissioner that such 
information could lawfully be requested, and that the cities and to"v\Tis 
would be obliged to comply with the department's racial census direc- 
tives. 

The City of New Bedford refused to provide the information sought 
by the Commissioner of Education. Instead, on June 12, 1964, the City 
filed in the Superior Court for Bristol County a petition for declaratory 
judgment, seeking a declaration, (a) that the Commissioner could not 
lawfully require the City to conduct a racial census in the New Bedford 
schools, and (b) that school aid to which the City would ordinarily be 
entitled under c. 70 of the General Laws could not lawfully be withheld 
as a result of failure to take the requested census. A demurrer was filed 
on behalf of the Commissioner, which demurrer was sustained by the 
Superior Court on July 21, 1964. On September 28, 1964, a final decree 
was entered dismissing the petition. The City of New Bedford appealed 
to the Supreme Judicial Court from the interlocutory decree sustaining 
the Commissioner's demurrer and from the final decree dismissing the 
petition. 

While this appeal was pending, the City of New Bedford continued to 
resist requests by the Commissioner that a racial census be conducted. 
Accordingl}'', the Commissioner ordered that the amounts normally 
payable to New Bedford under G. L. c. 70, § 3 be withheld for the 
reason that the Cit}^ had failed to provide the Commissioner with the 
rej^orts and returns required by G. L. c. 72, § 6. In response to a request 
submitted by your department with respect to the legality of such 
withholding of state aid funds, I replied, on April 29, 1965, as follows: 

"It is my opinion that you are not authorized to distribute funds, 
pursuant 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 



38 P.D. 12 

with applicable provisions of the General Laws. To date, no such 
information has been given or ruling issued." 

The Supreme Judicial Court has now ruled upon the appeal, and the 
question has arisen whether the decision authorizes you to release the 
presently withheld state aid amounts for payment to New Bedford. In 
brief, the Court's ruling is based upon a procedural consideration only, 
although the Court does include extensive additional comments or 
"dicta" addressed to the legality of the taking of a racial census as well 
as to the legality of the withholding of school aid amounts. As a result of 
the Court's limitation of its holding to a ruling on procedure and the 
accompanying remand of the case for further proceedings in the trial 
court, the legal situation with respect to the funds currently held in the 
Treasury is — for all practical purposes — the same as it was prior to the 
commencement of litigation. 

The final decree entered in favor of the Commissioner of Education by 
the Superior Court was based upon the sustaining of a demurrer filed on 
the Commissioner's behalf. The Supreme Judicial Court noted, however, 
that — under the circumstances — a demurrer was not a proper pleading in 
response to the petition for declaratory judgment, and consequently the 
demurrer should not have been sustained. 

"There was no basis for filing a demurrer and it was error to sustain it. 
The plaintiffs stated a case entitling them to a declaration of rights. . . . 
The plaintiffs had standing to seek declaratory relief in interpreting the 
statutes applicable to their duties as to which a controversy had 
arisen." 

Accordingly, the Court ordered that "[t]he interlocutory and final 
decrees [in favor of the commissioner] are reversed and the case is 
remanded to the Superior Court for further proceedings consistent with 
this opinion." This order was entered solely as a result of the Court's 
position on a question of pleading, and was intended to have absolutely 
no effect upon the substantive questions of the racial census and the 
withholding of school aid. 

So that there could be no mistake as to the meaning of the reversal of 
the decrees favoring the Commissioner and of the remand for further 
proceedings in the Superior Court, the Supreme Judicial Court included 
in the opinion its views upon the merits of the controversy. 

"It may be that the bill states with substantial accuracy the relevant 
facts. That, however, cannot be determined in advance of the filing of 
the defendants' answers and trial on the merits. Thus we do not afford 
declaratory relief finally on this record. Nevertheless, because it will 
hasten the conclusion of this public controversy, we state briefly certain 
applicable principles of law." 

The Court concluded that the Commissioner could lawfully require the 
taking of a racial census. 

"We have no doubt (a) that the commissioner has power to require 
relevant, unsworn information, reasonably required by him, to be filed 
by local school authorities separately from the annual return, or (b) that 



P.D. 12 <>" 

the production of such separate information may be enforced by 
mandamus." 

The Court implies, elsewhere in the opinion, that such information may 
also be required as a part of— rather than separately from — the annual 
return. 

The Commissioner, the Court explained, has the responsibility of 
supervision of all educational work supported wholly or partially by the 
Commonwealth. He is charged with the duties of recommending im- 
provements in present educational systems, and of collecting information 
with regard to the condition of the public schools. The Court determined 
that the Commissioner must — in order properly to fulfill such functions 
— be vested with a substantial range of incidental authority. 'The 
statutes (especially c. 72, § 3) sufficiently express a legislative intention 
that the Commissioner shall have power to compel the production of 
reasonable information by the cities and towns relevant to education in 
the cities and towns and to pending educational problems of the 
department." 

The Court further commented : 

"The relevance of the information sought cannot reasonably be 
questioned. We take judicial notice of the fact that controversial racial 
problems currently affect the administration of public schools, even in 
Massachusetts, and that information about the racial composition of 
student bodies may be of value to the department's work." 

Thus, the Supreme Judicial Court has made it crystal clear that the 
Commissioner of Education may lawfully require a racial census, and 
could even invoke the power of the judiciary to compel the cities and 
towns to comply with such a directive. 

Similarly, the Court concluded that — should the racial census report 
be included by the Commissioner as a part of the required annual return 
for a given year — failure to provide such a report could be a ground for 
the withholding of state aid funds. Since the case reached the Supreme 
Judicial Court without findings of fact made after a trial on the merits, 
the Court was unable definitely to determine whether the racial census 
had been intended by the Commissioner as a part of such annual return. 
The Court assumed that the Commissioner had not so considered it. 
However, should a hearing on the merits reveal that the racial census 
was in fact required as a part of the formal annual return, the sanction 
provided for in G. L. c. 72, § 6 [withholding of state aid] could lawfully 
be imposed. 

I am aware that the comments of the Court upon the taking of a 
racial census and the withholding of school aid are "dicta"_only, and do 
not represent actual holdings or rulings at the present time. But the 
discussion of these legal principles is significant, for the views of present 
members of the tribunal are thereby recorded; such views will un- 
doubtedly control the rulings in future cases. The parties to the present 
controversy should benefit from the informal declaration of the law 
provided by the Commonwealth's highest Court. 

Consequently, in light of the above, you — as State Treasurer — must in 



40 P.D. 12 

the first instance look to the Commissioner of Education for a deter- 
mination as to whether the state aid checks presently in your possession 
should be released. There is at this time no judicial order on record which 
would compel either retention or immediate release of the checks in 
question. Should the Commissioner determine that the racial census 
report is a part of the annual return, and that such a report has not been 
filed, he may order that state amounts still be withheld. If, on the other 
hand, the Commissioner concludes that the racial census report is not a 
part of the annual return — or if such a conclusion is arrived at after a 
hearing upon the merits in the Superior Court — then the funds must be 
released and paid over to the City of New Bedford. It is of course to be 
hoped that the parties to this dispute may reach a resolution of their 
differences in accord with the principles set forth by the Supreme 
Judicial Court, and that after such agreement the funds may speedily be 
released. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The comptroller of the commonwealth is ivithout authority to direct the 
withholding of payments; his duties, in respect to the processing of 
accounts, are ministerial only. 

Despite the "veto" provisions contained in St. 1956, c. 718; St. 1961, c. 
590; St. 1962, c. 782; and St. 1963, c. 822, land takings in Suffolk 
County made by the Department of Public Works are valid, and 
unencumbered funds available from accounts authorized by the 
Accelerated Highway Program statutes other than those enumerated 
acts, may laivfidly be used to pay compensation therefor. 

July 9, 1965. 
Hon. Francis M. Sargent, Commissioner of Public Works. 

Re: L.O. 5440 (Suffolk) Parcels 1 through 6-Damage Payments. 

Dear Commissioner Sargent: — I have received your letters of Mav 21 
and 27, 1965, wherein you request my opinion upon certain questions 
raised in connection with certain land takings by eminent domain in the 
City of Boston. You have provided me with the following facts relative 
to the takings and to the circumstnnfcs which led the Department to 
take action with respect to the properties involved. 

The parcels taken f Parcels 1 tln-ough 6 in Layout No. 5440 (Suffolk)] 
fall within the area designated as a route for the so-called "Inner Belt," 
Interstate Route 695. The Inner Belt is to be constructed pursuant to a 
series of authorization and appropriation statutes which provide for an 
"Accelerated Highway Program." The Inner Belt is one of a variety of 
projects to be carried on under these statutory provisions. Certain of 
these statutes (St. 1961, c. 590; St. 1962, c. 782; St. 1963, c. 822) provide 
that the funds appropriated therein may not be expended for projects 
lying within the towns of Brookline and Saugus, or the cities of Boston, 
Cambridge, Lynn, New Bedford, Peabody, Revere, Somerville and 



P.D. 12 41 

Springfield, without approval of the route by the mayor of the city or 
tlie selectmen of the town affected. 

On June 18, 1963, then Commissioner of Public Works, Jack P. 
Ricciardi, wrote to the Mayor of Boston requesting that "approval be 
given for the Boston Section of the Inner Belt from the end of the 
present construction in the vicinity of Massachusetts Avenue to the 
Boston-Brookline Line in the vicinity of Beacon Street, as recommended 
in the Inner Belt and Expressway Report, copies of which have been 
forwarded to you." On July 18, 1963, the Mayor of Boston replied in 
part as follows: 

"... I wish to indicate my approval with respect only to the general 
location of this facility to enable the Department to proceed with 
preliminary engineering design. Inasmuch as the Inner Belt and Express- 
way Study recommended route has two alternative designs, because the 
recommended routes as shown in the Inner Belt Report are drawn at 
small scale, because of urban renewal projects in this area and because of 
potential relocation problems, I withhold any approval regarding exact 
geometric and functional design until such time as preliminary engineer- 
ing has been completed." 

On March 31, 1965, the Department of Public Works adopted an 
Order of Taking relative to the parcels in question. The Order of Taking 
recited that the properties were being taken from the Green Shoe 
Company, the City of Boston and Owners Unknown, and was recorded in 
the Suffolk County Registry of Deeds on April 7, 1965. 

On May 14, 1965, you caused to be submitted for payment Depart- 
ment of Public Works Purchase Order No. 781863 on the 1962 Highway 
Improvement Loan Account No. 7775-67. The Comptroller refused to 
process that invoice and others of the same date on the same account. He 
returned the invoices after advising your Department orally that he was 
taking such action because the condition precedent in Section 12 of 
Chapter 782 of 1962, the Highway Improvement Loan, had not been 
fulfilled. On May 27, 1965, you caused to be submitted to the Comp- 
troller for processing three invoices for payment of damages arising from 
the captioned takings. They constituted Purchase Order No. 781850 on 
the 1954 Highway Improvement Loan (F.A. Interstate) Account No. 
7771-23-00. By letter to you of June 18, 1965, through his Deputy 
Thomas J. Sullivan the Comptroller returned said invoices. The reason 
stated for that action was that the approval of the Interstate 695 Project 
by the Mayor of Boston has not been filed with the Comptroller in 
compliance with St. 1956, c. 718 § 4A or St. 1961, c. 590 § 4 or St. 1962, 
c. 782 § 12 or St. 1963, c. 822 § 9. 

You have informed me that the unencumbered, unexpended balance of 
the 1954 Highway Improvement Loan is sufficient to pay the damage 
awards for the takings in question. Chapter 403, St. 1954, creating said 
1954 Highway Loan, contains no provision requiring approval by any 
official of the City of Boston prior to the expenditure of any part 
thereof. 

In substance the Comptroller asserts that the takings, adopted March 



42 P.D. 12 

31 and recorded April 7, 1965, were invalid. In light of his refusal to 
process payment therefor and of the facts set forth above, you have 
requested my opinion upon the following questions: 

1. Does the letter dated July 18, 1963, from the Mayor of Boston to 
the then Commissioner of the Massachusetts Department of Public 
Works, Jack P. Ricciardi, constitute approval of the Boston section of 
the Inner Belt in the vicinity of Massachusetts Avenue to the Boston- 
Brookline Line, in the vicinity of Beacon Street, as required under 
Section 12 of Chapter 782, Acts of 1962? 

2. Does the Comptroller of the Commonwealth have the authority to 
refuse to process the payment of the awards for the takings under the 
Order of Taking dated March 31, 1965? 

St. 1962, c. 782, § 12 provides: 

"No money shall be expended under this act by the state department 
of public works for projects in the to^vTis of Brookline or Saugus, of the 
cities of Boston, Cambridge, Lynn, New Bedford, Peabody, Revere, 
Somerville or Springfield until such projects have been approved and 
accepted by the selectmen of said towns, the mayor of the city of 
Boston, Lynn, New Bedford, Peabody, Somerville or Springfield or the 
city manager of the city of Cambridge or Revere." 

This "veto" provision does not specijBcally indicate exactly to what the 
word "projects" refers, or what elements of the Inner Belt Highway 
scheme were to be subject to approval and acceptance. This question was 
considered in an opinion rendered by this Department on September 3, 
1963 on the subject of the veto power given the cities and towns along 
the Inner Belt route. It was stated at page 2 of that Opinion: 

"The initial use of the word, 'projects,' in said section 12 is an 
unambiguous description of the total highway activity described in said 
Chapter 782. The language of said section 12 does not limit the meaning 
of 'projects' by delineating specific components of total highway activity 
such as location or design. 

"It is my opinion that the officials of the cities and towns listed in said 
section 12 have the power to approve and accept the concept of 
highways, the exact location of highways, and the actual geometric 
design of highways included in projects set forth in Chapter 782, Acts of 
1962 " 

The letter sent by the Mayor of Boston to former Commissioner 
Ricciardi at most expresses satisfaction with the general location of the 
Boston Section of the highway. In light of § 12 of St. 1962, c. 782 and of 
the Opinion of the Attorney General interpreting it, the letter of the 
Mayor could not, at the time it was written, be considered to constitute 
approval. The Mayor specifically withheld final approval with respect to 
several aspects of the highway construction, and clearly did not intend 
his letter to serve as authorization for completion of the Boston Section 
of the Inner Belt. 

In 1963, however, the General Court altered the scope of the approval 
power. The "veto" power contained in St. 1961, c. 590, § 4 and in St. 



P.D. 12 43 

1962, c. 782, § 12 is carried over into St. 1963, c. 822, § 9, but with the 
following addition as the third paragraph thereof: "For the purposes of 
this section 'project' shall mean only the route through the particular 
city or town and shall not include the actual design of or any 
engineering detail of the highway to be constructed." In addition the 
Legislature created the Board of Project Review for the purpose of 
resolving some of the disputes which had arisen over Inner Belt routes. 
These changes represent an attempt by the Legislature to reduce the 
power formerly exercised by certain cities and towns over the progress of 
the highway system in question. 

Nevertheless it cannot be said that the 1963 amendment transforms 
the letter of the Mayor into an approval of the Boston section of the 
Inijer Belt. The letter in question from the Mayor to Commissioner 
Ricciardi is dated July 18, 1963. The amendment which reduced the 
approval authority of the municipalities was not enacted until November 
15 of that year. Clearly, the Mayor did not intend his letter to constitute 
approval, nor did he expect that its provisions would be transformed into 
approval by legislative fiat. To rule that the 1963 amendment should be 
applied retroactively would be to make the approval authority illusory 
in this instance, since the right of the Mayor to approve even the route 
has in actual fact been taken away. In my opinion the General Court 
did not intend the 1963 amendment to transform into approval a letter 
which obviously was not intended as such by its author. Accordingly, in 
response to your first question, the letter of July 18, 1963 from the 
Mayor of Boston does not constitute approval of the Boston section of 
the Inner Belt. Despite the changes effected by the amendments of 1963, 
some further indication from the Mayor will be necessary before it can 
be held that the Boston section has been approved. 

In response to your second question, it is clear that the Comptroller of 
the Commonwealth is without authority to refuse to process the awards 
in question for payment. The powers of the Comptroller of the Common- 
wealth are set forth in § 13, c. 7 of the General Laws, which provides: 

"The comptroller shall examine all accounts and demands against the 
commonwealth . . . the comptroller shall make a certificate specifying the 
amount due and allowed on each account or demand so examined, the 
name of the person to whom such amount is payable, and the account to 
which it is chargeable; and if it appears to him that there are improper 
charges in said accounts or demands he shall report the same to the 
governor and council, with a separate certificate therefor. . . ." 

The Supreme Judicial Court has interpreted G. L. c. 7, § 13 so as to 
make it absolutely clear that the duties of the comptroller with respect 
to the processing of accounts are ministerial only. 

"It is clear that the comptroller himself has no authority to direct the 
withholding of payments. If he thinks that some charge is improper, it is 
then his function to report it to the governor and council." Ward v. 
Comptroller of^ the Commonwealth, 345 Mass. 183, 186. O'Connor v. 
Deputy Commissioner and Comptroller, 1965 Adv. Sh. 329. 

Accordingly, should the Comptroller determine that the awards author- 



44 P.D. 12 

ized by the Department of Public Works are improper, he cannot 
lawfully prohibit payment solely on his own initiative. He is limited to 
reporting the same to the Governor and to the Executive Council and 
making a recommendation that the amounts in question not be paid. The 
actual determination not to pay, however, must be made by the 
Governor and Council and cannot be made by the Comptroller. 

There must still be resolved questions relating to the validity of the 
takings in question and to the funds to be used to pay the awards voted 
to compensate for damages arising from said takings. 

The Acts of 1961, 1962 and 1963 which relate to the Accelerated 
Highway Program specifically provide that funds may not be expended 
under those acts for projects in certain enumerated communities without 
the express approval of such projects by the chief executive authorities of 
the municipalities involved. There can be no doubt, therefore, that 
municipal approval is a condition precedent to lawful expenditure of any 
of the funds raised by the bond issues authorized by St. 1961, c. 590; St. 
1962, c. 782; or St. 1963, c. 822. Funds appropriated by St. 1956, c. 718 
cannot be used since section 4A of that Chapter contains a "veto" 
provision applicable to the City of Boston. Consequently, in light of the 
fact that approval of the Boston section of the Inner Belt has yet to 
have been given, funds from accounts created by the above-mentioned 
statutes cannot lawfully be used to pay for the takings in question. 

However, the so-called "veto" provisions which appear in certain acts 
relating to the Accelerated Highway Program do not in any way restrict 
the general authority delegated by the Legislature to the Department of 
Public Works to take land for state highv»^ay purposes. Section 7 of 
Chapter 81 of the General Laws provides: 

"If it is necessary to acquire land for the purpose of a state highway 
outside the limits of an existing public way, the department may take 
the same by eminent domain on behalf of the commonwealth under 
chapter seventy -nine. When injury has been caused to the real estate of 
any person by the laying out ... of a state highway, he may recover 
compensation therefor from the commonwealth under chapter seventy- 
nine." 

The General Court has vested in the Department of Public Works 
unlimited authority to acquire land by eminent domain for the purpose 
of construction of state highways. No statutory provisions appear which 
would operate to restrict this general grant of power in any way. All 
lands within the Commonwealth outside the limits of existing public 
ways are subject to the provisions of G. L. c. 81, § 7, including lands 
which have been proposed as a route for the Inner Belt. 

Once lands have been taken by the power of eminent domain vested in 
your Department, the Commonwealth is legally obligated both by its 
Constitution and by Chapter 79 of the General Laws to award and to 
pay damages in fair and reasonable amounts. 

The general eminent domain power conferred upon the Department by 
G. L. c. 81 § 7 has in no way been restricted by the approval provisions 
contained in certain Accelerated Highway Program statutes previously 
cited herein. Those so-called "veto" provisions relate solely to the 



P.D. 12 45 

expenditure of funds authorized by the acts in which such provisions 
appear. The language "no money shall be expended ujider this act . . ." 
[Emphasis supplied.] is unambiguous. The scope of the approval au- 
thority and requirement cannot be expanded beyond the use of those 
funds which have been authorized by the particular acts in which such 
language is included. 

What the intent of individual legislators relative to the scope and 
effect of the Inner Belt veto may have been cannot, of course, be 
determined definitely at this date. However, the Commonwealth must be 
bound by the clear and unambiguous limitation of the effect of the 
approval provisions to the specific acts in which they are included. The 
General Court has not amended or restricted G. L. c. 81, § 7 in any way. 
There has been created no legal impediment to the taking by the 
Department of Public Works of whatever lands it considers necessary for 
state highway purposes. Fulfillment of the constitutional obligation to 
pay for the property as taken cannot be frustrated by restrictive 
language which relates solely to certain specific accounts, nor does it 
appear that the Legislature intended even to attempt such a result. 

The restrictions contained in the 1956, 1961, 1962 and 1963 statutes 
relate solely to the expenditure of funds authorized by those acts, and do 
not affect the general power of the Dei^artment to take lands for state 
highway purposes. It should be noted that most of the Accelerated 
Highway Program statutes do not contain "veto" provisions. As a result, 
unencumbered funds, authorized by such acts, can be used without 
limitation to pay for takings made by the Department. Accordingly, the 
fact that the Mayor of Boston has yet to approve the Boston section of 
the Inner Belt restricts only the use of funds from accounts created by 
St. 1956, c. 718; St. 1961 c. 590; St. 1962, c. 782; and St. 1963, c. 822. 
The land takings in question (Parcels 1 through 6 on Layout 5440 
[Suffolk]) are clearly valid. Any unencumbered funds available to your 
Department from accounts authorized by the Accelerated Highway 
Program statutes other than those of 1956, 1961, 1962 and 1963, may 
lawfully be used to meet the Constitutional obligation of the Common- 
wealth to pay compensation therefor. The Comptroller may not lawfully 
refuse to process such payments. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Money raised by taxation can be used only for a public purpose and not 
for the advantage of private individuals. 

No payments can be made under Resolves 1964, c. 113, since the 
condition to payment as expressly stated by the Legislature cannot 
be met. 

July 19, 1965. 

Hon. Theodore W. Schulenberg, Commissioner, Department of Com- 
merce and Development. 

Dear Commissioner Schulenberg: — I have your request of June 



46 PD. 12 

11, 1965 wherein you request an opinion relative to c. 113 of the 
Resolves of 1964, which provides in part as follows: 

"Resolved, That for the purpose of discharging certain moral obliga- 
tions of the commonwealth, the mass transportation commission is 
hereby authorized and directed to pay the following sums of money: — 
said persons being former employees of the Geotechnics and Resources, 
Inc. of New York and such sums being due them for wages owed for 
services performed for the said mass transportation commission; pro- 
vided however, that any payments made to the individuals named 
herein shall in each such case and in all cases cause and empower the 
commonwealth by and through the mass transportation commission to be 
subrogated to the rights which each such individual has against the said 
Geotechnics and Resources, Inc. in order that the commonwealth may 
recover from any fund, asset, real or personal property owned by or 
which Geotechnics and Resources, Inc. has a right to, any and all monies 
paid hereunder." 

The facts material to this issue were presented to me by your 
predecessor in office, former Commissioner Lester S. Hyman. 

The individuals involved and recited in c. 113, Resolves of 1964 were 
local employees of Geotechnics and Resources, Inc., which firm was 
under contract to the former Mass Transportation Commission to 
perform services for the Commission's planning project. 

By c. 636 of the Acts of 1964, the duties and obligations of the Mass 
Transportation Commission were absorbed by your department. 

Geotechnics and Resources, Inc. was adjudged bankrupt in December, 
1963 in a Federal Court in Texas. The purpose of the Resolve is to pay 
the individuals named earned wages which they did not receive because 
of the bankruptcy of their corporate employer. 

Item No. 1501-12 of c. 541 of the Acts of 1965 (the deficiency 
appropriation act) which appropriated $8,218 for the payment of certain 
moral obligations depends for its authorization on c. 113 of the Resolves 
of 1964. 

Chapter 113 authorized payment on the express condition that "any 
payments made . . . shall cause and empower the commonwealth to be 
subrogated to the rights which each individual has against said Geotech- 
nics and Resources, Inc." 

The Federal Banlo-uptcy Statute (11 USCA § 93 (n) as amended 
September 25, 1962, Pub. L87-681, § 5, 76 Stat. 570) states in part: 
". , . claims which are not filed within six months after the first date set 
for the first meeting of creditors shall not be allowed. . . ." 

The individuals in question did not file a claim within the proper time 
limit and thus there are no existing rights to which the Commonwealth 
may be subrogated. Therefore, it is my opinion that payment to them 
would be improper. 

Since these individuals were employees of a private firm and not of the 
Commonwealth, the present issue raises the question as to whether this 
kind of appropriation meets the frequently declared principle of con- 
stitutional law that "money raised by taxation can be used only for a 
public purpose and not for the advantage of private individuals." 



P.D. 12 47 

Opinion of the Justices, 231 Mass. 603, 611; 313 Mass. 779, 783; Opinion 
of the Justices, 231 Mass. 773, 775; Eisenstadt v. County of Suffolk, 331 
Mass. 570, 573-574; Opinion of the Justices, 337 Mass. 779, 781. 
However, assuming the resolve is constitutional, since the claimants have 
no existing rights because of their failure to file a claim before the 
Bankruptcy Court, the condition to payment as expressly stated by the 
Legislature cannot be met and no payments should be made under 
Resolves 1964, c. 113. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The laws of the commonwealth contain no prohibition against a decision, 
by secret ballot, made by the trustees of the University of Massa- 
chusetts to select the location of the new medical school, and the law 
contains no provision to compel each trustee to disclose the nature of 
his vote. 

July 19, 1965. 

His Excellency John A. Volpe, Governor of the Commonwealth. 

Dear Governor Volpe: — On July 15, 1965, you submitted the follow- 
ing request for an opinion : 

"At the request of the Citizens Committee on the Medical School Site 
in Amherst I should like to have your opinion as to whether the laws of 
the Commonwealth permit the trustees of the University of Massachu- 
setts to select the site of the new medical school by way of secret 
ballot." 

I understand that the trustees of the University of Massachusetts met in 
Amherst on June 11 for the purpose of selecting a location for the new 
University of Massachusetts Medical School which is soon to be con- 
structed. Although the public was allowed to attend the meeting and to 
witness the discussions and deliberations of the trustees, the actual vote 
to determine the location was taken by secret ballot. The result of the 
vote [12 to 10 in favor of the City of Worcester as the site] was 
announced to the public; but no indication was given as to how each 
individual trustee had voted. Your letter requests my opinion on the 
question whether the taking of a secret ballot in such a situation is 
authorized by the laws of the Commonwealth. 

A determination of this question depends upon interpretation of G. L. 
c, 30A, § 11 A, the so-called "open-meeting law." This statute provides in 
part as follows: 

"All meetings of every state board and commission and of the 
governing board or body of every authority established by the general 
court to serve a public purpose in the commonwealth or any part thereof 
shall be open to the public and to the press unless such board or 
commission or the governing board or body of such authority shall vote 
to go into executive session. ... All state boards and commissions and 
the governing boards or bodies of all such authorities shall maintain 



48 P.D. 12 

accurate records of their meetings, setting forth the action taken at each 
meeting, including executive sessions. A summary of all matters voted 
shall be made available with reasonable promptness after each meeting. . 
}} 

There is no doubt that the trustees of the University of Massachusetts 
conform to the concept of a "State board" and are consequently subject 
to the provisions of the "open-meeting law." The trustees are referred to 
as a "board" in G. L. c. 15, § 20, the section which identifies whom the 
trustees are to be. Likewise, it is clear that the trustees are responsible 
for the management of a State institution. 

"The state university shall be the University of Massachusetts which 
shall continue as a state institution within the department of education 
but not under its control and shall be governed solely by the board of 
trustees established under section twenty of chapter fifteen. . . ." General 
Laws c. 75, § 1, as amended. 

Thus, it is clear that the trustees of the University must be considered 
members of a "State board," and that they are required by c. 30A, § 11 A 
to hold meetings which are public in nature. 

Nevertheless, I find no provision in G. L. c. 30A, § llA which would 
prohibit the trustees from choosing to proceed by the method of a secret 
ballot. The "open-meeting law" requires that the meeting itself 'must — 
except when certain specified situations occur, at which times the board 
may vote to proceed in executive session — be conducted in public. 
Notices of each meeting must be posted, and accurate records must be 
maintained. The records of each meeting are to become public records. 

The trustees are subject to no obligations relative to the holding of 
public meetings except those imposed by c. 30A, § 11 A, and accordingly 
need meet only the requirements contained in that section. The only 
reference in the statute to information relating to votes taken by the 
board occurs in the third paragraph, and provides that "[a] summary of 
all matters voted shall be made available with reasonable promptness 
after each meeting; provided, however, that votes taken in executive 
session may remain secret so long as their publication would defeat the 
lawful purposes of the executive session, but no longer." Consequently, 
the trustees were obliged to announce — and did announce — the result of 
the vote which selected the City of Worcester as the site for the medical 
school. But nothing appears in the law which would obligate each 
individual trustee to reveal how he voted, or which would require the 
board's records to contain the same, and the board could lawfully 
exercise discretion to withhold such information. 

That the General Court did not intend to compel production of such 
information becomes even more apparent by an examination of the 
municipal equivalent of the "open-meeting law." General Laws c. 39, § 
23 A relates to meetings of boards, commissions, committees and sub- 
committees of any district, city or town, and is practically a duplicate of 
the State law tailored to meet local circumstances. In March, 1964, an 
amendment to c. 39, § 23A was approved, which amendment provided 
specifically that "[i]n any matter requiring a vote of the board, the vote 



P.D. 12 49 

shall be by voice or roll call vote, aiul no secret or written ballot shall be 
used." Thus, the "open-meeting law" applicable to municipalities does 
contain an express prohibition against the use of secret ballots. 

The most recent amendment to the law applicable to State boards was 
approved in July, 1964, some four months after the Legislature included 
the prohibition against secret ballots in c. 39, § 23A. A similar 
prohibition was not placed in the State "open-meeting law." Since it is 
clear that the General Court is aware of the problem, having dealt with 
it on the municipal level so recently, the fact that secret ballots have 
never expressly been prohibited by c. BOA, § 11 A must be considered an 
indication that the Legislature does not at this time desire to bind State 
boards in such a fashion. 

The General Court has been faced with the problem of reconciling the 
desire to keep the public fully informed of the activities and decisions of 
public officials and the sometimes competing desire to protect such 
officials from having their votes influenced by public or private pressure. 
The General Court has apparently chosen to emphasize the former 
interest in the municipal sphere, and the latter interest on the State 
level. That the Legislature has treated the two levels of government in 
different ways is obvious from the use of different language in the 
applicable statutes, each of which was re-studied by the General Court 
in 1964. Accordingly, it is my opinion that the laws of the Common- 
wealth contain no prohibition against the decision made by the trustees 
of the University of Massachusetts to select the location of the new 
medical school by means of a secret ballot. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The State Board of Retirement should continue to hold the accumulated 
total deductions credited to an emiployee's account until full restitu- 
tion is made by the employee, folloumig his final conviction of an 
offense involving funds of any governmental unit. 

July 20, 1965. 

Hon. Robert Q. Crane, Treasurer and Receiver General, Chairman, 
State Board of Retirement. 

Dear Sir: — I am in receipt of your letter of June 24, 1965 wherein 
you request my opinion concerning the disposition of the accumulated 
total deductions credited to the State Employees' Retirement System 
account of a former employee of the Massachusetts ]\'Iaritime Academy. 

You recite the following facts: On September 28, 1961, Norma J. 
Crowell, a former employee of the Massachusetts Maritime Academy, 
was found guilty in U.S. District Court for the District of Massachusetts 
of the offense of "... forging signatures on checks drawn on a 
Massachusetts Maritime Academy account ... in violation of 18 U.S.C. 
Section 495." 



50 P.D. 12 

Subsequently, the State Board of Retirement withheld and is still 
withholding the accumulated total deductions credited to her account as 
provided in G. L. c. 32, § 15. The Board of Retirement has held no 
hearing on this matter. 

The Division of State Colleges has requested that the account be 
transferred as a reimbursement to the Maritime Academy. Miss Crowell 
has again requested that the money be i-eturned to her. 

In my opinion, neither Miss Crowell nor the Maritime Academy is 
entitled at this time to the funds in question. 

Section 15(3) states in part: 

"In no event shall any member after final conviction of an offense 
involving the funds of any governmental unit ... be entitled to receive . 
. . a return of his accumulated total deductions . . . unless and imtil full 
restitution for any such misappropriation has been made." 

Miss Crowell's request is governed by this part of § 15. In this section 
the Legislature has clearly specified that only upon full restitution by 
the member shall the Board refund the accumulated total deductions 
credited to such member's account. Thus, since Miss Crowell has made 
no such restitution, the Board of Retirement is clearly authorized to 
withhold the funds until she does make full restitution to the Academy. 

There is nothing in c. 32 which would authorize the transfer by the 
Board of the funds in Miss Crowell's account to the Maritime Academy. 
Section 15, the only section relevant to the present case, states that the 
funds are to be withheld and does not provide for any transfer to any 
agency or department. 

Part one of § 15 provides only that on the request of a "member 
charged with the misappropriation of funds" the Board shall hold a 
hearing and 

". . . if the Board after the hearing finds the charges to be true, such 
member shall forfeit all rights ... to a return of his accumulated total 
deductions to the extent of the amount so found to be misappropriated 
and to the extent of the costs of the inspection, if any, as found by the 
Board." 

Here, as in part 3 of § 15, the Legislature has made provision solely 
for the withholding of funds from the employee and has not in any way 
set forth authorization for any transfer of such funds by the Board of 
Retirement. 

Therefore, it is my opinion that the Board should continue to hold 
these funds "unless and until" Miss Crowell makes "full restitution" and 
that in no event should transfer of these funds be made by the Board to 
the Massachusetts Maritime Academy. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 61 

A regional school district cannot he organized for administrative pur- 
poses only; a well-planned construction program is required. 

A regional school district may assess member towns at a flat rate for its 
share of construction costs for an elementary school to be con- 
structed in another town within the regional district only where said 
flat rate assessment is made in accordance with the agreement 
between the towns comprising the school district. 

July 20, 1965. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — In your letters of March 2, 1965 and 
March 25, 1965, you have asked my opinion concerning certain problems 
arising in connection with regional school districts. Your specific ques- 
tions in this regard are as follows: 

"(1) Under Chapter 71, sections 14 through 16 I of the General Laws, 
may a regional school district be organized for administrative purposes 
only since it does not at this time contemplate construction? 

"(2) Would it be possible under existing legislation for a regional 
school district (K-12) to assess at a flat rate {i.e. $1.00) a member town 
for its share of construction costs for an elementary school to be con- 
structed in another town within the regional district?" 

Your letter of March 25, 1965 amplifies the second question by the 
following additional facts: 

"Under the regional school agreement, Town A would pay the cost of 
the construction of an elementary school in Town A with the exception 
of a SI payment from Town B and a $1 payment from Town C. Town B 
would pay the cost of the construction of an elementary school in Town 
B with the exception of a $1 payment from Town A and a $1 payment 
from TowTi C. To^mi C would pay the cost of the construction of an 
elementary school in ToviTi C with the exception of a $1 payment from 
Town A and a $1 payment from Town B. Is this arrangement consistent 
with Chapter 71, sections 14-16 I of the General Laws?" 

These two questions will be answered in the same order as they appear 
above. 

The Early Enactments Pertaining to 
District High Schools and Union Schools 

As early as 1848, the General Court passed legislation permitting 
adjacent towns of not more than two thousand inhabitants to unite for 
school purposes.^ After formation, in accordance with section 3 of that 
Act, the district school committee was authorized to determine the proper 
location for the schoolhouse. Where the member towns authorized the 
construction of a new schoolhouse, the building was, in lieu of an 
agreement to the contrary, supported, maintained and financed by the 
various to^Tis in proportion to the amount each paid in county taxes. If 
construction was not approved, the school was required to be located in 
one of the towns forming the district. 



52 PD- 12 

1 ;Si. 1S4S, c. 279. 

SecLioii 1. Any two adjacent towns, having not more than two thousand 
inhabitants each, may form one high-school district, for establishing such a school 
as is contemplated in the fifth section of the twenty-third chapter of the Revised 
Statutes, whenever a majority of the citizens of each town, in meetings called for 
that purpose, shall so determine. 

Seciiun 2. Tlie school committees of the two towns, so united, shall elect one from 
each of their respective boards, and two, so elected, shall form the committee for 
the management and control of such school, with all the powers conferred upon 
school committees and prudential committees. 

Section 3. The committee, provided for in the foregoing section, shall determine 
the location of such schoolhouse as shall be authorized to be built by the towns 
forming such district, or authorize the location of such school alternately, in the 
two tov.'ns, whenever the towns shall not determine to erect a house for its 
permanent location. 

Section 4. In the erection of any schoolhouse for the permanent location of such 
school, and in the support and maintenance of the same, and in all incidental 
expenses attending the same, the proportions to be paid by each town, unless 
otherv.-ise agreed upon, shall be according to the proportions of such towns in the 
count}^ tax. 

In both §§3 and 4 of c. 279 of the Acts of 1848, a newly constructed 
schoolhouse was referred to in terms of "the permanent location." The 
use of this wording implied that where a new structure was not built, it 
was to be treated as merely a temporary location. With reference to the 
act as a whole, the formation of a high school district was not contingent 
upon the town's initial decision to build new facilities. 

As amended, St. 1848, c. 279, §§ 1 through 4 were arranged and 
compiled as §§ 3 through 6 of c. 38 of the General Statutes of 1860. The 
amendments, with references to the present discussion, were only of 
minor significance. The population requirement of "not more than two 
thousand inhabitants each" appearing formerly in § 1 was amended to 
read, "having each less than five hundred families or householders." Any 
reference to "the permanent location" was deleted from § 3. This 
wording was retained in § 4. 

In the Public Statutes of 1882, a compilation of the general statutes of 
the Commonwealth similar to that of 1860, the former provision of G. L. 
(1860) c. 38, §§ 3 through 6 were unchanged in substance, but formally 
became P. S. (1882) c. 44, §§ 3 through 6. 

Under §§10 and 11 of c. 44 of the Public Statutes of that year, towns 
were authorized to unite in establishing union schools. No direct 
reference appears in these sections limiting such schools to educational 
institutions below the high school level. The "management," "control," 
"location," proportion of the expenses each town must bear, "support," 
and "maintenance" were governed by the same provisions controlling 
district high schools. The formation of union schools was not limited, as 
were district high schools to those towns of less than five hundred 
families, but was restricted by the requirement of serving only con- 
tiguous areas. 

The Revised Laws of Massachusetts (1902) retained without amend- 
ment the provisions of P. S. (1882) c. 44, §§ 3 through 6, as well as 
§§ 10 and 11 pertaining to high school districts and union schools 
discussed above. These sections were, nevertheless, organized under a new 
heading, R. L. (1902) c. 42, § 4 through 8. 



P.D. 12 53 

In 1918, subsequent changes were proposed pursuant to §§ 176, 177 
and 178 of c. 257 of the Acts of that year. Section 6 was amended to 
provide that the district school must obtain the approval of the board of 
education in determining the location of the school building. There were 
also certain additional amendments: the cost of transporting pupils was 
to be included within incidental expenses ; the reimbursement of the town 
in a union in which the high school was located was permitted at the 
same rate as if it maintained a high school of its own; reimbursement to 
the other towns was at the same rate that they would have enjoyed had 
they been required to pay tuition for pupils attending a high school in 
another town. 

The suc'ccding year provided still further amendments. St. 1919, c. 292 
amended § 4 to read "union high school district" instead of merely "high 
school district."^ The formation of such a district was made subject to 
the api)roval of the board of education. Section 8 was amended to 
provide that in the future union schools were under the control and 
supervision of the member school committees rather than, as was the case 
with the union high schools, the district school committee. 

The amendments of 1918 and 1919 were immediately superseded by 
the General Laws of Massachusetts (1921) c. 71, §§ 14 through 16. 
These provisions were identical with those appearing in the later 
tercentenary edition (1932).' 

^St. 1919,0.292. 

Siclion 1. Chapter forty-two of the Revised Laws is hereby amended by striking 
out section four and substituting the following: — 

Section 4- Two or more towns may vote to form a union high school district, 
subject to the approval of the board of education, for the purpose of establishing 
and maintaining a high school. 

Under the 1921 revision, two or more towns could form a union high 
school district with the approval of the department of education. 
Management was vested in the district committee comprised of one 
member elected from the school committee of each participating town. 
The "situation" of the school was determined by the district committee 
but again required the approval of the department. The ratio paid by 
the participating towns for the building and maintenance of a permanent 
schoolhouse was, unless otherwise agreed, in proportion to the respective 
county taxes. 

^ Chapter 71 {Tercentenary Edition) . 

Section I4. Two or more towns may vote to form a union high school district, 
subject to the approval of the department, for the purpose of establishing and 
maintaining a union high school. The management and control of such school shall 
be vost(d in a committee, with all the powers of school committees, composed of 
one member elected by and from the school committee of each constituent town. 
The committee shall, with the approval of the department, dptermine the situation 
of the schoolhouse. The proportion payable by each town for the erection and 
maintenance of a permanent schoolhouse and for the support of the school, 
including the transportation of pupils to such school when necessary, unless 
otherwise agreed, shall be according to its proportion of the county tax. 

Section 15. Every towTi where a union high school is situated shall be reimbursed 
by the commonwealth for the sums contributed to the support of such school to the 
same amount and under the same conditions as if said sums had been expended to 
maintain a local high school. Each other participating town shall so be reimbursed 



54 P.D. 12 

to the same amount and under the same conditions as if its contribution had been 
expended for the tuition of its pupils in another town. 

Section 16. Two or more towns may severally vote to establish union schools for 
the accommodation of such contiguous portions of each as may be agreed upon. 
The management and control of such schools, the situation of the schoolhouses 
therefor, and the apportionment of the expenses of erecting such schoolhouses and 
of the support and maintenance of said schools, and of all expenditures incident to 
the same, shall be determined by the school committee of the participating towns. 

Provision was made for union schools; viz., union high schools, in 
§ 16. The establishment of such schools was by vote of the towns and for 
the purpose of serving contiguous portions of each. The management and 
control, as well as the "situation" of such schools, were determined by 
the school committees of the member towns. 

A brief summary might prove of some value at this point. By the 
statutory plan established in 1921, any reference in the general laws to 
district high schools had completely disappeared and was replaced by 
what were designated as union high schools. The minimum population 
requirements so prominent in former statutes were dropped. Towns of 
any size could join to establish both uinon high schools and union 
schools. 

The approval of the board of education was needed both in the initial 
formation of a union high school district and with regard to determining 
the ''situation" of the schoolhouse. No statutory definition of the word 
"situation" was provided. Geographical location, as well as condition of 
the physical plant may well have been included within that term. The 
actual erection of the new schoolhouse was described as "the permanent 
location." This wording might well have allowed the use of temporary 
facilities for an indefinite period. 

A better argument might be made with respect to § 8 pertaining to 
union schools that new buildings were a sine qua non to their establish- 
ment. No reference is made in that section to permanent schoolhouses, 
nor is there any mention of the "situation of the schoolhouse." The 
section, however, is far from explicit on this point. As to both sections, it 
is clear that construction of new buildings was an important and 
contributing factor directly bearing on the establishment of such schools. 

The Building Assistance Commission and The Pertinent 
Statutes Pertaining to Regional Schools 

Construction costs must always be reviewed by those embarking on a 
program of creating new educational facilities and may, in a number of 
instances, be the sole deterrent militating against the formation of 
regional school districts. An added incentive aimed at increasing the 
popularity of regional school districts is provided by St. 1948, c. 645. The 
purpose of that legislation, as evidenced from its title, is to encourage 
their establishment. Supervision over this program and the carrying out 
of this objective were entrusted to the School Building Assistance 
Commission and its administrative assistants. 

The tools which the Commission has at its disposal to achieve this goal 
are varied. Under § 4, the Commission may conduct surveys and studies 
relative to the formation of regional schools. In the same regard, it may 



P.D. 12 55 

also provide legal, architectural and technical assistance. Of more direct 
consequence to the financial problems involved, are the provisions of 
§§6 through 9 providing for partial payment by the state of construc- 
tion costs of projects approved by the Commission. Judicious use of this 
latter power might well determine the breadth of educational oppor- 
tunity available to students in a regional school. 

The act also provides, at least for the limited purpose of the statute 
itself, certain basic definitions. A "[cjonsolidated school" is defined as: 
"any school constructed or enlarged with the intent of eliminating one or 
more existing schools." No mention of construction or enlargement is 
used in definmg a "regional school." A "[rjegional school" is defined as: 
"any public school established under any provision of law by the action 
of two or more cities or towns." 

In the text of the original act, an "[ajpproved project" was defined as: 
"any project for the construction or enlargement of a school house. . . ." 
This definition was amended by c. 490 of the Acts of 1950 to provide 
that an "[ajpproved school project" shall mean "any project for the 
construction or enlargement of a regional school or consolidated school. . 
. ." The amendment makes no distinction between the enlargement of a 
regional school already built and established and a town school to be 
enlarged for future use by the district as a regional school. 

In the same year that the Building Assistance Commission was 
formed, there was created under c. 82 of the Resolves of 1948, a special 
committee to investigate certain problems of education in the Common- 
wealth. This special commission was made up of members of the General 
Court, as well as persons appointed by the Governor. As part of its final 
report, it drafted and proposed an act in most respects similar to the 
present provisions of §§ 14 through 16 I of c. 71 of the General Laws. A 
working knowledge of that report is basic to the understanding of these 
sections. 

The special commission, in addition to meeting with professional 
educators, visited the site of the first regional high school built in New 
England. The high school was located in a new structure erected to 
service six small communities. Before the construction of the regional 
school, four of the towns had small high schools. Individually they were 
as good as could be expected under unfavorable conditions. These 
schools, nevertheless, proved to be limited in "size, personnel, funds and 
tradition . . . [and proved] inadequate to furnish the kind of training 
demanded in these times." * The formation of the regional school * was a 
forward step providing the students with an enlarged curriculum, an up- 
to-date library and reading room, as well as adequate laboratory 
facilities. 

From a firsthand observation of the problems involved, the special 
commission outlined certain objectives. One of these objectives w^as that 
of encouraging local activity leading to the formation of regional schools 
with modern standards of education. The regional school concept became 
largely identified with educational advancement and improved academic 
standards. Among the newer and expanded services envisioned were 
programs for the handicapped, vocational training, guidance aid, and 



56 P.D. 12 

extracurricular activities, such as dramatics, musical organizations and 
school publications.* 

* "Final Report of the Special Commission established to investigate and study- 
certain problems of education in the Commonwealth" (Feb. 1949) at p. 6. 

^ Id. at p. 7 (footnote) "A regional high school is one sponsored, administered, 
and financed mutually by two or more towns." 

The special commission placed the establishment of regional high 
schools on a priority basis. The reason assigned for this was the failure of 
the small towns, individually, to equip young people with intellectual 
training requisite to cope with the complex problems of a modern world. 
The report of the special commission called the small local unit on the 
secondary level "obsolete." ' This, in the judgment of the special 
commission, was a factor contributing to school drop outs, and denied 
basic educational rights by offering only a limited educational program. 

In short, the primary purpose for establishing schools on a regional 
basis is to obtain for the individual pupil better educational opportun- 
ities and a broader academic program. As a step in achieving this end, 
the special commission proposed legislation similar to that adopted by 
the General Court (St. 1949, c. 638). 

A subsequent special commission was established pursuant to c. 39 of 
the Resolves of 1950 to study educational problems. No major amend- 
ments were proposed or adopted with regard to regional school districts. 
The formation of the committee serves to illustrate, nevertheless, the 
immediacy of educational problems. 

* Id. at p. 8, Appendix C at p. 38 
Ud.atp. 14 

By c. 214 of the Acts of 1954, a new § 14C was added to c. 71 of the 
General Laws. This section authorized member towns to sell, lease, or 
license school buildings, already constructed, to the regional school 
district. The section was amended twice the following year. The first of 
these amendments permits school property to be leased for a maximum 
period of forty years. The second allows the school district to purchase, 
lease, or license school buildings, as well as any needed land appurtenant 
thereto. 

The same year, 1955, § 16, subsections (c) and (d), was amended to 
provide that the regional school district could, in addition to those 
powers already enjoyed, remodel and make extraordinary repairs to a 
school or schools for the benefit of the towns comprising the district. 
Provision was also made enabling the district to incur debts for this 
purpose. The provisions of § 14C and these subsections give to the 
regional school district a certain amount of flexibility in planning and 
creating an effective school plant. 

The Present Provisions of The General Laws Relating to The 
Establishment of a Regional School District 

A certain amount of background is essential to answering your 
immediate question. This has been discussed at length in the preceding 
paragraphs. The present provisions of c. 71 dealing with regional school 
districts can be understood only in light of this statutory history. It 



P.D. 12 57 

should bo borne in mind from this prior discussion that fundamental to 
these provisions is the decision by a group of towns to establish a 
regional school or schools — a concept well defined by the special com- 
mittee formed in 1948 to study educational problems. Mindful of this, 
the present provisions must be reviewed. 

Sections 14 through 20 of c. 71 of the General Laws contain those 
provisions relative to the establishment of a regional school district. 
Under § 14 of that chapter, individual towns may create regional school 
planning committees composed of three members. Where this preliminary 
step has been taken, the committees of two or more towns may join to 
form a regional school planning board and, as such, adopt a formal 
organization with a chairman and treasurer. 

Once created, it becomes the duty of the planning board to study the 
feasibility of establishing a regional school district. 

C. 71, § I4A of the General Laws 

"It shall be the duty of the regional school district planning board to 
study the advisability of establishing a regional school district, its 
organization, operation and control, and of constructing, maintaining 
and operating a school or schools to serve the needs of such districts; to 
estimate the construction and operating costs thereof; to investigate the 
methods of financing such school or schools, and any other matters 
pertaining to the organization and operation of a regional school district; 
and to submit a report of its findings and recommendations to the 
selectmen of the several towns." 

Added St. 1949, c. 638, § 1, as amended St. 1951, c. 331, § 2. 

Pursuant to the section cited above, the advisability and estimated 
cost of constructing new facilities are factors to be considered. These are 
not, however, the only considerations. In addition, the board must also 
determine the proper "organization, operation and control" of a proposed 
district and plan as well for the maintenance and daily running of the 
physical plant. 

A planning board, in order to comply with this section, must 
thoroughly evaluate the needs of the community and determine whether 
new facilities are necessary for a modern school system. An extensive 
inquiry is required by § 14A. Anything less would not live up to the 
standards set by this section. 

Where the planning board recommends, after conducting this exhaus- 
tive study, that a regional school should be established, it must draw up 
an agreement pursuant to § 14B for submission to the various towns. 
Under subsection (d), the proposed method of apportioning school 
construction costs is one of the terms to be included in the agreement. 
Copies of this agreement must be submitted to and approved by the 
Emergency Finance Board, as well as the Department of Education. 

Having taken these steps, the matter of accepting §§ 16 through 161 
as well as the agreement must be presented to the voters of the 
individual towns. The question printed on the ballot must be substan- 
tially similar to the form appearing in § 15. This form refers to the 
construction of a regional school by the district as an item to be included 



58 P.D. 12 

on the ballot. Where a majority of the voters have passed favorably on 
this matter, the proposed regional school district is deemed to be 
established. 

The powers and duties of the school district once established are found 
in § 16. Under subsection (c), the district may acquire suitable land for 
purposes of a school site. The district may also "construct, reconstruct, 
add to, remodel, make extraordinary repairs to, equip, organize, and 
operate a school or schools for the benefit of the towns comprising the 
district. . . ." Pursuant to subsection (d) , the district may incur needed 
expenses with the approval of the towns for those purposes. Where 
necessary, a school district in accordance with § 14C is authorized to 
buy, lease or license school buildings from a member town. 

It might be speculated whether construction was a condition precedent 
to the establishment of a regional school district. This would logically 
lead to a second related inquiry. If construction is a condition precedent, 
how much construction is necessary to comply with the statute? The 
standard is qualitative not quantitative. This line of reasoning would 
prove unfruitful in the present instance. No artificial criterion was 
intended in the provision of § 14 through § 161 of the General Laws. 
The fact in the present instance that no construction is presently 
contemplated is a strong, if not overriding consideration, indicating a 
failure to take those steps requisite to establishing a regional school 
system. 

One can conceive of a situation where the building of new facilities 
would not be necessary. Such an instance would be where a town had 
undertaken and completed a building program geared to increasing the 
academic facilities only to have a large factory employing many 
inhabitants move to a new location the next year. In such a circumstance 
as this, it would be imperative upon that town to band together with 
neighboring towns to maintain the new facilities. It would seem improvi- 
dent in such a case to require some additional construction in order for 
the communities to establish a regional school district. 

As a practical matter, outside of an exceptional situation, it is hard to 
envision a situation in which the establishment of a regional school 
district would not require a well-planned construction program. 

In answer to question one, in light of this lengthy discussion, it is my 
opinion that a regional school district cannot be organized for adminis- 
trative purposes only. Instituting an administrative reorganization does 
not establish a regional school district. In order to create such a district 
the communities must comply in every respect with the provisions of G. 
L. c. 71, §§ 14-16 I and should fulfill as far as possible those goals 
discussed by the Special Committee on Education in its report filed in 
February of 1949. 

The second question raises a problem distinct from the first. There is, 
however, this similarity: The towns in joining together must establish a 
regional school district. What that entails has been discussed in answer 
to question one. It is because such a district is created that the 
communities benefit from the higher reimbursement under St. 1948, c. 
645, § 9 and enjoy the added 15% under G. L. c. 70, § 3B. The old, 



P.D. 12 59 

however, may not be retained in the guise of the new. Certain super- 
visory powers are given to the Commissioner of Education in G. L. c. 71, 
§ 14B and to the Building Assistance Commission pursuant to St. 1948, 
c. 645 to prevent such a result. 

Regional school districts are empowered pursuant to subsection (h) of 

16 "[t]o assess member towns for any expense of the district." This 

subsection does not stand alone. The assessing power is integrally related 

to the power of the district to incur debts and, further, to the vital 

matter of the district's annual budget. 

Under subsection (d) of § 16, the district may incur debts for the 
purpose of acquiring land and constructing new school buildings. Any 
such, debt may not exceed a sum approved by the emergency finance 
board. Notice of the proposed debt must be given to the selectmen of the 
member towns. A town meeting may be called within a thirty-day period 
for the purpose of approving or disapproving the debt. If one town 
disapproves, the expense may not be incurred and a new proposal must 
be presented by the district school committee and acceptance obtained 
by means of the same procedure. 

Under § 16B, the regional school committee must annually ascertain 
the amount of money needed to maintain the school system and the sum 
necessary to pay all debts coming due during the ensuing year. The share 
of the annual budget that an individual town would be required to pay 
for construction costs to the school district would, as stated in § 16, be 
calculated on the basis of the agreement between the member towns. In 
the same manner, the assessment must also be governed by that 
agreement. It may well be that under a given agreement the towns have 
decided that the cost of school construction should be apportioned on the 
basis of a flat rate as outlined in your letter of March 25, 1965. 

In answer to question two, on the basis of the sections cited above, it 
is my opinion that a regional school district may assess member towns at 
a flat rate for its share of construction costs for an elementary school to 
be constructed in another town within the regional district only where 
said flat rate assessment is made in accordance with the agreement 
between the towns comprising the school district. It is for the towns to 
work out between themselves the amount each wall contribute to 
construction costs. The fact the amount agreed upon is expressed in 
terms of dollar amounts instead of a mathematical ratio or porportion 
would not invalidate that part of the agreement. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



60 PX). 12 

The suspension of an officer or employee is not effected by a finding of 
guilty; the suspensions continue. The appointing authority, if he 
desires to oust such person, must take affirmative steps in accordance 
with the statutory provisions applicable to such individual or 
position involved, including notice and hearing. 

I July 23, 1965. 

Hon. Theodore W. Schulenberg, Commissioner, Department of Com- 
merce and Development. 

Dear Mr. Schulenberg: — On May 3, 1965, you requested my opinion 
relative to the application of G. L. c. 30, § 59, the so-called Perry Law, 
to Mr. James F. Reynolds, the suspended Deputy Commissioner of the 
Department of Commerce and Development. Following the return of an 
indictment against him by a special Suffolk County Grand Jury for 
violations allegedly committed while holding the office of Deputy 
Commissioner, Mr. Reynolds was suspended — pursuant to the provisions 
of c. 30, § 59 — by then Commissioner of Commerce, John T. Burke. 

Mr. Reynolds was found guilty on January 15, 1965 of larceny from 
the Commonwealth, and was ordered to make restitution. He has now 
restored the amount taken to the Commonwealth. In light of the above, 
you have asked four questions relating to Mr. Reynolds' present status 
with the Department of Commerce and Development. 

"1. Since Section 59 of Chapter 30 reads that Mr. Reynolds may be 
suspended during the pendency of the indictment, what happens to the 
suspension when he is found guilty? 

"2. Does the suspension continue in effect after the finding of 
'guilty'? 

"3. Must affirmative steps be taken to remove Mr. Reynolds from 
office and, if so, just what steps need be taken? 

"4. If affirmative action is nece sary to remove Mr. Reynolds, is he 
entitled to notice and hearing?" 

The parts of the Perry Law which are pertinent to the problems which 
you have posed are as follows: 

"An officer or employee of the connnonwealth, 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 miscon- 
duct in any elective or appointive public office, trust or employment 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 authority, whether or 
not such appointment was subject to approval in any manner. . . . 

"If the criminal proceedings against the person suspended are term- 
inated without a finding or verdict of guilty on any of the charges on 
which he was indicted, his suspension shall be forthwith removed, and 
he shall receive all compensation or salary due him for the period of his 



P.D. 12 61 

suspension, and the time of his suspension shall count in determining sick 
leave, vacation, seniority and other rights, and shall be counted as 
creditable service for purposes of retirem.ent." 

Thus the General Court has developed a method by which public officers 
and employees in whom public confidence has been threatened by reason 
of the return of indictments against them may be suspended from their 
positions for the period during which they are under suspicion. 

The Perry Law contains no specific provision relative to the effect of a 
conviction upon the status of a suspended official. Rather, the Legislature 
concentrated its attention upon those indicted officials and employees 
who are ultimately acquitted, or whose criminal proceedings terminate in 
some fashion without a final finding or verdict of guilty. Consequently, 
conclusions as to the effect of a final judgment of guilty upon a Perry 
Law suspension must be based upon the general tenor of the statute and 
upon a determination of what the Legislature sought to accomplish by 
its enactment. 

The General Court has provided for the temporary removal from the 
state governmental service of those officers and employees whose circum- 
stances are such that it is desirable from a public viewpoint that their 
employment be interrupted. The return of an indictment against a state 
official or em]>loyee mu^t inevitably cause a loss of public confidence in 
the ability of such official or employee to perform his duties in a proper 
and effective manner. Likewise, should the allegations of wrongdoing 
upon which the indictment is based be proven to be true, the Common- 
wealth may be spared further injury at the hands of the unreliable 
employee during the period between indictment and conviction. It is 
hardly open to argument that the Commonwealth benefits from provi- 
sions which authorize the suspension of suspected employees until proper 
judicial proceedings establish their final guilt or innocence. 

Considering the obvious purposes of the statute, it is my opinion 
that the General Court never intended that conviction should constitute 
a ground for restoration of the guilty party to the public service. If 
sus]iicion of guilt warrants suspension from state oflfice or employment. 
surely proof of such guilt should not be cause for terminating the 
suspension. I am aware that the first paragraph of the statute provides 
that an officer or employee may be suspended "during any period such 
officer or employee is under indictment," and that an indictment as such 
is technically dissolved upon conviction. Nevertheless, I am convinced 
that the General Court did not intend the language quoted above to 
defeat the purposes of the statute as a whole. 

An interpretation of the Perry Law to the effect that conviction 
operates to terminate a suspension would be entirely contrary to the 
purposes for which the statute was enacted. 

"But a strictly literal construction of a statute is not necessarily to be 
adopted if the result of adopting it will be to thwart or hamper the 
accomplishment of the obvious purpose of the act and if another 
interpretation which will not have such effect is possible." Frye v. School 
Committee of Leicester, 300 Mass. 537, 538; Kneeland v. Emerton, 280 
Mass. 371,376 

The Supreme Judicial Court has consistently held that the object of 



62 P.D. 12 

statutory construction is the ascertainment of the true intentions of the 
Legislature. The reason for enactment of the statute must be regarded. 
"If a liberal, even if not literally exact, interpretation of certain words is 
necessary to accomplish the purpose indicated by the words as a whole, 
such interpretation is to be adopted rather than one which will defeat 
the purpose." Lehan v. North Main Street Garage, Inc., 312 Mass. 547, 
550; Cidlen v. Maijor of Newton, 308 Mass. 578, 583-584. 

It would appear that the Legislature intended that a suspension be 
removed only in the event of a failure to find the officer or employee 
guilty. It is specifically provided: "If the criminal proceedings against 
the person suspended are terminated without a finding or verdict of 
guilty on any of the charges on which he was indicted, his suspension 
shall be forthwith removed. . . ." By expressly mentioning specific 
grounds for removal of a suspension imposed under the Perry Law, the 
General Court has implied that there shall be no other grounds for 
removal. Spence, Bryson, Inc. v. China Products Co., 308 Mass. 81, 88. 

Such a construction is consistent with the purposes which the statute was 
enacted to serve. 

Accordingly, it is my opinion — in response to your first two questions 
— that the finding of guilty entered by the Superior Court on January 
15, 1965 has no effect upon the suspension imposed the previous June 
upon Mr. Reynolds, and that the said suspension continues in full force 
and effect. 

However, the Perry Law cannot be read so as to provide that 
conviction operates to effect an automatic removal of the officer or 
employee in question. If an appointing authority wishes to remove a 
suspended employee, he must — even after conviction — take affirmative 
steps to oust the guilty party. Such action must be in accordance with 
whatever statutory provisions may happen to relate to the individual or 
to the position affected. If, for example, a civil servant is involved, the 
appointing authority must follow the removal procedures set forth in c. 
31 of the General Laws. Presumably, the fact of conviction can be 
offered as a cause warranting removal. 

The record in the case of James F. Reynolds v. Commissioner of the 
Department of Commerce and Development [Suffolk Superior Court, 
603, 682], currently awaiting presentation on appeal to the Supreme 
Judicial Court, reveals that Mr. Reynolds is a veteran who has held an 
appointive position in the service of the Commonwealth for more than 
three years. Consequently, he is entitled to the protection guaranteed 
him by G. L. c. 30, § 9A. 

"A veteran, as defined in section twenty-one of chapter thirty-one, 
who holds an office or position in the service of the commonwealth not 
classified under said chapter thirty-one, other than an elective office . . ., 
and has held such office or position for not less than three years, shall not 
be involuntarily separated from such office or position except subject to 
and in accordance with the provisions of sections forty-three and forty- 
five of said chapter thirty-one to the same extent as if said office or 
position were classified under said chapter " 



P.D. 12 63 

Therefore, it is clear that Mr. Reynolds can ultimately be removed only 
after notice and a hearing, in accordance with the requirements of the 
civil service law. In the absence of such removal proceedings, however, 
the suspension imposed upon Mr. Reynolds in June, 1964 remains fully 
in effect. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Hearing Examiner of the Department of Public Works is an officer 
whose appointment is subject to the approval of the Governor and, 
therefore, is within the exceptions provided in c. 31, § 5 M.G.L., and 
is not subject to civil service commission rules. 

July 26, 1965. 

Hon. Donald R. D wight, Acting Commissioner of Public Works. 

Dear Commissioner Dwight: — I am in receipt of your request of July 
1, 1965, asking my opinion whether an appointment to the Office of 
Hearing Examiner in the Department of Public Works can be made 
without regard to the civil service provisions contained in c. 31 of the 
General Laws. 

The position of Hearing Examiner in the Department of Public Works 
was established by c. 821, § 1 of the Acts of 1963, now contained in 
M.G.L.A. c. 16, §§ 1, 2, 3, 4, 5. The relevant portion is c. 16, § 5(b), 
which reads in part as follows: 

"[The commission] shall act as a board of contract appeals, and shall 
approve or disapprove all claims made under any contract with the 
department. To assist the commission in performing this function, the 
commissioner with the approval of the governor shall appoint a person of 
legal training and experience, who shall be a member of the bar of the 
commonwealth, to the position of hearing examiner, and may remove 
him for cause in like manner. The hearing examiner shall receive a salary 
of fourteen thousand dollars and shall devote his entire time during 
business hours to the duties of his position." 

The section goes on to provide that the hearing examiner shall conduct 
hearings, make reports, and file recommendations. He can summon 
witnesses and require the production of books and records. 

Chapter 16, § 4 provides in part that: 

"The commissioner shall appoint and may remove all the employees in 
the department under the public works commission. Unless otherwise 
provided by law, all such appointments and removals shall be made in 
accordance with chapter thirty-one. . . ." [Emphasis supplied.] 



64 P.D. 12 

Section 4 of c. 31 provides in part that: 

"The following, among others, shall be included within the classified 
civil service by rules of the commission : 

"The labor service of the state department of public works. . . ." 

The position of hearing examiner would therefore appear to be under 
ordinary civil service rules unless exempted by some other provision of c. 
31. 

Such an exemption appears in § 5 of c. 31. This section is entitled 
"Positions not subject to civil service commission rules/' and provides 
that: 

"No rule made by the commission shall apply to the selection or 
appointment of any of the following: — 

. . . officers whose appointment is subject to approval or confirmation 
by the governor. . . . 

The position of hearing examiner is therefore excepted from civil service 
commission rules inasmuch as the examiner is appointed by "the 
commissioner with the approval of the governor." [supra, c. 16, § 5(b).] 

The determination as to whether the hearing examiner is an "officer" 
as opposed to an "employee" is controlled by the leading case of 
Attorneij General v. Tillinghast, 203 Mass. 539. The question there 
involved was whether the position of assistant city auditor of New 
Bedford was an "office" or a "mere employment." In holding that the 
position of assistant city auditor was an "office," the court stated (203 
Mass. 543) that: 

"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. A mere employee has no such duties or 
resjionsibilitics. A public officer is one whose duties are in their nature 
public, that is, involving in their performance the exercise of some 
portion of the sovereign power Avhether great or small, and in whose 
proper performance all citizens irrespective of party are interested, either 
as members of the entire body politic or of some duly established 
subdivision of it. . . ." (citations omitted) . 

The Tillinghast rule has been cited and applied in a number of recent 
cases. In the following instances the rule was applied to classify an 
individual as an "officer" rather than an "employee": Commoyiivealth v. 
Dowe, 215 Mass. 217, (Commissioner of Soldiers' Relief of Lawrence) ; 
Warner v. Selectmen of Amherst, 326 Mass. 435, (Fire Chief of 
Amherst) ; Somers v. Osterheld, 335 Mass. 24, (Superintendent of 
Monson State Hospital) ; Commonwealth v. Oliver, 342 Mass. 82, 
(Manager of Taunton Municipal Lighting Plant) ; Yates v. Salem, 342 
Mass. 460, (police officer). 

The duties of hearing examiner are not "merely clerical" or "those 
only of an agent or servant." In a very direct sense the hearing examiner 



P.D. 12 65 

undertakes duties which "must be performed in the execution or adminis- 
tration of the law, in the exercise of power and authority bestowed by 
the law." It is my opinion that the hearing examiner is an "officer" 
within the meaning of § 5 of c. 31. 

The Hearing Examiner of the Department of Public Works is an 
officer whose appointment is subject to approval by the Governor. He, 
therefore, is within the exception provided by M.G.L.A. c. 31, § 5 and is 
not subject to civil service commission rules. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Board of Review is a separate authority within the Division of 
Employment Security, and, as such, has the power to appoint 
Review Examiners. 

July 27, 1965. 

Hon. J. William Belanger, Director, Division of Employment Security. 

Dear Mr. Belanger: — I have received your letter of July 1,_ 1965, 
informing me of the two vacancies in the position of Review Examiner in 
the Division of Employment Security and requesting my opinion 
whether the appointing authority for this position is vested in you, as 
Division Director, or in the Board of Review. It is my conclusion that 
this authority resides in the Board of Review. 

The relevant statutory provisions are as follows: 

General Laws c. 151Z, § 41 provides in part: 

"The board of review may appoint one or more examiners, selected in 
accordance with section nine K of chapter twenty -three. ..." 

General Laws c. 23, § 9K provides, in part: 

"Subject to appropriation, the director may appoint and employ all 
deputy or assistant directors . . . officers, accountants, clerks, secretaries, 
agents, investigators, auditors and other officers and employees, necessary 
for the proper administration of chapter one hundred and fifty-one A. 
All persons so appointed or employed shall be selected on a non-partisan 
merit basis, subject to chapter thirty-one [civil servicel and the rules 
and regulations made thereunder. . . . The director shall fix the duties of 
all persons appointed and employed by him. . . ." [Emphasis supplied.] 

General Laws c. 23, § 9N(b) provides in part: 

"There shall be in the division a board of review consisting of three 
persons to be appointed by the governor, with the advice and consent of 
the council." 

The mandate of these sections seems clear: namely, that the Board of 
Review is a separate authority within the Division of Employment 
Security having certain specific powers, among which is the appointment 
of examiners. The power to appoint examiners is limited, for it must be 



66 P.D. 12 

exercised in accordance with the directives of c. 23, § 9K. These 
directives appear in the italicized portion of the above quotation of that 
statute — i.e., compliance with a merit system of selection and with the 
Civil Service Laws. Nowhere is there any indication of a legislative 
intent that the Director be empowered to appoint examiners. Indeed, the 
last-quoted sentence of c. 23, § 9K speaks only of those persons 
appointed by the Director ("all persons appointed and emploj'^ed by 
him"). Thus, it seems clear that the General Court intended that the 
appointive powers of the Director not apply to each and every employee 
of the Division, especially when, as in the question you raise, another 
authority, herein the Board of Review, is given the right to appoint to 
certain positions. 

In addition, this result is supported by general principles of statutory 
construction. It is well settled that a specific grant of authority takes 
precedence over a special grant, and that when there are two statutory 
provisions, one general and one particular, then the particular provision 
must prevail as an exception to the general one. Clancy v. Wallace, 288 
Mass. 557. This rule of construction is stronger where, as here, the 
particular statute was later in time of enactment. 

Thus, it is my opinion that the Board of Review and not the Division 
Director has the power to appoint Review Examiners. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The provisions of St. 1963, c. 822,% 9, amend and govern the operation of 
St. 1956, c. 718, § 4A, St. 1961, c. 590, § 4, and St. 1962, c. 728, § 12. 

"Preliminary planning and engineering studies" as used in St. 1963 c. 
822 § 9, is intended to include performance and payment for all 
activities and services required to comply with the appropriate 
laws of the Commonwealth and the United States of America, up 
to the point of formal adoption of orders of taking to acquire a 
right of way and the publication of specifications soliciting bids for 
highway construction contracts. 

August 2, 1965. 
Hon. Francis W. Sargent, Commissioner of Public Works. 
Re: Ch. 822, Acts of 1963, § 9. 

Dear Commissioner Sargent: — You have asked my opinion "whether 
or not title examination, appraisal and preliminary relocation survey 
studies constitute 'preliminary planning and engineering studies' as set 
forth in Section 9 of Chapter 822, Acts of 1963." 

The first paragraph of Section 9 of Chapter 822, Acts of 1963 
provides: 

Excepting money required for preliminary planning and engineering 
studies, no money shall be expended under this act by the state 
department of public works for that portion of any project lying within 



P.D. 12 67 

the town of Brookline or the town of Saugus, or the city of Boston, 
Cambridge, Lynn, New Bedford, Peabody, Revere, Somerville, or 
Springfield until the said portion is approved by the selectmen of the 
town of Brookline or the town of Saugus, or the mayor of Boston, Lynn, 
New Bedford, Peabody, Somerville, or Springfield, or the city manager 
of Cambridge or of Revere, as the case may be, or has been approved by 
the board of project review in the manner hereinafter prescribed." 

The clause beginning the above-quoted paragraph excepting expendi- 
tures for preliminary planning and engineering studies from the require- 
ment of prior community approval was essential to permit the Depart- 
ment of Public Works to submit proposed routes to interested communi- 
ties or the Board of Project Review. The selection of a route by the 
Department of Public Works requires consideration of engineering and 
financial factors. The cost of a particular highway includes not only 
construction, but also the acquisition of the proposed right of way. 
Comjjilation of information on those fiscal matters is essential to the 
intelligent consideration of any route by all responsible public officials at 
all levels of government. 

Chapter 79 of the General Law^s set forth mandatory standards of 
administration of the exercise of the power of eminent domain delegated 
to the Department of Public Works by § 7, Chapter 81 of the General 
Laws. Section 6 of said Chapter 79 requires that an award of damages be 
voted by the responsible officers of a taking agency at the same time that 
the}" adopt an order of taking. Section 7A of said Chapter 79 requires 
that at least one appraisal be made in accordance with § 12 of said 
Chapter 79 before adoption of an award of damages pursuant to §§ 6 or 7. 

Title 23 of the U.S. Code in Section 133 provides in part: 

"(b) The Secretary prior to his approval of any project under Section 
106 of this title for right-of-way acquisition or actual construction shall 
require the State Highway Department to give satisfactory assurance 
that relocation assistance shall be provided for the relocation of families 
displaced by acquisition or clearance of rights-of-way for any Federal- 
aid highway." 

It is api)arent from the language quoted in the preceding paragraph 
that fulfillment of the conditions precedent to the approval of a 
highway project agreement by the Federal Government includes inter 
alia a survey of the number of families expected to be displaced and 
determination of the facilities which may be available to relocate them. 
The accelerated highway program of the Commonwealth is assisted 
materially by the financial participation of the Federal Government 
through the U.S.B.P.R. It is incumbent upon responsible public officials 
to comply with the provisions of Title 23 of the U.S. Code in preparing 
any highway proposal for approval as the subject of an highway project 
agreement between the United States and the Commonwealth of Massa- 
chusetts. Any failure of the Commissioners of the Department of Public 
Works to comply with Title 23 U.S.C, § 133(b) would materially 
increase the cost of an highway project and would a fortiori become a 
major factor in any "preliminary planning" of that project. 

It is my opinion that the words "preliminary planning and engineering 



68 P.D. 12 

studies" as used in § 9, Chapter 822, Acts of 1963 are intended to include 
performance and payment for all activities and services required to 
comply with the appropriate laws of the Commonwealth and the United 
States of America, up to the point of formal adoption of orders of taking 
to acquire a right of way and the publication of specifications soliciting 
bids for highway construction contracts. 

It is my opinion that one of the purposes of § 9 of said Chapter 822, 
to wit the approval of proposed routes by local oflEicials, would be 
frustrated if complete engineering and cost information could not be 
made available to those officials by the Department of Public Works. It 
is my further opinion that approval of the officials listed in § 9, Chapter 
822, Acts of 1963 and in similar sections of some other highway bond 
issues is not a condition precedent to the expenditures of funds author- 
ized and appropriated by said Chapter 822 for inter alia services 
rendered for the appraisal of property located in a proposed right of 
way, for examinations of and preparation of opinions on the ownership 
of said property to determine to whom damages should be paid, and for 
survey work to provide relocation assistance to those who would be 
displaced by taking the proposed right of way. Payments therefor from 
that fund should be processed routinely by the appropriate agencies of 
the Commonwealth. 

You have also asked my opinion on whether the last paragraph of § 9, 
Chapter 822, Acts of 1963 amends appropriate previous highway bond 
issues so that the exception from prior approval of local authorities 
applies to expenditures for preliminary planning and engineering studies 
from funds made available by those earlier highway bond issues. 

The last paragraph of § 9 of said Chapter 822 states: 

"The approval and acceptance by a city or town heretofore required 
by general or special law before funds authorized for the accelerated 
highway program shall be expended by the state department of public 
works is hereby limited and modified by the provisions of this section." 

It is my opinion that the General Court intended by this language to 
amend any general or special laws, existing at the time of the enactment 
of said Chapter 822 on November 15, 1963, to assure that the authority 
and procedures included in § 9 of said Chapter 822 would define and 
govern the circumstances under which the approval of local communities 
of proposed routes would be a condition precedent to the expenditure of 
funds made available by such highway bond issues. It is therefore my 
opinion that the provisions of Section 9 of Chapter 822, Acts of 1963 
amend and govern the operation of § 4A of Chapter 718, Acts of 1956; 
§ 4 of Chapter 590, Acts of 1961; and § 12 of Chapter 782, Acts of 
1962. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



P.D. 12 69 

The computation of a grant-in-aid upon certification by the commis- 
sioner of education is based on a given school year and these awards 
are paid only on the basis of the statistics for the school year 
preceding such certification. Hence, the city of Chicopee cannot now 
be granted any further state aid to education funds for the school 
years preceding 1964-1965. 

August 4, 1965. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — I am in receipt of your letter of July 
22, 1965, in which you request my opinion as to whether the City of 
Chicopee should be granted additional state aid to education funds for 
past years under C. 70 of the General Laws on the basis of the July 8, 
1965 opinion of this office holding that children residing on the Westover 
Field Federal reservation are to be included within the geographical 
limits of Chicopee for purposes of such state aid to education. 

It is clear that on the authority of our recent opinion on this matter 
Chicopee has the right to include children who reside on the Westover 
Field Federal reservation and who attend the Chicopee public schools in 
all present and future requests for state aid to education funds. Since the 
procedure as outlined in Chapter 70, Section 9 allows the commissioner 
to certify the amount due to each community up to December 31, 
Chicopee should receive reimbursement for this past school year of 1964- 
1965. 

However, since Chapter 70 is quite explicit in the procedure for the 
granting of this financial aid, it is my opinion that Chicopee should not 
be awarded a further lump sum payment for any earlier school year. 

Chapter 70, Section 3 states in part: 

"The amount of such grant for each tovm shall be determined 
annually by the commissioner from the returns required by this chapter 
and by chapter seventy-two for the preceding school year . . ." 
[Emphasis added.] 

Chapter 70, Section 9 states in part: 

". . . The Commissioner . . . shall, not later than December Thirty-first, 
certify to the commissioner of corporations and taxation and to the 
comptroller the amount due each towm for payment by the state 
treasurer in the succeeding year. . . ." 

Chapter 72, Section 3 requires that "The superintendent of schools 
shall annually on or before July Thirty-first transmit the school returns 
to the commissioner — containing the following information — : 

"First. The number of persons between the ages of five and seven and 
the number between seven and sixteen residing in the town on October 
first last preceding the date of the certificate — 

"Second. The net average membership of the public schools of the 
town for the school year last preceding the date of said certificate — 

"Third. The amount of money raised by taxation by the town and 
expended during the fiscal year last preceding said date — 



70 P.D. 12 

"Fourth. That the town has maintained during the school year last 
preceding the said date — 

"Fifth. That the town has, during said school year complied — " 
[Emphasis added.] 

It is evident from the above quoted provisions of chapter seventy and 
seventy-two that the grant for each year is to be considered as a separate 
transaction. The amount to be certified by the commissioner and granted 
by the commonwealth is to be computed only from the data filed in 
accordance with chapters seventy and seventy-two. This data is specifi- 
cally limited to "the preceding school year" (C. 70 § 3; C. 72 § 3). 
There is no provision in either chapter that would authorize a disburse- 
ment from the Massachusetts School Fund computed from data which 
covered more than the single "preceding school year". 

Therefore, since the computation of each grant upon certification by 
the commissioner is necessarily based on a given school year and since 
these grants can be awarded and paid only on the basis of the statistics 
for the school year preceding certification it is my opinion that Chicopee 
should not now be granted any further state aid to education funds for 
the school years preceding 1964-1965. 

Having answered j^our first question in the affirmative, answers to your 
second and third inquiries are unnecessary. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Trustees of the University of Mass. are statutory overseers of the 
University, vested with the responsibility for its management, and 
cannot he coyisidered "university versonnel" under c. 75, § 32, 
M.G.L. 

The Trustees are entitled to an allowance for reasonable expenses 
incurred in the performance of duty as authorized by General Laws 
c. 15, § 20, and c. 30, § 25. 

Although the comptroller cannot actually direct that payments shall be 
withheld, he may report to the Governor and Executive Council that 
it is his opinion that certain charges are improper. Responsibility for 
deciding whether the request is to he honored is vested in the 
Governor and the Executive Council. 

August 6, 1965. 

Dr. John W. Lederle, President, University of Massachusetts. 

Dear Doctor Lederle: — You have requested my opinion relative to 
the reimbursement by the Commonwealth of certain travel expenses 
incurred by a member of the Board of Trustees of the University of 
Massachusetts. You have informed me that the trustee in question is at 
present employed by the United States Government in Washington, 
D.C. Consequently, in order to attend meetings of the trustees, he is 
compelled to travel botli within and without the Commonwealth, and 
must pay the expenses of transportation. 



P.D. 12 71 

The trustees as a body have determined that individual trustees should 
be allowed to travel to and from a residence outside of the Common- 
wealth, where such residence is maintained because of out-of-state 
employment, and that such trustees should be reimbursed for the same. 
However, the Comptroller of the Commonwealth has informally advised 
the trustees that he will decline to certify any account which includes an 
amount for expenses incurred outside of Massachusetts for the purpose of 
travel to and from trustees' meetings. Accordingly, you have posed the 
following three questions: 

"1. Are expenses incurred by a trustee residing outside the Common- 
wealth because of employment outside the Commonwealth for travel 
between his place of residence and the place where a meeting of the 
trustees or of a committee of the trustees of which he is a member is held 
expenses which the trustees may determine under General Laws Chapter 
75, Section 32, to be payable or reimbursable by the Commonwealth? 

"2. If your answer to the first question is 'yes', may appropria- 
tions for the maintenance, operation and support of the university be 
disbursed in payment, or reimbursement, of such expenses on certification 
to the state comptroller in accordance with the provisions of General 
Laws Chapter 29, Section 18, as may from time to time be directed 
pursuant to General Laws Chapter 75, Section 8, by the trustees or an 
officer of the trustees designated by the trustees? 

"3. If your answers to the first two questions are 'yes', may the state 
comptroller withhold the certification required by General Laws Chapter 
29, Section 18 of a demand or account for such expenses submitted 
pursuant to General Laws Chapter 75, Section 8?" 

Expenditure of funds for the University of Massachusetts is governed 
in part by G. L. c. 75, § 8, which section provides as follows: 

"Notwithstanding any other provisions of law to the contrary, the 
general court shall annually appropriate such sums as it deems necessary 
for the maintenance, operation and support of the university; and such 
appropriations shall be made available by the appropriate state officials 
for expenditure 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 accordance with the provisions of section eighteen of said chapter 
twe)itij-nine, as may from time to time be directed by the trustees or an 
officer of the university designated by the trustees." [Emphasis supplied.] 

In addition, G. L. c. 75, § 32 governs University travel policy: 

"The trustees shall have complete authority in determining the 
university's travel policy. Such power shall include the right to deter- 
mine who among university personnel should travel within and without 
the commonwealth at state expense and where such personnel shall 
travel." [Emphasis supplied.] 

The trustees have apparently applied the provisions of c. 75, § 32 to 



72 P.D. 12 

themselves, and have authorized the travel arrangements referred to 
above. 

In my opinion, however, such arrangements cannot be authorized by 
the trustees under the provisions of c. 75, § 32. This section refers to 
"university personnel," and is intended to relate to individuals who 
actually are employees of the University, and who may be called upon to 
travel in the performance of their duties. It is not applicable to the 
trustees themselves; the trustees are statutory overseers of the Univer- 
sity, vested with responsibility for its management, and cannot be 
considered "university personnel" as such. 

The section in question should be read together with c. 75, § 8, which 
section relates to the expenditure of funds in general. Section 8 provides 
that funds shall be appropriated and expended "for the maintenance, 
operation and support of the university." Expenditure for travel in the 
course of duty by University personnel is consistent with the enabling 
provisions of c. 75, § 8, since such travel can certainly be considered a 
part of the "operation" of the school. But it is clear that expenditures for 
such operation, as well as for "maintenance" and for "support," may 
lawfully be made onlv for the University and for its personnel. The 
intent of the General Court in enacting c. 75, § 8 — as well as the related 
c. 75. § 32 with regard to travel policy — was to provide for the practical 
needs of the University. There is no indication that these sections were 
intended to be applicable to the general functioning of the trustees as 
well. Accordingly, in response to your first question, it is my opinion that 
the type of expense referred to in your letter is not subject to a 
determination under c. 75, § 32 that it should be payable by the 
Commonwealth. Likewise, since fimds appropriated under c. 75, § 8 are 
similarly limited to use for specific University purposes, the answer to 
your second question must also be in the negative. 

However, this conclusion doe« not of necessity preclude the trustee in 
question from being reimbursed for travel expenditures. Although the 
trustees mav not lawfully seek reimbursement under c. 75, § 32, they 
may proceed under the provisions of c. 30, §25: 

. . . Such officers or members of departments whose duties require them 
to travel elsewhere than to and from the offices provided for them by the 
commonwealth, and vn'pmd- state officers or members of devartments, and 
those whose duties do not require dailv attendance and who receive 
compensation bv the day, shall be allowed their artvol reasonable 
exvenses incurred in the performance of such duties, if snch expenses are 
authorized bv lam to be paid by the commonwealth. Bills for such 
expense" shall be itemized and the dates when, and the purposes for 
which, such expenses were incurred shall be stated before their allowance 
bv the comptroller." [Emphasis supplied.] 

The trustees serve without compensation Fsee c. 15, § 20] and clearly 
are within the category of "unpaid state officers" as that expression is 
used in the above-quoted section. Thus, the trustees are entitled to an 
allowance for reasonable expenses incurred in the performance of duty, 
if such expenses are authorized bv law to be paid by the common- 
wealth." General Laws c. 15, § 20 indicates that payment of such 
expenses is authorized: 



P.D. 12 73 

". . . The appointive members shall serve without compensation, but 
their personal and incidental expenses shall be paid as are those of 
trustees of other public institutions." 

Accordingly, an individual trustee may — pursuant to c. 15, § 20 and c. 
30, § 25 — submit to the Comptroller itemized vouchers for reimburse- 
ment of travel expenses, which vouchers must indicate each item of 
expense, and the date when, as well as the purpose for which, such 
expenses were incurred. Presumably, submission of such a voucher is an 
implied representation by the trustee that he has determined in good 
faith that the expenditures referred to therein are reasonable. Whether 
travel from Washington, D.C. for the purpose of attendance at meetings 
of trustees of the University of Massachusetts is in fact reasonable is a 
question for resolution by the trustee himself and by the officers vested 
with the responsibility of reviewing the travel voucher. 

Since the trustees may seek reimbursement under these sections, I will 
respond to your third question relating to the authority of the Comp- 
troller of the Commonwealth to withhold certification of the travel 
vouchers. It is clear the Comptroller cannot refuse to process the 
voucher. 

"The comptroller shall examine all accounts and demands against the 
commonwealth. . . . The comptroller shall make a certificate specifying 
the amount due and allowed on each account or demand so examined, 
the name of the person to whom such account is payable, and the 
account to which it is chargeable ; and if it appears to him that there are 
improper charges in said accounts or demands he shall report the same to 
the governor and council, with a separate certificate therefor. . . ." 

Mass. G. L. c. 7, § 13. 

Although the Comptroller cannot actually direct that payments 
shall be withheld, he may report to the Governor and Executive Council 
that it is his opinion that certain charges are improper. 

Ward V. Comptroller of the Commonwealth, 345 Mass. 183, 186 
O'Connor v. Deputy Commissioner and Comptroller, 
1965 Adv. Sh. 329, 331 

Accordingly, although the trustees are not authorized to submit re- 
quests for reimbursement for expenses of travel to trustees' meetings 
under c. 75, § 32, and cannot be reimbursed from amounts appropriated 
under c. 75, § 8, they may submit vouchers pursuant to c. 15, § 20 and 
c. 30, § 25. The Comptroller may not refuse payment himself, but he may 
recommend that the amounts requested not be paid. Responsibility for 
deciding whether the request is to be honored is — in the final analysis — 
vested in the Governor and the Executive Council. [See Const, of the 
Comm., Pt. 2, c. 2, § 1, Art. XI ; Mass. G. L. c. 7, § 13.] 

Very truly yours, 

Edward W. Brooke, Attorney General. 



74 P.D. 12 

The Town of Berkley must provide transportation to pupils attending 
private high schools in Taunton, and this obligation is not met 
simply by paying a transportation allowance to the parents of those 
pupils. Chapter 71, § 7A, M.G.L., requires competitive bidding on 
contracts to transport school children. 

August 10, 1965. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — I am in receipt of your request of 
July 1, 1965 for my opinion on tliree questions relating to whether the 
town of Berkley must provide transportation for six high school students 
attending approved parochial schools in the adjoining city of Taunton. 

You state in your letter that Berkley has no high school and that the 
town sends its high school students to a regional high school in the 
adjoining town of Dighton. You also state that the Berkley School 
Committee provides bus transportation for these children to and from 
school in Dighton. 

Chapter 76, § 1 of the Massachusetts General Laws provides in part 
that : 

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

In the case of Quinn v. School Committee of Plymouth, 332 Mass. 410, 
the Supreme Judicial Court interpreted the above paragraph (at p. 412) 
as follows: 

". . . We think that by its enactment the Legislature intended to make 
available to children in private schools transportation to the same extent 
as a school committee vvithin its statutory powers should make trans- 
portation available to children in public schools. . . . The question is not 
what the committee can be made to do. The requirement imposed is that 
there be no discrimination against private school children in what the 
committee in its discretion decides to do." 

The Court in the Quinn case went on to require that the Plymouth 
School Committee "provide transportation to [a parochial school in the 
adjoining town of Kingston] for pupils in grades III through VI to the 
extent that transportation is provided by the committee for elementary 
school pupils [who are sent to a public school in the adjoining town of 
Bourne]." The rule of this case was treated with in two previous opinions 
from this department (May 4, 1961 and November 2, 1961). A school 
committee must provide transportation to an out-of-town private school 
for pupils in the same grades as pupils whom the school committee 
transports to an out-of-town public school. The School Committee of 
Berkley is thus obliged to provide transjiortation for the six high school 
pupils who attend parochial school in Taunton. 



P.D. 12 75 

A school committee is obligated to provide transportation for private 
school pupils to the same extent as for public school pupils even though 
the cost per capita may be greater for the private school pupils. The 
paragraph from c. 76, § 1, quoted above contains no exemption from 
possible financial hardship. Furthermore, c. 71, § 7A, (relating to state 
reimbursement for local school transportation outlays) provides in 
part: 

". . . that the amount of grant, per pupil, for transportation to private 
schools in towns which furnish such transportation, shall not exceed the 
amount of grant per pupil for transportation to public schools. . . ." 

This provision, by restricting the amount of grant from the state, 
assumes that in some cases a school committee may have to pay more 
per pupil for transportation to a private school than to a public school. 

It should further be noted that c. 71, § 7A requires competitive 
bidding on contracts to transport school children: 

"... no contract shall be awarded except upon the basis of prevailing 
wage rates, as hereinafter provided, and of sealed bids, and the school 
committee shall, in the event that a contract is awarded to other than 
the lowest bidder, file with the department a written statement giving its 
reasons therefor, which statement shall be open to the public inspec- 
tion. . . ." 

As a result of this provision, a school committee could lose its right to 
state reimbursement if it seeks to discharge its obligation by paying a 
transportation allowance to the parents of school children instead of 
providing the actual transportation. Clearly, the payment of a trans- 
portation allowance violates the requirements of competitive bidding in 
such a way as to jeopardize state reimbursement. Chapter 71, § 7A 
further states that: 

". . , No expense incurred by a town for the transportation of pupils 
shall be approved by the commissioner for the purpose of such reim- 
bursement, if it appears to him, after diligent inquiry, that such expense 
has been incurred . . . pursuant to any contract awarded in violation of 
any provision of this section or of section four of chapter forty. . . ." 

To summarize then, it is my opinion that the town of Berkley must 
provide transportation to pupils attending private high schools in 
Taunton, and that this obligation is not met simply by paying a 
transportation allowance to the parents of these pupils. 

Accordingly, I answer your first question in the affirmative and your 
second and third questions in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



76 P.D. 12 

Step rate increases referred to in Section 47E of Chapter 31, M.G.L., can 

lawfully be granted solely to employees with permanent civil service 
status. 

August 12, 1965. 

Hon. W. Henry Finnegan. Director, Civil Service Commission. 

Dear Sir: — I am in receipt of your request for my opinion whether 
Sections 47C and 47E of Chapter 31 of the General Laws authorize the 
Director of Civil Service to approve annual step-rate salary increases for 
persons who are employed under those two sections but who do not have 
permanent civil service status. 

Section 47C provides that certain municipal welfare employees shall be 
subject to the civil service laws contained in Chapter 31. Section 47E 
requires that: 

"Persons holding positions referred to in section forty-seven C . . . 
shall be given an annual step-rate [salary] increase. . . ." 

These provisions of Sections 47C and 47E of Chapter 31 are, however, 
limited by Section 20D of that same Chapter, which states: 

"Except as otherwise expressly provided in this chapter . . . , no person 
shall be regarded as holding office or employment until he has been 
appointed to a permanent position in the official or labor service and has 
actually performed the duties of the office or position thereof for a 
probationary period of six months." 

Since Section 47E does not expressly provide otherwise, it is my 
opinion that the language of Section 20D prohibits step-rate increases 
for persons who are without permanent civil service status. To grant such 
employees step-rate increases would be to violate a basic principle of 
Chapter 31. A persons who holds a civil service position, but who does 
not have permanent status, is presumed to be holding that position on a 
provisional basis until a permanent appointment can be made. If a 
temporary employee could lawfully receive step-rate increases, the 
likelihood of a permanent appointment made under proper civil service 
procedures would be reduced. Step-rate increases for temporary em- 
ployees would clearly conflict with the goal of a corps of permanent 
governmental employees envisioned by the General Court when the civil 
service laws were enacted. 

Consequently, in light of the explicit provisions of G. L. c. 31, § 20D, 
and in accordance with the principles and objectives of the civil service 
system, it is my opinion that the step-rate increases referred to in Section 
47E of Chapter 31 can lawfully be granted solely to employees with 
permanent civil service status. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 77 

The Board of Registration must determine whether given services 
conform to generally accepted concepts of professional engineering. 

It is not legal for an unregistered person to represent himself as an 
Electrical Engineer, or any kind of an Engineer without including 
the adjective ''professional", or to represent himself as an engineer 
without qualifications. 

August 12, 1965. 

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

Dear Mrs. Sullivan: — I am pleased to reply to your letter of June 
22, 1965, in which you have submitted the following four questions to 
obfain clarification of § 81D of c. 112 of the General Laws. 

"(1) Is it legal for an unregistered individual to represent himself as 
an Electrical Engineer? 

(2) Is it legal for an unregistered individual to represent himself as 
any kind of an engineer without including the adjective 'professional'? 

(3) Is it legal for an unregistered individual to represent himself as 
an engineer without qualification? 

(4) If it is legal for an unregistered individual to represent himself as 
a Moving Engineer, but not legal to represent himself as an Electrical 
Engineer, is there any guide to indicate which intermediate courses of 
action are legal?" 

The specific answers to your first three questions are, in my opinion, in 
the negative and — with respect to your fourth question — sections 81D 
and 81E of Chapter 112 provide the guides to indicate which inter- 
mediate courses of action are legal. 

Section 81T stato^ in part: 

"Whoever practices or offers to practice engineering . . . without being 
registered in accordance with the provisions of this chapter, ... or 
violates any of the provisions of sections eighty-one D to eighty-one S, 
inclusive, shall be punished by a fine ... or by imprisonment ... or 
both. . . ." 

Section 8 ID states in part: 

"A person shall be construed to practice or to offer to practice 
engineering who practices any branch of the profession of engineering; or 
who, by verbal claim, sign, advertisement, letterhead, card, or in any 
other way represents himself to be a professional engineer; or who holds 
himself out as able to perform, or who does perform any engineering 
service or work or any other professional service designated by the 
practitioner or recognized by educational authorities as engineering. . . ." 

(1) It is, in my opinion, illegal for an unregistered individual to 
represent himself as an electrical engineer. Electrical engineering is a 
recognized branch of the engineering profession which is specifically 
included in § 81E as one of "the fundamental branches of engineering." 
Thus, an unregistered individual who represents himself as an electrical 
engineer is clearly liable to the penalties of § 81T since he is, in the 



78 PD- 12 

language of § 81D quoted above, holding himself out "as able to 
perform . . . any engineering service or work . . . designated by the 
practitioner or recognized by educational authorities as engineering." 

(2, 3) Similarly, an unregistered individual who represents himself 
as an engineer without addmg the adjective "professional" or other 
qualification is liable to the penalties of § SIT, since by his unqualified 
representation he is holding "... himself out as able to perform . . . 
engineering service or work. . . ." (Section 81D). 

(4) Nevertheless, I do not wish to leave the impression that use of 
the title "engineer" by an unregistered person will in all instances 
constitute a violation of the registration laws. The words "engineer" and 
"engineering" are used in a varity of contexts, and may at times be 
intended to refer to occupations quite unrelated to what was contem- 
plated when the Legislature used the phrase "the profession of 
engineering." 

Sections 81D and 81E of c. 112 indicate that the General Court 
was aware of the possibility of such generalized use of the term 
"engineering". Section 81D provides that "[a] person shall be construed 
to practice or to offer to practice engineering . , . w^ho holds himself out 
as able to perform, or who does perform any engineering service or work 
or any other professional service designated by the practitioner or 
recognized by educational authorities as engineering. . . ." And 81E 
states: "The board, for the purpose of registration of professional 
engineers, shall recognize all the fundamental branches of engineering. . . 
." Accordingly, it is clear that the registration statutes are not meant to 
apply indiscriminately to all persons who may happen to make use of 
the word "engineering." Rather, they are applicable to those individuals 
who actually provide skilled professional services for which substantial 
technical training is a requirement. 

The Board of Registration of Professional Engineers and of Land 
Surveyors must — in each instance — determine whether a given type of 
"engineering" is subject to the registration laws. Such a determination 
should be made on the basis of what the public in general and the 
profession in particular considers to be professional engineering. Clearly, 
the services of an electrical engineer do conform to the general concept of 
the activities of a trained professional engineer. On the other hand, a so- 
called "moving engineer," who — despite use of the title "engineer" — 
performs services that are non-technical in nature — would not generally 
be thought of as a trained technician, and would not be obliged to seek 
registration. In the last analysis, it is the Board of Registration itself 
which must determine whether given services conform to generally 
accepted concepts of professional engineering. Should the Board decide 
that a given occupation is not within one of "the fundamental branches 
of engineering," and that the individuals in question do not perform 
services ordinarily recognized as engineering, such individuals could not 
"be construed to practice or to offer to practice engineering" as defined in 
c. 112, § 81D and would therefore not be subject to the sanctions of c. 
112, § 81T. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 79 

Total gross receipts is a concept which is significantly dijferent from that 
of net receipts ultimately received by the individual who is a 
promoter of a fight. 

The right to levy and to collect taxes is inherent to the sovereign power 
of the Commonwealth. This authority cannot be limited in any way 
even by the acts of the agents of the Commonwealth. Short of 
legislative relief, the representations of former members of the 
Massachusetts State Boxing Commission cannot be used as a defense 
to claims by the Commonwealth for the payment of back taxes 
lawfully owed. 

August 12, 1965. 

Hon. Herman Greenberg, Chairman, Massachusetts State Boxing Com- 
mission. 

Dear Mr. Greenberg: — I have received your letter of July 15, 1965, 
wherein you request an interpretation of § 40A of e. 147 of the General 
Laws, (.which section provides for the so-called Boxers' Fund) . The Fund 
is supported by taxes imposed upon professional boxing matches and 
exhibitions conducted within the Commonwealth. 

"Every licensee holding or conducting any professional, boxing or 
sparring match or exhibition shall, within seventy-two hours after its 
conclusion, pay to the state treasurer, in addition to the payment 
required under section forty, a sum equal to one per cent of the total 
gross receipts from the sale of tickets or from admission fees or from 
television or broadcasting rights. . . . Said sum shall be credited by 
said treasurer to a fund to be known as the boxers' fund, which shall be 
administered by the boxers' fund board for the use and benefit, including 
funeral expenses, of boxers or former boxers in need of assistance. . . ." 
[Emphasis supplied.] Mass. G. L. c. 147, § 40x\, as amended by St. 1964, 
c. 367. Thus, the licensee is made responsible for the payment of the taxes 
referred to in this section. And the General Court has specifically 
provided — in the second paragraph of the statute — that "[t]he commis- 
sion [the Massachusetts State Boxing Commission] shall enforce the 
provisions of this section." 

You have informed me that a controversy developed early in 1960 in 
connection with the application of this section to the Paul Pender — Ray 
Robinson fight of that year. At that time, the Commissioners ruled that 
the one per cent tax imposed by § 40A for purposes of the Boxers' Fund 
need be paid only on the amounts actually received by the licensee, 
rather than upon the gross receipts from the sources indicated. Since 
then, licensees have continued to pay the one per cent tax solely on what 
they have actually received, with the balance of the receipts remaining 
unaft'ected by the tax provisions of § 40A. 

In light of these circumstances, you have requested my opinion upon 
the following two questions : 

"1. Is the amount of money paid to the Boxers' Fund to be taken 
from that part of the money actually received by the licensee or from the 
total amount of money paid for television or broadcasting rights? 



80 P-D. 12 

"2. In the event that the ruling is that the money paid to the Boxers' 
Fund from the television or broadcasting rights should have been coming 
from the total amount received for such rights, is the licensee (Sam 
Silverman in this instance) required to make up the difference in money 
($3,766.25) ?" 

General Laws c. 147, § 40A refers to "a sum equal to one per cent of 
the total gross receipts from the sale of tickets or from admission fees or 
from television or broadcasting rights. . . ." [Emphasis supplied.] Use of 
the phrase "the total gross receipts" is an unmistakable indication that 
the General Court intended that all of the sums derived from the source 
referred to in the section be subject to taxation for purposes of the 
Boxers' Fund. "Total gross receipts" is a concept which is significantly 
different from that of net receipts ultimately received by the individual 
who is promoting the fight. 

To rule otherwise would be to vest in the licensee power to affect the 
amounts to be received in taxes by the Commonwealth. A licensee 
usually receives a relatively small percentage of gate or television 
receipts — 12%% is a familiar figure — and he can, of course, reduce 
that figure even further. If only the licensee's receipts were to be taxed, 
the Commonwealth would be limited to taxing only a small portion of 
total receipts, and could be restricted even further by agreements entered 
into by the licensee which result in his receiving smaller shares of income 
from admissions or from television. I do not believe that the Legislature 
intended to impose a tax which could be affected to such an extent by 
private agreement. 

The fact that the licensee is made responsible for the payment of the 
tax imposed by the section does not mean that only the licensee's net 
receipts are taxable. AdministratiA^e convenience makes it desirable that 
a single individual be responsible for payment, and that the Common- 
wealth's agents not be compelled to seek shares of the tax from each of 
the several groups or individuals who usually divide receipts from boxing 
matches. The licensee is, of course, free to contract with the other 
interested parties so that they may contribute a fair share of the tax 
obligation. But this is a matter for private agreement. The General 
Court has clearly provided that the tax referred to in § 40A is to be 
imposed upon total gross receipts; accordingly, the Commonwealth is 
entitled to collect the specified tax upon 100% of what is received, not 
merely a tax upon 12^/2% or some other less significant figure 
arbitrarily arrived at by means of private contract. 

It follows, therefore, that taxes were collected in 1960 and in succeed- 
ing years at a rate which is lower than that specified by G. L. c. 147, 
§ 40A. The question thus arises whether the Commonwealth may — at 
this time — take steps to recover the difference between the amounts that 
were paid and the amounts which actually were owed. 

I am aware of the fact that agents of the Commonwealth — in this 
case, the members of the Massachusetts State Boxing Commission — have 
represented to the licensee that the taxes in question are payable solely 
upon the amounts that he (the licensee) has received. The licensee has 
relied upon the Commission's interpretation and calculations, and has 
paid the amounts requested. In addition, the licensee now no longer has 



P.D. 12 iSl 

the opportunity to contract with the fighters and other parties so that 
the extra tax burden may be more equitably shared. 

Nevertheless, the right to levy and to collect taxes is inherent to the 
sovereign power of the Commonwealth. This authority cannot — in my 
opinion — be limited in any way, even by acts of the Commonwealth's 
agents. The United States Supreme Court has consistently ruled that 
neither the State nor the Federal government can be estopped upon 
matters which are a part of its governmental, as opposed to its 
proprietary, functioning. Pine River Logging Company v. United States, 
186 U.S. 279, 291 

Although a government may well be estopped by authorized acts of its 
agents, it is clear that actions or representations which are beyond the 
scope of such agents' authority cannot prohibit the exercise of lawful 
governmental powers. Ritter v. Ujiited States, 28 F.2d 265, 267 (U.S.C.A., 
3rd Cir.) 

Past members of the Massachusetts State Boxing Commission were 
without authority to reduce or otherwise compromise the claims of the 
Commonwealth for taxes imposed by G. L. c. 147, § 40A. Consequently, 
representations of the kind made by the Commission cannot prevent the 
Commonwealth from proceeding to recover what is owed. The Supreme 
Court of Colorado has had occasion to consider a set of facts similar to 
those presently at issue, and to apply the principles discussed above. In 
Bennetts, Inc. v. Carpenter, 137 P.2d 780, 782, that Court ruled upon 
the effect of an opinion by the Director of Revenue that a restaurant 
company would not be liable for a sales tax in connection with meals 
sold in cafeterias maintained in arms plants. In accordance with this 
advice, the company did not collect a sales tax upon the meals in 
question. The Court held, nevertheless, that the Director was not 
estopped to assert the company's liability for the uncollected tax. 

With regard to the petitioner's contention that it was entitled to rely 
upon the advice of the Director, the Court commented, at page 782 : 

". . . At first glance it would seem this position has merit and certainly 
a contrary rule not infrequently results in some measure of injustice, 
notwithstanding which stern necessity has compelled its universal adop- 
tion. Were it otherwise the state's servants could waive most of her 
revenue. 'It is a general principle of law that the doctrine of estoppel 
cannot be invoked against any governmental agency, acting in its puolic 
capacity.' " (Citing McKay v. Utilities Comm., 104 Colo. 402, 91 P.2d 
965, 973.) 

Thus, the Court regretted that its decision imposed upon the petitioner 
payment of all of a tax which — had the petitioner known of the tax at 
an earlier time — could have been passed on to other parties. But the 
Court was nevertheless compelled to apply the generally accepted 
principle that a government acting in a public capacity cannot be 
estopped by the unauthorized acts of its agents. 

Although the principle that persons who deal with agents of the 
government are assumed to have notice of the limitations upon the 
authority of such agents may well cause hardship in certain instances, it 
is a principle which is necessary to the continued eflScient exercise of 
sovereignty. The powers of government could be severely impaired by 



82 P.D. 12 

acts of public employees, if such acts could constitute a binding 
limitation upon the sovereign. Consequently, it is clear that the Com- 
monwealth may lawfully seek to recover the amounts which should have 
been paid by the licensee under G. L. c. 147, § 40A. 

I find no indication in the General Laws that such a claim would be 
barred by a statute of limitations. The three-year limitation for assessing 
certain excise taxes — ^such as that contained in G. L. c. 64C, § 7 
(cigarette excise) — relates solely to the specific taxes referred to in the 
sections in which such limitation appears, and cannot arbitrarily be 
applied to the assessment called for by G. L. c. 147, § 40A. Nothing 
appears either in those sections relating specifically to the Boxing 
Commission, or in the sections governing tax collection in general, which 
would limit the right of the Commonwealth to enforce a claim of this 
nature. 

Since the exercise of this power could cause undeserved hardship, the 
Legislature may choose to provide that the amounts in question not be 
recovered — an act which would clearly be constitutional in light of the 
fact that both the taxing statute in question and the erroneous interpre- 
tation of that statute were of general application. Short of such 
legislative relief, however, it is my opinion that the representations of 
former members of the Massachusetts State Boxing Commission cannot 
be used as a defense to claims by the Commonwealth for the payment of 
back taxes lawfully owed, and that the Commonwealth may proceed to 
collect the difference between the amounts paid and the amounts 
actually contemplated by the statute. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The current practice in both the state and federal courts in Massachu- 
setts, lohereby the name alone of the accused appears on an arrest 
warrant's face, even though the name may he home hy others as 
well, is proper and within the constitutional safeguards as they are 
now defined. 

August 12, 1965. 
Hon. Richard R. Caples, Commissioner of Public Safety. 

Dear Sir:— In your letter of recent date, you have asked my opinion 
concerning the constitutionality of certain arrest warrant practices. The 
question common to the three parts of your request is whether the name 
of an accused alone meets the constitutional standard of particularity of 
description on an arrest warrant. 

Although framed in terms of Article Fourteen of the Declaration of 
Rights, your question belongs, perhaps, more properly under the rubric 
of the Fourth and Fourteenth Amendments to the United States 
Constitution. As you know. Fourth Amendment rights haA'e been incor- 
porated into the due process clause of the Fourteenth in Wolf v. 
Colorado, 338 U.S. 25 (1949) and Mapp vs. Ohio, 367 U.S. 643 (1961). 
Although those cases dealt specifically with search warrants, the Supreme 
Court has also drawn the arrest warrant requirements of the Fourth 



P.D. 12 83 

Amendment within the ambit of the Fourteenth. See Giordenello vs. 
United States, 357 U.S. 480, 485-86 (1958). Thus, federal law must 
determine what constitutes a sufficiently particular description in an 
arrest warrant under the Fourth Amendment. 

In the absence of cases precisely on point, i.e., adjudicating the 
sufficiency of a warrant which, on its face, has the name only of the 
accused, a name borne by several persons in the community. Rule 4(b) 
(1) of the Federal Rules of Criminal Procedure, promulgated by the 
United States Supreme Court, indicates the standard of particularity 
required in a warrant. The Rule states in part: "The warrant . . . shall 
contain the name of the defendant or, if his name is unknown, any name 
or description by which he can be identified with reasonable certainty." 
Thus, either the name of the accused or a sufficiently precise description, 
where the name is unknown, would appear to satisfy the Constitution. 

Rule 4(b) (1) follows the historic test of a warrant's sufficiency. See 
West V. Cabell, 153 U.S. 78 (1894), Duffij v. Keville, 16 F.2d 828 
(D.C. Mass. 1926), Commonwealth v. Gedzium, 259 Mass. 453, 156 
N.E. 890 (1927), and Commonwealth v. Crottij, 92 Mass. (10 Allen) 
403 (1865). Thus, under the present status of the law, either the name 
or, if that is unknown, the best possible description of the accused is 
enough to make the warrant constitutional. To say that more than the 
accused's true name must or should appear on the face of the warrant 
would attempt to forecast the Supreme Court's decision of a case never 
yet brought before it. 

As it stands, therefore, my opinion is that the current practice in both 
the state and federal courts in Massachusetts, whereby the name alone of 
the accused appears on the warrant's face, even though that name may 
be borne by others as well, is proper and within the constitutional 
safeguards as they are now defined. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Commonivealth is without authority to hind the Federal Govern- 
ment or any of its agencies re expenditures of federal funds. 

Despite doubts expressed as to a part being invalid, the Attorney 
General certified the petition and prepared a "fair concise summary 
thereof". 

August 16, 1965. 

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

Dear Mr. White: — The attached initiative petition entitled "AN ACT 
DETERMINING AND PRESCRIBING URBAN RENEWAL PRO- 
CEDURE, RIGHTS AND REMEDIES" was submitted to me, not 
later than the first Wednesday of August of the current year, by Mr. 
Shepard A. Spunt, of 147 Coolidge Street, Brookline, Massachusetts, in 
accordance with Articles 48 and 74 of the Amendments to the Constitu- 
tion of the Commonwealth. 



84 P.D. 12 

The function of the Attorney General with respect to initiative 
petitions is extremely limited. The Constitution of the Commonwealth 
provides that the Attorney General shall examine the measure and its 
title to determine whether the proposed act is in proper form for 
submission to the people; he must determine whether the proposed 
measure has been qualified for submission to the people at either of the 
two preceding biennial state elections; and he must decide whether the 
proposed measure contains matters which either are unrelated or not 
mutually dependent, or are excluded entirely from presentation to the 
people by means of the popular initiative. [Const, of the Comm., 
Amend. Art. 48, Init., Pt. 2, § 3, as amended by Amend. Art. 74]. 
Accordingly, certification of an initiative petition by the Attorney 
General does not depend upon the validity of the legislation proposed to 
be enacted, and the initiative petition is not examined by this Depart- 
ment for this purpose. 

However, I believe that I should call to your attention — as well as to 
the attention of those who may eventually be in a position to vote upon 
or to amend the measure — ^that a part of § 2 of the proposed act may 
well be invalid if enacted in its present form. The provision in question 
appears in the final paragraph of § 2, and reads in part as follows: "No 
local, municipal state or federal governmental authority or their respec- 
tive agents, servants, or employees or private individuals, agencies, 
corporations, foundations or other private or quasi-public entities shall 
spend any public funds whatsoever ... in connection with the procedures 
above described." [Emphasis supplied.] Although the Commonwealth of 
Massachusetts can naturally restrict the expenditures of both State and 
local governmental bodies, it is clear that the Commonwealth is without 
authority to bind the Federal government or any of its agents. Conse- 
quently, if the measure contained in this initiative petition is enacted, 
the provisions which relate to and attem pt to regulate j the^ functioning of 
Federal agencies wiljjia-afjio effect. 

As I have pointed out, however, questions relating to the validity of 
proposed legislation sought to be enacted by initiative petition cannot 
prevent certification of such a petition if all of the requirements of the 
State Constitution are otherwise met. Accordingly, I hereby certify with 
respect to the attached initiative petition (signed by ten voters certified 
to be qualified voters of the Commonwealth) that the measure in 
question and the title thereof are in proper form for submission to the 
people; that the measure is not, either affirmatively or negatively, 
substantially the same as any measure which has been qualified for 
submission or submitted to the people at either of the two preceding 
biennial State elections; and that it contains only subjects not excluded 
from the popular initiative and which are related or which are mutually 
dependent. 

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

Summary. 

The proposed act provides for the following of certain procedures in 
connection with urban renewal projects. Before a site may finally be 



P.D. 12 85 

selected, and before actual planning may begin, there must first be held a 
public referendum to be participated in solely by property owners and 
tenants of the specific area under consideration for renewal. Each tenant 
or group of joint tenants shall have one vote, and each landowner or 
group of joint landowners shall have one vote for each property o\ATied. 
If such qualified voters signify their desire for renewal by a two-thirds 
vote of those actually voting, or by a majority vote of those qualified to 
vote, the area in question shall be designated an urban renewal area. If 
such voters favor a renewal project, there shall be no change in the 
project boundaries unless a new referendum is conducted, with all 
tenants and landowners within the revised boundaries eligible to vote. 

No urban renewal plan shall be submitted to or approved by the 
governing body of the locality involved, and no land or structures shall 
be taken, until after a second public referendum (participated in by 
property owners and tenants of the renewal area) in which the takings 
are approved by an eighty per cent vote of those actually voting, or by a 
vote of two-thirds plus one of those qualified to vote. Prior to this 
referendum, a copy of the renewal plan must be presented to each 
inhabitant, tenant and landlord of the area, and at least three public 
hearings must be held. The proposed plan must be mailed to all 
inhabitants of the renewal area at least thirty-five days prior to the 
referendum. The required public hearings must be held at least one week 
apart, with two of the hearings in the evening. Notice of each hearing 
shall be mailed to each inhabitant, landlord and tenant of the renewal 
area at least eight days prior to such hearing. The last hearing shall be 
held at least one week prior to the referendum, and the first shall not be 
held until three days after the mailing of the plans. At each public 
hearing, the renewal authority shall present its plans to the inhabitants. 
No public funds whatsoever shall be spent in connection with the above 
procedures except for the preparation and mailing of plans and state- 
ments of the renewal authority, the mailing of notices, the holding of 
public hearings and the conducting of the public referenda. The making 
of unauthorized expenditures shall cancel the result of any referendum, 
and those responsible shall be liable for the return of all expenses to the 
appropriating agency. 

Rights formerly vested in renewal authorities to proceed to obtain 
control of property within the renewal area which must be acquired in 
order to carry out the renewal plan (short of actually obligating itself to 
acquire such property) prior to receipt of approval by the Division of 
Urban and Industrial Renewal are hereby repealed. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



86 P.D. 12 

In the event registry personnel use privately-owned scales to carry out 
their duties in enforcing G. L. c. 90, § 19A, the Commonwealth is 
immune Jrom liability for any damage caused; the weighers and 
vehicle operators are liable for the negligence of the operator if the 
relationship necessary to create legal responsibility exists between 
them. 

August 16, 1965. 
Hon. Richard E. McLaughlin, Registrar of Motor Vehicles. 

Dear Registrar McLaughlin: — I have your letter of July 27, 1965, 
in which you refer to the use by Registry personnel of privately-owned 
scales to carry out their duties in enforcing G. L. c. 90, § 19A. You have 
requested my opinion on the following three questions : 

"1. In the event the vehicle which is to be weighed causes damage to 
the scale, can the owner or operator of such vehicle be held liable for 
such damage? 

2. Is there any liability upon the part of the Commonwealth for such 
damage? 

3. Are weighing squad personnel liable for such damage by reason of 
having ordered the vehicle to be put on the scale?" 

Directing my attention at the outset to your second question, it is my 
opinion that under no circumstances may the Commonw^ealth be held 
liable if one of the vehicles being weighed damages the scale. This is an 
example of the well-settled principle of sovereign immunity. As the 
Supreme Judicial Court pointed out in McArthur Bros. v. Common- 
wealth, 197 Mass. 137 (1908) : 

"It is fundamental that under our jurisprudence the sovereign power 
cannot be impleaded in its own courts except by its consent, and then 
only in the precise manner and to the exactly limited extent which may 
be pointed out in the terms in which the consent is expressed. Such 
consent can be granted only by the legislature, for our constitution 
contains no provision touching the subject." 

In other words, the Commonwealth can be sued in its owti courts only 
when it has consented to be sued. Since the Legislature has not given this 
consent in the situation under discussion, the Commonwealth is immune 
from any liability. This conclusion is not affected by the fact that the 
Commonwealth pays no consideration for the use of the scales. 

Turning now to your third question, the weighing personnel are liable 
for damage if— and only if — their negligence has contributed to that 
damage. The fact that a weigher may have ordered a given vehicle to be 
placed on the scale is of no particular relevance. The weighing squad 
personnel consist of registry inspectors appointed as weighers under G. L. 
c. 41, §§ 87A and 87B. You have informed me that the privilege of using 
the scales is in the nature of a license; thus, the relationship of the 
weigher to the owner of the scales is that of a gratuitous licensee. In 
other words, the weigher is allowed to perform a series of acts upon the 
land and scales of the owner. It is well settled that if no special 



P.D. 12 87 

relationship exists between tlie parties, tlie duty owed is that of 
reasonable care — i.e., the weigher must not act in a negligent manner. 
Thus, the weighers would be liable only if the damage were caused by 
their negligent conduct. 

Moreover, the fact that the weighers are employees of the Common- 
wealth does not shield them from liability for their negligent acts. 
Murdoch Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 33 (1890). 
In the Murdoch case the Supreme Judicial Court, having dismissed a tort 
claim against the State on the grounds of sovereign immunity, advised the 
plaintiff that he was not without remedy: "Where wrongs are done to 
individuals by those who are servants of the government, those injured 
are not remediless, as such persons may be sued as may be other citizens 
for the torts which they commit." Id. at 33. Accordingly, it is clear that 
weighing squad personnel will be liable for damages to the scales caused 
by their own negligence. 

In answer to your first question, it is my opinion that the operator of 
the vehicle which is being weighed is likewise liable for damages caused 
by his negligence. This is merely an application of common law 
principles of tort liability. In addition, the registered owner of the 
vehicle may be held liable for the negligence of the operator if there 
exists between owner and operator a relationship upon which the law 
predicates legal responsibility— for example, the use of a vehicle with the 
permission of the registered owner, or some other form of the principal- 
agent relationship. 

In summary, while the Commonwealth is immune from liability for 
any damage done to the scales, the weighers and the vehicle operators 
are liable for negligent acts of damage, and the vehicle owner may be 
liable for the negligence of the operator if the relationship necessary to 
create legal responsibility exists between them. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

G. L. c. 125, § 9 limits mandatory re-training to officers of the 
Department of Correction who at the time of actual enrollment have 
not reached their fiftieth birthday, and such limitation is applicable 
not only to present but also to future employees of the department. 

August 17, 1965. 
Hex. John A. Gavin, Commissioner of Correction. 

Dear Commissioner Gavin: — I am in receipt of your letter of June 15, 
1965, which requested an opinion on that part of G. L. c. 125, § 9 which 
provides for refresher courses for department personnel. 

Specifically, you have asked: 

". . . whether or not I am restricted in assigning correction officers to 
the school for such training who have reached their 50th birthday, and 
whether or not the restriction of assigning correction officers and em- 
ployees to the training school for additional courses of training applied 
only to the existing permanent correction officers and employees who had 



88 P.D. 12 

reached their 50th birthday at the time that the training school was first 
estabUshed." 

My answers, in summary, to your two questions are: 

(1) You are restricted by law in the assignment of employees 50 years 
of age or older to refresher courses and may not compel attendance by 
such persons. 

(2) The 50-year limit refers not just to the age of existing officers at 
the time the school was established, but to their age at the time they are 
actually called for the refresher course. 

The pertinent statute is G. L. c. 125, § 9, par. 4, which reads: 

"Additional courses of training shall be instituted for existing per- 
manent correction officers, employees of said department who have not 
reached their fiftieth birthday." 

I am guided in my construction of the statute by its evident purpose, 
namely, to insure the highest possible training and competance for 
officers of the department. To achieve this goal, G. L. c. 125, § 9, par. 1 
provided for the establishment of a training school and required all 
prospective officers as part of their probationary period to undergo a 
course of training "not to exceed eight weeks. . . ." 

Paragraph 1, however, did not deal with the existing, permanent 
officers who, by virtue of their position, were not required to take the 
newly prescribed probationary training. Paragraph 4 undertook to 
further the knowledge of the existing, permanent officers through the 
institution of refresher courses. The statute thus recognized two broad 
categories of department officers: new recruits and existing, permanent 
employees. 

But within the general classification of "existing permanent correction 
officers," the Legislature has made another division, this along the line of 
age 50. The legislative purpose appears to have been to establish age 49 
as the outer age limit, beyond which officers could not be compelled to 
take refresher courses. There is no statutory provision for the immediate 
implementation of refresher courses at all, and only a reading of the age- 
50 limit as a continuing and permanent one will save the paragraph from 
being rendered nugatory. Likewise, if age 50 referred either to the 
moment the legislation was enacted or the date when the school was 
established, delay in calling the officers to the courses could well result in 
compulsory enrollment of officers well over 50 years of age. The statute 
limits mandatory re-training to officers who at the time of actual 
enrollment "have not reached their fiftieth birthday," and such limita- 
tion is applicable not only to present but also to future employees of the 
department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 89 

A provision in a proposed act which denies to certain persons the rights 
which are enjoyed by othcvfi in the same category contravenes the 
equal protection clause of the Fourteenth Amendme7it to the Consti- 
tution of the United States, and is accordingly an invalid and 
ineffective exercise of legislative authority. 

If an unconstitutional portion of an act may be removed without doing 
violence to the statute as a whole, the constitutional sections may be 
allowed to remain in full force and effect. 

August 17, 1965. 

His Excellency John A. Volpe, Governor of the Commonwealth. 

Dear Governor Volpe: — On August 13, 1965, you submitted to me a 
photostat of Senate Bill number 1117, passed to be enacted by the 
General Court earlier this month. The bill, which contains an emergency 
preamble, is entitled "AN ACT PROVIDING FOR THE ELIMINA- 
TION OF RACIAL IMBALANCE IN THE PUBLIC SCHOOLS," and 
presently awaits action by you as Governor of the Commonwealth. 

You have requested my opinion with regard to the constitutionality of 
the proposed measure. In addition, should a given provision prove to be 
unconstitutional, you have asked whether such invalidity will affect the 
entire measure, so as to leave the Commonwealth with no valid racial 
imbalance legislation whatsoever. 

In brief, the Act declares it "to be the policy of the Commonwealth to 
encourage all school committees to adopt as educational objectives the 
promotion of racial balance and the correction of existing racial imbal- 
ance in the public schools." The first section requires each school 
committee in the Commonwealth to submit annually to the State Board 
of Education statistics with regard to the percentage of non -white 
pupils in public schools. The State Board of Education shall examine the 
statistics, and shall determine therefrom whether racial imbalance exists 
in the schools in question. Under this Act, the term "racial imbalance" is 
intended to refer to a ratio between non-white students and other 
students in a given public school system "which is sharply out of balance 
with the racial composition of the societv in which non-white children 
study, serve and work." In addition, racial imbalance shall be deemed to 
exist in all cases in which the percentage of non-white students in any 
public school exceeds fiftv per cent of the total number of students. 

If the State Board of Education determines that racial imbalance exists 
in a given public school svstem. it shall notify the appropriate school 
committee in writing of its finding. The said school committee must 
thereupon prepare a plan for the purpose of eliminating the imbalance, 
and file a copy of the plan with the State Board. Such a plan may 
include — among other things— changes in existing school attendance 
districts, locations of proposed new school sites, proposed additions to 
existing school buildings, and "projections of the expected racial com- 
position of all public schools." Municipalities may cooperate in making 
facilities available; howo^-er. no student maA^ be transported to any 
school outside of tlie school district established for his neighborhood if 
the parent or guardian of such student files written objection to such 
transportation with the school committee. Upon petition by the State 



90 P.D. 12 

Board of Education, the Supreme Judicial or the Superior Court may 
enforce the provisions of this section. 

The second section of the Act sets forth certain sanctions which may- 
be imposed in case a given school committee refuses to cooperate in the 
elimination of racial imbalance. Should a school committee fail to file a 
plan as described above, the State Board shall itself make specific 
recommendations for the purpose of eliminating racial imbalance in the 
community or regional district in question. If — after being notified that 
racial imbalance exists — a school committee "does not show progress 
within a reasonable time" in eliminating such imbalance, the Commis- 
sioner of Education shall not certify the amount of State Aid to which 
the community or district would otherwise have been entitled, nor shall 
the School Building Assistance Commission approve any project for 
school construction. The Commissioner may notify the Commissioner of 
Corporations and Taxation and the Comptroller of the Commonwealth 
to withhold State Aid funds which have been certified but not yet 
distributed. Upon receipt of a satisfactory plan, the Commissioner of 
Education may order such funds to be paid, and the School Building 
Assistance Commission may approve the above-mentioned projects. If 
the State Board determines that construction or enlargement of school 
buildings is for the purpose of reducing or eliminating racial imbalance, 
the amount of the state grant for such construction may be increased to 
sixty-five per cent of the approved cost. 

If a school committee refuses to accept recommendations made by the 
State Board, or if the said Board disapproves a revised plan submitted to 
it, the school committee may — within thirty days after such refusal or 
disapproval — seek judicial review of the Board's decision in the Superior 
Court for the county in which it operates or in the Supreme Judicial 
Court for Suffolk County. The Court may affirm the Board's decision 
and enter a decree ordering compliance with its recommendations; but if 
the Court rules that the Board's decision is arbitrary or otherwise not in 
accordance with law, it shall set aside such decision and remand the 
matter to the Board for further action. Either the Supreme Judicial or 
the Superior Court may — upon petition by the State Board — order funds 
withheld as described above for whatever period of time the Court 
determines. 

There can be no question that the provisions set forth above are valid 
enactments of the Legislature completely in accord with both the Federal 
and the State Constitutions. It is the final paragraph of the Act which 
provides for an Advisory Committee on Racial Imbalance which is the 
part of the measure which is of particular concern. The paragraph 
provides as follows : 

"The board of education, with the advice of the commissioner, shall 
appoint an advisory committee on racial imbalance and no individual 
shall be appoijited to this advisory committee on racial imbalance who 
has been listed in any state or federal document as being a member of a 
communist front organization. The members of the committee shall serve 
without compensation except that they may be reimbursed for the 
necessary expenses actually incurred in the performance of their duties. 
[Emphasis supplied.] 



P.D. 12 91 

Your questions relate most directly to the underlined portion of the 
paragraph. 

It was obviously the purpose of the General Court to prohibit the 
appointment of Communist Party members and sympathizers to the 
newly created Advisory Committee on Racial Imbalance. The rationale 
which underlies such a legislative determination need not be analyzed in 
order to decide whether the provision in question is constitutional. The 
United States Supreme Court has ruled that the Communist Party may 
be subjected to special legislative provisions not imposed upon other 
political parties without violating the Federal Constitution. Dennis v. 
United States 341 U.S. 494. Scales v. United States 367 U.S. 203. It is 
not the decision to bar Communists from Advisory Committee participa- 
tion, but the means by which this decision is to be implemented, which 
must' be examined. 

The provision prohibits the appointment of any person "who has been 
listed in any state or federal document as being a member of a 
communist front organization." It is clear that the clause is far reaching 
in scope. Even our smallest State agency accumulates a sizeable number 
of papers in the course of a year. The measure indiscriminately refers to 
every document of every agency, commission or department of govern- 
ment of each of the fifty states and of the Federal government without 
specific regard to their nature. Since the provision contains no indication 
that it is limited to documents of present date, presumabty documents of 
all dates must be included. Some of these documents must inevitably be 
confidential in nature. It is apparent that the Board of Education could 
never fully comply with the herculean task set for it by the Legislature. 

The magnitude of the disability provision is one indication of its lack 
of accuracy in identifying persons who actually are or might have been 
Communist Party members or sympathizers. Since so many documents 
are included, the material contained therein will naturally be of varying 
degrees of reliability. Certain State or Federal governmental papers may 
well accurately name individuals who are in fact Communists. But it is 
also true that other papers will undoubtedly be inaccurate, and may well 
identify as members of Communist front organizations men and women 
who have had no contact with such groups and who are completely 
independent of Communist philosophy and operations. 

The fact that a person has been listed in a governmental document as 
a member of a Communist front organization is, in my opinion, far from 
an effective guide to a determination whether such a person is in fact a 
Communist or a Communist sympathizer. It is clear that if such a 
standard is used both Communists and non-Communists could be barred 
from the Advisory Committee. Thus the Legislature will have created an 
arbitrary distinction between non-Communists who happen to have been 
mentioned in a governmental document as members of Communist front 
organization? and non-Communists who have not been so mentioned. As 
such, the provision represents an unreasonable legislative classification 
which denies to certain persons the rights which are enjoyed by others in 
the same category. 

It is my considered opinion, therefore, that the provision in question 
contravenes the "equal protection" clause of the Fourteenth Amendment 



92 P.D. 12 

to the Constitution of the United States, and is accordingly an invalid 
and ineffective exercise of legislative authority. 

Although it is my opinion that this portion of the Act is unconstitu- 
tional, this does not mean that the measure as a whole must be declared 
invalid. I am aware that the measure in its present form does not contain 
a "severability clause." But lack of such a clause is not necessarily 
determinative. It is an accepted principle that a statute may be 
unconstitutional in one part, yet constitutional in another. If the 
unconstitutional portion may be removed without doing violence to the 
statute as a whole, the constitutional sections may be allowed to remain 
in full force and effect. Chaplinsky v. A^ew Ha?npshire, 315 U.S. 568; 
Mutual Loan Co. v. Martell, 200 Mass. 482, 487. 

The fact that a severability clause has not been included will not 
prevent the retention of valid provisions in cases in which unconstitu- 
tional portions may actually be separated. 

The Act does not stand or fall upon the inclusion of an Advisory 
Committee. As described above, the Act sets up procedures for the 
elimination of racial imbalance in the public schools, and imposes certain 
sanctions upon school committees who choose not to carry out the 
legislative mandate. The objectives of the Act are to be attained by 
means of participation by local school committees and by the State 
Board of Education. 

The Advisory Committee on Racial Imbalance was included in the 
measure by Section IK, being the last paragraph of the Act. Its duties 
are not defined, and there is no indication as to the number of persons to 
be appointed. It has apparently been created solely for the purpose of 
making recommendations to the governmental bodies responsible for the 
execution of the Act's provisions. It is clear that the Legislature's 
intention to develop procedures by which racial imbalance could be 
reduced and eliminated could be effectuated without reference to an 
Advisory Committee. Likewise, the Advisory Committee members may 
be appointed and may proceed to perform their functions despite the fact 
that a provision governing who is to be appointed has proven to be 
invalid. 

Accordingly, it is my opinion that the unconstitutional portion of the 
last paragraph of the Act may be severed from the remainder, and 
that — despite the invalidity of this provision — the measure as a whole 
will, upon your approval, be fully effective. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 93 

The responsibilify for defining and applying the term "good- moral 
character" is vested in the Board of Registration, vith such 
determination to be made on the basis of specific factual situations. 

August 18, 1965. 

Miss Winifred V. Shuman, R.N., Executive Secretary, Board of Regis- 
tration in Nursing. 

Dear ]\Iiss Shuman: — I am in receipt of your letter of August 3, 1965, 
requesting my opinion regarding the eligibility of ex-convicts for regis- 
tration as professional nurses or for licensing as practical nurses. 

Specifically, you have asked for my opinion as to the meaning of the 
requirement of "good moral character" contained in G. L. c. 112, §§ 74 
and 74A, especially in its application to the rehabilitated ex-convict. 

General Laws c. 112, §§ 74 and 74A provide in part: 

". . . An applicant who furnishes satisfactory proof that he is of good 
moral character and a graduate of a school for nurses approved by the 
board shall ... be examined by the board, and, if found qualified, shall 
be registered. . . ." 

". . . An applicant who furnishes satisfactory proof that he is of good 
moral character and a graduate of a school for practical nurses approved 
by the board shall ... be examined by the board and, if found qualified, 
shall be licensed. . . ." 

The meaning of the phrase "good moral character" contained in the 
above-quoted sections has not been specifically defined by the Legisla- 
ture. This is understandable, considering the possible scope of a concept 
such as "good moral character." Clearly, had the Legislature desired to 
define the scope and content of "good moral character" for the purpose 
of the registration or licensing of nurses, it would have done so by the 
use of express language. Since the Legislature has not indicated the exact 
meaning of "good moral character," it is my opinion that the responsi- 
bility for defining and applying this standard is vested in the Board 
itself. 

This is confirmed by two factors: first, the necessity of flexibility in 
construing the meaning of "good moral character;" secondly, the fact 
that approval or disapproval of candidates for the nursing profession can 
best be accomplished by a professionally experienced board on a case-by- 
case basis. Accordingly, application of the standard of "good moral 
character" will depend upon the specific factual situations which are 
presented to the Board. 

Therefore, in the case of rehabilitated ex-convicts, it will be the 
responsibility of the Board to determine whether such rehabilitation has 
been sufficiently successful to warrant a conclusion that the applicant 
now complies with the "good moral character" standard. As indicated 
above, such a determination can be made solely upon a specific factual 
basis, and cannot be made in the abstract. 

The only possible guideline that I can furnish is that already 
m c. 112, §§ 74 and 74A. The relevant sections provide: 



94 P.D. 12 

"... The board . . . may annul the registration and cancel the 
certificate of any nurse who has been found guilty of a felony." 

". . . The board . . . may annul the license and cancel the certificate 
of any practical nurse who has been found guilty of a felony." 

It is my opinion that the above-quoted sections — which sections give 
the Board authority to annul the license or registration and cancel the 
certificate of any nurse convicted of a felony — at least by implication 
indicate that the Board has authority initially to refuse to register or 
license a convicted felon on the grounds of bad moral character. A felony 
conviction may well not be conclusive of the matter; it is, however, one 
factor which the Board should consider. Consequently, it is for the Board 
to decide how much weight is to be given to the fact of a conviction, and 
how successful has been the rehabilitation process. 

In conclusion then, it is my opinion that the determination of the 
scope and content of the requirement of ''good moral character" rests 
with the Board, with such determination to be made on the basis of 
specific factual situations. In the case of a convicted felon, the Board 
may clearly find the absence of "good moral character." However, the 
effects of rehabilitation upon an ex-convict may be such as to warrant a 
conclusion that the applicant is once again a person of "good moral 
character," and the Board may, based upon such a conclusion, register or 
license the applicant in question. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Alcoholic. Beverage Control Commission is specifically authorized to 
make regulations governing the submission by applicants of sicorn 
statements and documents concerning the direct or indirect owner- 
ship of and direct and indirect holding of beneficial interests in an 
applicant's business. 

The Commission has the authority and duty to investigate the corporate 
or business ownership of the applicant for the original issuance, 
renewal or transfer of a license under §§ 12 or 15 of G. L. c. 138. 
and of all those holding a direct or indirect beneficial interest in said 
license, corporation or business. 

August 19, 1965. 

Hon. Quintin J. Cpjrty, Chairman, Alcoholic Beverage Control Com- 
mission . 

Dear Mr. Cristy: — This is in reply to your request for an opinion, 
dated August 11, 1965, concerning the authority and duty of the 
Commission to adopt reasonable regulations governing the submission of 
sworn statements on direct or indirect ownership of and the direct or 
indirect holding of beneficial interests in an applicant's business. 

The Commission, created by G. L. c. 6, § 43, is charged, in § 44, with 
the specific responsibility "of general supervision of the conduct of the 



P.D. 12 95 

business of manufacturing, importing, exporting, storing, transporting 
and selling alcoholic beverages. . . ." The legislative history of G. L. c. 6, 
§§ 43 and 44, and G. L. c. 138, the Liquor Control Act, clearly 
establishes that the Commission's powers to supervise licensees were not 
intended to be limited in scope. Connolly v. Alcoholic Beverage Commis- 
sion, 334 Mass. 613, 617. 

General Laws, c. 138, § 15, deals with the issuance of licenses for the 
sale of alcoholic beverages not to be drunk on the premises, and 
specifically provides that "no such license shall be granted except to an 
applicant ai)proved by the Commission." 

Such a requirement necessarily presupposes that the Commission will 
investigate the qualifications of an applicant before approving his 
request for a license. Similar provisions apply to licenses for beverages to 
be dmnk on the premises under G. L. c. 138, § 12. 

The Liquor Control Act specifically provides that the holder of a 
license under Section 12, a license for on-premises consumption, cannot 
also hold, directly or indirectly, a license under Section 15, a license for 
the sale of alcoholic beverages not to be consumed on the premises. In 
addition, Section 15 provides, in part: 

"No person, firm, corporation, association, or other combination of 
persons, directly or indirectly, or through any agent, emploj'ee, stock- 
holder, officer, or other person or any subsidiary whatsoever, shall be 
granted, in the aggregate, more than three such licenses in the common- 
wealth, or be granted more than one such license in a town or two in a 
city." 

One important qualification which therefore must be investigated by 
the Commission is the direct or indirect ownership of and the direct or 
indirect holding of beneficial interests in the applicant's business. 

It is evident from past judicial decisions that the Alcoholic Beverage 
Control Commission has used its authority to investigate the existing 
patronage of a liquor license applicant, the proximity of churches and 
schools, and the broad public interest in awarding the applicant a 
license. Connolly v. Alcoholic Beverage Control Commission, supra. It is 
also evident that the exercise of discretion by the local authorities in a 
city or a towTi is subject to review by the Alcoholic Beverage Control 
Commission. Webster v. Alcoholic Beverage Control Commission, 295 
I\Iass. 572. 

General Laws, c. 138, § 24 specifically authorizes the Commission to 
make regulations for clarifying, carrying out, enforcing and preventing 
violation of the Liquor Control Act. This would include the adoption of 
reasonable regulations governing the submission by the applicant of 
sworn statements and documents concerning the direct or indirect 
ownership of and direct or indirect holding of beneficial interests in an 
applicant's business. 

Under G. L. c. 138, § 23, the applicant for the issuance, renewal or 
transfer of a license must submit a sworn statement giving names and 
addresses of all persons who have direct or indirect beneficial interests in 
said license. The section provides in part "no license shall be issued, 
renewed or transferred under sections twelve, fourteen, fifteen or thirty A 
unless there is filed with the application for such license a sworn 



96 P.D. 12 

statement by the applicant, or in case of a corporation by a duly 
authorized officer thereof, giving the names and addresses of all persons 
who have a direct or indirect beneficial interest in said license." Clearly, 
the Commission has? the authority to require a copy of the statement 
filed with each license application. The information furnished in such a 
sworn statement is a logical starting point for investigation by the 
Commission of license ownership. 

Aside from the statutory requirements it is logical that a State agency 
should investigate the ownership of an applicant who may hold licenses 
throughout the Commonwealth. Local boards do not have at their 
disposal information enabling them to determine whether or not the 
actual owner-applicant has three or more package stores in different 
parts of the Commonwealth or is the holder of a license under § 12. Only 
the Commission has this inherent ability. 

Based on the foregoing, it is my opinion that the Commission has 
the authority and duty to investigate the corporate or business o'WTier- 
ship of the applicant for the original issuance, renewal or transfer of a 
license under §§ 12 or 15 of G. L. c. 138, and of all those holding a 
direct or indirect beneficial interest in said license, corporation or 
business. As a necessary part of this obligation, the Commission is 
authorized to adopt reasonable regulations which may require an appli- 
cant to submit statements to the Commission concerning the direct or 
indirect owTiership of and the direct or indirect holding of beneficial 
interests in the applicant's business or corporation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Secretary of the Commonwealth upon receiving notice of dishonor of 
a check given in payment of the filing fee anent articles of 
organization and annual certificate of condition, is not empowered 
to consider the papers as never having been filed and to remove 
them from the public records. 

August 19, 1965. 
Hon. Kevin H. White, Secretary of the Commonwealth. 

Dear Sir: — I have received a letter from Mr. Theodore V. Anzalone, 
Director of the Corporation Division of the Office of the Secretary, with 
regard to the procedure to be followed bv that division upon the return 
"unpaid" of a check given in payment of the statutory fees for filing 
articles of organization and annual certificates of condition. Mr. Anza- 
lone stated that checks are frequently accepted in payment of these fees 
and that the practice of the division is to record and file the accompany- 
ing documents before the check is paid. He has asked whether your office 
is empowered, in cases in which checks are returned unpaid, to consider 
the papers as never having been filed and to remove them from the 
public records. 
Section 1 1 of Chapter 156 of the General Laws states in part: 
". . . If he [the Secretary of the Commonwealth] finds that the 



P.D. 12 97 

provisions of law relative to the organization of the corporation have 
been complied with, he shall endorse his approval on the articles. 
Thereupon, the articles shall, upon payment of the fee provided . . ., be 
filed in the office of the state secretary." [Emphasis supplied] (See also 
G. L. c. 156B, § 6 and 12, effective October 1, 1965.) 

And Section 48 of the same chapter provides: 

"The secretary shall examine such (annual report of condition) . . . ; 
and upon the payment of the fee required . . . it shall be filed in the 
office of the state secretarv . . ." [Emphasis supplied] (See also G. L. c. 
156B, § 110, effective October 1, 1965.) 

It is clear from the language of both section 11 and section 48 that 
actual payment of the proper fee is an express condition precedent to the 
filing of either articles of incorporation or annual reports. The Secretary 
could properly require that all fees for filing these documents be paid 
either by cash or by certified check. He is under no obligation to rely on 
the credit of the drawer of an uncertified check. If, however, he is Avilling 
to accept an uncertified check as conditional j^ayment of these fees, there 
is no provision of law which wouM prohibit him from withholding or 
decaying recording of the documents until such check is in fact paid. 

In answer to the specific question whether the Secretary may withdraw 
a recorded document upon receiving notice of dishonor of a check given 
in pavment of the filing fee. however, it is my opinion that such a 
practice would not be ju-tified. 

If a check which has been accepted in payment of filing fees is not 
honored, the Secretary has remedies other than removal of the documents 
from the files. He mav attempt to collect the amount owed by means of 
civil proceedings. He mav. in the alternative, make a criminal complaint 
under G. L. c. 266. § 37. He may not, however, lawfully remove a public 
record once H ha^; been pccepted and filed. 

Article'^! of incorporation and annual st^itements of condition have been 
made public records for the benefit of suppliers, lenders, and other 
bu-ine'=^.^men who mav wish to obtain information about a corporation 
with which they are dealing or are about to deal. The possibility that a 
document might be withdrawn from these files would seriously reduce 
their value as a source of reliable information. The right of third paHies 
to deT'^end on pubHc records makes it imperative that public filing be 
regarded as permanent and not subject to later revocation. Chapter 66 of 
the General Laws sets out the procedures for the care and maintenance 
of public records, and there exists in that chapter no authorization for 
the removal of a document once it has been accepted as a public 
record. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



98 P.D. 12 

Members of the Youth Service Board are not subject to the state 
employee travel expense rules and regulations. Board members are 
entitled to reimbursement by the Commonwealth for all actual and 
necessary travel expenses incurred in the performance of their official 
duties. 

August 23, 1965. 

Hon. John D. Coughlin, Director, Division of Youth Service. 

Dear Mr. Coughlin: — This is in reply to your letter of June 29, 1965, 
in which you requested an opinion concerning the payment of travel and 
other expenses incurred by members of the Youth Service Board in the 
performance of their duties. You ask specifically whether Board members 
are subject to the general travel expenses rules and regulations for state 
employees. 

Members of boards who are appointed by the Governor are specifically 
exempted by c. 7, § 28 and the rules and regulations governing travel, 
vacation leave, etc. made thereunder from the travel expense rules for 
state personnel. 

The general rule on travel expenses of ofiicers is found in c. 30, § 25, 
which states in part: 

". . . ofl&cers . . . whose duties require them to travel elsewhere than to 
and from the offices provided for them by the commonwealth . . . shall be 
allowed their actual and reasonable expenses incurred in the performance 
of such duties, if such expenses are authorized by law to be paid by the 
commonwealth. Bills for such expenses shall be itemized and the dates 
when, and the purposes for which, such expenses were incurred shall be 
stated before their allowance by the comptroller." [Emphasis supplied.] 

Chapter 6, § 66 states in part: 

". . . each member (of the Youth Service Board) shall also be 
reimbursed for his expenses actually and necessarily incurred by him in 
the performance of his official duties. . . ." 

Section 66, in my opinion, authorizes reimbursement to members of the 
Youth Service Board of travel expenses incurred in the performance of 
their official duties. 

Section 67 spells out the official duties and functions of the Youth 
Service Board, which include cooperation with local agencies and visits 
to the county training schools. Travel is obviously essential to the 
complete discharge of the members' official responsibilities. It is clearly 
the intent of the Legislature, from the language of § 66, that legitimate 
travel expenses be included among those expenses which will be "actually 
and necessarily incurred ... in the performance of . . . official duties." 
Consequently, legal authority for reimbursement of travel expenses 
exists, and Youth Service Board members may recover reasonable 
amounts under c. 30, § 25. 

Accordingly, it is my opinion that members of the Youth Service 
Board are not subject to the state employee travel expense rules and 



P.D. 12 99 

regulations. Board members, in my opinion, are entitled to reimburse- 
ment by the Commonwealth for all actual and necessary travel expenses 
incurred in the performance of their official duties. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Disclosure of records of the Commission of Rehabilitation to any agency 
not "directly concerned in the vocational rehabilitation" of ap- 
plicants, as that clause is used in c. 6, § 8^, M.G.L., would 
■constitute a violation of that statute. 

August 24, 1965. 

Hon. Francis A, Harding, Commissioner of Rehabilitation. 

Dear Commissioner Harding: — I have received your letter of March 
31, 1965 in which you inquire wliether your proposed plan to enlist the 
assistance of the Shawmut Neighborhood Center in locating applicants 
with whom the Commission has lost contact would contravene the 
provisions of G. L. c. 6, § 84. Specifically, you have asked my opinion on 
the following question : 

". . . whether divulging the information that a certain person is a 
client of the Commission or an applicant to a private organization like 
the Shawmut Neighborhood Center would conflict with Section 84 of 
Chapter 6, which set forth the provisions for confidentiality of files of 
clients in the Commission." 

It is my opinion that this question must be answered in the affirma- 
tive. G. L. c. 6, § 84 provides in part: 

"Information or records concerning any applicant for vocational 
rehabilitation shall be confidential and for the exclusive use and 
information of the commission in the discharge of its duties. Such 
information or records shall not be open to the public . . . and shall not 
be admissible in any action or proceeding unless the commission is party 
to such action or proceeding; provided, however . . . that the commission 
may . . . provide such information to any person or department, division 
or sub-division of the commonwealth directly concerned in the voca- 
tional rehabilitation of said applicant. . . ." [Emphasis supplied.] 

Clearly, it was the intention of the General Court generally to preserve 
the confidentiality of the information and records pertaining to ap- 
plicants for vocational rehabilitation. The specific exceptions which are 
set forth in the statute represent a departure from the primary purpose 
of the law, and must accordingly be construed strictly. 

The standard set forth by the General Court to determine exactly to 
whom the pertinent information may be divulged is clear: namely, those 
"directly concerned" in the rehabilitation process. Persons included 
within this category could — for example — be psychiatrists and other 



100 P.D. 12 

specialists called in as expert consultants to assist in the rehabilitation of 
a particular applicant. The interest of a prospective employer would also 
seem sufficiently direct so as to include him within the group to whom 
information and records may be divulged. On the other hand, the work 
3^ou wish to have performed by the Shawmut Neighborhood Center is 
primarily that of a detective service. Such gathering of information is 
not, in my opinion, directly involved in rehabilitation to a sufficient 
extent to outweigh the genei'al legislative policy in favor of individual 
privacy and against indiscriminate disclosure of rehabilitation records. 

Application to the Commission is purely voluntary. No one may be 
placed involuntarily in the custody of the Commission, nor may anyone 
be compelled to accept assistance. Once an individual has applied, the 
Commission is without authority to prevent his subsequent withdrawal. 
It is clear that confidential Commission records should not be disclosed 
in an effort to force rehabilitation upon persons who may well have lost 
interest in receiving such services. 

Accordingly, in light of the above, it is my opinion that the Shawmut 
Neigliborhood Center is not "directly concerned in the vocational 
rehabilitation" of applicants as that clau'^e is used in c. 6, § 84, and that 
disclosure of Commission records to the Center would constitute a 
violation of that str.tute. 

Very truly yours, 

Edward W. Brooke, Attorneij General. 



The provisions of c. 29, § 30, M.G.L., preclude the Massachusetts 
Executive Committee for Educational Television from insuring its 
furniture and equipment. 

August 24, 1965. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — I am in receipt of your letter of 
August 3, 1965, in which you request my opinion regarding the applica- 
bility of G. lu c. 29, § 30 to the Massachusetts Executive Committee for 
Educational Television. [G. L. c. 71, § 13F.1 Specifically, you have 
asked "whether, despite the langunge of Chapter 29, § 30 of the General 
Laws, it [the Executive Committee] can insure its furniture and 
equipment since the program is conducted as a trust fund operation 
without appropriations." 

General Laws c. 29, § 30 provides as follows: 

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

The above-quoted section indicates that the answer to your question 
must be in the negative. The General Court has clearly determined that 
the Commonwealth is to be a self-insurer of its property. The authority 
to insure the Commonwealth's property must be specifically granted by 



P.D. 12 101 

the Legislature. Authorization of this nature does not appear in the 
statutes which govern the Executive Committee. 

The application of this section cannot be limited to those officers or 
boards whose expenses in acquiring insurance would be paj^able by 
appropriation. Such a limitation docs not specifically appear in the 
statute, and it cannot be implied. Chapter 29, § 30 can only be limited 
by the enactment of a specific provision authorizing a given officer or 
board to purchase insurance; absent such special authorization, the 
expenditure of funds for insurance by officials of the Commonwealth is 
precluded. 

Accordingly, it is my opinion that the provisions of c. 29, § 30 
preclude the Massachusetts Executive Committee for Educational Tele- 
vision from insuring its furniture and equipment. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G. L. c. 90, § 49(e) (4) wos intended to operate only ivhere the federal 
government has exerted its control over aircraft through the process 
of certification. 

The Provincetown-Boston Airline, Inc., is not a "federally certified" 
airline as that term is employed in § 49(e) (4)^ and is required, by 
the provisions of G. L. c. 90, § 4^, to register with the Massachusetts 
Aeronautics Commission and pay the fee prescribed. 

August 26, 1965. 

Hon. Crocker Snow, Director of Aeronautics, Massachusetts Aeronau- 
tics Commission. 

Dear Director Snow^: — I am in receipt of j'-our letter of August 11, 
1965, in winch you request my, opinion upon the application of G. I^. c. 
^0, § 49, as amcDded by c. 590 of the Acts of 1964. Specifically, you 
have asked "whether or not Provincetown-Boston Airlines, Inc., is 
required, by the provisions of c. 90, § 49 to register with us and pay the 
fee prescribed?" 

G. L. c. 90, § 49, as amended by c. 590 of the Acts of 1964, provides in 
part as follows: 

"(b) Subject to the limitations of said paragraphs (c) and (e), every 
person who operates an aircraft shall register the federal aircraft 
certificate of said aircraft with the commission during each period in 
Vv'hich the aircraft is operated M^ithin the commonwealth. The commission 
may charge for each such registration, and for each renewal thereof, fees 
as follows: .... 

(c) Possession of the appropriate effective federal certificate, permit, 
rating or license relating to competency of the pilot or ownership and 
airworthiness of the aircraft, as the case may be, and the payment of the 



102 P.D. 12 

appropriate fee as set forth in this section, shall be the only requisites for 
registration of a pilot or an aircraft. 



(e) The provisions of this section shall not apply to: 

1. an aircraft owned by, and used exclusively in the service of, any 
government, including the government of the United States or of any 
state thereof, or political subdivision thereof, which is not engaged in 
carrying persons or property for commercial purposes; 

2. an aircraft registered under the laws of a foreign country; 

3. an aircraft owned by a non-resident and based in another 
state ; 

4. an aircraft engaged principally in federal certificated scheduled 
airline operation ; 



The language of c. 90 § 49 which provides for the registration of 
federal certificates does not distinguish between the different types of 
federal certificates which may be awarded to aircraft. That section 
simply provides for registration of "the federal certificates" in such 
manner as is prescribed by the Commission. In light of this lack of 
distinction, it is my opinion that — absent an exemption — the registration 
and fee provisions of G. L. c. 90, § 49 are intended to apply to each and 
every federal certificate awarded to an aircraft. 

In your letter you indicate that the Provincetown-Boston Airline, Inc. 
does not possess a federal certificate of public convenience and necessity, 
relief from that requirement having been granted by the Civil Aeronau- 
tics Board. The airline does, however, possess a federal safety operating 
certificate. The safety operating certificate is a federal certificate within 
the purview of § 49. Accordingly, it must be registered with the 
Aeronautics Commission, and the registration fee paid, unless otherwise 
exemiited from that requirement. 

The chief question that you raise is whether the Provincetown-Boston 
Airline, Inc. is entitled to an exemption from registration and fee 
requirements of § 49 (a) through (d) by virtue of the application of 
§ 49 (e) (4). The answer to this question rests upon a determination 
whether the aircraft of the Provincetown-Boston Airline, Inc. come 
within the language of § 49 fe) (4) as being "engaged principally in 
federally certificated scheduled airline operation." 

It is apparent from a reading of the first three exemptions of § 49 (e) 
that the aircraft therein qualified for exemption are those already 
controlled and regulated by a responsible agency: the federal gov- 
ernment (§ 49 (e) (1) ) ; a "foreign country (§ 49 (e) (2) ) ; or another 
state (§ 49 (e) (3)). Each of these three exemptions is predicated upon 
the existence of another source of control, thus obviating the necessity of 
anv regulation by the INIassachusetts Aeronautics Commission. The 
intention of the Legislature in providing such exemptions from the 
registration requirement of § 49 was clearly to eliminate an unnecessary 
burden on the airlines by avoiding duplication of what had otherwise 



P.D. 12 103 

been accomplished — i.e., the control and regulation of aircraft by a 
responsible agency. In the case of the federal government regulation is 
provided by Public Law 85-726. 

Public Law 85-726, 75 Stat. 754, Title IV— Air Carrier Economic 
Regulation provides in part: 

"Sec. 401 (a) certificate required — air carrier shall engage in any air 
transportation unless there is in force a certificate issued by the Board 
authorizing such air carrier to engage in such transportation." 

"Sec. 401(d)(1) Issuance of Certificate — The Board shall issue a 
certificate. ... if it finds that the applicant is fit, willing, and able to 
perform such transportation properly, and to conform to the provisions 
of this act and the rules, regulations, and requirements of the Board 
hereunder, . . . ." 

"Sec. 416 (b) (1) — The Board from time to time and to the extent 
necessary, may. . . . exempt from the requirements of this title or any 
portion thereof, or any rule, regulation, term, condition, or limitation 
prescribed thereunder, any air carrier. ... if it finds that the enforcement 
of this title. . . . would be an undue burden on such air carrier and is not 
in the public interest." 

The exemption of sec. 416 (b)(1), as applied to the Provincetown- 
Boston Airline, Inc., relieves that airline of the necessity of compliance 
with the provisions of sec. 401 (a) of the Act. As a result, the requirement 
of sec. 401(a) (1), that the Board make findings prior to the issuance of 
the certificate of public convenience and necessity, is eliminated. An 
aircraft exempted from the provisions of Public Law 85-726 Title IV is 
therefore not only exempted from the license requirement of the Act, but 
also from the necessity of compliance with the numerous other provisions 
contained therein — e.g., the filing of tariffs, sec. 403; the duty to provide 
service, rates, and divisions, sec. 404; the filing of reports, sec. 407; stock 
ownership, sec. 407 (b) ; prescribed accounts, reports and memoranda, 
sec. 407(d) ; inspection of accounts and property, sec. 407(e) ; consolida- 
tion, mergers, and acquisition of control, sec. 408; loans and financial 
aid, sec. 410; methods of competition, sec. 411. 

It is the existence of such control and regulation which obviates the 
necessity of the registration procedure of c. 90, § 49. In view of the 
exemption of the Provincetown-Boston Airline, Inc. from the require- 
ment of having a certificate of public convenience and necessity, the 
existence of control and regulation by a responsible agency, upon which 
the exemption of § 49 (e) (4) is based, is lacking. Consequently, the 
registration requirements of the Commonwealth would become applicable 
in order to insure that the airline in question does not remain entirely 
unregulated. 

It is my opinion that the meaning of the language of § 49 (e) (4) , in 
the context of the other exemptions and the purposes of the statute, is 
restricted to those aircraft certificated by the federal government in such 
manner as to be substantially under the control and regulation of the 
Civil Aeronautics Board. The possession of a safety operating certificate, 
although indicative of the exercise of some degree of federal control and 
regulation, would not be sufficient to warrant the exemption of aircraft so 



104 P.D. 12 

controlled and regulated from the requirements of state registration. The 
extent of control and regulation implicit in the requirements of "fed- 
erally certificated," as set out in § 49(e) (4), is more extensive than that 
provided by a safety operating certificate. It must be regulation that 
would eliminate the necessity of additional state control. In this 
instance, it is clear that this would be accomplished by the certificate of 
public convenience and necessity, but not by the safety operating 
certificate alone. 

It is ray opinion, therefore, that § 49(e)(4) was intended to operate 
only where the federal government had exerted its control over the said 
aircraft through the process of certification. The Legislature provided 
this exemption in reliance upon the establishment of appropriate controls 
by the federal government as exemplified in the sundry requirements to 
be satisfied antecedent to issuance of a certificate of public convenience 
and necessity. However, in the present case, such federal control is not 
exerted. The Provincetown-Boston Airline, Inc., despite possession of a 
safety operating certificate, is not a "federally certificated" airline as 
that term is employed in § 49(4) (4), and accordingly cannot be 
exempted on that basis from the provisions of § 49. 

The only remaining question to be answered is whether the grant of a 
specific exemption from the requirement of obtaining a certificate of 
public convenience snd ne^e'^pity would — in and of itself — suffice to 
qualify the airline as being "federally certificated." 

In my opinion, the answer is in the negative. Although Public Law 85- 
726, 75 Stat. 754, Title IV, relieves certain aircraft governed by its 
provisions of the necessity of obtaining a certificate of public con- 
venience and necessity, there is no reasonable basis for asserting that the 
effect of that federal exemption is to relieve those aircraft from state 
regulation as well. There is nothing expressly or impliedly contained in 
Public Law 85-726 that supports such a conclusion. And, absent any 
statutory prohibition, it is entirely proper tliat the State be allowed to 
set up its own system of regulation and control of such aircraft as are 
not governed by federal provisions. This, in my opinion, is what the 
Legislature intended to accomplish by adopting the registration pro- 
cedures of § 49. 

The statutory framework must be considered in two parts. The first 
part, contained in § 49 itself, regulates the registration of aircraft, 
setting fortji the limitations of its coverage in parngraph (e). Similarly, 
the provisions contained in sections 49B to 49R are limited by 
exemptions appearing in section 490. 

To determine the scope of the exemption of § 49(e) (4), it is useful to 
compare the language contained therein to that of § 490. The language 
of ^ § 49(e) (4) provides an exemption solely for aircraft "engaged 
principally in federallv certificated scheduled. . . . operation." Section 
490, however, provides that: 

"Sections 49B to 49R, inclusive, shall not apply to . . . any aircraft 
owned or being operated by a public carrier engaged principally in 
regularly scheduled interstate or foreign air transportation for hire under 
either a federal certificate of public convenience and necessity or under a 



P.D. 12 105 

letter of rcgif^tration or exemption order issued hy the civil aeronautics 
hoard. . . ." [Emphasis added.] 

A comparison of the?e two exemption })rovisions demonstrates the 
limited scope of the exemption provided in § 49(e)(4). While the 
language of § 49(e) (4) is confined ttrictly to the exemption of "federally 
certificated scheduled airline operations," the exemption of § 490 not 
only includes those aircraft, but also specifically encompasses aircraft 
owned and operated under an exemption order. 

It is my opinion that the specific absence in the exemption provision of 
§ 49(e), of aircraft operating under an exemption order, is a clear 
indication of legislative intent tJiat such aircraft be subject to state 
control. Accordingly, the registration requirement of § 49 does apply to 
such aircraft, although the provisions of § 49B to § 49R would not be 
applicable. 

The answer to your specific question is, therefore, in the affirmative. 
Unless otherwise able to exempt itself, an aircraft holding a safety 
operating certificate must register that certificate in accordance with the 
procedures set forth in § 49. In the absence of a certificate of public 
convenience and necessity, either by virtue of a federal exemption or 
otherwise, such an aircraft is not "an aircraft engaged principallj'- in 
federally certificated scheduled airline operation," and is consequently 
not entitled to exemption under § 49(e) (4) . 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Commissioner of Administration and Finance, under G. L. c. 7, 
§ 30K, is 'permitted to certify rates to the various departments, 
boards or commissions of the Commonivealth purchasing care in 
hospitals, sanatoria and infirmaries or reimbursing cities and towns 
for such care only once in any year. 

August 30, 1965. 
Hon. John J. McCarthy, Commissioner of Administration and Finance. 

Dear Commissioner INIcCarthy: — You have requested my opinion 
regarding an interpretation of G. L. c. 7, § 30K. Specifically you ask 
whether at this time you may. pursuant to G. L. c. 7, § 30K, certify to 
each of the various departments, boards, or commissions of the Common- 
wealth purchasing care in hospitals, sanatoria and infirmaries or reim- 
bursing cities and towns for such care, rates which will reflect reasonable 
hospital costs or charges made to the general public, whichever is the 
lower. 

In your request you state that on January 14, 1965, the Director of 
the Bureau of Hospital Costs and Finance certified to the Commissioner 
of Administration and Finance the all-inclusive per diem costs and 
charges for public ward accommodations. On Februarv 4. 1965, you 
certified emergency rates under the provisions of G. L. c. 30A, § 2(3) 
and filed the same with the Secretary of State. The request further states 



106 PD. 12 

that on February 25, 1965, a public hearing was held concerning welfare 
rates and that, thereafter, on April 30, 1965, you certified the same rates 
as previously promulgated on February 4, 1965, and once again filed the 
same with the Secretary of State. 
G. L.c. 7, §30K states that: 

"The commissioner shall certify annually . . . such rates ... as will 
reflect reasonable hospital costs or charges made to the general public, 
whichever is the lower. . . ." 

It would appear from an examination of this section that the 
Commissioner is empowered to certify rates only once a year. This is the 
common meaning of the term "annually" as it is defined in Webster's 
Dictionary . The language contained in the entire section 30K would 
seem to indicate the same result. In the first paragraph of section 30K 
appear the words "at least as often as annually," and in the last 
paragraph appear the words, "at least annually." It must be assumed 
that the Legislature was aware of the different terminology used in 
section 30K when referring to the "annual" requirements for the 
certification of rates and the "at least annual" requirements for the 
certification of per diem costs. 

Furthermore, it is quite evident that the legislative purpose in restrict- 
ing the Commissioner to an annual certification of rates was to allow 
both the Commonwealth and the hospitals to anticipate future reim- 
bursements based on established yearly rates. If it were possible to alter, 
amend or adjust the rates then neither party would be able to accurately 
prepare budgetary requirements. 

I recognize that because of the present accounting procedures used by 
some hospitals and because of the ever fluctuating change in the costs 
and charges of treating welfare patients, rates certified at the beginning 
of a year may not reasonably reflect the lower of costs or charges at some 
later period during the year. For these reasons, I can appreciate that the 
Commissioner of Administration and Finance might desire to raise or 
lower the rates depending on circumstances arising after the original 
certification. This, however, is a matter for the future determination of 
the Legislature since at the present it is not, in my opinion, permitted 
under the provisions of G. L. c. 7, § 30K. 

The Commissioner is required under G. L. c. 7, § 30K to certify rates 
which reflect the lower of the reasonable hospital costs or charges. Since 
these rates have been held to be regulations within the meaning of G. L. 
c. 30A, § 1(5), it is incumbent upon the Commissioner to fully comply 
with the provisions of G. L. c. 30A. Massachusetts General Hospital v. 
City of Cambridge, 1964 Ad. Sh. 843, 846. In order, therefore, to answer 
the questions which you have asked it is necessary not only to determine 
the meaning of the term "annually" but also to determine whether 
annual rates have been certified and filed according to the provisions of 
G. L. c. 7, § 30K and G. L. c. 30A. 

The rates certified on February 4, 1965, were emergency rates issued 
under the provisions of G. L. c. 30A, § 2(3). The reasons for adopting 
such emergency rates were contained in the letter of transmittal to the 
Secretary of State dated February 4, 1965. A reading of the transcript of 
the public hearing held on February 25, 1965, indicates that the 



P.D. 12 107 

emergency rates were based in part on data supplied by some hospitals 
for the year ending Sei)tember 30, 19(33. 

The emergency rates of February 4, 1965, cannot qualify as the annual 
rates since by statute they are effective for only three months. Further, 
in order for the hearing requirements of G. L. c. 30A, § 2 to have any 
meaning the Connnissioner must possess the power to alter or amend the 
emergency rates as a result of evidence presented at the hearing. 

The rates certified on April 30, 1965, do not appear to have been 
promulgated under the emergency provisions of G. L. c. 30A, § 2. In 
the letter of transmittal you indicate that pursuant to G. L. c. 7, § 30K, 
you have certified such rates as will reflect reasonable hospital costs or 
charges made to the general public, whichever is the lower and further 
that .a hearing was held on February 25, 1965, to determine such rates. 

I am aware that at the time of the public hearing there was a great 
deal of discussion about the lack of current statistics concerning the costs 
and charges of the various hospitals. It may well be that if more up-to- 
date information had been available at the hearing, different rates might 
have resulted. However, this possibility is not sufficient to overcome the 
presumption that the rates certified on April 30, 1965 were promulgated 
according to the requirements of G. L. c. 7, § 30K and G. L. c. 30A. 

It is my opinion that under G. L. c. 7, § 30K, the Commissioner of 
Administration and Finance is permitted to certify rates to the various 
departments, boards or commissions of the Commonwealth purchasing 
care in hospitals, sanatoria and infirmaries or reimbursing cities and 
towns for such care only once in any year. It therefore follows that 
having properly certified annual rates on April 30, 1965, you may not at 
this time certify new rates. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



Section 1 of Chapter 32, Acts of 1958, cannot he presumed to impose a so 
called "veto" provision to expenditure of funds authorized and 
appropriated by the 1958 Highway Bond Act. 

August 30, 1965. 
Hon. Elliot L. Richardson, Lieutenant Governor of the Commonwealth. 

Re: Attorney General Opinion 9 July 1965 and Acts of 1958, Chapter 
32 Section 1. 

Dear Sir:— By your letter of August 24, 1965 on behalf of the 
Executive Council my opinion has been requested on whether or not 
Section 1 of Chapter 32, Acts of 1958 affects the conclusions set forth in 
my opinion of July 9, 1965 to the Commissioner of Public Works. At- 
tached to your letter was a copy of a letter dated August 11, 1965 from 
the Comptroller to the Executive Council raising the question pro- 
pounded by you. 

In the preparation of my opinion of July 9, 1965 careful consideration 
was given to all General and Special Laws pertinent to the questions 



108 P.D. 12 

being considered and the accelerated Highway Program including 
Chapter 32 of the Acts of 1958. 

It is my opinion that Chapter 32, Acts of 1958 is not in conflict with 
and does not affect the conclusions set forth in my July 9, 1965 opinion 
to the Commissioner of Public Works. 

In his letter of August 11, 1965 to the Council the Comptroller quoted 
only the last sentence of Section 1, Chai)ter 32 of 1958. Deliberate 
consideration of all of said Section 1 is necessary. It reads as follows: 

"Section 1. Section 1 of chapter 718 of the acts of 1956 is hereby 
amended by striking out the second paragraph and inserting in place 
thereof the following paragraph: — 

The department and the commission shall accept any federal funds for 
such projects, and such funds, when received, shall be credited to the 
Highway Fund, provided, however, that federal funds received on 
account of allocations as provided in section one of chapter four hundred 
and three of the acts of nineteen hundred and fifty-four to the amount 
of sixty-seA^en million dollars shall be used as provided in said section 
one of said chapter four hundred and three. Prior to the anticii^ated 
receipt of federal funds in excess of said sixty-seven million dollars there 
is hereby authorized to be expended by the department, without further 
appropriation, an amount not to exceed two hundred million dollars for 
projects described in the first paragraph of this section. Funds authorized 
to be expended in this paragraph are to be in addition to funds 
authorized in the first paragraph of this section, and to funds authorized 
by the provisions of chapters three hundred and six of the acts of 
nineteen hundred and forty-nine, six hundred and eighty-five of the acts 
of nineteen hundred and fifty, five hundred and fifty-six of the acts of 
nineteen hundred and fifty-two and four hundred and three of the acts 
of nineteen hundred and fifty-four, and all of said acts and this act shall 
be construed so as to supplement one another." 

Section 1 of Chapter 32 of 1958 amends Section 1 of Chapter 718 of 
1956 by substituting a new second paragraph therein. It first refers to 
Section 1 of Chapter 403 of 1954 to identify certain highway projects on 
which the expenditure of an additional sixty-seven million dollars is 
authorized over and above the one hundred and fifty million dollars 
authorized by said Section 1. Chapter 403 of 1954 wdien enacted. The 
first sentence of Section 1, Chapter 32 of 1958 excludes sixty-seven 
million dollars of anticipated Federal funds from Chapter 718 of 1956 
and directs that sum to be spent on the projects included in Section 1. 
Chapter 403 of 1954, thereby making available a total of two hundred 
and seventeen million dollars for said 1954 projects. 

Section 1, Chapter 32 of 1958 authorizes the acceptance and use of 
anticipated Federal contributions to the Highway Fund. That general 
authority and its specific application to the projects of Section 1, 
Chapter 403 of 1954 are included in the first sentence of Section 1, 
Chapter 32 of 1958. The second sentence authorizes the expenditure of 
two hundred million dollars of anticipated Federal funds for the projects 
included in the first paragraph of Section 1, Chapter 718 of 1956. The 
last sentence of Section 1, Chapter 32 of 1958 continues to refer to the 



P.D. 12 109 

application of anticipated Federal funds, and makes it clear that the 
expenditure of those anticipated Federal funds is in addition to and 
supplements the authorizations included in the listed statutes as first 
enacted. By the language of the last sentence of Section 1, Chapter 32 of 
1958 the Legislature also authorized the expenditure of the State funds 
originally authorized and dedicated by the statutes specifically referred 
to therein, but which might prove to be not necessary and therefore 
surplus to the completion of the projects authorized by the same statutes, 
to complete projects authorized by the other specifically identified 
statutes. 

Article XLII of the Amendments to the Constitution of the Common- 
wealth provides in Section 4: 

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

That amendment required the Legislature to enact Chapter 32 of 1958 to 
achieve the purposes set forth in that statute. Without said Chapter 32 
or similar legislation neither the anticipated Federal funds nor any 
surplus from original appropriations of State funds for projects set forth 
in one Highway Bond Act could be used to supplement funds ap- 
propriated for projects authorized by another Highway Bond Act. 
Amendment XLII limits the purposes for which borrowed money may be 
used for either the purpose for which it was borrowed or to repay the 
loan. In the absence of Chapter 32 of 1958, Federal funds received on the 
projects authorized by Section 1, Chapter 403 of 1954 would be required 
to be used either for those projects or to repay the highway bonds 
authorized by the same statute. (Volume V Opinions of Attorney 
General 1917-1920 page 491 and 492.) 

It is my opinion that Chapter 32, Acts of 1958 properly releases the 
proceeds of the Highway Bond Acts enumerated therein from the 
restrictions of Section 4, Articles XLII, Amendments to the Constitu- 
tion so that surplus funds of any of those bond issues may be used to 
supi^lement other bond issues and may be expended on projects au- 
thorized by any one of the other Highway Bond Acts listed therein. 

As it relates to Chapter 403 of 1854 it is apparent that Section 1, 
Chapter 32 of 1958 has two results. It increases by sixty-seven million 
dollars the funds available for the projects authorized by Section 1, 
Chapter 403 of 1954 and to be administered in accordance with all of the 
provisions of that statute. It also authorizes the expenditure on projects 
authorized by the other Highway Bond Acts listed therein of any funds 
not needed for the completion of those projects authorized bv the 1954 
Act. 

Section 1, Chapter 32 of 1958 does not deal Avith any subject other 
than those previously set forth herein. It does not amend any of the 
administrative provisions of any of the Highway Bond Statutes to which 
it refers. It adds to and supplements the amounts of money to be 
administered under the provisions of those Acts, specifically in the cases 
of Chapter 403 of 1954 and 718 of 1956 and o-enorally for the others. The 
language of Section 1, Chapter 32 of 1958 does not incorporate by 
reference or by any other means all of the provisions of each of the 



no PD- 12 

specifically identified Highway Bond Acts into all other such statutes. 
The definite supplementary financial arrangements it does authorize 
would not otherwise be possible because of Section 4, XLII of Amend- 
ment, Constitution of the Commonwealth. 

There is no specific provision in Chapter 32, Acts of 1958 requiring 
municipal approval of the highway expenditures which it authorizes. It 
does not amend Chapter 403 of 1954 by adding thereto Section 4A of 
Chapter 718 of 1956 or similar language. It is to be noted that by the 
inclusion therein of the words, "under this act," said Section 4A, Chapter 
718 of 1956 can be applied only to that statute. Chapter 403, Acts of 
1954 contains no so-called "veto" provision. 

It must be noted that the four Bond Issues enacted after Chapter 32, 
Acts of 1958 contained in the first sections thereof language similar to 
and intended to achieve the same purpose as Section 1, Chapter 32, Acts 
of 1958. Reference is made to Section 1, Chapter 528, Acts of 1960 and 
Section 1, Chapter 590, Acts of 1961, and paragraph 2, Section 1, 
Chapter 782, Acts of 1962, and paragraph 2, Section 1, Chapter 822, Acts 
of 1963. However, there is one important difference between the language 
of Chapter 32 of 1958 and the subsequent Acts. In all statutes the 
appropriations and authorizations are described as supplementing other 
enumerated Bond Issues. In the Highway Bond Acts of 1960, 1961, 1962 
and 1963 the supplementary appropriations and authorizations are ". . . 
available subject to the same conditions ... as funds authorized in 
chapter seven hundred and eighteen of the acts of [1956] . . . ." That 
quotation or any similar language is not contained in Chapter 32, Acts of 
1958. It is evident that the Legislature deemed it necessary to use such 
language to subject subsequent Bond Issues to the conditions of Chapter 
718, Acts of 1956. It must be concluded from the absence of such 
language from Chapter 32, Acts of 1958 that the Legislature did not 
intend that all of the conditions of Chapter 718, Acts of 1956 be 
applicable to Chapter 403, Acts of 1954 and prior Highway Bond Acts. 

In Section 4, Chapter 591, Acts, 1961 and Section 12, Chapter 782, 
Acts, 1962, and Section 9, Chapter 822, Acts, 1963 the Legislature 
included a so-called "veto" provision in addition to the supplementary 
appropriations and authorizations under the conditions set forth in the 
first section of each statute. The absence of that specific section or 
language from Chapter 32, Acts, 1958 cannot be ignored. It cannot be 
presumed that the Legislature intended to impose conditions in Chapter 
32, Acts, 1958 and through it on Chapter 403, Acts, 1954 by omitting the 
language it considered necessary to apply such conditions to the expendi- 
ture of funds authorized and appropriated by other Highway Bond 
Acts. 

This letter supplements my July 9, 1965 opinion to the Commissioner 
of Public Works which is incorporated herein by reference. In particular 
your attention and that of the Council is respectfully invited to my 
opinion on the validity of the takings by eminent domain of the 
property with which that letter and this are concerned. They are valid. 
The Commonwealth has both constitutional and statutory obligations to 
pay compensation therefor promptly in fair and reasonable amounts. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 111 

The Attorney General is required to defend tort actions involving 
military members of the National Guard when they are using 
vehicles owned by the Commonwealth or allocated to it under one of 
the emergency situations covered by § 89 of chapter S3 M.G.L. All 
non-military personnel of the National Guard are on the same 
footing as other employees of the Commonwealth and the Attorney 
General must defend them against tort actions arising out of the 
authorized operations of vehicles owned by the Commonwealth. 

September 1, 1965. 

Major General Joseph M. Ambrose, Adjutant General. 

D-EAR General Ambrose: — I am in receipt of your request for my 
oi)inion on the following questions: 

"1. In view of the decision in the Levin case, must the Common- 
wealth of Massachusetts now consider Massachusetts National Guard 
members or technicians to be state employees? 

2. Are the provisions of section 3B of chapter 12 limited to private 
vehicles as distinguished from issued vehicles when used by the armed 
forces of the Commonwealth in view of its reference to section 55A 
(presently section 89 (3) ) of chapter 33? 

3. Are the provisions of section 3B of chapter 12 limited to those 
defined by the present sections 4 and 10 of chapter 33 (added by chapter 
590 of the acts of 1954) instead of sections 2 and 6(a) of chapter 33 
(amended by chapter 425 of the acts of 1939) that was in effect when 
section 3B of chapter 12 was amended by chapter 409 of the acts of 1943 
in view of the broad language of this latter amendment? 

4. Are the provisions of section 3B of chapter 12 limited to the type 
of technicians defined in section 4 of chapter 33 as amended by chapter 
408 of the acts of 1963 in view of the fact that there are other types of 
technicians? 

5. In the event of an action or claim by a third party against the 
Commonwealth, as distinguished from an action or claim against an 
ofiicer or soldier of the military forces, arising out of the performance of 
a lawfully ordered military duty by such officer or soldier, but not 
limited to that arising out of the operation of a motor vehicle, would the 
provisions of section 3A of chapter 12 apply? 

6. In the event of an action by a third party against a Massachusetts 
National Guard member arising out of his training or against a 
technician acting within the scope of his employment, under what 
conditions, if any, will the Commonwealth provide legal representation? 

7. In the event of a claim by a third party against a Massachusetts 
National Guard member arising out of his training or against a 
technician acting within the scope of his employment, under what 
conditions, if any, will the Commonwealth provide legal representation?" 

Section 3B of chapter 12 of the General Laws requires the Attorney 
General to defend "any officer or employee of the Commonwealth . . . 



112 PD. 12 

against an action for damages for bodily injuries, including death at any 
time resulting therefrom, or for damage to property, arising out of the 
operation of a motor or other vehicle owned by the Commonwealth. 
." This section also requires the Attorney General to be satisfied that 
the "officer or employee was . . . acting within the scope of his official 
duties or employment, or was especially assigned by his superior to 
operate (the) motor vehicle." 

Under this section all employees of the Commonwealth are covered. 
Since members of the Massachusetts National Guard are employees of 
the Commonwealth, they too come under this section. Similarly, "care- 
takers" and "technicians" employed to care for National Guard equip- 
ment are also employees of the Commonwealth. Those falling into this 
second group were previously considered federal employees, but under 
the recent case of Maryland v. United States, (May 3, 1965) the United 
States Supreme Court held that persons employed by the National 
Guard in civilian capacities are state employees for the purposes of tort 
claims. 

In addition to covering actions arising out of the operation of vehicles 
owned by the Commonwealth, section 3B of chapter 12 provides in its 
second paragraph that: 

"For the purposes only of this section, an officer, or soldier of the 
military forces of the Commonwealth, as defined in chapter 33, shall 
while performing any lawfully ordered military duty be deemed to be an 
officer or employee of the Commonwealth and a motor vehicle given to 
the Commonwealth, loaned to it or hired or purchased by it under 
section fifty-five A of chapter thirty-three shall, while being used in the 
performance of any lawfully ordered military duty, be deemed to be a 
motor vehicle owned by the Commonwealth." 

Section 55A of chapter 33 w^as originally enacted by St. 1943, c. 409. 
In the general revisions of chapter 33 which occurred in 1954 (St. 1954, 
c. 590), this section was re-enacted as section 89 of chapter 33. The 
section provides as follows: 

"Section 89. Under an order issued by the commander-in-chief, the 
adjutant general, in the name and on behalf of the Commonwealth, may, 
for military use, accept the gift or loan of a motor vehicle, or the grant 
of the temporary right to the use and control of a motor vehicle, or hire 
or purchase a motor vehicle in the event — 

1. An enemy at war with the United States shall commence or 
threaten operations to endanger the peace or safety of the Common- 
wealth ; or . . . 

2. Of tumult, riot, mob, natural disaster, or public catastrophe within 
tlie purview of section forty-one or forty-two; or . . . 

3. Any unit of the armed forces of the Commonwealth shall be 
directed or authorized by order of the commander-in-chief to participate 
or engage in any military training, exercise or duty in which the use of 
motor vehicles in excess of the number issued to such unit may be 
required." 

The combined effect of chapter 12, section 3B and of chapter 33, 



P.D. 12 



113 



section 89 is to require the Attorney General to defend tort actions 
involvin*!; military members of the National Guard when they are acting 
within the scope' of their authority and when they are using vehicles 
owned by the Commonwealth or allocated to it under one of the 
emcrgenc}!' situations covered by section 89. 

All non-military employees of the National Guard arc on the same 
footing as other employees of the Commonwealth. The Attorney General 
nuist defend them against tort actions arising out of the authorized 
operations of vehicles owTied by the Commonwealth. The only difference 
between their status and that of military members of the National 
Guard is that non-military employees are not covered when driving 
vehicles acquired under section 89 of chapter 33. 

Under section 3A of chapter 12 the Attorney General is authorized to 
settle certain small claims against the Commonwealth itself up to one 
thousand dollars. In cases where there is no "other mode of redress 
provided by law" this section may apply to claims arising from torts 
committed by officers and soldiers of the National Guard. 

Section 3C of chapter 12 operates along lines similar to section 3B. 
This section permits the Attorney General to investigate and settle 
claims without suit against employees of the Commonwealth up to five 
hundred dollars arising out of the authorized operation of vehicles owned 
by the Commonwealth. Both civilian and military employees of the 
Massachusetts National Guard are covered by this section. 

It should be carefully noted that the application of sections 3B and 3C 
of chapter 12 is limited to claims or actions arising out of the operation 
of vehicles owned by the Commonwealth or acquired under the provi- 
sions of chapter 33, § 89. A vehicle owned by the U.S. government and 
simply allocated to the National Guard is not owned by the Common- 
wealth. On the other hand, since it is generally issued to a National 
Guard unit as part of its usual equipment, it does not qualify as a 
vehicle "in excess of the number issued to such unit" within the meaning 
of section 89 of chapter 33. Therefore, the Attorney General is not 
obligated to defend, settle, or pay any claim arising out of the operation 
of a federally-owned vehicle which is part of the ordinary equipment of 
a National Guard unit. When such a vehicle is involved in an accident, 
the driver is not protected bj'- sections 3B or 3C of chapter 12 as they 
presently stand. This exclusion applies to both military members and 
civilian emploj^ees of the National Guard. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



114 P.D. 12 

The power of the commission regarding appeals from the Director's 
review of examination grades is strictly limited in accordance with 
the requirements of G. L. c. SI, § 12A, as amended by Chapter 261 
of the Acts of 1965. The commission does not have authority to 
grant permission to an applicant to file an appeal after the lapse of 
the statutory time period. 

September 1, 1965. 
Hon. Hugh Morton, Chairman, Civil Service Commission. 

Dear Mr. Morton: — I have received your letter of July 13, 1965, 
requesting my opinion regarding the authority of the Civil Service 
Commission to hear appeals from the marking of examinations after 
the statutory time for entertaining such appeals has elapsed. You 
have asked me — in view of recent statutory enactments — generally to 
define the jurisdiction of the Civil Service Commission to hear such 
appeals. 

The relevant statutes are as follows: 

Chapter 261 of the Acts of 1965 provides in part: 

"Not later than fourteen days after the giving of notice of the results 
of a written examination, an applicant may file with the director a 
request for a review of the markings in his examination. . . . The director 
shall decline to accept a request for a review of marking in any case 
where the applicant's marking in any subject of the written examination 
is more than twenty per cent below the established passing requirement 
for that subject. . . . Not later than fourteen days after receipt of notice 
of the decision of the director, the applicant may appeal to the 
commission. . . . No request by an applicant for a review of any of the 
markings on his examination paper shall be accepted by the commission, 
and no hearing shall be held or other action be taken relative thereto 
other than on an appeal from a decision of the director." 

General Laws Chapter 31, Section 2(b) grants broad powers to the 
Commission to "hear and decide all appeals from any decision or action 
of, or failure to act by, the director, upon application of a person 
aggrieved thereby." 

Thus, the General Court has set out a specific method by which 
appeals may reach the Commission. The Commission may hear only 
appeals from decision of the Director. In addition, these appeals must be 
seasonably ("not later than fourteen days after receipt of notice of the 
decision of the director") filed with the Commission. The jurisdiction of 
the Director is similarly limited — i.e., he may review all examination 
markings filed "not later than fourteen days after the giving of notice of 
the results of a written examination." There is one further limitation on 
the Director's review power; namely, he may not review the examina- 
tions of those applicants whose score is more than twenty per cent below 
the passing requirement in any subject. 

These provisions must control despite the broad language contained in 
c. 31, § 2(b). General principles of statutory construction dictate that 
St. 1965, c. 261 and G. L. c. 31, § 2(b) be read together. A specific 
statute enacted with reference to the needs of a particular group (here, 



P.D. 12 115 

all persons whose examination markings the Director may review) 
prevails over previous general statutes regulating broad categories of 
persons (here, all persons involved in any matter which the Director may 
hear under the purview of § 2 (b)). Clancy v. Wallace, 288 Mass. 557 
(1934). The particular provision must prevail as an exception to the 
general enactment. This rule of construction is especially applicable 
when, as here, the particular statute was enacted subsequent to the 
general one. As the court said in Walsh v. Commissioners of Civil 
Service, 300 Mass. 244 (1938), (holding that the employees of a city 
hospital created by a special statute enacted after c. 31 were covered by 
Civil Service) : 

"It is to be presumed that the General Court in enacting said c. 134 
[establishing the hospital] was not unmindful of the general civil service 
law (citing cases). If reasonably practicable, it is to be explained in 
conjunction with other statutes to the end that there may be an 
harmonious and consistent body of law (citing cases). Statutes 'alleged 
to be inconsistent with each other, in whole or in part, must be so 
construed as to give reasonable effect to both, unless there be some 
positive repugnancy between them.' Brooks v. Fitchburg and Leominster 
St. Rij., 200 Mass. 8, 17." 

In the present case, there is no "positive repugnancy" between St. 1965, 
c. 261 and G. L. c. 31, § 2(b). Thus, it is my opinion that the power of 
the Commission regarding appeals from the Director's review of exam- 
ination grades is strictly limited in accordance with the requirements of c. 
261. The Commission does not have authority to grant permission to an 
applicant to file an appeal after the elapse of the statutory time period. 
Nor has the Commission the power to require the Director to grant 
review in cases where the markings are more than twenty per cent below 
the passing grade. I reach this conclusion irrespective of whether G. L. c. 
31, § 12A contains the phrase "within fourteen days" or is changed to 
read "not later than fourteen days." 

Such strict construction of the requirements of c. 261 is also supported 
by considerations of public policy. Allowing the Commission discretion 
to vary the directives of c. 261 under c. 31, § 2(b) might open the door 
to favoritism or discriminatory practices. In light of the clear mandate of 
c. 261, it would seem that the Legislature desired to prevent even the 
slightest chance of such practice. Thus, until a specific grant of 
discretionary powers to the Commission in this area is made by the 
General Court, it is my opinion that the duty of the Commission to hear 
appeals from matters involving examination markings must be exercised 
in strict compliance with St. 1965, c. 261. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



116 P.D. 12 

Ajiy individual, i7icluding members of the Board of Registration of 
Professional Engineers and Land Surveyors, may bring a complaint 
duly sworn to, before said Board, as provided by § 81P of c. 112 of 
the G. L. The Board cannot revoke a certificate of registration 
unless it has complied with the statutory formalities. 

September 10, 1965. 

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

Dear Mrs. Sullivan: — I am in receipt of your request for my opinion 
on several questions raised by the Board of Registration of Professional 
Engineers and of Land Surveyors. The questions are principally con- 
cerned with the proper means of initiating a proceeding to revoke a 
certificate of registration. 

Chapter 112, section 81P of the General Laws provides in part: 

"The board may revoke the certificate of registration of any registrant 
who is found guilty of: — 

(a) The practice of any fraud or deceit in obtaining a certificate of 
registration; or 

(b) Any gross negligence, incompetency or misconduct in the practice 
of professional engineering or land surveying as a registered professional 
engineer or as a registered land surveyor. 

Any person may prefer charges of fraud, deceit, gross negligence, 
incompetency or misconduct against any registrant. Such charges shall 
be in writing, shall be sworn to by the person making them and shall be 
filed with the secretary of the board." 

The Board of Professional Engineers and of Land Surveyors has asked 
whether all revocation proceedings must be initiated by a sworn com- 
plaint or whether the Board can hold a hearing on the basis of 
information which it has received in a less formal manner. 

In particular the Board has requested my opinion concerning the 
following three situations: — 

1. Where the Board has received a letter from the office of the Chief 
Engineer of the Massachusetts Land Court, listing the names of certain 
Registered Land Surveyors and/or Registered Professional Engineers, 
and stating that the listed individuals have been barred from submitting 
plans to that Court; 

2. Where a previous hearing had been terminated upon the regis- 
trant's promise to comply with proper procedures, and where the Board 
has now received evidence that the registrant has not complied ; 

3. Where a registrant's professional conduct has been put in doubt 
during testimony at another hearing on a different matter. 

In all three of these situations the Board has made no mention of a 
sworn complaint. Such a deficiency must necessarily invalidate any 
revocation hearing which is subsequently held without the deficiency 
being cured. It was the clear intent of the General Court to require a 
sworn statement in order to protect engineers and surveyors from 
frivolous or harassing complaints. The Board cannot, therefore revoke a 



P.D. 12 117 

certificate of registration unless it has complied with the statutory 
formalities. 

The Board should notice, however, that the statute does not prohibit 
the chairman or a board member from filing a complaint himself, and it 
does not require that the complainant have personal knowledge of the 
facts alleged. The purpose of the statutory requirements is to emphasize 
the serious nature of a revocation hearing and to make certain that such 
a proceeding is not lightly undertaken. 

Accordingly, it is my opinion that an individual, including Board 
members, may bring a complaint duly sworn to, before the Board of 
Professional Engineers and Land Surveyors, as provided by Section 81 P 
of Chapter 112 of the General Laws. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



The title to the property known as "Wood Island or World War 
Memorial Park" is in the Massachusetts Port Authority and the 
administration and use thereof are under the jurisdiction of that 
authority. 

September 13, 1965. 

His Excellency John A. Volpe, Governor of the Commonwealth. 

Dear Governor Volpe: — By your letter dated August 16, 1965 my 
opinion has been requested on the following questions : 

"1. Has Chapter 528 of the Acts of 1953 relating to the so-called 
Wood Island or World War Memorial Park been duly implemented so 
that said Metropolitan District Commission at any time validly had 
caro and control of said Park deppite the failure of the Governor and 
Council to approve the transfer of said Park to the Metropolitan District 
Commission?" 

"2. If the answer to the first question is in the affirmative, are the 
provisions of Chapter 528 of the Acts of 1953 requiring action of the 
Governor to transfer 'care and control' of said Park to the Massachu- 
setts Port Authority (successors in title to State Airport Management 
Board) still applicable despite the passage of Chapter 465 of the Acts of 
1956, as amended, creating the Massachusetts Port Authority and 
providing for vesting in it title to and possession of the 'airport 
properties' and responsibilitv for control, operation and maintenance 
thereof?" 

Prior to 1954. title to World War INIemorial Park belong to the City of 
Boston. On August 2, 1954, it was conveyed to the Commonwealth by a 
so-called Deed of Exchange executed on that date by the Mayor of 
Bo=;ton and the Massachusetts Department of Public Works, acting on 
behalf of the Commonwealth. The conveyance was made under the 
authority conferred by Chapter 431 of the Acts of 1949. The Deed 
recited compliance with that statute including the requirement that "the 
Commissioner of Airport Management, with the approval of the State 



118 P.D. 12 

Airport Management Board, has certified to the State Department of 
Public Works that the estate owned by the City of Boston and known as 
World War Memorial Park . . . are necessary for the purposes of the 
General Edward Lawrence Logan Airport. . . ." The final paragraph of 
Section 1 of said Chapter 431 of the Acts of 1949 provided that "all land 
and rights conveyed to the commonwealth by said city by any deed of 
exchange under this act shall forthwith upon such conveyance, become a 
part of the General Edward Lawrence Logan Airport and subject to all 
laws pertaining to said airport." [Emphasis added.] 

The instrument of transfer between the Board of Park Commissioners 
of the City of Boston and the Metropolitan District Commission dated 
June 30, 1953 does not affect the conveyance of August 2, 1954. The 
June 30, 1953 instrument stated on its face that it was made pursuant to 
General Laws (Ter. Ed.) Chapter 92, Section 87 that it transferred care 
and control to the Metropolitan District Commission, and "That said 
transfer is subject to Chapter 431 of the Acts of 1949. . . . and shall 
continue to effect only until the land hereby transferred is acquired by 
the Commonwealth of Massachusetts under said Chapter 431 of the Acts 
of 1949, at which time the transfer hereby effected shall, without further 
action of the parties hereto, automatically terminate; . . ." [Emphasis 
added.] By its own terms the June 30, 1953 instrument ceased "auto- 
matically" to have any effect when the Park was conveyed to the 
Commonwealth by the Deed of Exchange dated August 2, 1954. 

Chapter 528 of the Acts of 1953 provided that at the time of the 
conveyance under Chapter 431 of the Acts of 1949, notwithstanding the 
provisions of said Chapter 431, with the approval of the Governor and 
Council, "care and control" of the Park shall be transferred to the 
Metropolitan District Commission until such time as the Governor and 
Council, upon request of the State Airport Management Board, directs 
its transfer to said Board for airport purposes. [Emphasis added.] 
Chapter 528 of the 1953 Acts was not self-implementing. Approval by 
the Governor and Council was a pre-condition to transfer of care and 
control to the Metropolitan District Commission. The Governor and 
Council did not approve transfer of the Park to the Metropolitan 
District Commission. The August 2, 1954 Deed of Exchange does not 
contain any language transferring care and control of the Park to the 
Metropolitan District Commission. I can find no other record that care 
and control was transferred to the Metropolitan District Commission. 

It is my opinion that legal control of the Park remained where it was 
transferred by authority of Chapter 431 of the Acts of 1949 and the 
Deed of Exchange dated August 2, 1954. Chapter 431 of 1949 provided 
that it would be a part of the General Edward Lawrence Logan Airport 
and subject to all laws pertaining to said airport. It appears that there 
could be no more explicit legislative delegation of administrative control. 
The Park was to be under the jurisdiction of the state agency adminis- 
tering the airport, which in 1954 was the Airport Management Board, an 
agency of the Massachusetts Department of Public Works. 

The action necessary to transfer care and control of the Park to the 
Metropolitan District Commission under Chapter 528 of the Acts of 1953 
was not taken. It is therefore unnecessary to consider the effect of said 



P.D. 12 119 

Chapter 528 had it been properly implemented. However, it must be 
noted that Chapter 528, Acts of 1953 did not amend or repeal the 
explicit statement in Chapter 431, Acts of 1949 that the Park forthwith 
upon conveyance to the Commonwealth shall become "a part of the 
General Edward Lawrence Logan Airport." The public reason for 
acquisition of the Park by the Commonwealth set forth in the 1949 Act 
and recited in the 1954 conveyance is that it was necessary for the 
purposes of the General Edward Lawrence Logan Airport. The 1953 Act, 
authorizing Metropolitan District Commission care and control of the 
Park, left in the airport authority the right to secure the land when 
needed for airport purposes with approval of the Governor and Council. 
It should also be noted that when the Legislature later permitted 
acquisition of a small 3,000 foot adjunct to the Park by Chapter 438, 
Acts of 1955 it designated the Airport Management Board, not the 
Metropolitan District Commission, as the taking agency. The main 
legislative purpose was to add that property to the Logan Airport. It was 
not acquired as part of the Metropolitan District Commission Park 
system. 

As a part of the General Edward Lawrence Logan Airport, World War 
Memorial Park came within the definition of "airport properties" set 
forth in Section 1 (b) of the Act creating the Port Authority. (Chapter 
465, Acts of 1956) . The "General Edward Lawrence Logan International 
Airport" was included in toto in the definition of "airport properties." In 
1959 all "airport properties" were transferred to the Port Authority 
the provisions of said Act. 

By Chapter 465, Acts of 1956 the Port Authority is given broad 
powers to use all the properties transferred to it for its purposes. Section 
29 of said Chapter 465 provides that "all other general or special laws, or 
parts thereof, inconsistent herewith are hereby declared to be inappli- 
cable to the provisions of this Act." That statutory language superseded 
any limitations set forth in Chapter 528, Acts of 1953 including the 
requirement that the Governor and Council approve use of the property 
for airport purposes by transferring to the Port Authority control of all 
"airport properties." 

The fact that the World War Memorial Park has been managed de 
facto by the Metropolitan District Commission with the approval of the 
State Airport ]\Ianagement Board and the Port Authority does not affect 
de jure control of the property. 

It is my opinion that title to the property known as Wood Island or 
AVar Memorial Park is in the Massachusetts Port Authority and the 
administration and use thereof are under the jurisdiction of that 
authority. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



120 P.D. 12 

A bus company which is a public carrier under c. 159A is not covered by 

the provisions of G. L. c. 161, § 1U8. 
Interpretation of c. 71 § 7B, M.G.L., added by c. 663 of the Acts of 

1964. 

September 20, 1965. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have asked my opinion relative 
to the interpretation of § 7B of c. 71 of the General Laws added by c. 563 
of the Acts of 1964. 

In your request you have outlined six specific questions. I think it wise 
first to review the legislative history of the said § 7B in order to place its 
import in the proper prospective. 

Initially, § 7A of c. 71 of the General Laws was enacted by c. 679 of 
the Acts of 1947. The purpose of § 7A was to help reimburse our cities 
and towns for expenses incurred in transporting children to and from 
school. 

There are certain limitations on the reimbursement of pupil transpor- 
tation costs as set forth in the said § 7A. In brief, they are: the sum paid 
is only the amount in excess of five dollars per pupil per year paid by a 
town for school transportation calculated on the basis of the net 
average membership of the town; the payment is further limited to those 
pupils living more than one and one-half miles from their school; the 
amount paid on a per pupil basis for transportation to private schools 
may not exceed the amount paid for like transportation to public 
schools; all contracts must be awarded on the basis of sealed bids. When 
a town accepts a bid other than the lowest, the town must file a written 
explanation with the Department of Education. Not all the provisions of 
§ 7A are restrictive. The last paragraph guarantees a minimum amount. 
Under this paragraph, no town shall be paid an amount less than it 
received in 1946. 

Commencing in 1961, unsuccessful legislative efforts were made for 
additional reimbursement to the cities and towns of a greater portion of 
pupil transportation costs (Resolves 1961, c. 117; House No. 3939 of 
1962; Senate No. 899 of 1962; Senate No. 806 of 1964) . 

In 1964, the Governor filed a special message relative to the transpor- 
tation problem in the Commonwealth. Out of this message grew Senate 
925, which was engrossed and enacted on June 17, 1964 and became c. 
563 of the Acts of 1964. Section 8 of this chapter is now § 7B of c. 71 of 
the General Laws. It provides as follows: 

"To provide for the reimbursement of part of the cost not reimburs- 
able under section seven A incurred directly by a school department or 
indirectly by a city or town on account of an assessment made to meet 
the cost of maintaining a public transportation system used for the 
transportation of pupils in a city or town using public transportation 
facilities licensed under the provisions of sections one and seven of 
chapter one hundred and fifty-nine A or operated under the provisions of 
chapter one hundred and sixty-one A for the transporting of pupils to 
and from scliool who reside more than one and one half miles from the 
school they attend as determined by the commissioner, or, if the 



P.D. 12 121 

determination of the number of pupils residing more than one and one 
half miles from the school of attendance is impracticable, the commis- 
sioner shall make such determination according to the following formula: 
From the net average mcmbershiji in the public and private schools, 
determined as provided in section five of chapter seventy, the commis- 
sioner shall estimate the number of pupils who reside more than one and 
one half miles from the school they attend, which number shall not 
exceed ten per cent of said net average membership. 

"The commissioner shall on or before November first of each year, 
certify to the state tax commission a transportation allowance payable to 
such city or town for the preceding school year, the amount of such 
allowance to be determined by him by multiplying the number of pupils 
or the estimated number of pupils residing more than one and one half 
miles from the scltool by thp average cosf per pupil in the city or town 
for transporting all such pupils; provided that such cost shall not exceed 
twenty cents per pupil per day. 

"Funds received by each city or town shall be used to pay the cost of 
providing public transportation or to reimburse a city or town for 
payments on account of any assessment made upon it to meet the cost of 
mnintaining a public transportation svstem. provided that notwithstand- 
ing the provisions of this section, no amount shall be approved as a 
reimbursement bv the commissioner as herein provided in excess of the 
amount to be paid bv such a city or town for such public transporta- 
tion." 

I have reviewed the legislative historv of § 7B in order to emphasize 
that this legislation was not intended to be a general subsidy of public 
carriers. It was made a companion section to § 7A in c. 71, our General 
Law relating to education. Had § 7B been intended as a general 
transportation subsidy, it is proper to assume the Legislature would have 
included the section in c. 161 A — the transportation act it was then 
enacting. 

Accordingly, with the nennectH'e in mind thot § 7B is clearly an 
amendment of our education law dealing with additional reimbursement 
to the cities pnd towns "to meet the cost of maintaining a public 
transportation svstem used for the transportation of pupils . . . using 
publio tronspor^-^fiop. facilitie-' . ..." I shall now treat with your 
questions in the order presented. 

"1. What is the meaning of the first paragraph in section 7B of 
Chapter 71 ?" 

The fir'^t paragraph of § 7B hereinabove set forth expresses the 
legislative intention of reimbursing the cities and toMTis of the Common- 
wealth for part of the cost, not reimbursable under § 7A, incurred: 

(1) directly by their school departments by payments to a public 
trnn^nortation svstem for the transportation to and from school of school 
children on the routes of public transportation systems therein which are 
regularly licensed under G. L. c. 159A, §§ 1 and 7, or operated under G. 
L. c. 161A; and 

(2) indirectly by cities and towns through the payment of an 
assessjnent made to meet the cost of maintaining a public transportation 



122 P.D. 12 

system, used for the transportation of school children over the routes of 
public carriers licensed under G. L. c. 159A, §§ 1 and 7, or operated 
under G. L. c. 161A. (Emphasis supplied) . 

Both of the above categories are limited by the balance of the first 
paragraph of § 7B which is largely self-explanatory. Like § 7A, § 7B is 
restricted to those pupils who live more than one and one-half miles from 
the school they attend. Unlike § 7A, § 7B provides a rule-of-thumb or 
approximation for determining those pupils who live outside the one and 
one-half mile limit where a more precise measurement is impractical. The 
fact that an estimate of the number of pupils may be used does not 
relieve the Department of Education, where practical, from making an 
exact determination. Since § 7A requires a precise, rather than an 
estimated basis, the figures under § 7A would be available for use under 
§ 7B and should be used for determining payments under the latter 
section. An approximation cannot be used to enlarge or vary the amount 
one town should receive vis-a-vis another. 

"2. Where the paragraph refers to an assessment, what is the period 
of the assessment which the Commissioner must use in order that he may 
be sure that any payment is not in excess of the amount to be paid by a 
city or town for said public transportation having in mind we reimburse 
for the school year from September to June?" 

The period of assessment referred to is necessarily that assessment 
imposed on a city or town made to meet the cost of maintaining public 
transportation used for the transportation of pupils for the calendar year 
next prior to the school 3^ear in question. Since under c. 161A of the 
General Laws no assessment will be made on those additional cities and 
towns within the MBTA, as distinct from the old MTA district, they 
will not be reimbursed under this provision of § 7B until the end of the 
school year in 1967 and on or before November 1, 1967. With regard to 
those costs incurred directly by a school department for the transporta- 
tion of school children living the requisite distance from school on the 
routes of public transportation systems which are regularly licensed 
under the provisions of G. L. c. 159A, §§ 1 and 7, or operated under the 
provisions of G. L. c. 161A, the amount to be considered is the amount 
paid for such fares for the school year in question commencing with the 
school j^ear ending 1965. 

"3. If a city or town in the old fourteen city and to-^Ti Metropolitan 
Transit Authority area has been receiving a transportation allotment 
based upon section 7A, how should the act be administered in view of 
the deficit provision which is created under section 7B?" 

A city or town in the old fourteen (14) city and town MTA district, 
which uses the public transportation system for the transportation to and 
from schools of pupils living the requisite distance therefrom over the 
routes of the system is entitled to the amount, in addition to its § 7A 
reimbursement, computed under § 7B. Such additional reimbursement is 
not to exceed the amount of the assessment made on the city or town for 
the calendar year next prior to the conclusion of the school year. In 
addition, such city or town may be reimbursed on account of those costs 



P.D. 12 123 

incurred directly by its school department for pupil fares on public 
transportation systems. Both of the above categories are, of course, 
limited to the maximum reimbursement in § 7B, viz: number of pupils 
not to exceed ten per cent of the net average membership; cost not to 
exceed twenty cents per pupil per day; and the amount shall not be in 
excess of the amount paid by a city or town for public transportation. 

"4. If a committee awards contracts to private carriers under section 
7A and also gives out tickets to youngsters who ride more than one and 
one-half miles on a public carrier, how will reimbursement be arrived at 
in an area (a) outside the Massachusetts Bay Transportation Authority, 
(b) inside the sixty-four cities and towns, (c) inside the fourteen cities 
and towns?" 

(a). To my knowledge there is only one area (Greenfield and Mon- 
tague) outside the MBTA area that has accepted the provisions of c. 
161, § 143 of the General Laws which provides for transportation areas. 
Accordingly, the factor of a city or to\^^l outside the MBTA area paying 
an assessment to meet the cost of a public transportation system at this 
date is minimal. 

Assuming no assessment made to meet the cost of a public transporta- 
tion system in a city or town outside the MBTA area, the community 
would be entitled to § 7A reimbursement and § 7B reimbursement on 
account of those costs "incurred directly by a school department ... for 
the transportation of pupils in a city or town using public transportation 
facilities . . . licensed under G. L. c. 159A, §§ 1 and 7." 

The computation for reimbursement has been set forth in my answer 
to your third question subject to the limitations therein set forth. 

(b) and (c). The answer to (b) and (c) do not vary from my answer 
set forth in response to your third question. In the MBTA sixty-four city 
and town area there will be no assessment until the calendar your 
commencing January 1, 1966, except for the fourteen cities and towns in 
the old MTA district. As to the latter fourteen cities and towTis, they 
are presently subject to a deficit assessment and would qualify for 
§ 7B reimbursement for "cost(s) incurred indirectly ... on account of an 
assessment made to meet the cost of maintaining a public transportation 
system used for the transportation of pupils . . . living the requisite 
distance from school." Inasmuch as the fourteen cities and towns would 
have an assessment for the calendar year 1964, they w'ould be entitled to 
§ 7B reimbursement on or before November 1, 1965 for the school year 
ending June 30, 1965 on account of said assessments and any costs 
incurred directly by their school departments for public transportation. 

(b) . Will Holbrook be entitled to the difference between $4,173 which 
monies being spent under contract with private carriers.) " 

Since the town cited incurs costs directly on private carriers alone, G. 
L. c. 71, § 7B is not applicable. 

(b). Will Holbrook be entitled to the difference between $4,173 which 
was received under section 7A and the amount of assessment, namely, 
$4,400 or to an additional $227?" 

(c). Would Holbrook be entitled to (as some officials of the MBTA 



124 P.D. 12 

contend) to the difference between $4,173 received under section 7A and 
$18,460.50, the actual amount spent on transportation, or $14,287?" 

My answer to questions (b) and fc) is the same as (a). Where the 
town uses only private carriers for the transportation of pupils, no 
reimbursement under § 7B is available. 

"6. Is a bus company which is a public carrier under Chapter 159A 
I" a street or elevated railwav as those terms are used in Chapter 161, 
§ 108 of the General Laws] ?" 

The various different ]iublic utilities are ros;ulated, in particular, by 
consecutive chapters of the General Laws. These chapters with their 
respective headings are divided according to the specific utility which the 
chapter regulates. Each chapter relates only to that specific public utility 
unless a contrary intent is clearly discernible in a section or sections 
within that chapter. Your question is in reference to c. 161 which 
pertains to street railways. 

"Street railways" or "railways" are defined in § 1 of c. 161 as: "a 
railway, including poles, wires or other appliances and equipment 
connected therewith, of the class operated by motive power other than 
steam, and usually constructed upon public ways and places." This 
definition clearlv defines what is better known as a "trolley." If the 
definition cited above had been intended to include bu'^e'?. the regulations 
thereof would logi^i-ally have been included in that section. Instead, the 
Legislature inserted c. 159A as the regulatory body of law applying to 
buses. 

Turning directly to §108 of c. 161, this section extends to school pupils 
the i^rivilege of riding on street or elevated railroads at half fare. There 
is nothing in the section itself indicating an interpretation which would 
inchide buses within the definition of "railways" or "street raihvays." 

The original provisions of this section may well have been enacted 
initially as a quid 'pro quo for privileges extended to street railway 
companies. Those companies formed after the passage of the initial 
statute naturally were apprised of nnv liabilities under the section. To 
extend § 108 to companies operating buses licensed under c. 159A at this 
t'me by interpretation, would raise some grave constitutional questions. 

This section has been amended at least five times and has not gone 
uncontemplated bv the Les:islr<-vT. The last thne the sect^rn was 
amended was in 1927 and 1928. Travel by bus was well known and fully 
operative. Had the Legislature intended at the 1927 and 1928 or later 
sessions to extend the privilege contained in § 108 to travel by bus that 
intent would have been clearly expressed. Such intent, as yet, has not 
been expressed but may well be contemplated at some future session. It 
is. therefore, my opinion that a bus company which is a public carrier 
under c. 159A is not covered by the provision of G. L. c. 161, § 108. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 125 

Persons who apply pesticides for the benefit of others must be licensed in 
accordance with G. L. c. 94B, § 21C. Those persons, and their 
servants and employees who apply pesticides in conjunction with 
their own private operations, or as incidental to their normal duties 
as servants and employees of such person, are exempted from the 
licensing requirements. 

An employee of the Commonwealth, applying a pesticide on land under 
the jurisdiction and control of his department need not be licensed. 
The portion of § 21C which requires governmental agencies to be 
licensed restricts itself to only those agencies which apply pesticides 
"on the land of another." 

September 22, 1965. 

Hon. George A. Michael, So. D., Chairman, Pesticide Board, Depart- 
ment of Public Health. 

Dear Sir: — I am in receipt of your request for my opinion concerning 
the proper interpretation of c. 94B, § 21C of the General Laws, relating 
to the licensing of persons who apply pesticides. In substance, you ask 
the following questions: 

1. Does Section 21C of Chaj^ter 94B exempt from licensing those 
employees of the Department of Mental Health who apply pesticides in 
the course of farming operations on land owned by the Commonwealth 
and under the control of the Department? 

2. Is a "farmer" totally exempt from licensing, or is he exempt onty 
when applying pesticides to his own land? 

3. Is land of the Commonwealth and under the control of the various 
agencies thereof considered "land of another" within the meaning of the 
act? 

Chapter 94B, § 21C states in part: 

"Persons, including governmental agencies and municipal corporations, 
who apply pesticides, other than by aircraft, on the land of another may 
be required by the board to be licensed therefor, but the board shall not 
require a farmer who makes application of pesticides, nor a person who 
applies pesticides in, on or under any structure whether on land of 
another or not, to be licensed. . . ." 

This section divides persons who use pesticides outside of buildings 
into two broad groups: those who apply pesticides for the benefit of 
others, and those who apply pesticides in conjunction with their ovm 
private operations. The former must be licensed; the latter are exempted 
from the licensing requirement. 

The statute employs two standards to differentiate the private use 
from the public use of pesticides. In general, a person who applies a 
pesticide on land of another is making a public use, whereas a farmer or 
a person who applies a pesticide on his own land is making a private 
use. 

Confusion results because in some cases the standards will be conflict- 
ing or overlapping. Thus, it is a private use when a farmer applies 



126 P.D. 12 

pesticides on land of another which he leases for the purpose of growing 
crops, but it is a public use when the farmer makes a part-time business 
of applying pesticides on the land of others. On the other hand, it is a 
private use when a servant or employee of a landowner applies a 
pesticide on the landowner's property as an incidental part of his normal 
duties. 

The portion of § 21 C which requires governmental agencies to be 
licensed restricts itself to only those agencies which apply pesticides "on 
the land of another." The effect of this provision is to regulate primarily 
those state, county and municipal agencies which conduct widespread 
programs of pest control. A typical example would be a county mosquito 
control board which uses an insecticide, or a town highway department 
which uses a defoliating agent to clear away roadside brush. 

The statute was not intended to regulate agencies of the Common- 
wealth which make a "private" use of pesticides on land under their 
jurisdiction. Such a use is similar to that of a landowner or farmer. The 
immediate benefit falls to the agency rather than to members of the 
"public" at large. Inasmuch as the use of pesticides by Department of 
Mental Health employees on property under the control of that depart- 
ment constitutes a "private" use, these employees are exempt from the 
licensing requirement. 

The portion of § 21C excluding "farmers" was not intended to create 
thereby a blanket exemption for every person who conducts some minimal 
sort of a farming operation. A farmer is exempt when applying pesticides 
on his own land, on land he leases, or on land of his employer in cases 
where he is employed to operate a farm for someone else. As it has 
already been pointed out, however, a farmer must obtain a license before 
offering his services to the general public for the purpose of applying 
pesticides. 

The requirement of a license for persons applying pesticides "on the 
land of another" may at times cause confusion, particularly where the 
land in question is owned by a corporation or unit of government. Since 
a corporation or government can act only through its agents, those 
agents represent the only instrumentalities by which it can perform work 
on its own land. In the strictest sense, when such agents apply pesticides 
on property owned by the corporation or government, they are doing so 
on the land of another. Yet clearly their work is not public; it is private 
within the scope of the preceding discussion. In legal terminology^ they 
are the servants of their employer as opposed to being independent 
contractors. They perform their duties under the control and direction of 
their employer, and for many legal purposes their acts are considered to 
be the acts of that employer. 

When an employee of the Commonwealth applies a pesticide on land 
under the jurisdiction and control of his department, he is acting for the 
immediate benefit of the Commonwealth rather than for the benefit of a 
member or members of the general public. He is not engaging in the 
public business of applying pesticides; he is applying pesticides only on 
behalf of his immediate employer on the land of that employer. It is this 
sort of private act which the General Court clearly intended to exempt 
from the licensing requirements of § 21 C. An employee of the Common- 



P.D. 12 127 

wealth need not therefore be licensed in order to apply pesticides on land 
under the control of his department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The procedural requirements contained in Chapter 30A of the G. L. are 
applicable to wage determinations under § 26T of c. 121, M.G.L. 
Such wage determinations will not be valid unless accompanied by a 
determination of payments to health and welfare plans. 

The commissioner of Labor and Industries may properly require each 
■ Housing Authority to furnish employment classifications annually, 
as a reasonable means of effectuating the mandate of the General 
Court. 

September 24, 1965. 

Hon. Rocco Alberto, Commissioner of Labor and Industries. 

Dear Sir: — I am in receipt of your request for my opinion concerning 
the proper interpretation of c. 121, § 26T of the General Laws, relating 
to the determination of the correct wages to be paid to employees of 
public housing authorities. Specifically, you ask the following ques- 
tions: 

"1. Are the procedural requirements contained in Chapter 30A of the 
General Laws applicable to wage determinations made under Section 
26T? 

"2. Would such wage determinations be valid if they are not 
accompanied by determinations of payments to health and welfare plans 
in the event that a housing authority has its own health and welfare 
plan which I feel is adequate? 

"3. Would I be acting within my statutory authority in requiring 
each housing authority to furnish classifications annually?" 

Section 1 (5) of c. 30A defines a regulation to include: 

"the whole or any part of every rule, regulation, standard, or other 
requirement of general application and future effect adopted by an 
agencv to implement or interpret the law enforced or administered by 

it. . . V' 

The terms "standard" and "other requirement" clearly include wage 
determinations under § 26T of c. 121. Such determinations have a 
"general application and future effect" on all housing authorities within 
the geographical region involved. Therefore, when making wage deter- 
minations under § 26T of c. 121, the Department of Labor and 
Industries should comply with the procedural requirements of c. 30A, §§ 
2 through 8, inclusive. 

In answer to your second question, it is my opinion that a wage 
determination made under § 26T of c. 121 will not be valid unless it is 
accompanied by a determination of payments to health and welfare 
plans. Section 26T provides in part: 



128 P.D. 12 

"The commission shall determine rates of wages and fees and pay- 
ments to health and welfare plans for each such classification and shall 
furnish the housing authority with a schedule of such rates, fees and 
payments. . . ." 

The necessity for combining the wage determination with the health and 
welfare determination is indicated by a portion of c. 149, § 27, one of the 
two sections which describe the methods by which the Commissioner of 
Labor and Industries is required to set standards under § 26T of c. 
121. 

". . . Any employer . . . who does not make payments to a health and 
welfare plan, a pension plan and a supplementary unemployment benefit 
plan, where such payments are included in said rates of wages, shall pay 
the amount of said payments directly to each employee. . . ." 

C. 149, § 27. 

It was the intent of the General Court that standards set by the 
Department of Labor and Industries should include both wages and 
benefits, and that no employer should be able to evade the statutory 
scheme by paying the standard wage rate and yet providing substandard 
benefits. Within the framework envisioned by the Legislature, the wage 
and benefit standards are inextricably intertwined. Therefore, when 
making determinations in accordance with § 26T of c. 121, the Depart- 
ment of Labor and Industries should promulgate standards for both 
wages and benefits. 

In answer to your third question, it is my opinion that the Commis- 
sioner of Labor and Industries may properly require each housing 
authority to furnish employment classifications annually. Section 26T of 
c. 121 provides in part: 

"In the development or administration of a project, a housing au- 
thority shall furnish the commissioner of labor and industries, upon his 
request, with a list of the classifications of work performed by all 
architects, technical engineers, draftsmen, technicians, laborers and 
mechanics employed therein, and shall notify him from time to time of 
any changes in said classifications. . . ." 

By this provision the General Court intended to require housing 
authorities to submit employment classifications and to keep them 
current by submitting supplementary classifications from time to time. 
This legislative purpose may be effected in an orderly and sensible 
manner by the submission of annual reports. The interval will not be so 
frequent as to inconvenience the housing authorities ; neither will it be so 
infrequent as to jeopardize the rights of employees whose positions are 
altered or reclassified in the course of a year. The Commissioner of Labor 
and Industries may therefore require annual reports as a reasonble means 
of effectuating the mandate of the General Court. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 129 



An airplane, when towed over a way behind a motor vehicle, is not a 
trailer within the meaning and intent of G. L. c. 90, § 1. 

September 24, 1965. 

Hon. Richard E. McLaughlin, Registrar of Motor Vehicles. 

Dear Registrar McLaughlin: — I am in receipt of your request 
wherein you ask my opinion "as to whether when an airplane is towed 
over a way behind a motor vehicle it is considered to be a trailer." 

General Laws c. 90, § 1 defines "trailer" in material part as "any 
vehicle or object on wheels and having no motive power of its own, but 
which is drawn by, or used in combination with, a motor vehicle. . . ." 

An airplane, although it has motive power for purposes of flight in air, 
is not a motor vehicle within the meaning of that term. Rich v. Finley, 
325 Mass. 99. 

It is doubtful that the Legislature intended that a vehicle, with motive 
power to fly, in being towed along a highway, could then be considered 
as a trailer. In the event that a motor vehicle became disabled and was 
being towed along the highway, it is unreasonable to conclude that 
merely because it was without motive power of its owti for the purpose of 
travelling along the highway it could be considered as a trailer. Further, 
an airplane is not customarily "drawn by, or used in combination with, a 
motor vehicle." 

It is therefore my opinion thnt an airplane, when towed over a way 
behind a motor vehicle, is not a trailer within the meaning and intent of 
G. L. C.90, § 1. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Bourne Hovsing Authority is empoivered to purchase property upon 
ivhich there is a new structure which said authority has determined 
should be used for housing for the elderly. However, such acquisi- 
tion can only be made pursuant to the requirements and procedures 
for doing so found in G. L. c. 121, §§ 26P, as amended, 26S and 
26UU. 

September 29, 1965. 

Hon. John C. Christie, Assistant to Deputy Commissioner, Department 
of Commerce and Development. 

Dear Sir: — I have received your request of August 30, 1965 for my 
opinion as to whether the acquisition of certain property by the Bourne 
Housing Authority would be in accordance with G. L. c. 121. The 
Authority has the opportunity to purchase property upon which there is 
a new structure which the Authority has determined should be used for 
elderly housing. 

It is within not only the powers of the Authority but also its purpose 
to provide housing for the elderly as it is needed. 



130 P.D. 12 

"The housing authority of each city or town, organized under section 
twenty-six K, shall have power to provide housing for elderly persons of 
low income either in separate projects ... or in remodeled or recon- 
structed existing buildings. . . ." 

G. L. c. 121, § 26TT. 

Your letter states that the Bourne Housing Authority has voted to 
purchase a newly and independently constructed building which has not 
been previously occupied. There is no question that the Authority could 
have contracted to have the building constructed specifically for the 
Authority. [G. L. c. 121, § 26P(b).] 

But with regard to existing buildings, the housing authority may 
provide housing for the elderly in such buildings that are "remodeled or 
reconstructed." [G. L. c. 121, § 26TT.] However, § 26TT goes on to 
provide that Part II of c. 121 is to be applicable (except as otherwise 
provided) to housing projects for the elderly. Found within Part II is § 
26P, wherein the powers of a housing authority are set forth. Section 26P 
empowers housing authorities 

"to purchase or lease, or to acquire by gift, bequest or grant, and hold 
any property real or personal, or any interest therein, found by it to be 
necessary or reasonably required to carry out the purposes of the 
Housing Authority Law. . . ." [Emphasis supplied.] 

Specifically, one of the purposes of the Housing Authority Law is to 
satisfy the need for elderly housing, a need which in the language of the 
General Court is an immediate and pressing one. General Laws c. 121, § 
26SS declares that: "a public exigency exists which makes the provision 
of housing for elderly persons of low income ... a public necessity." In 
order to carry out such a purpose of the Housing Authority Law, a 
housing authority is authorized "to purchase . . . any property. . . ." 

It is, therefore, my opinion that the purchase of the building in 
question by the Bourne Housing Authority would be in accordance with 
the Housing Authority Law. However, that acquisition can only be made 
pursuant to the requirements and procedures for doing so found in G. L. 
c. 121, §§ 26P, as amended, 26S and 26UU. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

There is no liability on the part of the Commonwealth to make 
payments for delays occasioned by a carpenters' strike, where the 
contract contains no provisions for compensating the contractor for 
reasonable delays. The sole method for honoring a moral obligation 
is for the General Court to enact a special resolve. 

September 29, 1965. 

Hon. John J. McCarthy, Commissioner of Administration. 

Dear Sir: — I have received your request for my opinion relating to 
the Commonwealth's liability to make payments for delays occasioned 



P.D. 12 131 

during the performance of Contract 20 of State Project U-702 by the 
contractor, Warner Bros. Inc. 

The contract between Warner Bros. Inc. and the Commonwealth 
entered into on October 21, 1963, was for the extension of water, 
drainage and sewerage systems at the University of Massachusetts where 
new structures were in process of construction. The progress of building 
construction was slowed by a carpenters' strike and a particular building 
contractor, M. J. Walsh, deemed it advisable to finish his work without 
any possible interference from Warner Bros. Inc. Accordingly, M. J. 
Walsh denied Warner Bros. Inc. access to the project. Thus, Warner 
Bros. Inc. was delayed in performing its contract and now claims 
damages of $32,554.58. 

Article XI of Contract 20 sets forth the Commonwealth's agreement 
witTi Warner Bros. Inc. regarding any and all delays. 

"The Bureau [of Building Construction] may delay the commence- 
ment of the work, or any part thereof, for any reason if the Bureau shall 
deem it for the interest of the Commonwealth so to do. The Contractor 
shall have no claim for damages on account of such delay unless the 
Director shall otherwise determine, but shall be entitled to so much 
additional time in which to complete the whole or any portion of the 
work required under this contract as the Architect shall certify in writing 
to be just. The contractor shall have no claim for damages on account of 
any delay on the part of the Bureau or another contractor in connection 
with the execution of the work covered by this contract. The Contractor 
shall have no claims for damages on account of any delays caused by the 
work of other contractors of the Bureau now or hereafter doing work 
upon the premises covered by this contract." [Emphasis supplied.] 

Thus, Warner Bros. Inc. has contractually abrogated all possible claims 
for damages caused by ''any delay on the part of the Bureau or another 
contractor." This language encompasses and intentionally embraces the 
situation Warner Bros. Inc. noW' faces, namely, damages suffered because 
of "delay on the part of . . . another contractor." The building 
contractor, M. J. Walsh, was delayed in completing his work, and 
thereby caused Warner Bros. Inc. to fall behind in its schedule. 

There is no indication that this delay was willful, arbitrary, or in any 
way unreasonable. The building contractor, itself delayed by a strike, 
determined that it should complete its work prior to that of Warner 
Bros. Inc. The contract contains no provisions for compensating the 
contractor for reasonable delays. Consequently, the present situation is 
governed by Chas. T. Main, Inc. v. Massachusetts Turnpike Authority, 
1964Adv. Sh. 407. 

"By signing a contract which in terms precluded charges for delays, 
and which did not make (as it could have made) explicit provision to 
cover additional compensation for reasonable delay, [contractor] in- 
curred the risk of the delays, not found to have been unreasonable, 
which did occur." 

Ibid., p. 416. 

It is therefore, my opinion that as a matter of law the contractor's claim 
is without merit. 



132 P.D. 12 

Aside from the legal merits of Warner Bros. Inc.'s claim, you have 
suggested the possibility of a moral obligation to Warner Bros. Inc. 
which favors its claim. 

Inherent in our form of government is the concept that the Legislature 
has the sole power to recognize or not to recognize moral claims against 
the government as it so chooses subject to the provisions of G. L. c. 12, § 
3A, wherein the Attorney General may make determination on moral 
claims of less than $1,000. In this Commonwealth claims against the 
government must be brought by petition pursuant to G. L. c. 258. This 
statute, however, does not subject our treasury to the payment of moral 
claims as, indeed, such was not the object of the legislation. As a result, 
the sole method of honoring such claim is for the General Court to enact 
a special resolve. Warner Bros. Inc.'s only recourse is to seek such special 
legislation. Members of the executive branch of our government may not 
honor moral claims except as provided by said G. L. c. 12, § 3A, for to 
do so would be to usurp the legislative role. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Approval by the comptroller of requests for payments, charges for which 
have been approved by the Governor, with the advice and consent 
of the Executive Council, is not required. Payments from the 
treasury must be made on the basis of the warrants which have been 
approved by the Governor and the Executive Council. 

September 29, 1965. 
Hon. Robert Q. Crane, Treasurer and Receiver General. 

Dear Treasurer Crane: — I have received your letter of September 8, 
1965 which relates to the question of payment of Warrants #480, #513 
and #612, each of which has been approved by the Governor and the 
Executive Council. The warrants in question cover amounts owed by the 
Commonwealth for takings by the Department of Public Works of 
certain parcels of land within the City of Boston [Parcels 1 through 6 in 
Layout No. 5440 (Suffolk)], which parcels fall within the area desig- 
nated as a route for the so-called "Inner Belt" highway. I have already 
rendered opinions with regard to these takings to the Commissioner of 
Public Works (July 9, 1965) and to the Lieutenant Governor of the 
Commonwealth (August 30, 1965). In each of these opinions I concluded 
that the takings by the Department of Public Works were valid, and 
that the Commonwealth was obligated to pay full and fair value 
therefor. 

In your request you refer to § 18 of c. 29 of the General Laws, which 
provides in part as follows: 

"Except as otherwise provided, no money shall be paid by the 
commonwealth without a warrant from the governor drawn in accor- 
dance with an appropriation then in effect, and after the demand or 
account to be paid has been certified by the comptroller. . . ." [Emphasis 
supplied.] 



P.D. 12 133 

Although the warrants in question have been approved by the 
Governor and Executive Council, the charges contained therein have 
never been approved for payment by the Comptroller. Accordingly, your 
letter asks: ". . . in view of the fact that there is no certification by the 
Comptroller, can I as Treasurer make payment of the above warrants 
which have been approved by the Governor and Council." 

The requirement which appears in G. L. c. 29, § 18 to the effect that a 
demand or account may lawfully be paid only after such demand or 
account has been certified by the Comptroller must be interpreted in the 
liglit of the procedures developed by the Legislature to govern the 
functioning of tlie Comptroller, and on the basis of constitutional and 
statutory limitations upon the Comptroller's authority. The duties of the 
Comptroller with respect to examination and certification of accounts 
and demands against the Commonwealth are set forth in G. L. c. 7, § 13. 

"The comptroller shall examine all accounts and demands against the 
commonwealth (with certain exceptions not relevant to the present 
matter) . . . The comptroller shall make a certificate specifying the 
amount due and allowed on each account or demand so examined, the 
name of the person to whom such amount is payable, and the account to 
which it is chargeable; and if it appears to him that there are improper 
charges in said accountf^ or demayids he sholl report the same to the 
governor and council, irith a separate certificate therefor. . . ." [Emphasis 
supplied.] 

Thus, in accordance with G. L. c. 7, § 13, the Comptroller may — after 
his examination of the accounts or demands at issue — prepare a certifi- 
cate containing information as to the amounts to be paid, the parties 
who are to receive payment and the accounts to which such payments 
are to be charged. The preparation of such a certificate and its 
forwarding to the Governor and Executive Council presumably implies 
that the Comptroller has no objection to payment of the demands 
referred to therein. 

On the other hand, should the Comptroller believe that certain charges 
are improper, he is required — under G. L. c. 7, § 13 — to prepare "a 
separate certificate therefor," and to forward the same to the Governor 
and Council together with a report of his determination that improper 
charges have been included. The final decision as to whether the amounts 
questioned by the Comptroller are to be paid or withheld must be made 
by the Governor, with the advice and consent of the Council, and is not 
to be made bv the Comptroller. Ward v. Comptroller of the Common- 
wealth, 345 Mass. 183, 186. 

It is clear that the requirement imposed bv c. 29, § 18 that the 
demand or account be "certified by the comptroller" prior to payment 
does not — in light of the provisions of c. 7, § 13 — mean that payment 
must be preceded by the Comptroller's approval. In this context, 
certification refers not to approval, but to the examination of the 
demand or account, and the preparation and forwarding of a certificate 
with respect to the request for payment. Such certificate may be the 
ordinary list of amounts to be paid to which the Comptroller has lodged 
no objection; or it may be the "separate certificate" required in cases in 



134 P.D. 12 

which the Comptroller has determined that improper charges have been 
made. Thus, the Comptroller may "certify" a request for payment (in 
the sense in which that term is used in c. 29, § 18) simply by forwarding 
the request on a separate certificate to the Governor and Council with an 
indication that he believes the request to be improper. Approval by the 
Comi)troller is not necessary for compliance with the certification 
provisions of c. 29, § 18. 

In this way, the constitutional requirement that funds be issued from 
the State Treasury upon the warrant of the Governor is fulfilled. ("No 
moneys shall be issued out of the treasury of this commonwealth, and 
disposed of . . . but by warrant under the hand of the governor for the 
time being, with the advice and consent of the council. . . ." Const, of the 
Comtn., Pt. 2, c. 2, § 1, Art. XL) The Supreme Judicial Court has held 
without ambiguity that the responsibility of deciding whether payment 
is to be made is vested in the Governor and Executive Council, and that 
the Comptroller's report has the status of a recommendation only. 

"... It is clear that the Comptroller himself has no authority to direct 
the withholding of payments. If he thinks that some charge is improper, 
it is then his function to report it to the Governor and Council. This is 
entirely consistent with G. L. c. § 18. . . ." [Emphasis supplied.] Ward 
V. Comptroller of the Commonwealth, supra. O'Connor v. Deputy Com- 
missioner and Comptroller, 1965 Mass. Adv. Sh. 329, 331. 

The opinion of the Attorney General of July 9, 1965, cited above, 
reiterates the limitations upon the Comptroller's authority. 

In the present case, the Comptroller forwarded the charges in question 
to the Governor and Executive Council, presumably with a recommenda- 
tion that the amounts in question not be paid. Having done so, the 
Comptroller complied with the provisions of c. 7, § 13 and c. 29, §18; his 
authority with respect to these warrants was, at that point, exhausted. 
The Governor — with the advice and consent of the Council — has since 
approved the request for payment. To rule that approval by the 
Comptroller must now be obtained as a condition precedent to payment 
would be to disregard the constitutional authority of the Governor as 
well as recent decisions of the Supreme Judicial Court; likewise, such a 
ruling would give to c. 29, §18 a meaning never intended by the General 
Court, and one which would place that statute in conflict with constitu- 
tional provisions relative to payments from the State Treasury. 

Accordingly, it is my opinion that approval by the Comptroller of the 
requests for payment which you have described is not required, and that 
payments from the Treasury must now be made on the basis of the 
warrants which have been approved by the Governor and the Executive 
Council. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 135 

A temporary officer or employee appointed under G. L. c. SO § 59, can 
serve only as long as his predecessor would have served had he not 
been suspended. 

September 29, 1965. 

His Excellency, John A. Volpe, Governor of the Commonivealth. 

Dear Governor Volpe: — I have received your letter of September 29, 
1965, wherein you have requested my opinion with regard to G. L. c. 30, 
§ 59, sometimes called the Perry Law. Your question relates to the term 
of office of temporary officers and employees appointed under the 
provisions of this section, and reads as follows: 

"If an appointing authority has elected under G. L., Chapter 30, 
Section 59, to fill on a temporary basis the office or employment of one 
under suspension in accordance with said section 59, and the latter 
should resign from said office or employment during such suspension, is 
the appointing authority thereupon empowered to appoint another officer 
or employee to fill the unexpired term?" 

General Laws, Chapter 30, section 59 authorizes the suspension of 
appointed officers and employees "during any period such officer or 
employee is under indictment for misconduct in such office or employ- 
ment or for misconduct in any elective or appointive public office, trust 
or employment at any time held by him." During the period of such 
suspension, the officer or employee in question receives no compensation; 
nor is the period counted in the computation of sick leave, vacation 
benefits or seniority rights. Should the officer or employee retire while 
under suspension, he would not be entitled to pension or retirement 
benefits, although any contributions he may have made to a retirement 
fund would be returned. If, however, criminal proceedings brought 
against the suspended officer or employee terminate without a finding or 
verdict of guilty, the suspension shall be removed, and the officer or 
employee is entitled not only to restoration to his position but also to 
receipt of all compensation and other rights and benefits which have 
been withheld. 

The statute further provides : 

"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 powers 
and duties of the officer or employee suspended." 

Thus, a decision by a given appointing authority to suspend an indicted 
officer or employee under the provisions of c. 30, § 59 does not mean that 
the position affected must remain vacant. It is within the discretion of 
the appointing authority to fill the position on a temporary basis, 
pending a final determination of the guilt or innocence of the accused; 
such temporary appointee is vested with the same authority and 
responsibilities as was the permanent appointee. 

The temporary appointee is, in effect, a substitute for the officer or 
employee who has been suspended. As I indicated in my opinion 
rendered to you on March 1, 1965 on the subject of the Perry Law, it is 



136 P.D. 12 

apparent that the provision authorizing appointment on a temporary- 
basis was included in the statute in order to ensure — to the extent 
possible — that the agency affected would continue to operate without 
interruption. 

"The primary purpose of the Perry Law is to suspend from office 
persons 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 — espe- 
cially where a department head is concerned. Provision for appointment 
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." [See also Bessette v. Commissioner of Public 
Works, 1965 Mass. Adv. Sh. 367, 370.] 

Accordingly, the temporary appointee is clothed with all of the 
attributes of office that were accorded the permanent officer or employee 
whom he has replaced. He is given the same responsibilities, and is 
vested with the same authority with which to fulfill them. He is entitled 
to the salary and other emoluments which normally attach to the office 
or position. Unless the officer or employee under suspension is acquitted 
and is restored to the position, or unless such person's right to the office 
otherwise comes to an end, the temporary appointee may complete the 
term of his predecessor. He may not be removed except for cause. Thus, 
the General Court has authorized the appointment of a substitute officer 
or employee to perform the duties of the position affected so long as that 
position would otherwise remain vacant. 

However, as a substitute for a suspended officer or employee, the 
temporary appointee cannot exercise more authority or enjoy greater 
benefits of office than did his predecessor. It is clearly not the purpose of 
that paragraph of c. 30, § 59 which authorizes temporary appointments 
to create a new office or position. Nothing in the Perry Law indicates 
that the substitute was intended to have a term of office or employment 
different from that of the officer or employee he has replaced. It would be 
wholly inconsistent with the nature and purpose of the temporary 
appointment provisions of said § 59 to construe those provisions in such 
a way that there results the creation of a temporary appointee who has 
rights which are greater than those enjoyed by the officer or employee 
who has been replaced. 

Since an indicted officer or employee can only be suspended under the 
Perry Law and is not removed thereby, the position in question is still in 
theory filled, and a new permanent appointment cannot be made. Once 
the position can be filled on a permanent basis, the need for a temporary 
appointee ends. This may happen as a result of acquittal of the person 
under suspension; in such a case, the Perry Law specifically states that 
the permanent appointee is entitled to return to his position, and 
consequently the term of office of the temporary appointee comes to an 
end. It may likewise happen upon final removal of the permanent 
appointee from the position. Such final removal could result from 
expiration of that person's term of office; from his removal for cause 



P.D. 12 137 

pursuant to c. 30, § 9, or in accordance with the statute under which he 
was appointed ; from his death ; or from his resigning his office. Upon one 
or another of these events, the ajipointing authority is entitled to fill the 
position. Once a new appointment is made, there is no further possibility 
of a vacancy and the need for a temporary appointee ceases. 

The Perry Law specifically provides that a given position may be 
filled on a temporary basis "[djuring the period of any such suspension." 
A suspension automatically terminates upon the occurence of an event 
which finally removes the suspended officer or emploj^ee from his 
position — e.g., expiration of the term of office, removal for cause or 
resignation. 

It is my opinion — based upon the language and purpose of the 
temporary appointment provisions of c. 30, § 59 — that a temporary 
appointee can serve only as long as his predecessor would have served 
had he not been suspended. Once the term of the person under suspension 
is terminated by one of the above-noted events, the term of office of his 
substitute also expires. With the end of service of the original appointee, 
a vacancy occurs which — in cases in which appointments are made by 
the Governor — may immediately be filled. 

"Any vacancy in any office, the original appointment to which is 
required 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 appoint- 
ment. . . ." Massachusetts General Laws, Chapter 30, section 10. 

The fact that a temporary appointee happens to occupy the position in 
question at the time the original appointee resigns or is otherwise 
removed does not affect the right of the Governor to exercise this 
authority to make a new appointment under c. 30, § 10. The submission 
of a resignation by the original appointee automatically terminates the 
term of office of the temporary officer or employee placed in the position 
pursuant to the Perry Law, and leaves a vacancy which may be filled by 
the appointing authority for the remainder of the unexpired term. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Department of Public Works does not have statutory authority to 
take by eminent domain, strips of property adjacent to highways 
solely for the preservation of natural beauty. However, the General 
Court may constitutionally enact a statute authorizing the taking of 
strips of property adjacent to highways for the preservation of 
natural beauty since such takings would be for a public use or 
purpose. 

October 5, 1965. 

Hon. Francis W. Sargent, Commissioner, Department of Public Works. 
Re: Eminent Domain — Takings Adjacent to Highways to Preserve 
Natural Beauty. 

Dear Commissioner Sargent: — You have asked for my opinion on 
whether the Department of Public Works has the statutory and constitu- 



138 P.D. 12 

tional power to acquire by eminent domain land adjacent to highways 
for the purpose of preserving natural beauty and other aesthetic values 
in connection with the accelerated Federal Highway Program as set forth 
in United States Department of Commerce, Bureau of Public Roads, 
Policy and Procedure Memorandum 21-4.6, dated January 5, 1965. 

Preliminary consideration of pertinent Federal law and procedures is 
necessary and appropriate. 

Title 23 U.S. Code provides, inter alia, in § 319: 

"The construction of highways by the States with funds apportioned 
in accordance with Section 104 of this title may include . . . the purchase 
of . . . adjacent strips of land of limited width and primary importance 
for the preservation of the natural beauty through which highways are 
constructed. . . ." 

Article 5 of said USBPR Policy and Procedure Memorandum 21-4.6, 
entitled "ELIGIBLE PROJECTS", provides, inter alia: 

"b. . . . Adjacent strips may involve any of the following, or similar 
characteristics: 

" (1) areas of woodland, wildwood, or groves of trees; 

" (2) attractive water features such as streams and lake shores, rivers 
and shorelines ; 

" (3) mountains or similar vistas of obvious scenic quality ; 

" (4) scenic strips to protect a scenic view or scenic vistas, involving 
mountains, water, vegetation, or the like ; 

"(5) areas involving special topographic features such as rock out- 
crops, rock ledges, bluff faces, swamps, islands, or other unique forma- 
tions;" 

Although the language of Title 23 USC § 319 does not expressly 
authorize Federal participation in the cost of acquiring land by eminent 
domain for the preservation of natural beauty, it is my opinion that the 
word "purchase" as used in Section 319 includes acquisition by eminent 
domain. I adopt the following reasoning: 

"When used in a statute, the word 'purchase' is frequently held to 
include any method of acquisition other than by descent. 7 Words and 
Phrases, 5853. To construe the word here to mean only acquisition by 
buying, we must assume that Congress had in mind the method of 
acquisition rather than the general purpose to acquire. The mere use of 
the word 'purchase' ... is not to my mind a sufficient reason for such 
assumption. If, as we must, we give the members of Congress credit for a 
reasonable knowledge of human nature, they must be assumed to have 
known that to restrict acquirement to voluntary sales by the owners 
would most probably defeat the chief purpose for which the appropria- 
tion was made. . . . [TJhe first section of [Title 40 U.S.C, § 257J makes 
further discussion unnecessary. The very purpose of that section was to 
authorize condemnation whenever, theretofore or thereafter, an act of 
Congress authorized land to be 'procured' for public use." United States 



P.D. 12 139 

V. Beaty, (D.C.W.D. Va., 1912) 198 F. 284, 286, 287, rev'd. on other 
grounds 203 F. 620, cert. den. 232 U.S. 463. 

It is my opinion that the Department of Public "Works does not have 
statutory authority to take by eminent domain strips of property 
adjacent to highways solely for the preservation of natural beauty. 
Section 7 of Chapter 81 of the General Laws provides inter alia: 

"If it is necessary to acquire land for the purposes of a state highway 
. . . the department may take the same by eminent domain . . ." 

The law governing whether acquisition of specific land is "necessary 
. . . for the purposes of a state highway" is well established. 

'•When private property is taken in the exercise of the right of eminent 
domain, the taking must be limited to the reasonable necessities of the 
case, so far as the owners of the property taken are concerned." Rockport 
V. Webster, 174 Mass. 385, 390. Newton v. Newton, 188 Mass. 226, 
228. 

A determination by the duly authorized taking agency that it is 
necessary to take certain property is conclusive. Lynch v. Forbes, 161 
Mass. 302, 308-309. 

"The necessity for appropriating property for public use is not a 
judicial or quasi-judicial question but is a legislative one." Hayeck v. 
Metropolitan District Commission, 335 Mass. 372, 375. 

". . . the decision of [the] condemnor is final as long as it acts 
reasonably and in good faith. If the land is of some use to it in carrying 
out its public object, the degree of necessity is its own affair." 1 Nichols 
on Eminent Domain (3d Ed.), § 4.11 [3], p. 570, 572. 

Broad discretion is delegated to the Department of Public Works by 
G. L. § 7 of Chapter 81 provided land acquisition is for highway 
purposes. Takings of strips of land adjacent to highways primarily for 
the preservation of natural beauty is not authorized by G. L. § 7, Chapter 
81. Acquisition must be for a primary purpose that relates directly 
to the laying out, construction, maintenance or operation of state 
highways. If the primary purpose of the legislation is a permissible 
public purpose, then aesthetic considerations are also permissible. Welch 
V. Swasey, 193 Mass. 364, 374-375, aff'd, 214 U.S. 91. 

For example, takings of land by eminent domain for wide median 
strips to increase the safety of travel are considered "necessary . . . for 
the purposes of a state highway". The fact that such strips may also 
preserve natural beauty is incidental and not germane to the validity of 
their acquisition. 

However, it is my opinion that it is not "necessary ... for the 
purposes of a state highway" (G. L. § 7, Chapter 81) to take strips of 
land adjacent to highways solely for the preservation of natural beauty 
of areas through which highways may pass. 

Interpretation of the meaning of the language of G. L. § 7, Chapter 81 
requires consideration of § 13A of said Chapter 81, which provides, 
inter alia: 



140 PD. 12 

"The department may accept in behalf of the commonwealth from 
owners of lands included in a strip one hundred feet deep bordering on a 
state highway voluntary gifts ... of easements in such lands, giving the 
commonwealth the right to enter thereon ... for the purpose of 
landscaping such land. . . . The department may improve lands in which 
such easements are granted, so as to carry out a comprehensive plan of 
highway beautification, artistic landscaping and scenic development, to 
the extent that appropriations are available therefor. 

"Such easements shall be accepted only on the condition that such 
land shall remain fully subject to local taxation to the owners of the 
fee." 

Said section 13A explicitly authorizes a "comprehensive plan of high- 
way beautification . . . and scenic development" of strips of land 
bordering state highways. However, it authorizes only the acceptance of 
gifts of easements for this purpose. It does not expressly authorize 
takings by eminent domain. The legal maxim expressio unius est exclusio 
alterius must apply. The express mention of one thing implies the 
exclusion of another. If the Legislature intended takings by eminent 
domain to accomplish the "comprehensive plan of highway beautifica- 
tion," it must explicitly delegate that power for that purpose. The 
concern for frugality evident throughout section 13A clearly indicates 
that the power to take by eminent domain was intentionally omitted 
therefrom. 

The rules governing statutory construction further support the above 
interpretation of sections 7 and 13A. Those sections must be read 
together so as to make Chapter 81 a consistent and harmonious whole. 
See Real Properties, Inc. v. Board of Appeals of Boston, 311 Mass. 430. 
Section 7, most recently amended in 1931, relates generally to the 
acquisition of interests in land for the purposes of state highways. 
Section 13 A, enacted in 1936, relates particularly to acquisition of 
interests in land to accomplish a comprehensive plan of highway 
landscaping and beautification. It is a canon of statutory construction 
that a particular provision prevails over a general provision. That rule 
applies to Chapter 81 with greater force because section 13A, the 
particular provision, is later in time of enactment. It should also be 
noted that statutory provisions such as section 7, delegating the power of 
eminent domain, must be construed with considerable strictness. Hollis- 
ton V. Holliston Water Co., 306 Mass. 17, 19. 

The second part of your question is concerned with the existence of 
constitutional authority for takings by eminent domain of strips of land 
bordering state highways for the preservation of natural beauty. 

It is my opinion that the General Court may constitutionally enact a 
statute authorizing the taking of strips of property adjacent to highways 
for the preservation of natural beauty. 

The constitutions of both the United States of America and the 
Commonwealth restrict the taking of private property by eminent 
domain by the Commonwealth to public uses or purposes. U.S. Constitu- 
tion, Amendment 14; Commonwealth of Massachusetts Constitution, 
Article 10. Wright v. Walcott, 238 IVIass. 432, 434-435. 

It is my opinion that the taking of strips of property on each side of 



P.D. 12 141 

highways to be used not for travel, but for tlie preservation of natural 
beauty would constitute takings for a valid public use or purpose, 
conserving and developing the natural resources of the Commonwealth. 

Article 49 of the Amendments of the Constitution of Massachusetts 
provides: 

"The conservation, development and utilization of the agricultural, 
mineral, forest, water and other natural resources of the commonwealth 
are public uses, and the general court shall have power to provide for the 
taking, upon payment of just compensation therefor, of lands and 
easements or interests therein, including water and mineral rights, for the 
purpose of securing and promoting the proper conservation, development, 
utilization and control thereof and to enact legislation necessary or 
expedient therefor." 

The taking contemplated by the USBPR Policy and Procedure 
Memorandum 21-4.6 of January 5, 1965 of "areas of woodland, wild- 
wood, or groves of trees," "attractive water features such as streams and 
lake shores, rivers and shorelines," "rock outcrops, rock ledges," etc. for 
the "preservation of . . . natural beauty," would promote the "conserva- 
tion, development and utilization of the agricultural, mineral, forest, 
water and other natural resources of the Commonwealth." Such takings 
would be for "public uses" within Article 49 of the Constitution of the 
Commonwealth. 

It is also my opinion that such takings would be for a public use or 
purpose within the meaning of the Constitution of the United States. 
The Supreme Judicial Court has stated: 

"The people of this Commonwealth have declared by the Forty-ninth 
Amendment that the development of water power such as is authorized 
by the bill is a public use. The tendency of recent decisions of the 
Supreme Court of the United States has been to accept as true in its 
application to local conditions a constitutional declaration of a State to 
the effect that a given expropriation of private property is to a public 
use. [citing cases] ." Opinion of the Justices, 237 Mass. 598, 612. 

Takings by eminent domain for the preservation of natural beauty 
would be devoid of even a hint of private use, benefit, or gain. No 
transfer of such taken property to or for any private person or interest is 
contemplated. Title to the property would remain in the Department of 
Public Works. Its benefit and enjoyment would be open to the public on 
equal terms. See Machado v. Board of Public Works of Arlington, 321 
Mass. 101, 103-104. 

Consideration must be given to one other constitutional provision, 
Article 10 of the Constitution of INIassachusetts provides, inter alia: 

"The legislature may by special acts for the purpose of laying out, 
widening or relocating highways or streets, authorize the taking in fee by 
the commonwealth, or by a county, city or tovm, of more land and 
property than are needed for the actual construction of such highway or 
street: provided, however, that the land and property authorized to be 
taken are specified in the act and are no more in extent than would be 
sufficient for suitable building lots on both sides of such highway or 



142 P.D. 12 

street, and after so much of the land or property has been appropriated 
for such highway or street as is needed therefor, may authorize the sale 
of the remainder for value with or without suitable restrictions." 

That paragraph was added to Article 10 by Article 39 of the 
Amendments to the Constitution. It appears to impose restrictions on the 
amount of land that the Legislature may constitutionally enable the 
Department of Public Works to take. However, it has been strictly 
construed. The Supreme Judicial Court has stated that Article 39 was 
designed to enlarge, not restrict, the powers of the Legislature to delegate 
the power of eminent domain. Its purpose was to authorize takings for 
transfer to private individuals for commercial development of the 
locality. Opinion of the Justices, 330 Mass. 713, 720-723. Takings for 
highway beautification do not in any way involve transfer to private 
individuals. Article 10 as amended, was not intended to prevent the 
enactment of a statute under the authority of Article 49 of the 
Amendments to the Constitution of the Commonwealth because of some 
relationship to the Massachusetts highway system. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The procedures used by the Department of Public Works in connection 
with Layout Number 5395 of May 5, 1964, conformed with require- 
ments set forth by the Attorney General. 

A property owner, by law, can accept the award of damages voted by 
the Department of Public Works. On the other hand, he is not 
compelled to accept an offer, but may petition for assessment of 
damages by the Superior Court under the provisions of Chapter 79 
of the General Laws. 

October 6, 1965. 

Hon. Francis W. Sargent, Commissioner, Department of Public Works. 

Re: L.O. 5395 (1-91, Holyoke 5/5/64) Propriety of Taking Proce- 
dures. 

Dear Commissioner Sargent: — You have asked my opinion on the 
propriety of the method of making awards for damages arising from the 
takings of property by eminent domain for Layout No. 5395 (Interstate 
Route 91) in Holyoke, Massachusetts, on May 5, 1964. You have 
advised that the Commissioners of the Department of Public Works 
voted some awards initially on the basis of the assessed valuation of the 
property taken, reserving the right to make subsequent adjustments. 
Some awards were increased after completion of further appraisals. 

Specifically you have asked: 

1. "Whether or not the procedures used by the Department of Public 
Works in this instance, conform to the requirements set forth in the 
Attorney General's letter of December 27, 1963 to former Commissioner 
.Tftck P. Ricciardi?" 



P.D. 12 143 

2. "Can the property owner, by law, accept the voted award?" 

The letter of the Attorney General of December 27, 1963 to former 
Commissioner Jack P. Ricciardi emphasized the protection of the rights 
of citizens whose property is taken by eminent domain by, inter alia, 
damage awards in fair and reasonable amomits being adopted by the 
taking authority at the time orders of taking are voted. 

Prior to the adoption of the captioned order of taking the Department 
of Public Works made title searches and appraisals of damages. The 
awards of damages were voted by the Commissioners at the time of the 
adoption of the captioned order of taking. Notices of takings were sent 
promptly to all owners and mortgagees of record. Prompt payments were 
made in accordance with the provisions of the Constitution of the 
Commonwealth. The procedures utilized by the Department of Public 
Works in connection with the captioned taking were an improvement in 
condemnation practices, as required by the December 27, 1963 Opinion 
of the Attorney General. 

In connection with the initial reliance of the Commissioners on 
assessed value as a basis for a realistic award of damages note must be 
taken of Part II, c. 1, § 1, article 4 of the Constitution of the 
Commonwealth, empowering the imposition of "proportional" tax assess- 
ments. The provisions of §§ 38, 43, 45 and 52 of Chapter 59 of the 
General Laws require assessors to make fair cash valuations of all real 
estate and to sign under penalties of perjury a statement at the end of a 
list thereof that they have so acted. Each assessor takes an oath inter 
alia ". . . neither to overvalue nor undervalue any property subject to 
taxation." § 29, Chapter 41 of General Laws. cf. Bettigole et al v. 
Assessors of Springfield et al, 343 Mass. 223 at pp. 230-232. 

It is my opinion that the procedures used by the Department of Public 
Works in connection with Layout No. 5395 of May 5, 1964 conformed 
with the requirements set forth in the December 27, 1963 Opinion of the 
Attorney General to then Commissioner Ricciardi. In connection here- 
with your attention is invited to the duty of the Commissioners to 
amend an award of damages if new facts or expert advice indicate that a 
change in their previous opinion is required in the interests of equity and 
justice. Effective November 1, 1964 the Legislature established by § 3 of 
Chapter 579 of the Acts of 1964 a more exact definition and practical 
application of the "accepted appraisal principles" than was extant under 
the law when my opinion of December 27, 1963 was rendered. Chapter 
79 of the General Law's has required since November 1, 1964 in Section 
7A: 

"An award of damages made pursuant to section six or section seven 
shall not be made until at least one appraisal has been made in 
accordance with section tw^elve on behalf of the taking authority and 
filed therewith." 

In reply to your second question it is my opinion that the property 
owner, by law, can accept the voted award. The landowner has the 
constitutional right to accept any offer made by the State as compensa- 
tion for damages. Owners are not compelled to accept an offer. They may 
petition for assessment of damages by the Superior Court under the 



144 PD- 12 

provisions of Chapter 79 of the General Laws. To accept or reject such 
an offer is solely within the discretion of the former owner of property 
taken by eminent domain. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Registry may properly charge a fee for each written reply to a 
request for limited summary information, provided that, in addition, 
the public records of the Registry continue to be "open to the 
inspection of any person during reasonable business hours." 

October 7, 1965. 
Hon. Richard E. McLaughlin, Registrar of Motor Vehicles. 

Dear Sir: — I am in receipt of your request for my opinion whether 
upon discontinuance of the present free telephone listing service, the 
Registry of Motor Vehicles may charge fifty cents for providing a 
written reply to each request for information from the public. This 
written reply would contain limited summary information from the 
records of the Registry. You ask further whether the sending of written 
summary information at a fifty cent charge would be prohibited by c. 90, 
§ 33, which sets the fee "for every copy of any record, or any certificate 
. . ." at one dollar and fifty cents. 

It is my opinion that a fifty cent charge for limited summary 
information sent out from the Registry would be proper. The sending of 
the name and address of the owner of an automobile and the name of his 
insurance company to a requesting party would not constitute the 
making of a copy of a record or certificate; rather, this service would 
involve an analysis of the records, the extraction from the records of 
limited information by employees of the agency, and the clerical task of 
processing and mailing the information. 

Although there is no further statutory duty imposed upon the Regis- 
trar in his position as a custodian of public records than to provide that 
"such records ... be open to the inspection of any person during 
reasonable business hours" [c. 90, § 30], as a state agency, the Registry 
has, beyond its express grant of powers and duties, such powers as are 
reasonably necessary for carrying out its responsibilities {Scannell v. 
State Ballot Law Commission, 324 Mass. 494). Certainly, the authority 
for instituting the proposed service at a reasonable cost for each request 
can be found within the normal scope of this implied power. 

Therefore, it is my opinion that the Registry may properly charge 
fifty cents for each written reply to a request for limited summary 
information (upon discontinuance of the free telephone listing service) 
provided that, in addition, the public records of the Registry continue to 
be "open to the inspection of any person during reasonable business 
hours." 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 145 

The Government Center Commission is specifically precluded from 
making any binding commitment for the expenditure of funds 
beyond its appropriation, and cannot make commitments which 
would render it unable to complete an adequate program within its 
present resources. 

October 7, 1965. 
Hon. Jeremiah Sundell, Chairman, Government Center Commission. 

Dear Sir: — I am in receipt of your request for my opinion concerning 
the courses of action open to the Government Center Conmiission in view 
of its desire to spend an estimated $7,750,000 more than the $34,000,000 
ah'eady appropriated for authorized building projects. 

You state that you expect the additional sum to be appropriated in 
future, and you ask whether the Commission may, before then, advertise 
for bids at one contract price for the construction of the three buildings 
which the Commission is required to construct even though the construc- 
tion estimates exceed the appropriation. 

You also ask whether in the alternative the Commission may advertise 
for bids for the construction of as many buildings as its present 
construction estimates indicate appropriated sums available and award 
such contracts based on bids within the appropriation. 

In answer to your first question, I call your attention to the following 
sections of c. 29 of the General Laws: 

Section 26: 

"Expenses of offices and departments for compensation of officers, 
members and employees and for other purposes shall not exceed the 
appropriations, made therefor by the general court or the allotments 
made therefor by the governor. No obligation incurred by any officer or 
servant of the commonwealth for any purpose in excess of the appropria- 
tion or allotment for such purpose for the office, department or institu- 
tion which he represents, shall impose any liability upon the common- 
wealth." 

Section 27 provides in part as follows: 

"Notwithstanding any provision of general law, no department, office, 
commission and institution shall incur an expense, increase a salary, or 
employ a new clerk, assistant or other subordinate, unless an appropria- 
tion by the general court and an allotment by the governor, sufficient to 
cover the expense thereof, shall have been made, . . ." 

The above-referred to § 26 directly prohibits the Government Center 
Commission from making any binding commitment for the expenditure 
of funds beyond its appropriation. 

In answer to your second question, an examination of the statute 
which established the Government Center Commission (St. 1960, c. 635) 
and of the principal amendment thereto (St. 1962, c. 685) indicates that 
the Legislature intended the mental health building, the employment 
security building, and the health, education and welfare building all to 
be constructed with the single appropriation of $34,000,000. The Govern- 
ment Center Commission cannot, therefore, expend so much of the 



146 P.D. 12 

appropriation on one or two buildings in a manner to prohibit comple- 
tion of all three buildings within the present appropriation. If it so 
wishes, and if it is able to do so, the Commission can enter into contracts 
for a portion of the project, provided that it retains sufficient funds to 
complete the minimum requirements for the remainder without exceeding 
the total of $34,000,000. If the General Court does not later appropriate 
the additional $7,750,000, the Commission would still have to fulfill its 
obligations, although to do so it would have to construct a portion of the 
project on a much more modest, though adequate, scale. 

The clear intent of the enabling statutes was to require all three 
buildings to be constructed from the original $34,000,000. Therefore, the 
Commission cannot make commitments which would render it unable to 
complete an adequate program within its present resources. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 

St. 1965 c. 253 is an unconstitutional exercise of legislative authority; 
since it deprives the Boston and Maine Railroad of rights which are 
generally available to railroad companies. 

October 7, 1965. 

Hon. Roy C. Pap alia. Chairman, Department of Public Utilities. 

Dear Mr. Papalia: — You have submitted a request for an opinion 
with regard to the interpretation and validity of c. 253 of the Acts of 
1965, which chapter relates to the reconstruction and repair of the Hale 
Street Bridge in the City of Lowell. This statute contains a specific 
directive by the General Court to the Department of Public Utilities 
which provides as follows : 

"The department of public utilities is hereby directed to order the 
Boston and Maine Railroad to reconstruct or repair the overhead bridge 
located on Hale Street in the city of Lowell." 

You have asked whether your Department is legally authorized to issue 
the order in question, and — if such authority does exist — whether the 
order must be preceded by an investigation or by hearings. 

The subject of reconstruction and repair of railroad bridges is governed 
by the provisions of c. 159 of the General Laws. Alterations in bridges, or 
complete reconstruction thereof, are covered by G. L. c. 159, § 59, which 
provides in part as follows: 

'Tf a public way and a railroad cross each other, and the board of 
aldermen of the city or the selectmen of the town where the crossing is 
situated, or the department of public works, if the crossing and its 
approaches are in direct continuation of a state highway, or the directors 
of the railroad corporation, or the directors of a railway company having 
tracks on said way, deem it necessary for the security or convenience of 
the public that an alteration not involving the abolition of a crossing at 
grade should be made in the crossing, the approaches thereto, the 
location of the railroad or way, or in a bridge at the crossing, they shall 



P.D. 12 147 

apply to the board of county commissioners, or, if the crossing is situated 
in whole or in part, in Boston, to the department of public utilities, 
which shall after public notice, hear all parties interested, and, if it 
decides that such alteration is necessary, shall prescribe the manner and 
limits within which it shall be made, and shall forthwith certify its 
decision to the parties and to said department of public utilities. . . ." 
[Emphasis supplied.] 

Thus, if actual reconstruction of the bridge in question is sought, 
regular statutory procedures are available by which to accomplish the 
desired result. Application may be made by any of the parties referred to 
in the section quoted above to the appropriate County Commissioners 
[or — for crossings situated within the City of Boston — directly to the 
Department of Public Utilities] ; after public notice and a hearing, the 
County Commissioners must decide whether the bridge requires altera- 
tion or reconstruction, and must indicate what changes are to be made 
and when they are to be completed. A party aggrieved by a decision of 
the Countv Commissioners rendered under this section may appeal to the 
Department of Public Utilities [G. L. c. 160, §§ 111-113]. Matters of 
law which have arisen before the Department in such a case may be 
reviewed by the Supreme Judicial Court [G. L. c. 25, § 5]. 

It should be noted, however, that St. 1965, c. 253 would permit the 
Department of Public Utilities simply to order repair of the Hale Street 
Bridge, rather than requiring total reconstruction. It is clear that the 
Legislature has treated the need for maintenance or repair differently 
from the need for reconstruction or significant alteration. Boston and 
Albany Railroad Company v. Department of Public Utilities, 314 Mass. 
634, 636-638. 

The ordinary procedure for determining that reconstruction is neces- 
sary is that provided by G. L. c. 159, § 59, described above. Mainte- 
nance or repair, on the other hand, may be ordered pursuant to G. L. c. 
159, § 84. 

'Tf the county commissioners of a county, the board of aldermen of a 
city or the selectmen of a town where a bridge at the crossing of a public 
way and a railroad, or a bridge upon which a railway company is 
authorized to lay and use tracks, is located in whole or in part, or the 
directors of a corporation owning or operating such railroad, or the 
directors of a company owning or operating such railway, are of the 
opinion that such bridge is in need of maintenance or repair, they may 
apply to the department [of public utilities], w^hich shall, after public 
notice, hear all persons interested, and, if it decides that the work of 
maintenance or repair is necessary, shall prescribe the manner in and the 
limits within which it shall be done, and shall forthwith certify its 
decision to the parties." 

Accordingh^ in cases in which maintenance or repair is sought, applica- 
tion is made directly to the Department of Public Utilities rather than 
to the County Commissioners. Matters of law which come before the 
Department during such a proceeding may likewise be reviewed by the 
Supreme Judicial Court pursuant to G. L. c. 25 § 5. 



148 P.D. 12 

It is apparent that the General Court has left to the Department of 
Public Utilities the authority to determine either that the Boston and 
Maine Railroad is to be required to reconstruct the bridge in question 
altogether or — in the alternative — that the railroad is to be permitted 
simply to repair the structure. Thus, as set forth above, the Department 
may, pursuant to St. 1965, c. 253, choose to enter an order which requires 
following the procedures provided by c. 159, § 59; or the Department 
may, if it prefers, accomplish a result which — absent the authorization 
contained in St. 1965, c. 253 — could only have been reached in accor- 
dance with c. 159, § 84. In neither case would there be compliance with 
the applicable provisions of the General Laws. 

In light of the fact that the Legislature has singled out the Hale Street 
Bridge and the Boston and Maine Railroad for special summary 
treatment, thereby ignoring the general reconstruction and repair provi- 
sions which are available to and which protect all other railroad 
corporations in similar circumstances, I can only conclude that St. 1965, 
c. 253 is an unconstitutional exercise of legislative authority. The 
General Court has — by its directive to the Department of Public 
Utilities — deprived the Boston and Maine Railroad of rights which are 
generally available to railroad companies. Prior to the entry of an order 
directing the reconstruction or repair of a railroad bridge, the company 
in question is ordinarily entitled to public notice that such reconstruction 
or repair is sought, and to the holding of a public hearing at which 
County Commissioners or the Department of Public Utilities may take 
testimony with regard to the petition. The company is justified in 
expecting that orders for reconstruction or repair will be based upon 
proper findings of fact, and is entitled to judicial review in the event 
that errors of law have been committed by the hearing agency. 

These general statutory provisions have been suspended with respect 
to the Hale Street Bridge situation. There has been no public notice 
relative to the bridge in the sense contemplated by c. 159, and public 
hearings have not been held by the regularly constituted bodies vested 
with such responsibility. In addition, both §§ 59 and 84 of c. 159 
enumerate specific groups or bodies which shall have standing to bring 
the petitions authorized by those sections; but St. 1965, c. 253 dispenses 
with the requirement that proceedings of this nature be instituted by the 
persons specifically named in c. 159. 

It is manifest that St. 1965, c. 253 deprives the Boston and Maine 
Railroad of rights and the protection guaranteed by the General Laws to 
all railroads operating in the Commonwealth. As such, the act in my 
opinion, violates that part of the Fourteenth Amendment to the Consti- 
tution of the United States which provides that no state shall "deny to 
any person within its jurisdiction the equal protection of the laws." In 
addition, it is my opinion that St. 1965, c. 253 deprives the Boston and 
Maine Railroad of property in contravention of the Fourteenth Amend- 
ment, and in violation of Articles X and XII of the Declaration of 
Rights of the Commonwealth of Massachusetts. 

The right of the General Court to subject railroads to reasonable 
regulation cannot be contested. But each railroad must be regulated in 
ways which are similar to all other railroads in the same class and 



P.D. 12 149 

circumstances. ". . . That the [railroad] is guaranteed 'equal protection 
of equal laws without discrimination or favor based upon unreasonable 
distinctions' under the Constitutions of both the Commonwealth and the 
United States is not to be doubted. . . ." McQuade v. New York Central 
Railroad Company, 320 Mass. 35, 38. 

The Legislature cannot provide a specific procedure to be followed with 
regard to petitions for reconstruction or repair of railroad bridges, and 
then suspend that procedure in one given case. Nor can the Legislature 
accomplish what is in effect a deprivation of the railroad's property 
without compliance with the principles of due process — safeguarded in 
this instance by the procedures contained in G. L. c. 159, §§59 and 
84. 

The special act cannot be reconciled with the general provisions of c. 
159. Even were the Department of Public Utilities to follow the 
procedures of c. 159 on the theory that the General Court intended to 
include them by implication, the provisions of c. 159 would still have 
been suspended to a certain extent — i.e., that the proceeding had not 
been initiated by one of the specifically enumerated parties. I am aware 
that every rational presumption must be indulged in in favor of the 
validity of an act of the Legislature. Commonwealth v. S. S. Kresge 
Company, 267 IVIass. 145, 148. 

But I am convinced that the General Court did not intend that this 
special act be reconciled with the provisions of c. 159. Had this been its 
intention, it is unlikely that such a conclusion would have been left to 
inference. 

Accordingly, it is my opinion that St. 1965, c. 253 is an unconstitu- 
tional enactment of the General Court. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The term "negro" sufficiently meets the requirements of G. L. c. 4^ ^ 1. 
Under this statute the Secretary of State and town clerks must 
accept any reasonable response to the inquiry "color" which is not 
inaccurate and unresponsive. 

October 14, 1965. 

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

Dear Mr. Secretary: — I am in receipt of your request for my opinion 
concerning the meaning of the word "color" as it is used in the statutes 
governing vital statistics, in particular, §§ 1, 3, 16 and 17 of c. 46 of the 
General Laws. Your request is in three parts; I shall deal with each in 
turn. 

"1. May the word 'negro' be used to meet the legal requirements of 
G. L. c. 46, §1?" 

There are no authoritative Massachusetts cases interpreting the word 
I'color" within the meaning of G. L. c. 46, § 1. However, the word 
"color," when used in legislation, has often been considered interchange- 



150 P.D. 12 

able with the word "race," and is often so used in common usage. See 
Gong Lnm v. Rice, 275 U.S. 78 (1927), United States v. LaCoste, 26 Fed. 
Cas. 826 (D. Mass. 1820), and Rose v. Deasy, 2 Race Rel. L. Rep. 667 
(Mass. Superior Ct., Eq. No. 71770 [1957]). Because of this, and because 
of considerations expressed more fully below, it is my opinion that the 
term "negro" sufficiently meets the requirement of the statute, and should 
be accepted where offered in response to the inquiry concerning color. 

"2. Should 'color' be interpreted as synonymous with 'race' and 
thereby restricted to those five colors which are traditionally used to 
describe those races?" 

As indicated above, "color" has often been used to denote "race." It 
does not follow, however, that the only correct response to the inquiry 
"color" is white, black, brown, red or yellow (on the theory, as you 
express it, that these are "the five colors which are traditionally used to 
describe these races") . The use of these five colors is but one of a number 
of possible racial classifications. It would be extreme to assert that by 
use of the word "color," the Legislature meant to irnpose upon Massa- 
chusetts residents, without exception, a single, arbitrary, scientifically 
questionable and, to some people, offensive system of racial classification. 
The case which you describe in your letter illustrates the incongruity of 
the five-color classification. In that case, if this system is followed, the 
negro woman in your example, whom you describe as "of light skin," 
would be required, against her will, to be classified as "black." In my 
opinion, under G. L. c. 46, the Secretary of State and town clerks must 
accept any reasonable response to the inquiry "color" which is not 
inaccurate and unresponsive. I would consider as acceptable such 
commonly recognized designations of race as Caucasian or negro, or, 
alternatively, of skin color as brown, black or white. 

"3. Is 'color' to be taken literally, i.e., as referring to pigmentation of 
the skin and therefore allowed as an entry such words as best describe 
the individual's skin color {i.e. light brown, etc.) ?" 

"Color" has been construed as equivalent to race. This construction, 
however, was rendered in cases in jurisdictions or at times which scarcely 
render them of decisive weight in this Commonwealth today. Concepts of 
race and skin color are closely intermingled, and it is difficult to say that 
the word "color," alone, calls for one but utterly excludes the other. The 
fact is, the word "color," like the word "race" itself, lacks precise, 
scientific meaning. To some it may suggest race ; to others it may suggest 
skin color ; to others it may suggest a blending of both. 

In my view, reasonable racial designations and reasonable designations 
of skin color both comply with the statute and must be accepted. 

Accordingly, I am of the opinion that a substantially accurate 
designation of skin color such as "light brown" could comply with the 
statute. Scientific and practical considerations, however, might limit the 
use of classifications based exclusively on skin color. For example, it 
might be difficult to know how to classify a "white" person of florid 
complexion. In any event, a person who wished to be classified by race 
{i.e. negro or Caucasian) might legitimately object to being classified by 
skin color over his objections. 



P.D. 12 151 

I recognize that the above interpretation may lead to difficulty in 
keeping systematic records, especially where automatic tabulation may 
be involved. 

However, G. L. c. 46 does not, in my view, give to any town clerk or 
state official the power to reject reasonable and truthful answers relating 
to "color" which provide responsive data either as to skin color, race or 
both. In the case of a person's color, unlike his skin or weight, a 
subjective element is involved, as there are differing views today, even 
among scientists, as to appropriate definitions and terminology. Accord- 
ingly, to the extent there is legitimate disagreement as to terminology 
and classification, the individual's own view as to his "color" should 
prevail. Otherwise, the individual could be described in a vital record such 
as a marriage certificate in a manner which is deeply offensive to him 
and yet is no more demonstrably accurate or correct than would have 
been the case had the individual's preferred description prevailed. 

Any interest the state may have in systematic record keeping cannot 
be at the expense of an individual's right to be described in vital public 
records in a manner which is fair and reasonable, especially where a 
designation as important as the one in question is involved. There is 
nothing in G. L. c. 46, §§ 16 or 17, which gives the Secretary of the 
Commonwealth the authority to narrow and delimit the available 
responses to the term "color" over the objection of the individual within 
the statutory limits above set forth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Director of Building Construction has the authority to supervise the 
spending of $306,000 appropriated by c. 648 of the Acts of 1963 for 
the reconstruction and improvement of the Mount Greylock War 
Memorial. 

October 14, 1965. 

Hon. J. Norman O'Connor, Chairman, Mount Greylock State Reserva- 
tion Commission. 

Dear Sir: — I am in receipt of your request of September 14, 1965 for 
my opinion regarding the question you have as to the authority of the 
Director of Building Construction to supervise the spending of $306,000 
appropriated by c. 648 of the Acts of 1963 for the reconstruction and 
improvement of the Mount Greylock War Memorial. 

You have stated that the Commissioner of Administration and Fi- 
nance has given control of the reconstruction project to the Director of 
Building Construction and, further, that the Commissioner has ap- 
pointed an architect for the project. 

As a general matter, the Legislature has placed with the Director of 
Building Construction the authority to supervise and control construc- 
tion, reconstruction and repair projects which are financed by appropria- 
tions of public monies. 

"Except as otherwise provided in this section or by any appropriation 



152 ; P.D. 12 

act of the general court, the director of building construction shall, in the 
manner and to the extent provided by this chapter, have control and 
supervision of all building construction projects, as hereinafter defined, 
which may be undertaken by the commonwealth. . . ." G. L. c. 7, § 30 A. 

The remainder of § 30A defines various types of projects which are 
subject to the control of the Director of Building Construction. Such 
projects include those which are financed in whole or in part by 
appropriation; those which the estimated cost of the work exceeds ten 
thousand dollars, and those which involve repairs costing more than ten 
thousand dollars, such repairs being of greater magnitude than ordinary 
repairs or maintenance work. 

The work to be done at the Mount Greylock War Memorial is beyond 
the scope of ordinary repair work and it is financed by an appropriation 
of more than ten thousand dollars. Consequently, this work is a project 
for which our General Laws provide control and supervision by the 
Director of Building Construction. That control is not, however, 
absolute. 

The Commissioner of Administration and Finance may place super- 
visory control over the project with the agency for which the project is 
to be undertaken and, in so far as the Commissioner could do so, he 
could remove control from the Director. This, however, is a discretionary 
determination on the Commissioner's part. 

"The commissioner may . . . direct that any such project shall be 
undertaken by the operating agency free from the control and super- 
vision of the said director." [Emphasis supplied.] G. L. c. 7, § 30A. 

By declining to exercise this discretion, the Commissioner has left the 
Director of Building Construction with a statutory responsibility to 
supervise and control the projected work on the Mount Greylock War 
Memorial. Such supervisory control does not, however, include the 
authority to designate the architect for the project. 

It is the Commissioner's responsibility to designate an architect or an 
engineer for the project. The agency for which the project is undertaken 
may recommend an architect to the Commissioner who then must 
consider such a recommendation, but it is the Commissioner's sole 
responsibility to make the appointment. [G. L. c. 7, § SOB.] 

Accordingly, it is my opinion that the Director of Building Construc- 
tion has the authority to supervise the spending of $306,000 appropriated 
by c. 648 of the Acts of 1963 for the reconstruction and improvement of 
the IMount Greylock War Memorial. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



P.D. 12 153 

The State Racing Commission may not laiv fully issue a license for 
harness racing ichich is to he conducted at times other than those 
specified in c. 128A, § S(6) . 

October 19, 1965. 

Hon. Paul F. Walsh, Chairman, State Racing Commission. 

Dear Mr. Walsh: — I have received your letter of October 14, 1965, 
wherein you request my opinion with regard to an application for 
permission to hold "double-header racing cards" on certain specified 
Saturdays filed with your Commission by the Eastern Racing Associa- 
tion, Inc. You have provided me with the following pertinent facts in 
connection with the request. Early in January, 1965, applications for 
licenses to conduct harness horse racing meetings were filed by the 
Eastern Racing Association and by the Bay State Harness Horse Racing 
and Breeding Association, Inc. In its application. Eastern sought issu- 
ance of a license for thirty-six (36) week days of racing to be held at 
Suffolk Downs in East Boston between October 18 and November 27, 
1965, with racing to be conducted beween the hours of 7:00 p.m. and 
midnight. Bay State, on the other hand, applied for a license for ninety 
(90) dates to be held at the Bay State Raceway in Foxboro between 
June 21 and October 2, 1965, the races in question to be run between 
7:00 p.m. and midnight as at Suffolk Downs. 

Public hearings were held by the State Racing Commission upon each 
application as required by G. L. c. 128A. On January 28, 1965, the 
Commission voted to grant thirty (30) racing dates to Eastern between 
October 25 and November 27, 1965, for racing between 7:00 p.m. and 
midnight. At the same time, it was voted to grant to Bay State sixty 
(60) racing dates between June 21 and August 28, 1965, for racing 
between 7:00 p.m. and midnight. Thus the Commission allotted the full 
ninety (90) days permitted by G. L. c. 128A, § 3(i) for harness horse 
racing meetings conducted within the Commonwealth at places other 
than state or county fairs. Bay State has now concluded its licensed 
racing meeting, while Eastern's licensed meeting is scheduled to begin on 
October 25, 1965. 

On October 11, 1965, your Commission received a letter from the 
Eastern Racing Association, a copy of which is attached to your request, 
in which Eastern requested permission to conduct the following: 

"Double-header racing cards to be run on Saturdays of our coming 
harness racing meeting; namely, October 30th, November 6th, 13th, 20th 
and 27th, to consist of eight races in the afternoon and nine races in the 
evening, with one admission charge for both. Post time for the afternoon 
races is contemplated at 3:00 p.m.; and for the evening races, the usual 
time of 7:45 p.m. 

The_ Commission must act shortly upon the request of the Eastern 
Racing Association, and accordingly you have posed the following four 
questions : 

(a) . In the matter of the request of the Eastern Racing Association, 
Inc. for permission to conduct harness horse racing on certain Saturdays 
during the 1965 harness horse racing meeting between the hours of 3:00 



154 P.D. 12 

P.M. and 12:00 Midnight— and in view of the provisions of Chapter 
128A of the General Laws, Section 3, paragraph (b) and (j) can the 
Commission consider granting permission for a harness horse racing 
program which starts at approximately 3:00 P.M. and runs to approxi- 
mately 12:00 Midnight as one day of racing? 

''(b). If the answer to (a) above is in the affirmative can the 
Commission allow the extra races requested in the communication dated 
October 11th, 1965 on the application dated January 4th, 1965? 

"(c). If the answer to (a) above is in the affirmative and the answer 
to (b) above is in the negative can the Commission accept a new 
application from the Eastern Racing Association, Inc. amending the 
application dated January 4th, 1965 so as to include racing earlier than 
7:00 P.M. on certain Saturdays during the 1965 harness racing meeting? 

"(d). If the answer to (c) above is in the affirmative is the 
Commission required to hold public hearings in accordance with the 
provisions of Chapter 1287\ of the General Laws, Section 3, if an 
amended application is filed?" 

Your request in essence calls for a determination as to whether the 
licensing provisions established by the General Court authorize the plan 
for double-header racing cards which has been proposed. 

The racing of horses and dogs in the Commonwealth has been 
carefully regulated by the Legislature. General Laws c. 128A, E 2 
requires that persons desiring to conduct racing meetings apply to the 
State Racing Commission for licenses, and E 3 provides for the giving of 
notice and for the holding of public hearings upon such applications. 
Section 3 also contains a variety of conditions which must be met before 
a license may lawfully be issued. The Commission must be satisfied that 
the racing meeting in question will be conducted in an appropriate place, 
find at a permissible time of the year. The aggregate number of dates 
granted by the Commission for each form of racing may not exceed the 
number specified in paragraphs (f), (g) and (j) of the section. Provi- 
sions are likewise included for the regulation of racing at state and 
county fairs. 

Section 3 further expressly provides that racing meetings must be 
restricted to specific times of the day or evening. Dog races may be held 
only between the hours of 7:00 p.m. and midnight, except in cases of 
national emergency. [E 3(c).1 Equivalent provisions applicable to 
running and to harness horses appear in paragraph (b) : 

"Such a meeting as may be for running horses shall be between the 
hours of ten o'clock ante meridian and seven o'clock post meridian only, 
and such a meeting as may be for harness horses may be behveen twelve 
o'clock noon and seven o'clock post meridian or betiveen seven o'clock 
post meridian and twelve o'clock midnight." [Emphasis supplied.] 

It is clear that the Commission may not lawfully issue a license for 
harness horse racing which is to be conducted at times other than those 
specified in c. 128A. E 3(b). 

Considering the language used by the Legislature in E 3(b), I must 
conclude that harness races may be run between noon and 7:00 p.m. or 



P.D. 12 155 

between 7:00 p.m. and midnight on a given day, but not both. The 
references to the two times of the day appear in the alternative, with the 
disjunctive or as the connecting word. It must be presumed that the 
General Court used this language intentionally in order to establish that 
harness races were not to be run in both the afternoon and the evening 
on the same day at one given location. The Supreme Judicial Court has 
assumed that the Commission could not license both sets of times. 

"By St. 1946, c. 575, §§ 1, 2 (see for recent amendments St. 1958, c. 
229, E § 1, 2), harness racing hours were altered so as to permit such 
racing either between noon and 7 p.m. or between 7 p.m. and midnight." 
[Emphasis supplied.] Bay State Harness Horse Racing and Breeding 
Association, Inc. v. State Racing Commission, 340 Mass. 776, 779. 

Had' the Legislature wished to provide otherwise, it would not have used 
language which so clearly indicates that use of one set of specified times 
precludes use of the other set as well. 

Likewise, E 3(b) cannot be interpreted as simply providing that 
harness racing shall not be conducted before noon or after midnight. Had 
this been the Legislature's sole intention, it is unlikely that the phrase 
"between twelve o'clock noon and seven o'clock post meridian or between 
seven o'clock post meridian and twelve o'clock midnight" would have 
been inserted into the paragraph. Use of this particular construction can 
only mean that the General Court intended to limit harness racing to the 
afternoon or to the evening on a given day, and was not concerned solely 
with the conducting of racing in the morning or after midnight. 

The request of the Eastern Racing Association for permission to hold 
harness races from 3:00 p.m. to midnight is in effect an application for a 
license for racing in both the noon to 7:00 p.m. and the 7:00 p.m. to 
midnight time periods. Issuance of such a license would be a clear 
violation of the provisions of c. 128A, E 3(b). Likewise, since one of 
these time periods represents a "racing day" under c. 128A, and since the 
Commission has already allotted ninety (90) days for harness horse 
racing in the Commonwealth, the granting of Eastern's request would 
constitute the assignment of additional racing dates in violation of c. 
128A, § 3(j) ("No licenses shall be issued for more than an aggregate of 
ninety racing days in any one year at the harness horse racing meetings 
combined, not including harness horse racing meetings at state or county 
fairs. . . .") 

The plan proposed by the Eastern Racing Association clearly exceeds 
the limitations which have been placed by the Legislature upon harness 
horse racing conducted within the Commonwealth. Accordingly, the 
answer to your first question is in the negative. In light of this response 
with regard to the plan itself, it is unnecessary to answer your remaining 
inquiries. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



166 PD. 12 

Under the provisions of c. 54, § 23, M.G.L., and subject to the approval 
of the Executive Council, the Governor is obliged to make appoint- 
ment of supervisors of an election when proper petition is made. 

October 21, 1965. 
Hon. John A. Volpe, Governor of the Commonwealth. 

Dear Governor Volpe: — I have your letter of October 18, 1965, 
wherein you request my opinion upon the vahdity of a petition for the 
appointment of supervisors for the forthcoming election in the City of 
Somerville. The petition in question refers to the provisions of § 23 of 
c. 54 of the General Laws, and was filed in the office of the Governor on 
Monday, October 11, 1965. 

The petition alleges that certain irregularities occurred during the 
preliminary election held in Somerville on October 5, 1965. Included are 
charges that the Somerville Election Commission violated G. L. c. 54, 
§ 105 by permitting precinct workers to count ballots silently; that totals 
which had been compiled changed throughout the evening; and that 
many unsealed ballot envelopes were taken from polling places to the 
Somerville City Hall. The petition continues that the incumbent Mayor, 
Lawrence F. Bretta, appeared and solicited votes at polling places 
throughout the City, and that certain City employees worked at the 
polls on behalf of the Mayor. It is further charged that an employee of 
the Somerville Department of Public Welfare solicited votes for the 
Mayor from financial aid recipients; that the Election Commissioner 
hired employees of the office of the City Treasurer to count ballots; and 
that precinct workers were heard to have solicited votes for the 
incumbent Mayor. 

The petition concludes: 

"Now therefore we ask his Excellency the Governor, John A. Volpe, to 
intercede in the interest of good government and fair practice and 
exercise the provisions of Massachusetts General Laws Chapter 54, 
section 23 by appointing Supervisors in the coming Municipal election." 

The petitioners ask that supervisors be appointed for each voting 
precinct of each of the seven wards of the city. Attached to the petition 
are pages containing the signatures of at least ten qualified voters from 
each of the city's seven wards. In light of the above, you have asked the 
following: 

"In view of the fact that Tuesday, October 12, was a holiday, I would 
like to be sure the petition was legally filed within twenty-one days of 
the date of the election. I also would like to be sure that the petition 
otherwise conforms with the requirements of the General Laws, chapter 
54, section 23." 

General Laws c. 54, § 23 refers to a "written petition of ten qualified 
voters of a ward or of a town, presented at least twenty-one days before 
a state or city election therein. . . ." The present petition was filed on 
October 11, 1965, and relates to the election to be held on November 2, 
1965. The Supreme Judicial Court has consistently held that "in 
computing time from the date, or from the day of the date, or from a 



P.D. 12 157 

certain act or event, the day of the date is to be excluded, unless a 
different intention is manifested by the instrument or statute under 
which the question arises." 

Bemis v. Leonard, 118 Mass. 505, 506 

Roman Cath. Archbishop v. Board of Appeal, 

268 Mass. 416, 417 

And the Court has further concluded: "It is the general rule that where 
time is to be computed from a particular day or from the day of a 
specified act, such day is excluded and the last day of the period is 
included in the computation." 

Daley v. District Court of Western Hampden, 
304 Mass. 86, 94 

Excluding November 2 (the date of the election) from the calculation, 
but including the last day of the period in question, the twenty-first day 
before the election was Tuesday, October 12. 

Accordingly, it is clear that the petition was filed within the time 
period required by the statute, for — even excluding October 12 from the 
calculation — filing took place upon the twenty-first day prior to the 
election. It should be noted, however, that it is unnecessary to exclude 
the October 12 holiday, and that — in fact — it would be improper to do 
so. "Commonly in computing time limited to less than a week Sunday is 
excluded. Sunday is included in computation only where the time limited 
is of such length as necessarily to include one or more Sundays." 

Roman Cath. Archbishop v. Board of Appeal, swpra, 

at pages 417-418 

Stevenson v. Donnelly, 221 Mass. 161, 163. 

Legal holidays would presumably be treated in a similar fashion. [See 
G.L. c. 136, § 13, which section relates and applies portions of the so- 
called "Sunday Law" to the Commonwealth's legal holidays.] I find 
nothing in the language or the purpose of c. 54, § 23 which would 
support a conclusion that the normal treatment of Sundays and legal 
holidays referred to by the Supreme Judicial Court would not be 
applicable. October 12, despite its status as a legal holiday, must 
therefore be included in the calculation of the twenty-one day period. 
However, since the petition in question was actually filed on the twenty- 
second day prior to the election, it is clear that filing w^as timely 
irrespective of how the intervening legal holiday is to be treated. 

Likewise, an examination of the petition indicates that it is in proper 
form, and reveals nothing which would serve to invalidate it. General 
Laws c. 54, § 23 is obviously designed to facilitate the making of 
requests for appointment of election supervisors. 

"Upon the written petition of ten qualified voters of a ward or of a 
town, presented at least twenty-one days before a state or city election 
therein, the governor, with the advice and consent of the council, shall 
appoint for such ward or town or for each voting precinct named in the 
petition, two voters of the city or to\\Ti, who shall not be signers of the 
petition or members of any political committee or candidates for any 
office, to act as supervisors at such election. . . ." 



158 P.D. 12 

Mass. G.L., c. 54, § 23, as amended by St. 1962, c. 437, § 33. The 
statute is mandatory in nature, and — upon the presentation of a proper 
petition- — the Governor is without discretion to refuse to make the 
requested appointments. 

The Legislature has required only that a request be made, and that 
the requests be accompanied by the signatures of ten qualified voters from 
each ward for which supervisors are to be appointed. There are no other 
requirements. It is clear that the General Court has determined that 
election supervisors should be made available on the basis of an easily 
prepared and filed application, and that technical requirements and 
conditions are not to stand in the way of these appointments. 

The fact that the petitioners in the present case have included with 
their request a number of unnecessary allegations with regard to 
suspected election offenses in the City of Somerville does not invalidate 
the petition. The petition complies with the statute in that a request for 
the appointment of election supervisors is made and the proper number 
of signatures are attached. Additional material does not alter the fact 
that a proper request has been made, and such material must be treated 
simply as surplusage. To rule otherwise would be to impose upon 
petitions filed under c. 54, § 23 a requirement of technical precision 
which the Legislature never intended, and v/hich the statute simply does 
not contain, and to create unforeseen conditions upon the exercise of 
right guaranteed to qualified voters. 

It should be emphasized that action by the Governor upon a petition 
of this nature is required by law, and does not in any way indicate that 
allegations contained in the petition have been found to be true. The 
statute contains no provisions which would authorize investigations or 
hearings, and it is not the responsibility of the Governor to decide 
whether such allegations have merit. The appointment of election 
supervisors under c. 54, § 23 in no way irai)lies that any determination 
has been made with regard to the allegations of a specific petition or the 
conduct of elections in general in the municipality involved. 

Should the Governor be vested with authority to determine that 
proper requests have been invalidated by the inclusion of additional 
material, the statute becomes discretionary rather than mandatory in 
nature. The statute in its present form requires that action be taken 
upon petitions with the appropriate number of signatures. Nothing in 
c. 54, § 23 indicates that the Governor is to decide which requests are 
proper and which are not. Such a determination would change the entire 
character of the statute, and could defeat rights of a substantial nature 
which the Legislature intended the electorate to have. 

There is no doubt that the petition in question conforms completely 
with the requirements of c. 54, § 23. The fact that the petitioners 
attached signature sheets for each ward to a single petition rather than 
filing seven separate applications does not affect their right to have 
election supervisors appointed for each ward for which a sufficient 
number of valid signatures appears. Accordingly, it is my opinion that 
under the provisions of c. 54, § 23, and subject to the approval of the 



P.D. 12 159 

Executive Council, you are obliged to make the appointments which 
have been requested. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Massachusetts Commission Against Discrimination is empoivered to 
establish a new Division of Community Relations, and to appoint 
the head of such division, who will not be subject to the provisions 
of chapter thirty-one. 

October 26, 1965. 

Hon. INIalcolm L. Webber, Chairman, Massachusetts Commission 
Against Discrimination. 

Dear Sir: — I have your letter of October 20, 1965 requesting my 
opinion on the establishment by your Commission of a new division 
entitled the Division of Community Relations. 

Your request for my opinion contains four questions, each of which 
appears below followed by my response. 

1. Docs the Massachusetts Commission Against Discrimination have 
the authority, by \oiQ of its members, to create said Division of 
Community Relations? 

Paragraph 3, § 56, G. L. c. 6, provides that, "All employees of the 
commission, except an executive secretary, field representatives, the 
heads of divisions and attorneys, shall be subject to chapter thirty-one. . 
. ." [Emphasis supplied.] This language was inserted in 1946 when the 
Commission was first established. fSt. 1946, § 368.) The Commission at 
that time had no division or division heads. The Legislature would 
scarcely have referred to "heads of divisions" unless it had contemplated 
that from time to time the Commission would establish divisions. Section 
3 of O. L. c. 151B empowers the Commission to carry on a wide range of 
functions. The Commission is not only to conduct hearings with respect 
to complaints of discrimination; it is to conduct research, and also to 
coordinate far-ranging programs of community relations, education and 
study (G. L. c. 151 B, § 3. paragraphs 8 and 9.) These various activities 
lend themselves to grouping under a separate division or divisions. The 
newly created Division of Community Relations will evidently carry on 
the work authorized under G. L. c. 1.51B, § 3, paragraph 8, and, to some 
extent, paragraph 9. 

It is my opinion that the Commission is empowered to create said 
division. 

2. Is approval by the Governor or the Governor and Council, or any 
other body, or is any action, other than action by the Commission, 
necessary in order validly to create said Division of Community 
Relations? 

General Laws, c. 30, § 3 provides: 

"In all cases where the executive and administrative head of a 



160 P.D. 12 

department is vested with authority to establish therein divisions not 
specifically provided for by law, the establishment of such divisions shall 
be subject to the approval of the governor and council." 

However, this provision applies only to "a department." General Laws 
c. 30, § 1 defines "departments" as used in c. 30, to mean "all the 
departments of the commonwealth." The Commission Against Discrim- 
ination is not a "department of the commonwealth" but is a board or 
commission serving under the governor and council. G. L. c. 6, § 17. (See 
Article LXVI of the Amendments to the Massachusetts Constitution 
providing for organization of the executive and administrative work of 
the commonwealth into not more than twenty departments, but exempt- 
ing those officers serving directly under the governor or council. The 
Commission Against Discrimination is specifically placed within the 
latter category by G. L. c. 6, § 17.) 

Since G. L. c. 30, § 3 clearly does not apply, I know of no provision of 
law requiring the Commission to secure the approval of the Governor, 
Governor and Council, or other authority, as a precondition to the 
creation of a division. 

3. Once said Division of Community Relations is established, does 
the Commission have the authority to appoint its head? 

General Laws c. 151B, § 3(3), empowers the Commission to "appoint 
such attorneys, clerks, and other employees and agents as it may deem 
necessary, fix their compensation within the limitations provided by law, 
and prescribe their duties." 

This statute authorizes the Commission to appoint the head of the 
Division of Community Relations. 

4. Is the duly appointed head of said Division subject to the 
provisions of chapter thirty-one of the Massachusetts General Laws? 

The final paragraph of G. L. c. 6, § 56 expressly exempts division heads 
from chapter thirty-one. The exemption of "heads of divisions" dates 
back to the original legislation establishing the Commission. St. 1946, § 
368. Field representatives were not exempted until 1948, by St. 1948, § 
411. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 161 

There are no statutory barriers to the establishing, by the Commissioner 
of Mental Health, of a training center for selected personnel. 
However, in the teaching of electrology, it would be necessary to 
obtain approval of such a course of training from the Board of 
Registration of Electrologists. Furthermore, candidates who success- 
fully complete the course must be licensed by that Board before 
they could put into practice the training they have received at this 
course. 

October 27, 1965. 
Hon. Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Commissioner Solomon: — You state in your letter of July 26, 
1965 that Mr. Harry A. Cowan, the president of a foundation incor- 
porated under c. 180 of the General Laws, has presented a plan to 
provide training in electrology to some of your personnel. This plan calls 
for the establishment of a training center at which a number of the 
employees representing several of the institutions of which your depart- 
ment has charge "would attend a formal training course of one afternoon 
a week for approximately ten weeks" in "both the theory and practical 
application in the removal of facial hair by means of electrology." You 
add that the training center would be at "a selected State Hospital. . . . 
Subsequent to the successful completion of the required course of 
instruction, the employees will return to their own hospital and apply, 
under medical supervision, the knowledge that they have attained in the 
courses." 

In connection with the implementation of this plan, you ask the 
following questions: 

"1. Would there be any statutory barrier to our establishment of 
such a course of training? 

"2. Would it be necessary to obtain approval of such a course of 
training from the Board of Registration of Electrologists, Division of 
Registration, Department of Civil Service and Registration? 

"3. Would it be necessary for candidates who have successfully 
completed this course of training to obtain any type of licensure from 
the Board of Registration of Electrologists, Division of Registration, 
Department of Civil Service and Registration, before they could put into 
practice at their own institutions, under medical supervision, the training 
they have received at this course?" 

I shall answer your questions in the order presented. 

(1) I find no statutory barrier to the establishment of the "cou'^sc of 
training" outlined in your letter at any of your institutions. On the 
contrary, I call your attention to G. L. c. 123, § 3, which provides for 
the supervision and control of all public institutions for the mentally ill 
by 5'our department. As amended St. 1956, c. 715, § 8. The words 
"supervision and control" of public institutions are sufficiently broad to 
permit the establishment of courses of training for your personnel when 
such courses will benefit the patients under their charge. 

(2) I call your attention to G. L. c. 112, § 87LLL which requires 



162 



P.D. 12 



both schools and teachers of electrology be duly licensed by the board. 
General Laws c. 112, § 87LLL says, in material part, that: 

"The board and the commissioner of public health, acting in an 
advisory capacity, shall further establish standards to be met by said 
electrolysis school and shall require the school to maintain the prescribed 
course of study. When in the opinion of the board such standards have 
been met by said sch.ool, a license of approval shall be awarded to it. No 
school, not so licensed, may teach electrolysis." 

Electrology must be taught in a school licensed by the Board, by 
personnel licensed by the Board and such school must meet standards 
prescribed by the Board including a prescribed course of study. The 
Department of Mental Health may establish such a school but it must 
meet these requirements. Accordingly, I answer your second question in 
the affirmative. 

(3) Section 87FFF of G. L. c. 112 reads as follows: 

"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 the commonwealth. Whoever violates any provision of this 
section shall be punished by a fine of not more than one hundred 
dollars." 

This statute clearly requires that any person engaging in the practice of 
electrology, whether at a state hospital or anywhere else in this 
Commonwealth, be licensed by the Board of Registration of Electrol- 
ogists. 

It is axiomatic that the purpose of this registration statute is to 
protect the general public from incompetent practitioners of electrology. 
Certainly the people in public institutions are entitled to at least the 
same protection. I am aware of the opinion rendered on February 20, 
1941 by the then incumbent of this office to the then Director of 
Registration on a similar subject matter. I am of a different view. 
General Laws c. 112, §§ 87EEE to 87000 (Registration of Electrol- 
ogists) clearly require that any person engaging in the practice of 
electrology in the Commonwealth must be licensed, and I find no basis 
for reading an exception into this unequivocal language. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

It is constitutional and lawful for the General Court to enact legislation 
affecting the pension rights of a Justice where those rights accrued 
prior to the enactment of the legislation. 

November 4, 1965. 
Hon. John J. McCarthy, Commissioner of Administration. 

inPrf^i,^^^^^®®^^^^'^ McCarthy:— I have your request of October 20, 
1965 wherem you pose a question relative to the effective date of a 
pension for a deceased Justice of the First District Court of Essex 



P.D. 12 ^^ 

You state that the Justice died on February 3, 1964, prior to the 
enactment of c. 464, Acts of 1964 but subsequent to the effective date of 
that act. 

The resolution of this matter, therefore, involves the validity of a 
retrospective act of the General Court. Or, put in other terms, is it 
constitutional and lawful for the General Court to enact legislation 
affecting the pension rights of the Justice in question where those rights 
accrued prior to the enactment of the legislation? 

The answer to your question is clearly in the affirmative. Our Supreme 
Judicial Court has stated in Ford v. Retirement Board of Lawrence, 315 
Mass. 492, 494 (1944): 

"... The Legislature may prescribe the terms and conditions of 
pensions and retirement allowances, place the burden of paying thern on 
cities and towns, and pass retroactive statutes with reference to pensions 
and retirement payments. . . ." 

Under the appropriate statute, viz., c. 32, § 65C, the widow of the 
deceased Justice is entitled to the pension allowable thereunder from the 
date of the Governor's approval thereof, effective February 4, 1964. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



It is constitutionally and statutorily permissible, for the Legislature to 
provide that the Commonwealth pay local taxes on property that it 
occupies if under the terms of a lease it agrees to be responsible for 
such taxes. 

November 4, 1965. 

Hon. William G. Dwyer, President, Board of Regional Community 
Colleges. 

Dear President Dwyer: — In your letter of July 29, 1965 you request 
an opinion as to whether the payment of property taxes levied by the 
City of Boston on real estate leased from Boston University and 
occupied by the Massachusetts Bay Community College would be 
"legal." I infer that the taxes are to be paid from the appropriation 
contained in St. 1965, c. 541, Item 1361-00, which reads: 

"1361-00 Massachusetts Bay Community college, including not more 
than fifty-three permanent positions . . . $69,542" 

In a leading case, Boston Molasses Co. v. Commonwealth, 193 Mass. 
387, 390, the Supreme Judicial Court held that when the Commonwealth 
is the lessor of real property, it must pay appropriate local taxes on such 
property unless excused by statute or agreement. To the same effect are 
Gloucester Ice & Cold Storage Co. v. Assessors of Gloucester, 337 Mass. 
23, 30-34 and Atlantic Refining Co. v. Commonwealth, 339 Mass. 12, 13- 
14. The Court reasoned in the Boston Molasses case that the Common- 
wealth engages in the affairs of the marketplace on the same terms as 
any other party. 



164 PD- 12 

Applying this principle to the facts stated in your letter, I am of the 
opinion that it is "legal," i.e., constitutionally and statutorily permis- 
sible, for the Legislature to provide that the Commonwealth pay local 
taxes on property that it occupies if under the terms of a lease it agrees 
to be responsible for such taxes. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Real Estate Review Board is not required by law to determine the 
compensation to he paid to the Revere Housing Authority for the 
taking of real property from it for a parking lot by the Metro- 
politan District Commission under the authority of chapter 515, 
Acts of 1960. 

November 5, 1965. 
Hon. Francis W. Sargent, Commissioner, Department of Public Works. 

Dear Commissioner Sargent:— The following is in reply to your 
letters of August 2, and October 21, 1965 concerning the request by the 
Board of Review for a hearing by the Revere Housing Authority for the 
taking of land for a parking lot by the Metropolitan District Commis- 
sion under the authority of Chapter 515, Acts of 1960. 

In your letters of August 2, and October 21, 1965 you asked the 
following specific questions: 

"1. Is the Real Estate Review Board required to act in a quasi 
judicial capacity to determine the land damages to be paid to a city, 
town, authority or state agency if neither party is the Department of 
Public Works? 

"2. If the answer to question 1 is in the affirmative, who is required 
to pay the compensation of the Review Board for said service? 

"3. Is the Real Estate Review Board required by law to determine 
the land damages to be paid to the Revere Housing Authority for the 
taking of its land for a parking lot by the Metropolitan District 
Commission under the Authority of Chapter 515, Acts of 1960?" 

Chapter 403 of the Acts of 1954, "An Act Providing For An 
Accelerated Highway Program," authorized and directed in Section 1 
that the State Department of PubMc Works and the Metropolitan 
District Commission expend certain sums of money: 

"for projects for the laying out, construction, reconstruction, resurfac- 
ing and relocation of highways, parkways, bridges, grade crossing 
eliminations and alterations of crossings at other than grade, for traffic 
safety devices on state highways, parkways and on road>: constructed 
under the provisions of section thirty-four of chapter ninetv of the 
General Laws and for traffic studies." 



P.D. 12 165 

Similar language authorizing the expenditure of funds for such purposes 
appears in subsequent statutes authorizing the construction and financ- 
ing of specified highway projects. 

The Real Estate Review Board was created by Section 6, Chapter 403, 
Acts of 1954. It has been continued in each subsequent statute authoriz- 
ing the financing and construction of highways by the State Department 
of Public Works. 

In connection with those projects said Chapter 403 of 1954 provided 
that the "department and the commission may . . . take by eminent 
domain . . . public or private lands ... for carrying out the provisions of 
this act . . . ; provided, that no damages fihall be paid for public lands or 
parks, parkways or reservations so taken.'' [Emphasis supplied.] 

Chapter 693, Acts of 1955 provides in Section 1: 

"Notwithstanding any provisions of law . . . authorizing the taking by 
eminent domain or otherwise of certain public lands for highway 
improvements without the payment of damages therefor, the state 
department of public works or such other department, authority or 
public agency as may be involved is hereby authorized and directed to 
pay to the city, tovm. department, authority or agency in possession of 
lands so taken, transferred or used an amount to be mutually agreed 
upon." 

Chapter 657 of the Acts of 1957 amended Chapter 693 of the Acts of 
1955 by providing that if "the parties concerned are unable to mutually 
agree . . . the matter shall be referred to the real estate review board 
created by section six of chapter four hundred and three of the acts of 
nineteen hundred and fifty-four which shall determine the amount to be 
paid and said determination shall be final." [Emphasis supplied.] 

The language of Chapter 693 of the Acts of 1955 stating ". . . 
provisions of law . . . authorizing the taking ... of certain public lands 
for highway improvements without the payment of damages therefor" 
refers to projects such as those of the type specifically described in 
Chapter 403 of the Acts of 1954 and subsequent Highway Bond Issue 
Statutes. 

The Metropolitan District Commission was "authorized and directed" 
bv Chapter 515 of the Acts of 1960 to take certain land owmed by the 
Revere Housing Authority "for the purpose of constructing and there- 
after maintaining and operating thereon a public parking area." That 
project is not referred to as a "highway improvement" in said Chapter 
515. There is no reference to the Review Board in said Chapter 515 of 
1960. The Metropolitan District Commission complied with said Chapter 
515 by an order of taking, dated September 20, 1962. 

Parking areas of the type authorized by Chapter 515, Acts of 1960 
have not been included in the specific types of projects described in 
Chapter 403 of the Acts of 1954 and subsequent Highway Bond Issue 
Statutes. The phrase "highM^ay improvements" in Chapter 693 of the Acts 
of 1955, as amended, was used by the Legislature to describe the specific 
types of projects referred to in the statutes creating and continuing the 
Review Board. 



166 PD. 12 

The Real Estate Review Board is required to determine land damages 
to be paid to a city, town, authority or state agency, though neither 
party may be the Department of Public Works, provided that the 
project causing such damages, its authorization and the funds for the 
payment therefor derive from Chapter 403 of the Acts of 1954 or 
subsequent Bond Issue Statutes that impose responsibilities upon said 
Board in the implementation of "highway improvements." 

Compensation of the Real Estate Review Board shall be paid from the 
funds made available by the bond issue or other appropriation for the 
project from which the specific case or cases being considered by said 
Board arise. 

The Real Estate Review Board is not required by law to determine the 
compensation to be paid to the Revere Housing Authority for the taking 
of real property from it for a parking lot by the Metropolitan District 
Commission under the authority of Chapter 515, Acts of 1960. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Gloucester Community Pier Association, Inc., can sub-lease part of 
the Gloucester Fish Pier without the permission of the Department 
of Public Works. However, no sub-lessee can operate any part of the 
pier in violation of specific legislative restrictions on, and directions 
for the use of the premises, or the Declaration of Trust of the 
Association, dated April 21, 1937. 

November 5, 1965. 
Hon. Francis W. Sargent, Commissioner, Department of Public Works. 
Re: Gloucester Community Pier Association Lease. 

Dear Commissioner Sargent: — You have requested my opinion on 
two questions which concern the lease between the Commonwealth of 
Massachusetts and the Gloucester Community Pier Association, Inc. 

Chapter 311, Acts of 1931 provided for the construction and leasing by 
the Commonwealth of a fish pier in Gloucester for the purpose of 
improving Gloucester Harbor and its commercial fishing facilities. 
Chapter 303, Acts of 1936 amended said Chapter 311 of 1931 in its 
entirety. Chapter 29, Acts of 1937, effective on February 15, 1937, 
defined the corporation which was to be the lessee from the Common- 
wealth of the new pier and surrounding flats and harbor. 

The Gloucester Community Pier Association, Inc., hereinafter on 
occasion referred to as the Association, was certified by the Commis- 
sioner of Corporations and Taxation as qualifying under the provisions 
of Chapter 303 of 1936. On February 26, 1937 the Commonwealth and 
the Association executed a lease covering the pier and environs in East 
Gloucester pursuant to the three statutes cited in the next preceding 
paragraph. On March 1, 1936 the Commonwealth and the Association 
executed an agreement concerning construction of the pier and harbor 
facilities. On April 21, 1936 the Association declared itself trustee of all 
its interest in the leased property, ". . . to hold, use, occupy, maintain, 



P.D. 12 

improve and operate the same in trust to and for the benefit of all 
pTons engaging in the fish and fishing industries, wi hout discrimina- 
tion To this end the said property and facilities shall be operated m 
uch manner as to make such facilities available at the lowest charges 
consonant with good management and without ultrnia e profit to the 
said Corporation or its members, either directly or indirectly. 

Since 1937 the original lease has been extended from time to time with 
various changes of rental under the authority of Chapter 653, Acts of 
1945 Chapter 663, Acts of 1947, Chapter 650, Acts of 1958, Chapter 675, 
Acts'of 1960, and Chapter 609, Acts of 1965. Your attention is invited to 
the fact that the Department of Public Works was unable to provide 
this Department with copies of the 1945, 1947, and March 28, 960 
extensions of the lease. This opinion, therefore, is based upon the 1937 
lease and the probable contents of its extensions. 

Your first question is: 

"Under the conditions of the lease, can the Gloucester Community 
Pier Association, Inc., sub-lease a part of the Gloucester Jish Pier 
without permission of the Department?" 

It is my opinion that the Gloucester Community Pier Association, 
Inc., can sub-lease part of the Gloucester Fish Pier without the 
permission of the Department of Public Works. The lease between the 
Commonwealth and the Association, dated February 26, 1937, includes 
on page 4 the provision: 

" and the lessee further covenants and promises with and to the 
said lessor that it or others having its estate in the premises will not, 
without the consent of the lessor first obtained in writing, assign this 
lease . . ." 

This is the only language in the entire lease which defines any 
restraint upon the power of the lessee to convey its interest to another. It 
is to be noted that there is no language in the lease which could be 
construed as a limitation of the power of the lessee to sub-lease the 
premises. 

Chapter 29 of the Acts of 1937 contains the following language: 

"Said lessee corporation, if not the City of Gloucester, shall be a 
corporation organized for the purpose of administering said pier and its 
facilities without profit and in such manner that said pier and its 
facilities shall be available, to the extent of their capacity, to fishermen, 
fish dealers and the fishing industry generally, subject to such reasonable 
regulations under the lease as the corporation may deem necessary or 
desirable for the purpose, and to the right of the corporation from time^ to 
time to sublease or license the use of portions of such pier or its facilities, 
or structures on such pier, to persons engaged in the fishing industry or 
business incidental thereto . . ." [Emphasis added.] 

There is no conflict between the lease provision against assignment and 
the legislative phrase permitting sub-leasing. An assignment is a dis- 
tinctly different and more complete transfer of an entire interest in 
property. A sub-lease permits control of property or its use to be defined 



168 PD. 12 

and enforced by a lessor to whatever extent may be desired and included 
in such an instrument. 

"The distinction between an assignment and a sublease of demised 
premises is well-established. A transfer by the lessee of the whole or a 
specific part of the leasehold estate for the residue of the term is an 
assignment. A transfer by the lessee of the whole or a specific part of the 
leasehold estate for a part of the term is a sublease." Marcelle, Inc. v. 
Sol. and S. Marcus Co., 274 Mass. 469 (1930) . 

Both the existing lease and the enabling act empower the Gloucester 
Community Pier Association, Inc., to sub-lease and to license the use of 
the premises under lease. Nowhere does there appear a requirement of 
written approval by the Department of Public Works of any sub-lease or 
license. However, it must be noted that the authority to sub-lease or to 
license is limited to the sub-lessees or licensees being engaged in the 
fishing industry or in a business connected with fishing. The Association 
must comply with its Declaration of Trust of April 21, 1937 and with the 
previously cited enabling legislation in order to exercise effectively its 
power to sub-lease or license. 

Your second question is: 

"Also, can a sub-lease operate any part of the pier in such a manner 
that it is not open to all on an equal basis?" 

Generally a sub-lessee acquires possession of the leased premises for 
that period of time defined in the sub-lease. A sub-lessee pays rent for a 
right of possession. Therefore, as a general rule he is entitled to operate 
the leased premises which he sub-leases in such a manner that his 
possession is uninterrupted. In those general circumstances a sub-lessee 
could operate part of the leased premises so that they were not open to 
all on an equal basis. However, a sub-lessee can acquire no rights in the 
premises greater than those of the lessor. In this instance there are 
specific legislative restrictions on and directions for the use of the 
premises included in the previously cited enabling legislation. No sub- 
lessee could operate any part of the pier in violation of those legislative 
mandates or the Declaration of Trust of the Association, dated April 21, 
1937. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Upon the death of a patient ivho ha? not executed a written authoriza- 
tion for an inspection of records, inspection of medical records of the 
Soldiers' Home may be accomplished only by judicial order. 

November 15, 1965. 

Hon. John L. Quigley, Commandant, Soldiers' Home, Chelsea. 

Dear Commandant Quigley: — I am in receipt of your letter of 
October 7, 1965, requesting my opinion regarding the release of medical 
records and autopsy findings to the next of kin of deceased patients. 



P.D. 12 169 

Your letter raises two questions: is the Soldiers' Home to be governed by 
the provisions of O. L. c. Ill, § 70, and; if so, how arc the provisions of 
that section to be applied. 

G. L. c. Ill, § 70, which regulates the inspection of medical records, 
provides in part as follows: 

"Hospitals, dispensaries or clinics, and sanatoria licensed by the 
department of public health or supported in whole or in part by the 
commonwealth shall keep records of the treatment of the cases under 
their care and the medical history of the same. . . . such records and 
similar records kept by such hospital, dispensary or clinic, or sanatorium, 
except a hospital or clinic under the control of the department of mental 
health, viay be inspected by the patient to whom they relate or by his 
attorney upon delivery of a written authorization from the said patient. 
. . ." [Emphasis added.] 

From a reading of the language of the above-quoted provision, it is 
manifest that application of § 70 is limited to two specific categories of 
hospitals, clinics, dispensaries and sanatoria: (1) those licensed by the 
Department of Public Health; and (2) those supported in whole or in 
part by the Commonwealth. Despite these limitations on the scope of § 
70, the section is considerably broader in its present application than it 
was at the time of an earlier opinion of the Attorney General dated 
January 2, 1962, and referred to in your request. At that time, 
application of § 70 was restricted solely to institutions licensed by the 
Department of Public Health. The earlier provision for the application 
of § 70 to "hospitals supported in whole or in part by contributions from 
the Commonwealth or from any town. . . ." was eliminated by the 1956 
amendment. As a result, therefore, of the limited scope afforded by the 
1956 amendment, providing for the application of § 70 only to institu- 
tions licensed by the Department of Public Health, it was the opinion of 
this office that the Soldiers' Home was not within the purview of the 
provisions of § 70. However, in view of the 1964 amendment which 
broadened the applicability of § 70 by replacing within the scope of the 
section institutions supported by the Commonwealth, the earlier opinion 
is now obsolete. 

Since the Soldiers' Home is an institution supported at least in part by 
the Commonwealth, it meets one of the current criteria for application of 
§ 70. Accordingly, it is my opinion that the inspection and furnishing of 
medical records of patients of the Chelsea Soldiers' Home are to be 
governed by the procedures of § 70. 

So far as the application of § 70 is concerned, records may be 
inspected by the patient to whom they relate or by his attorney upon 
written authorization by the patient. They may also be inspected upon 
judicial order or — under certain circumstances — upon the order of the 
head of the State Department having jurisdiction over the institution in 
question. This statutory language is clear and concise. In the situation 
that you have cited — in which the patient has died without executing a 
written authorization — only a judicial order can authorize next of kin or 
interested parties to inspect such records. The medical records of such a 
deceased patient would thus be available to his family and/or their 
attorney in connection with pending proceedings. 



170 PD- 12 

It is my opinion, therefore, that when the patient is dead and there is 
no written authorization from him, inspection of medical records of the 
Soldiers' Home may be accomplished only by judicial order. To this 
extent, I affirm the conclusions reached in the earlier opinion of my 
predecessor in this Department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

There is no constitutional barrier to the use of public funds by the 
Massachusetts Rehabilitation Commission in connection with the 
training of a handicapped person toward employment as a priest. 

November 22, 1965. 

Hon. Francis A. Harding, Commissioner, Massachusetts Rehabilitation 
Commission. 

Dear Sir: — You have requested my opinion as to whether there is any 
constitutional barrier to the use of public funds by your Commission in 
connection with the training of a handicapped client toward employment 
as a priest. You indicate that the client, who is otherwise qualified to 
receive the Commission's assistance, has the necessary approval of the 
Diocese of Worcester to ". . . enter a seminary to attain the priesthood 
rank and to work as a secular priest. . . ." 

In response to a similar question which you raised in a letter dated 
May 16, 1962, my predecessor in this Department issued an opinion on 
June 1, 1962, stating in part: 

"... Your commission is empowered to administer a general program to 
aid handicapped persons. The rendering of such services is similar to the 
provision of free transportation and other aids to students attending 
both public and parochial schools which has been held not to offend 
either the State or Federal Constitutions. ... In all such cases the aid is 
given or the services rendered to individuals and not to religious 
institutions. Therefore, it is my opinion that there is no conflict between 
any State or Federal constitutional . . . [provision] regarding the 
separation of Church and State and your commission's extending its 
services to an otherwise eligible person who intends to become a priest." 
[Citing Everson v. Board of Education, 330 U.S. 1.] 

Your present request raises, in essence, the same question as that 
presented in your May 16, 1962 letter. The earlier opinion, from which I 
have quoted, still expresses the law with respect to the constitutional 
prohibition against "establishment of religion" by the State. Nothing 
contained in the "school prayer" opinions rendered by the United States 
Supreme Court in 1963 [School District of Abington Township, Pa. v. 
Schempp and Murray v. Curlett, 374 U.S. 203] affects this conclusion. 
Accordingly, it is my opinion that there is still no barrier to your 
Commission extending its rehabilitation services to an otherwise eligible 
person who intends to enter the priesthood. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 171 

A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth, irrespectvie of how unrelated the 
positions in question may be. 

November 22, 1965. 
Major General Joseph M. Ambrose, The Adjutant General. 

Dear Sir: — I am in receipt of your recent request for an opinion 
concerning the employment of Brigadier General Theodore W. Grara- 
storff as a Range Officer, a full-time post for which the maximum salary 
is $117.85 per week. You have indicated that General Gramstorff 
presently holds the position of State Inspector for the Military Division 
of the Commonwealth under the provisions of G.L. c. 33, § 15(1). The 
duties of the State Inspector are apparently part-time in nature, and 
General Gramstorff would continue to perform them while functioning as 
Range Officer. 

Both the position of State Inspector and that of Range Officer are 
within the Military Division of the Commonwealth, and the salaries of 
each are paid out of appropriations made for the Division by the 
General Court. You have asked whether General Gramstorff may 
lawfully hold these positions simultaneously, and receive a salary for 
each. You have informed me that General Gramstorff is receiving no 
compensation for performing the duties of either position pending a 
determination by the Department of the Attorney General. 

General Laws, c. 30, § 21 provides as follows: 

"A person shall not at the same time receive more than one salary 
from the treasury of the commonwealth." 

Although there is no prohibition against the receipt of compensation on a 
consultant basis from more than one governmental source, c. 30, § 21 
does impose a strict bar against the receipt of two regular salaries. The 
positions of State Inspector and Range Officer are compensated from the 
so-called "01" accounts — i.e., the incumbent of each position is paid on a 
regular salary basis, and is not paid as a consultant. 

I am aware of the fact that the duties of State Inspector may be 
accomplished during General Gramstorff's off-duty hours, and that they 
would probably not conflict with his regular employment as Range 
Officer. However, the operation of c. 30, § 21 does not depend upon an 
actual or potential conflict between the positions involved. This section 
prohibits the receipt of two salaries, irrespective of how unrelated the 
positions in question may be. General Gramstorff may of course serve and 
be compensated as either Range Officer or State Inspector. But I can 
only conclude — in light of the clear language of c. 30, § 21 — that receipt 
of compensation for both positions would constitute a violation of the 
General Laws of the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



172 PD- 12 

// a person brings an appeal under the provisions of c. 31, § 46 A 
wherein c. 31, § 4^ has not been complied with and the Civil Service 
Commission determines that the rights of the complainant have been 
prejudiced, the complaint should be immediately restored without 
loss of compensation or other rights; if it is determined that the 
rights of the complainant have not been prejudiced, the complaint 
should be denied. 

November 22, 1965. 

Miss Lauretta L. Kellaher, Secretary to the Commission, Division of 

Civil Service. 

Dear Miss Kellaher: — In your letter of September 2, 1965 you have 
asked my opinion with regard to the present provisions of G. L. c. 31, 
§ 46A. Your specific question is as follows: 

"If a person brings an appeal under the provisions of said Section 46A 
wherein G.L. c. 31, § 43, was not complied with, is the Civil Service 
Commission required to reinstate, or is it simply a matter of giving the 
Civil Service Commission a right to hear the case on the merits and 
make a decision as to whether the action of the appointing authority was 
justified?" 

The provisions of G.L. c. 31, § 46 are inte"grally related to G.L. c. 31, 
§ 43(a). The latter section sets forth the procedure for discharging, 
laying off, transferring or taking other specific action against persons 
protected by that section. 

Where the agency head is alleged to have proceeded illegally, the 
employee may bring a petition for mandamus pursuant to G. L. c. 31, 
§ 46A, asking that the action be set aside and that he be reinstated. 

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 removed from his office or employment under this chapter; 
provided, that such petition shall be filed in said court within six months 
next following such allegedly illegal removal, unless said court for cause 
shown extends the time." (As enacted by St. 1930, c. 243.) 

It is well established by decisions of our Supreme Judicial Court that a 
discharge involving failure to follow exactly the procedures in § 43(a), 
constitutes an illegal discharge requiring the immediate reinstatement of 
the employee. 

Chartrand v. Registrar of Motor Vehicles. 

347 Mass. 570 (1964) 

Bois V. Mayor of Fall River, 

257 Mass. 471 (1926) 

Peckham v. Mayor of Fall River, 

253 Mass. 590 (1925) 

It is equally well established that mandamus raises only procedural 
matters and that if the employee, instead of bringing mandamus. 



P.D. 12 ^^^ 

requests a review under § 43(b), procedural deficiencies would be 
waived. 

Beaumont v. Director of Hospitals and Superintendent of Boston City 

Hospital, 
338 Mass. 25 (1958) 
Daley v. District Court of Western Hampden. 
304 Mass. 86 (1939) 

Bv St 1959 c 569 § 5, a second paragraph was added to § 46A. The 
iudicial remedy was retained. A new administrative remedy was added. 
Under the present section, as amended, the employee may file with the 
Civil Service Commission a complaint "setftingl forth Ju^t how^ the 
appointing authoritv has failed to follow the requirements of § 43. He 
mav file this complaint separately or he may combine this complaint 
with "fa] request . . . for a hearing under the provisions of said [s 4oi. 

G. L. c. 31, § 46A. 
* * # * 

"If any person alleges that his employment or compensation has been 
affected W action of the appointing authority in failing to follow the 
requirements of section fortv-three, he may file a complaint with the 
civil service commission within seven days, exclusive of Saturdays 
Sundavs and holidays, after the said action has been taken. Said 
complaint shall set forth just how the appointing authority has failed to 
follow the requirements of section forty-three. This complaint may be 
filed with the request of the said person for a hearing under the 
provisions of said section forty-three and if it is determined by the civil 
service commission that the said authority has failed to follow the 
requirements of section forty-three and that the rights of said person 
have been prejudiced thereby, the said commission may order the said 
appointing authoritv to restore immediately said person to his employ- 
ment without loss of compensation or other rights." 

Where a complaint is filed only under § 46A, the issues to be 
determined bv the Commission are specifically set forth in the text of the 
section cited above. The Commission must make two determinations. 
First, has the appointing authority failed in some way to follow the 
requirements of § 43? Secondly, has this failure prejudiced the rights of 
the complainant? Such a determination is similar, if not identical, to the 
finding required of a court in mandamus. The only difference is that the 
tribunal is administrative, not judicial. These determinations are proce- 
dural, and. as in mandamus, it would be improper to make any decision 
on the merits. 

Where a § 46A complamt is combined or filed with a request for a 
§ 43 hearing, an additional determination with regard to the merits might 
be required" of the Commission. This would be the situation where the 
procedural issues w^ere not determinative of the case. In such an instance, 
the Commission would be required to pass on the merits.* 

Once the Commission renders its decision. § 46A states in permissive 
language that "the said commission may order the said appointing 



174 PD. 12 

authority to restore immediately said person to his employment without 
loss of compensation or other rights." The mandamus cases, however, 
have established that an employee must be immediately reinstated where 
he is prejudiced by a procedural failure. 

Your question is discussed at length above. It might be of some aid, 
however, if my opinion were set out in an outline form, which follows : 

^A request filed solely under § 43(b) would raise only the merits of the case. 

§ 46A Matters. 

1. If the commission determines there has been no failure to follow 
§ 43, the complaint should be denied. 

2. If the commission determines that there has been a failure to follow 
§ 43 but that the rights of the complainant have not been prejudiced, 
the complaint should be denied. 

3. If the commission determines that there has been a failure to follow 
§ 43 and that the rights of the complainant have been prejudiced, the 
complainant should be immediately restored without loss of compensa- 
tion or other rights. 

Combined Matter (§ 43 and § 46 A) . 

4. If the commission determines there has been no failure to follow 
§ 43, the commission should proceed and determine the case on the 
merits. 

5. If the commission determines that there has been a failure to follow 
§ 43 but that the rights of the complainant have not been prejudiced, 
the commission should proceed and determine the case on the merits. 

6. If the commission determines that there has been a failure to follow 
§ 43 and the rights of the complainant have been prejudiced, the 
commission should not proceed to a determination on the merits but the 
complainant should be immediately restored without loss of compensa- 
tion or other rights. 

§ 43 Matters. 

7. The commission should make its determination on the merits. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



175 

P.D. 12 

"<^tate colleqes" does not include the office and personnel within the 
^'^mZionof State Colleges employed by the Trustees. 

, .,, J. ryo ^,T r T n-n-nlip'i oulij to thosc persons elected to 

or employed thereafter. 

ZTZ administrative procedures have been comphed wtth. 

Onlu those persons employed by the state colleges on the effective date 

<Jmtnosep f servants and persons cowered by G. L c. 

t% 9Aa:d m retain (/>e.r respeeii.e ^over-ge a^ter ^e effeei^^ 

7 f, r.i fhp nPin leaislation. The provisions of G. L. c. 3U, ^^JA ana 
tfand GLc. sTshaUhave no application to persons not covered 
on the effective date or persons employed thereafter. 

November 22, 1965. 

Mr John Gillespie, Director, Division of State Colleges. 

Dear Mr. Gillespie: -You have asked "^^ ^Pinion in refer^^^^ 
rprtain oroblems raised by the recent passage of St. 1965, c. 572. in the 
text^ vour letter you have asked a series of questions relating to this 
sta ute Two o them were already numbered. The other questions have 
alsfbeen numbered. The two questions previously numbered have been 
Renumbered to reflect the order in which they appear m your letter. 

1 Does the term "state colleges" as used in sections 44 45 and 45 (c) 
include the office and personnel of the Division of State Colleges? 

The Division of State Colleges is referred to as an entity in G. L. c. 73, 
§ ID This section authorizes the division to "have a common seal, 
which may be altered by the trustees." No mention is made m this 
section of the composition of the division. This must be ascertamed from 

the chapter as a whole. . , u ^ >. j i 

In § 1 of c 73, the trustees are authorized to "adopt, amend or repeal 
such rules and regulations for the government of any such college for the 
management, control and administration of its affairs, for its faculty, 
students and employees, and for the regulation of their owti body, as 
they deem necessary." Various additional powers with regard to per- 
sonnel and the administration of the state colleges are given to the 
trustees in § 16. Certain of the powers may be delegated to the director 
of the Division of State Colleges or any officer of a state college. 

The term "state colleges" is not specifically defined m G. L. c. 73. in 
§ 10 the term "state college" as used in §§ 10-18 of this chapter is required 
to include the Massachusetts College of Art. This would mfer thaj the 
state colleges comprise a number of individual institutions ihese 
institutions are not listed collectively in any one section. Individual 
colleges are referred to, however, in various sections: i.e., Massachusetts 
College of Art and Massachusetts Maritime Academy m § 1, the college 



176 



P.D. 12 



at North Adams in § 2, the colleges at Boston, Fitchburg and Lowell in 

§3. 

Though the term "state colleges" is not defined in G. L. c. 73 and each 
college is not listed, it is clear that the term "state colleges" means those 
institutions known as "state colleges" located throughout the Common- 
wealth, including their respective employees. 

There is notinng in the provisions oi St. 1965, c. 572 to indicate a 
different result. The old board of trustees is abolished by § 40. The 
composition of the new board is defined in § 3. The length of office of 
each trustee is set in accordance with § 50. 

The state colleges are dealt with in §§ 44 and 45. In § 44 the 
"professional staff ... of the state colleges shall serve at the pleasure [of 
the board of trustees]." Under § 45, the provisions of G. L. c. 30, §§ 9A, 
B and G. L. c. 31 "shall not apply to persons employed at the state 
colleges subsequent to the effective date of this act." 

No mention is made in St. 1965, c. 572 of the Division of State 
Colleges except indirectly by amendment of the first paragraph of G. L. 
c. 73, § 1. The term "Division of State Colleges" was not deleted by 
amendment from G. L. c. 73. The interrelationship between the three 
entities, the Division of State Colleges, the Board of Trustees of State 
Colleges, and the state colleges remains the same as established by G. L. 
c. 73. 

This relationship is not dissimilar from many other state agencies. The 
subdivision of the Commonwealth is entitled "Division of State 
Colleges." The two entities within this agency are the Board of Trustees 
of State Colleges and the individual institutions known collectively as 
the state colleges. 

The Board of Trustees or the director of the Division of State Colleges 
by authority of the Board and the individual state colleges are the 
employing authorities. Persons employed by these entities are in a sense 
all employees of the Division of State Colleges since they are within that 
subdivision of the Commonwealth. The converse is not true. Not all 
employees of the Division of State Colleges are directly employed by the 
state colleges. 

The specific term used in St. 1965, c. 572, §§ 44, 45(c) is "state 
colleges." In answer to your first question, on the basis of the language 
used in these sections and the organizational structure established in G. 
L. c. 73, it is my opinion that the term "state colleges" does not include 
the office and personnel within the Division of State Colleges employed 
by the trustees. These employees do not come within the reorganization 
act and their status is unaffected by this legislation. 

2. Does the provision [St. 1965, c. 572, § 44] then supersede Section 
4B of Chapter 73 of the General Laws as far as professional persons 
newly employed by the Division and the colleges are concerned after the 
effective date of the said Chapter 572? 

General Laws c. 73, § 4B provides that a teacher may become eligible 
for election to the faculty of a state college after three years employ- 
ment. Elections under the statute are not automatic, but are discre- 
tionary with the Board of Trustees. Upon election the board employs the 



P.D. 12 177 

teacher "to serve at its discretion." An elected teacher may be dismissed 
only by following a prescribed procedure. 

G. L. c. 73, § 4B. 

"The board of trustees, in electing a teacher in a state college or the 
Massachusetts college of art who has served as such for the three 
previous consecutive school years, shall employ him to serve at its 
discretion, and, notwithstanding any contrary provision of general or 
special laws, he shall not be dismissed from such employment except for 
just cause and for reasons specifically given him in writing by the said 
board. Before any such removal is effected, the said teacher, upon his 
request, shall be given a full hearing before said board, of which hearing 
he shall have at least thirty days written notice from said board, and he 
shall be allowed to answer charges preferred against him, either per- 
sonally or by counsel." 

The rights of persons who have gained tenure by election to the 
faculty of a state college are retained by St. 1965, c. 572, § 44. Under 
this section, the "tenure of office of any member of [the professional] 
staff on the effective date of this act shall not be impaired." Any such 
employee may only be discharged after a full hearing and written notice 
in accordance with § 4B. 

Under § 44, professional persons not elected to the faculty on the 
effective date of St. 1965, c. 572 and persons employed thereafter serve at 
the pleasure of the Board of Trustees. The term "at the pleasure of their 
respective boards" has legal implications similar to the phrase "at its 
discretion" used in § 4B. (Cf. Marrone v. City Manager of Worcester, 
329 Mass. 378 (1952); Davis v. Boston Elevated Ry., 235 Mass. 482 
(1920).) 

The process by which this status is attained pursuant to § 44 is, 
however, quite dissimilar from § 4B. There is no three-year trial period 
or election by the Board of Trustees. Instead, a new employment 
relationship is created which stems entirely from this new act, a 
relationship which effectively supersedes § 4B. 

In answer to question two, in light of this new legislation, it is my 
opinion that § 4B applies only to those persons elected to the faculty of 
a state college prior to September 26, 1965. The provisions of § 4B of c. 
73 are superseded by § 44 with regard to teachers unelected on the 
effective date of said chapter or employed thereafter. 

3. What is the meaning of the term "approval" [as used in Acts of 
1965, c. 572, § 45(b) : "that without the approval of the director of civil 
service and the director of personnel and standardization the employee 
shall not, as the result of such transfer, be placed in a position of the 
higher salary grade."] ? 

The provisions of St. 1965, c. 572 reorganize the Department of 
Education and the state colleges. The process of reorganization might 
well have destroyed certain emplovce benefits had such benefits not 
specifically been protected. Special provision is made saving those 
benefits earned under G. L. c. 30, §§ 9A and B, as well as G. L. c. 31. 
These benefits continue after the effective date of the statute. 



178 P-I>- 12 

One of the personnel benefits enjoyed by persons protected by 
permanent appointment to the Civil Service or by virtue of G. L. c. 30, 
§§ 9A and B is the right not to be transferred to another position 
without first obtaining the transferee's approval. The delay in or the 
failure to obtain such approval might effectively work to block the 
reorganization. In order to prevent such an impasse, the Legislature 
provided in § 45 that "any state employee may be transferred to any 
position in his respective employing unit so reorganized." By including 
this section, the General Court effectively prevented such a delay and 
authorized transfers without employee approval. 

Such transfers are not free from certain conditions. The first of these is 
contained in the part of the statute quoted above. No transfer may be 
made outside of an employment unit. In addition, certain further 
conditions are imposed. An employee may not be transferred to a 
position paying a lower salary. Nor may an employee be transferred to a 
position paying a higher salary without the approval of the Director of 
Civil Service and the Director of Personnel and Standardization. 

Section 45. "... provided, however, that to staff the said department 
and the state colleges as reorganized by this act, any such employee may 
be transferred to any position in his respective employing unit as so 
reorganized; provided further, however, (a) that the employee's salary 
shall not be reduced as the result of such a transfer; (b) that without the 
approval of the director of civil service and the director of personnel and 
standardization the employee shall not as the result of such a transfer, be 
placed in a position of higher salary grade. . . ." 

The approval given by the Director of Civil Service and the Director 
of Personnel and Standardization does not imply an independent deter- 
mination of the requirements of the various state colleges. The needs of a 
specific institution or the colleges collectively is a matter for the Board 
of Trustees. The "approval" here required is a thorough check to insure 
that the transfer papers are in order and that the administrative 
procedures have been complied with. 

4. Does Section 45(c) of Chapter 572 of the Act of 1965 . . . [amend] 
Section 16 of Chapter 73 of the General Laws and thereby [remove] 
from the Division and the state colleges the restrictions imposed by 
Chapter 30 and 31 of the General Laws in regard to persons employed or 
newly employed by them or after the effective date of said Chapter 
572? 

Section 16 was added to G. L. c. 73 by St. 1963, c. 642, § 15. This 
section defines certain employee classifications and the powers of the 
trustees, and refers generally to personnel matters. General Laws c. 30 is 
mentioned only in regard to the "General Salary Schedule" and "nonpro- 
fessional personnel." No specific reference is made to G. L. c. 31. 

The last paragraph states: "All officers and employees, professional 
and non-professional, of the colleges shall continue to be employees of 
the commonwealth . . . [with] the same privileges and benefits of other 
employees of the commonwealth. . . ." This paragraph and the section as 
a whole might have been construed as requiring civil service appoint- 



P.D. 12 179 

ments and tenure benefits pursuant to G. L. c. 30. Such an interpretation 
cannot stand, however, if superseded by a latter enactment. (See Pease 
V. Whitman, 5 Mass. 380 (1809).) 

The provisions of St. 1965, c. 572 are subsequent to St. 1963, c. 642. In 
§ 45, the tenure of persons having such benefits under G. L. c. 31 and G. 
L. c. 30, §§ 9A and B were preserved. The section states: "Nothing in 
this act shall be construed to impair the . . . tenure ... of any permanent 
civil service employee, or veteran covered by [G. L. c. 30, § 9A], or of 
any maintenance employees covered by [G. L. c. 30, § 9B], employed on 
the effective date of this act. . . ." 

This saving clause extends, however, only to those persons employed 
prior to the effective date of St. 1965, c. 572 and covered by the 
respective sections of G. L. c. 30 or by civil service status. Persons whose 
rights have not vested prior to the effective date are not included. The 
three-year period under § 9A must have been served and the six-month 
period under § 9B must have been completed prior to the effective date. 
In the case of a civil service employee, the appointment must have been 
made prior to the effective date. 

The problem of future employment is settled by § 45(c). This requires 
that " the applicable provisions of chapters thirty and thirty-one of the 
General Laws shall not apply to persons employed at the state colleges 
subsequent to the effective date of this act." By virtue of this provision 
persons employed on or after September 26, 1965 shall not be subject to 
civil service or benefit by c. 30, §§ 9A and B. 

In answer to your last question, it is my opinion that only those 
persons employed by the state colleges on the effective date of St. 1965, 
c. 572 as civil servants and persons covered by G. L. c. 30, §§ 9A and B 
retain their respective coverage after the effective date of the new 
legislation. The provisions of G. L. c. 30, §§ 9A and B and G. L. c. 31 
shall have no application to persons not covered on the effective date or 
persons employed thereafter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



180 P.D. 12 

The jurisdiction of the Personnel Appeals Board and the Civil Service 
Commission are mutually exclusive and not concurrent. A matter 
coming within the jurisdiction of the Personnel Appeals Board is not 
within the jurisdiction of the Civil Service Commission. In addition, 
there may be matters not coming within the jurisdiction of either 
agency. 

The Personnel Appeals Board does not have jurisdiction to hear and 
dispose of a further appeal through the Grievance Procedure in 
instances where an applicant chooses to appeal to the Civil Service 
Commission or to the Personnel Appeals Board and such appeal is 
denied. 

November 23, 1965. 

Rev. Hubert C. Callaghan, S.J., Chairm,an, Personnel Appeals Board, 
Executive Office for Administration and Finance. 

Dear Father Callaghan: — You have asked my opinion in reference 
to a matter concerning the jurisdiction of the Personnel Appeals Board. 
Your specific questions are as follows : 

"1. In instances where an applicant chooses to appeal to the Civil 
Service Commission or to the Personnel Appeals Board and his appeal is 
denied, does he then have the right to institute an appeal through the 
Grievance Procedure on the same matter? 

"2. In view of the facts as recited above, does the Personnel Appeals 
Board have jurisdiction to hear and to dispose of this appeal?" 

In your letter of October 19, 1965, you set forth at length the facts 
upon which these questions are based. The facts are too extensive to set 
forth in their entirety in this opinion. Instead, a short review of the 
essential facts appears below in order to place these questions in the 
context in which they appear in your letter. 

Facts 

An employee of a state agency sent what purported to be a letter of 
resignation on April 15, 1965. In a subsequent letter dated nine days 
later, he asked that the agency consider allowing him to retract his 
resignation. An initial hearing was held in regard to this matter. Two 
days after the hearing a letter was sent stating that the agency had 
considered the matter and had decided to let the resignation stand as 
acnepted. 

The individual then proceeded to file the matter as a grievance 
alleging that the resignation was obtained by duress. At each step of the 
grievance procedure it was denied for lack of jurisdiction. The matter is 
now pending before the Personnel Appeals Board on jurisdictional 
grounds. 

On June 21, 1965, an appeal was filed with the Civil Service 
Commission. The appeal alleged that the resignation was coerced. A 
hearing was held. The appeal was dismissed by the Civil Service 
Commission on August 26, 1965 for lack of jurisdiction. 



P.D. 12 181 

Discussion 

1. The Personnel Appeals Board (hereinafter the Board) is an 
administrative appellate tribunal. It is the last step in the grievance 
procedure. The jurisdiction of the Board is set forth in G. L. c. 30, § 53. 
Under this section, the Board may hear matters "relating to classifica- 
tions, hours of employment, vacations, sick leave or other forms of leaves 
of absence, overtime, and other matters relating to conditions of employ- 
ment, except assignments of tours of duty." 

The first five categories: "classification, hours of employment, vaca- 
tions, [leave of absence] or overtime" are specific personnel problems. A 
resignation clearly does not relate to any of these. Any argument that a 
resignation is within the Board's jurisdiction must, then, be based on the 
last and more general category, "other matters relating to conditions of 
employment." 

This phrase, as well as the statute as a whole, must be construed in 
accordance with the established canons of construction unless the 
Legislature has indicated a contrary intent. The ejvsdem generis rule 
requires that general words such as "other matters" be limited by the 
more specific words or categories coming before them. [See Commissioner 
of Corp. & Tax. v. Chilton Club, 318 Mass. 285 (1945) .] 

No contrary intent is present. The word "relating" requires a reference 
back to the first five categories. The last category cannot stand alone, 
but must be read together with the first five. The fact that a resignation 
does not come within these five categories is a strong indication, if not an 
overriding determinant, that it does not come within the last one. 

The term "conditions of employment" encompasses matters arising in 
the course of the employment relationship. It does not relate to 
jM'climinary negotiations at the hiring stage. Similarly, it does not refer 
to the process by which this relationship is terminated. In order to have 
a "condition of employment," a valid employment relationship must 
exist. Where one side contests the validity of the employment relation- 
ship, the issue is not a "condition of employment," though this may be 
involved, but the very existence of the relationship itself. This is not, 
therefore, a matter relating to the "conditions of employment" and is 
consequently not within the purview of G. L. c. 30, § 53. 

In addition, under the National Labor Relations Act (See Title 29 
U.S.C.) a forced resignation is treated as a constructive discharge in 
violation of § 8(a) (3) of that act. N.L.R.B. v. Saxe-Glassman Shoe 
Corp., 201 F.2d 238 (1st Cir. 1952). Though this statute is not at issue in 
this present matter, it does shed some light on the proper classification in 
terms of personnel problems of a discharge allegedly obtained under 
duress. A discharge or a removal is clearlv not within the jurisdiction of 
the Board. (Compare G. L. c. 30, § 53 with G. L. c. 31 , §§ 43," 46A.) 

2. In the facts it states that the appellant filed an appeal with the 
Civil Service Commission (hereinafter the Commission). The provisions 
of G. L. c. 30, § 53 specifically exclude from the jurisdiction of the 
Board "[grievances] within the jurisdiction of the civil service commis- 
sion or the contributory retirement appeal board." This is a limitation 
upon the powers of the Board. It cannot be construed as conferring 
jurisdiction in addition to the express statutory grant. A matter not 



182 PD- 12 

coming within the jurisdiction of the Commission does not by default 
fall into the jurisdiction of the Board. There may well be matters which 
do not come within the jurisdiction of either the Board or the Commis- 
sion. 

The powers of the Commission are found in various sections through- 
out G. L. c. 31. Those sections pertinent to the present discussion are 
§§43 and 46A. Under this latter section a complaint is correctly before the 
Commission where the petition properly alleges a failure to follow § 43 
in discharging, removing, suspending, laying off, transferring, lowering in 
rank, or abolishing the complainant's position. 

A complaint which alleged a resignation under duress states on its face 
a matter coming within the jurisdiction of the Commission. Such action, 
if proved, would amount to an illegal discharge or removal. The 
jurisdiction of the Commission would, however, be ousted where the 
complainant was unable to substantiate his claim of duress, since a 
voluntary severance is not within the Commission's jurisdiction. 

In the present case, such a claim was filed with the Commission. A 
hearing was held. The matter squarely in issue at the hearing was the 
propriety of the resignation. The fact that the Commission voted to 
dismiss the complaint for lack of jurisdiction presumably indicates that 
it found the resignation proper and not obtained by duress. 

This is not an instance where an individual lacked a forum in which to 
present his grievance. The matter was directly before the Commission. 
Judicial review of the Commission's decision may still be open. [See 
Mayor of Newton v. Civil Service Commission, 333 Mass. 340 (1955) ; 
Chairman of the State Housing Board v. Civil Service Commission, 332 
Mass. 241 (1955).] Initially, a different course might have been pursued. 
[See G. L. c. 31, § 46A; Martin v. City Manager of Worcester, 1965 
Adv. Sh. 822; Warner v. Selectmen of Amherst, 326 Mass. 435 (1950).] 

Conclusion 
In light of the above discussion and the precedent cited, in answer 
to your first question, it is my opinion that the jurisdictions of the 
Personnel Appeals Board and the Civil Service Commission are mutually 
exclusive and not concurrent. A matter coming within the jurisdiction of 
the Personnel Appeals Board is not within the jurisdiction of the Civil 
Service Commission. In addition, there may be matters not coming 
within the jurisdiction of either agency. In answer to your second 
question, the Personnel Appeals Board does not have jurisdiction to hear 
and to dispose of this appeal. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 ^^ 

House officers of the Medfleld State Hospital practicing under limited 
licenses may write prescriptions for patients who are about to leave 
the hospital on temporary visists, and pharmacies not connected 
with the hospital may fill such prescriptions. However, §8 9 and 9A, 
c. 112, M.G.L., provide that persons registered thereunder may 
practice medicine only under supervision, and furthermore, § 9A 
contains a provision forbidding the "prescribing or dispensing of any 
narcotic as defined in § 197 of c. 94, M.G.L." by a registered 
medical student. 

November 23, 1965. 
Mr. Romulus DeNicola, Secretary, Board of Registration in Pharmacy. 
Dear Mr. DeNicola:— You have requested answers to two questions 
posed by the Assistant Superintendent of the Medfield State Hospital in 
a letter to the Board of Registration in Pharmacy. The Medfield State 
Hospital is under the jurisdiction of the Department of Mental Health. 
Paraphrasing the Assistant Superintendent's letter, I will consider the 
following questions: 

1. May house officers of the Hospital practicing under limited licenses 
write prescriptions for patients who are about to leave the hospital for a 
few days or a week "on temporary visits"? 

2. May "outside pharmacies," i.e., pharmacies not connected with the 
Hospital, fill such prescriptions? 

Subject to the conditions imposed by law, a duly registered pharmacist 
clearly may fill a prescription written by an authorized person. G. L. c. 
112, §§ 24 and 30. The significant question, therefore, is the first one: 
namely, whether the house officers in question are authorized to prescribe 
for patients, knowing that these prescriptions will be filled outside the 
hospital while the patients are temporarily absent. 

I assume, for purposes of this opinion, that the "house officers" are 
licensed under G. L. c. 112, §§ 9 or 9A. Section 9 concerns the 
registration of interns; § 9A, the registration of advance medical 
students. Having considered carefully both sections, I am of opinion that 
the registrants thereunder may prescribe for patients committed to their 
care in the circumstances described in the first question. Section 9 
entitles interns to "practice medicine," albeit on a limited basis; on an 
even more limited basis, § 9A permits certain advanced medical students 
to engage in the "care ... of persons requiring medical service." It is 
well-known that the practice of medicine and the care of persons 
requiring medical service frequently involves the prescription of drugs. 
See State v. Henning, 830 O.A. 445, appeal dismissed, 150 Ohio St. 48. 
Although practice under §§9 and 9A is limited to practice in hospitals 
(with certain exceptions in § 9A not relevant to this opinion), it is also 
well-known that many hospitals maintain out-patient clinics in which 
prescriptions are written for persons requiring drugs or medicines. Such 
prescriptions are frequently filled at "outside" pharmacies. In-patient 
service may also include the writing of prescriptions to be filled by the 
patient after his discharge. I assume that the Legislature was aware of 



184 P.D. 12 

these facts when it enacted G. L. c. 112, §§ 9 and 9A, and, accordingly, I 
answer both questions "yes." 

Because of the importance of these questions to the pubhc health of 
this Commonwealth, I think it necessary to add a caveat to my answer. 
Sections 9 and 9A both provide that persons registered thereunder may 
practice only under supervision. Additionally, § 9A contains a provision 
forbidding the "prescribing or dispensing of any narcotic as defined in 
section one hundred and ninety-seven of chapter ninety-four" by a 
registered medical student. This opinion should not be construed as 
relaxing these provisions in any way. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



It is not permissible to pay damages for the taking of certain real 
property by the exercise of eminent domain from funds appropriated 
for another purpose. In the absence of specific language allowing 
payment for land takings, it cannot rightfully be inferred that the 
Legislature intended to permit payment for land takings from a 
fund appropriated by a particular Item. 

November 24, 1965. 

Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District 
Commission. 

Dear Commissioner Whitmore: — You have requested my opinion on 
whether it is permissible to pay from funds appropriated by Item 8260- 
81 of § 2 of c. 604 of the Acts of 1959, as amended, for the taking of 
certain real property hj eminent domain. That item, as amended by § 3 
of c. 544 of the Acts of 1961, provides: 

"8260-81 For the construction of a pedestrian overpass on McGrath 
highwav between Broadway and Pearl street in the city of Somerville. 
$200,000.00" 

Enclosed with your request for my opinion was a copy of a letter from 
the office of the Comptroller to you dated August 27, 1965, which stated 
in part: 

"We arc returning Schedule #965 dated August 24, 1965 payable to 
Isabel C. Harding in the amount of $13,251.96 and City of Somerville 
for $447.30. 

"Land taking does not appear to be a proper charge to appropriation 
no. 8260-81." 

Tlie issue presented is whether an appropriation for the "construction" 
of a public improvement makes available those funds necessary to pay 
damages for the taking by eminent domain of land essential to such 
"construction." There is no sound basis upon which to question the 



P.D. 12 185 

authority of the Metropolitan District Commission to take the subject 
property by eminent domain. That authority has been delegated to the 
Commission by c. 92 of the General Laws and various Highway Bond 
Issue Statutes. 

It is my opinion that payment for land takings from said Item 8260- 
81 is not permissible. Item 2900-45 of said § 3 of c. 544 of the Acts of 
1961 provides, inter alia: 

"For the acquisition of land for a site for a highway administration 
l)uilding in district two by purchase or by eminent domain under chapter 
seventy-nine of the General Laws, and for the construction of highway 
administration buildings in districts two and six. . . . $1,100,000." 

Said Item 2900-46 includes an explicit statement of authority to pay 
for land takings from the funds it appropriates. Item 8260-81 was 
amended by th.e same § 3 of c. 544, Acts of 1961. Unlike Item 2900-46, 
Item 8260-81 contains no specific language allowing payment therefrom 
for land takings. The General Court could easily have inserted such 
language into Item 8260-81. In the absence of such language, it must be 
inferred that the Legislature did not intend to permit payment from that 
item for land takings. 

You further ask, if funds are not available under St. 1959, c. 604, 
whether owners of the property involved may be compensated from the 
Highway Fund. Section 34 of c. 90 of the General Laws establishes the 
Highway Fund. It provides, inter alia: 

"Said Highway Fund, subject to appropriation shall be used as 
follows: 

"(2) (g) For expenditure, under the direction of the metropolitan 
district commission, to meet the cost of maintenance of boulevards in the 
metropolitan parks district . . ., and the commonwealth's share of the 
cost of construction of boulevards within said district now or hereafter 
authorized. . . ." 

It is clear that payment for land takings from this subsection of the 
highM'ay fund is not permissible. It contains no reference to payment for 
land takings. There does not appear to be any valid reason to include by 
implication the power to pay for land takings. 

However, an appropriation is available from which the owners of the 
land taken may be paid. I call your attention to § 4 of c. 822, Acts of 
1963, which provides: 

"Pursuant to the provisions of section one. the [metropolitan district] 
commission is hereby authorized and directed to expend a sum, not to 
exceed ten million dollars, for projects of the commission in the area set 
forth in the "Master Higliway Plan for the Boston Metropolitan Area," 
as established and defined in Exhibit B of House Document No. 1767 of 
the year nineteen hundred and forty-eight." 

A pedestrian overpass on McGrath highway in Somerville is clearly a 
project of the Metropolitan District Commission in the area defined in 



186 P.D. 12 

the Master Highway Plan for the Boston Metropolitan Area as required 
by said § 4, c. 822, Acts of 1963. 

Accordingly, it is my opinion that the owners involved may be 
compensated from funds available under c. 822 of the Acts of 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A person who has not established tenure and is serving at the pleasure of 
an appointing authority may be discharged at any time without 
notice or hearing. 

A person who is entitled to the protection guaranteed by G. L. c. 30, § 9A, 
may be discharged, for cause, after proper notice, hearing and 
opportunity for review in accordance with c. 31, §§ 4^ and 1^5, 
M.G-L. It woidd appear to be within the sound discretion of the 
appointing authority to determine, on the basis of the facts of a 
given case, whether a Superior Court conviction warrants such a 
discharge. 

/ November 24, 1965. 

Hon. Theodore W. Schulenberg, Commissioner, Department of Com- 
merce and Development. 

Dear Sir: — I am in receipt of your request for my opinion with regard 
to your authority to discharge two employees of your department who 
have been convicted of criminal charges and who have appealed their 
convictions to the Supreme Judicial Court. 

You state that one of the convicted employees — Mr. James F. 
Reynolds — is presently under suspension pursuant to the provisions of 
§ 59 of c. 30 of the General Laws, the so-called Perry Law. (See my 
opinion rendered to you on July 23, 1965.) It is a matter of record that 
Mr. Reynolds is entitled to the protection guaranteed by G. L. c. 30, 
§ 9A, which states: 

"A veteran, as defined in section twenty-one of chapter thirty-one, 
who holds an office or position in the service of the commonwealth not 
classified under said chapter thirty-one, other than an elective office . . . , 
and has held such office or position for not less than three years, shall not 
be involuntarily separated from such office or position except subject to 
and in accordance with the provisions of sections forty-three and forty- 
five of said chapter thirty-one to the same extent as if said office or 
position were classified under said chapter. ..." 

It is my opinion that Mr. Reynolds may be discharged after proper 
notice, hearing and opportunity for review in accordance with §§ 43 and 
45 of c. 31. Sufficient cause for discharge would normally be provided by 
a Superior Court conviction on criminal charges. It is not necessary to 
delay the discharge until all possible avenues of appeal have been 
exhausted. Although it is the general purpose of the civil service law to 
establish job security for public employees, the protection furnished 



P.D. 12 187 

thereby is not absolute. Section 43 of c. 31 states that an employee may 
be removed only for "just cause"; it is readily apparent that "ju>i cau.se" 
may arise when an employee of the Commonwealth has been convicted 
on criminal charges and accordingly has destroyed public confidence in 
his continued efficient functioning. It would appear to be within the 
sound discretion of the appointing authority to determine, on the basis of 
the facts of a given case, whether a Superior Court conviction warrants 
such a discharge. 

The other convicted employee of the Department of Commerce and 
Development to whom you have referred is Mr. Michael J. Favulli. You 
have informed me that Mr. Favulli was appointed, effective January 4, 
1963, by the then Commissioner of Commerce, John F. Burke, as a 
"special representative." At the time Mr. Favulli was appointed, he was 
considered an expert within the meaning of G. L. c. 23A, § 4 as it then 
read. That section provided in part: 

"The commissioner may appoint such experts as the department may 
require who shall not be subject to chapter thirty-one or section nine A 
of chapter 30 " 

Neither at the time of his appointment, nor at any subsequent time, did 
Mr. Favulli gain tenure in his position. He served at the pleasure of the 
Commissioner of Commerce. 

By c. 636 of the Acts of 1964, the General Court reorganized the 
Department of Commerce to form a new Department of Commerce and 
Development. Section 15 of that chapter provides: 

"Upon the effective date of this section all permanent and temporary 
positions in any board, agency, division, bureau, section or other 
administrative unit under the department of commerce . . . shall be 
transferred to the department of commerce and development established 
under the provisions of chapter twenty-three A of the General Laws, 
inserted by section one of this act, and any such position not then 
classified under chapter thirty-one of the General Laws , . . shall be so 
classified. . . ." 
[Certain exceptions are not material.] 

Section 15 is modified, however, by the provisions of § 18: 

"Upon the effective date of this section all officers or employees of any 
board, agency, division, bureau, section or other administrative unit 
under the department of commerce . . . who immediately prior thereto 
did not have tenure under section nine A of chapter thirty or section 
twenty-six S of chapter one hundred and twenty-one of the General 
Laws in a position allocated to job groups eighteen or above in the 
salary schedules set forth in sections forty-six and forty-six B of chapter 
thirty of the General Laws which, pursuant to section fifteen of this act, 
shall be transferred to the department of commerce and development 
established under the provisions of chapter twenty-three A of the 
General Laws, inserted by section one of this act, and shall be classified 
under chapter thirty-one of the General Laws, are hereby transferred to 
the service of said department without impairment of seniority or 
retirement rights, and without reduction in compensation or salary 



188 PD- 12 

grade; provided, however, that nothing in this section shall be construed 
to confer upon any officer or employee any rights not held prior to such 
transfer or to prohibit any subsequent reduction in compensation or 
salary grade if such were not prohibited prior to the transfer; and 
provided, further, however, that upon the occurrence of any vacancy in 
any position held by an officer or employee subject to this section, any 
appointment to fill such vacancy shall be made in accordance with 
chapter thirty-one of the General Laws and the rules and regulations 
made thereunder. . . ." [Emphasis supplied.] 

Although § 15 requires that practically all permanent and temporary 
positions in the new department are to be classified under G. L. c. 31, 
and although a portion of § 18 directs that all officers and employees in a 
job group of eighteen or above who do not have tenure shall be 
transferred from the old Department of Commerce to the new Depart- 
ment of Commerce and Development without impairment of seniority 
and other rights, the proviso clause of § 18 specifically negates the 
l)0:ssibility that any officer or employee may receive a permanent status 
which he did not previously possess. Although the position has become 
classified, the present incumbent enjoys only the rights which were his 
prior to the reorganization. 

In view of your statement that prior to the reorganization of the 
Department of Commerce Mr. Favulli was employed without tenure in a 
job group classification of 21P, it is my opinion that the proviso clause 
of § 18 of c. 636 of the Acts of 1964 prevented him from obtaining 
tenure at the time of the reorganization. Inasmuch as no provision of law 
has ever established tenure for Mr. Favulli, I must conclude that he is 
serving in his present position at the pleasure of the Commissioner of the 
Department of Commerce and Development. It is, therefore, my opinion 
that Mr. Favulli may be discharged by the Commissioner at any time 
without notice or hearing. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Employees in the Division of State Colleges itself are rot exempted from 
the civil service laws. 

Paragraphs A and B of § 15 of c. 31, M.G.L., have no application to 
persons employed at the state colleges subsequent to the eifective 
date of c. 572, Acts of 1965. 

A civil service employee must, if he wishes to protect his right to return 
to his permanent position, obtain a leave of absence therefrom, 
before accepting promotions to a higher position in a state college. 

November 29, 1965. 

Hon. W. Henry Finnegan, Director of Civil Service. 

Dear Sir: — I am in receipt of your request for my opinion concerning 
the proper interpretation of c. 572 of the Acts of 1965 as it relates to 



P.D. 12 189 

employment practices in state colleges and in the Division of State 
Colleges. 
Section 45 of c. 572 of the Acts of 1965 provides as follows: 

"Nothing in this act shall be construed to impair the seniority, tenure, 
retirement or other rights of any permanent civil service employee, or 
veteran covered by section nine A of chapter thirty of the General Laws, 
or of any maintenance employees covered by section nine B of said 
chapter thirty, employed on the effective date of this act in the 
department of education and by the state colleges; provided, however, 
that to staff the said department and the state colleges as reorganized by 
this act, any such employee may be transferred to any position in his 
respective employing unit as so reorganized; provided further, however, 
(a) that the employee's salary shall not be reduced as the result of such 
a transfer; (5) that without the approval of the director of civil service 
and the director of personnel and standardization the employee shall not, 
as the result of such a transfer, be placed in a position of higher salary 
grade; and (c) that the applicable provisions of chapters thirty and 
thirty-one of the General Laws shall not apply to persons employed at 
the state colleges subsequent to the effective date of this act. [Emphasis 
supplied.] 

Part (c) of the proviso clause specifically exempts from the coverage of 
cc. 30 and 31 "persons employed at the state colleges subsequent to the 
effective date of this act." By this provision, the General Court 
apparently sought to establish employment practices at the state colleges 
which would more closely resemble the practices at private institutions, 
as opposed to the ordinary civil service appointment procedure which 
exists in most other branches of the public service. 

You have asked specifically whether employees in the Division of 
State Colleges itself are now to be exempt from the civil service laws. It 
is my opinion that these employees arc not exempted. They serve in an 
administrative unit which is separate from the individual colleges. The 
Division itself does not perform a direct educational function, and 
therefore the rationale for having an employment program independent 
of the civil service system is not applicable. [For a more complete 
discussion of this question, see my opinion of November 22, 1965. to the 
Director of the Division of State Colleges, a copy of which is enclosed.] 

In addition, you have asked whether permanent civil service em- 
ployees of the department of education may qualify for promotion to 
higher positions under the provisions of G. L. c. 31, § 15, paragraphs A 
and B. 

It is my opinion that paragraphs A and B of § 15 of c. 31 have no 
application to persons employed at the state colleges subsequent to the 
effective date of c. 572. Paragraph A states in part: 

"An appointing authority, with the approval of the director, may 
promote in the same department or division of a department in the 
official service a permanent employee in one grade to the next higher 
grade as determined by the director. . . ." 

The purpose of this paragraph is to permit an appointing authority to 



190 P.D. 12 

promote an employee to a higher position in the civil service without 
opening the higher position to a competitive examination. By this 
procedm-e, the General Court intended to favor career civil servants by 
granting them promotion preference at the option of the appointing 
authority. This preference becomes meaningless, however, when the 
higher position may be filled by the appointing authority without regard 
to the civil service laws. Inasmuch as § 45 of c. 572 of the Acts of 1965 
permits an appointing authority to hire new employees without regard to 
their civil service status, there is no longer any value in the preference 
accorded career civil servants by paragraph A of § 15 of c. 31 of the 
General Laws. The provisions of that paragraph will therefore no longer 
be applicable to civil service employees who occupy positions in the state 
colleges. 

Paragraph B of § 15 of c. 31 is also inapplicable to promotions of state 
college employees. It provides in part that: 

"Except as authorized in paragraph A, and except as otherwise 
provided in section twenty, all promotions in the official service shall be 
made after a competitive promotional examination. . . ." 

Inasmuch as any position to which a permanent employee might be 
promoted could also — pursuant to St. 1965, c. 572, § 45 — be filled by 
non-civil service personnel, a civil service employee seeking such a 
position could hardly be benefited by the provisions of the paragraph 
above. It was certainly not the intention of the General Court to permit 
the appointment of a person without civil service status while simultan- 
eously imposing a competitive examination upon any permanent em- 
ployee who might desire the same position. Paragraphs A and B of § 15 
of c. 31 are clearly inconsistent with the express desire of the General 
Court to have positions in the state colleges relieved of the requirements 
of the civil service law, and accordingly I advise you that these 
provisions are no longer applicable to such positions. 

You further ask whether a civil service employee who is appointed to a 
higher position in a state college will still retain the right to return to the 
permanent position which he held on the effective date of c. 572 of the 
Acts of 1965. 

It must be concluded that such an employee who accepts a higher 
position will thereby lose all rights which he held in the previous position 
under cc. 30 and 31 of the General Laws, unless he has protected his civil 
service tenure by obtaining a leave of absence from his permanent 
position. As indicated above, § 45 of c. 572 of the Acts of 1965 shows a 
clear legislative intent that positions in the state colleges should not be 
subject to the civil service laws. As a limited exception to this general 
rule, the Legislature provided that present employees having rights under 
the civil service laws would continue to possess those rights after the 
reorganization effected by c. 572. By this exception the Legislature 
sought only to guarantee that no civil service employee would suffer any 
loss of employment standing as a result of the reorganization. The 
General Court did not intend that an employee should gain the 
additional right to resign from his permanent position and yet retain the 
option to return to that position whenever he might wish. Normally, an 



P.D. 12 191 

employee must obtain a leave of absence from his permanent position if 
he wishes to be able to return to it after a period of employment 
elsewhere. A civil service employee must — if he wishes to protect his 
right to return to his permanent position — obtain such a leave before 
accepting promotion to a higher position in a state college. Should he fail 
to do so, he will — in my opinion — lose the employment protection vested 
in him pursuant to cc. 30 and 31 of the General Laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A law which is unambiguous in its language must be given effect as it is 
written without addition or extrapolation. 

The Board of Standards is limited to establishing standards for door 
locks only, and is not authorized to regulate the design of doors or 
other matters. 

December 1, 1965. 

Hon. George W. Waters, Chairman, Board of Standards, Department of 
Public Safety. 

Dear Sir: — I am in receipt of your request for my opinion concerning 
the proper interpretation of c. 464 of the Acts of 1965. That enactment 
requires any apartment house having more than three units to be 
equipped with an outer door which will close and lock automatically 
with a "lock of a type approved by the board of standards in the 
department [of Public Safety]." You ask for my opinion "as to the 
scope of [your] responsibility under this act; i.e., whether it includes the 
design of the door, the butts, the self-closing device and the lock, or just 
the lock itself." 

Chapter 464 of the Acts of 1965 is clear and direct in its language. It 
states : 

"At least one of the doors of the main common entry way into every 
apartment house having more than three apartments shall be so designed 
or equipped as to close and lock automatically with a lock of a type 
approved by the board of standards in the department [of public 

safety]. . . ." 

This Act becomes effective on January 1, 1966. 

The statute contains no indication that the General Court intended 
the Board of Standards to concern itself with any part of the apartment 
door other than the actual locking device. Approval by the Board of 
Standards is related in St. 1965, c. 464 solely to the type of lock. A law 
which is unambiguous in its language must be given effect as it is written 
without addition or extrapolation. Although the security of a dwelling 
might well be affected by the design of a door or by some other element 
other than the lock itself, the specific language of the statute does not 
warrant the inclusion of architectural details of apartment house doors 
within the authority of the Board. 

In light of the language and effect of c. 464, it is my opinion that the 



192 P.D. 12 

Board of Standards is limited to establishing standards for door locks 
only, and would not be authorized to regulate the design of doors or 
other matters. For example, it would be proper for the Board to set 
standards for the closing devices which insure that a door will lock after 
each use, but it would not be proper for the Board to prescribe the 
dimensions or materials of the door itself. The mandate of the General 
Court is restricted to the actual locking device itself, and this specific 
direction should not be extended by interpretation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Chapter 740 of the Acts of 1964 w'fls not intended to abolish the power of 
the Executive Council to decide appeals from decisions of the 
Commissioner of Veterans' Services under the provisions of c. 115, § 
S, M.G.L. Such appeals are to be processed as before the passage of 
chapter 740. 

December 6, 1965. 
Hon. Keesler H. Montgomery, Executive Secretarij, Governor's Council. 

Dear Sir: — I am in receipt of your request for my opinion as to 
whether c. 740 of the Acts of 1964 alters the authority of the Executive 
Council to consider appeals from decisions of the Commissioner of 
Veterans' Services rendered under c. 115, § 2, of the General Laws. 

Section 2 of c. 115 provides in part: 

"... A final appeal from such decision or determination may be taken 
by such claimant, veterans' agent or resident, within ten days after his 
receipt of notice of the same, to the governor and council. The committee 
of the council to which any such appeal is referred shall, if requested, 
hold a pubhc heoring thereon and m^ke a report of it'^ recommendations 
in writing to the governor and council. . . ." 

A careful examination of c. 740 of the Acts of 1964 reveals no specific 
reference to the power of the Governor and Council to hear appeals from 
derisions of the Commissioner of Veterans' Services. Any possible repeal 
of this power must be inferred from the general language of c. 740. The 
only portion of that chapter which might refer obliquely to the power to 
hear apj^eals is § 4, which states: 

"Subject to section two of thi« act and except as required by the 
constitution 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 anv oflRcer. agencv or instrumcntalitv in the executive 
department, including without limitation, any deposit, borrowing, loan, 
investment, endorsement, validation, surety or bond, or any lease, 
license, purchase, acauisition, sa^e, conveyance, disposition or transfer, or 
any contract or other agreement, or any permit or license, or any rules or 
regulations, is hereby repealed." 

The question which must be decided here is whether the provision for 



P.D. 12 19^ 

appeals from the Commissioner of Veterans' Services constitutes a 
requirement of "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." 

The duty of the Executive Council to act as an appeal board does not 
involve "advice and consent" either as those terms are generally 
understood or as they arc defined in St. 1964, c. 740, § 1. The power to 
decide appeals is quasi-judicial in its nature and is separate and 
independent. It is fundamentally different from the cooperative and 
dependent powers which the Executive Council ordinarily exercises (or 
did exercise before the passage of c. 740) . Acting as the final arbiter of a 
dispute between two parties is not generally regarded in the same 
category as confirming appointments or approving contracts, acquisi- 
tions, or other actions of the executive branch of the state government. 

The failure of c. 740 to provide an alternative appeal procedure is a 
further indication that § 4 of that act was not intended to repeal the 
provisions of c. 115, § 2, of the General Laws. A difficult situation would 
arise if the appeal powers of the Executive Council were simply 
eliminated. The Governor himself would then be obliged to consider all 
appeals from the Commissioner of Veterans' Services without the aid of 
any other officer or body. I do not believe that it was the purpose of St. 
1964, c. 740 to impose greater burdens upon the Chief Executive, 
especially in areas in which there may well be investigatory and quasi- 
judicial problems. 

Accordingly, it is my opinion, based on the factors outlined above, 
that c. 740 of the Acts of 1964 was not intended to abolish the power of 
the Executive Council to decide appeals from decisions of the Commis- 
sioner of Veterans' Services under the provisions of c. 115, § 2 of the 
General Laws. Such appeals should, therefore, be processed in the same 
fashion as before the passage of c. 740. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Generally, administrative agencies may interpret and construe only 
statutes and ordinances within the area of their technical compe- 
tence. 

An appeal prosecuted by a person who is not a "party aggrieved," within 
the purview of G. L. c. 111,^ 150 A, should he dismissed. 

December 8, 1965. 

Hon. Alfred L. Frechette, Commissioner of Public Health. 

Dear Commissioner Frechette: — In your letter of December 7, 1965, 
clarifying your earlier letter of November 23, 1965, you state that you 
are considering an appeal under G. L. c. Ill, § 150A from a party 
claiming to be aggrieved by the assignment of a dump site in the City of 
Woburn. The site was assigned by the Wobum Board of Health. G. L. c. 
Ill, § 150A. The appellant is a resident of Wobum "and has a contract 
with the City ... to operate a dump for disposal of its solid waste on 



194 P.D. 12 

land belonging to the [appellant]." Because of "a disagreement as to the 
interpretation of the contract the City has assumed the responsibility of 
disposing of its solid waste" on the land whose assignment is the subject 
of the present appeal. 

The sole bases of the appellant's complaint are that the assignment 
violates the zoning laws and that the Board of Health failed to obtain a 
permit from the City Council. The appellant "does not allege that his 
health, comfort or convenience is adversely affected." Presumably, there 
is no allegation that the appellant is in any way aggrieved (except 
through his interest as the owner of another dump site) by the zoning 
violation or the failure to obtain a permit of which he complains. 

On these facts, you request my answer to two questions: 

1. Is the appellant a "party aggrieved" within the purview of G. L. c. 
Ill, § 150A? 

2. If the appellant is not a "person aggrieved" what should be the 
disposition of the appeal? 

My answer to the first question is "No." It would appear that the 
primary question for the determination of the Department of Public 
Health in appeals under G. L. c. Ill, § 150A is whether an assignment 
"results in a nuisance and a danger to the public health." This type of 
question is obviously within the general competence of the Department 
to decide. G. L. c. 17, § 1 ei seq. Generally, administratii^e agencies may 
interpret and construe only statutes and ordinances within the area of 
their technical competence. Norwood Heights Imp. Assn. v. City Council 
of Baltimore, 195 Md. 1, 7-8. 

Because of the unusual provisions of St. 1955, c. 310, § 3 (section 1 of 
c. 310 inserted c. Ill, § 150A into the General Laws), it may be that in 
certain cases the Departm.ent has jurisdiction to construe and enforce 
rights under a zoning ordinance with regard to the location of dumps. 
(See 1957 Report of the Attorney General p. 94). It is not necessary on 
the facts that you present to determine the circumstances, if any, in 
which such question would be properly before j^ou. 

Where alleged violation of a zoning ordinance affects the appellant 
only as a business competitor and a resident of the city, he would not even 
have standing to seek direct enforcement of this ordinance in a court of 
general jurisdiction. Circle Lounge & Grille Co. v. Board of Appeal of 
Boston, 324 IMass. 427, 430. Boyle v. Building Inspector of Maiden, 327 
Mass. 564, 566-567. O'Donnell v. Board of Appeals of Billerica, 1965 
Mass. Adv. Sh. 919, 921. See Nantucket Boat, Inc. v. Woods Hole, 
Martha's Vineyard & Nantucket SS Authy., 345 Mass. 551, 554 Cleary v. 
Licensing Commn. of Cambridge, 345 Mass. 257, 259. I deem it an a 
fortiori proposition that such a person has no standing to seek such 
enforcement before an administrative agency that is not generally 
expected to exercise any special competence in zoning problems. More- 
over on the basis of tb.e foregoing rationale, it is equally clear that the 
appellant lacks standing to raise before the Department any question 
bnsed on the alleged failure of the Woburn Board of Health "to obtain a 
permit from the City Council." Cleary v. Licensing Commn. of Cam- 
bridge, supra. 



P.D. 12 



195 



"Where an appeal is prosecuted in a court by a person without 
standing, it is customary to dismiss the appeal. New England Merchants 
Natl. Bank of Boston v. The First Church in Swampscott (Congrega- 
tional) , 346 Mass. 780, 781 and cases cited. Accordingly, it is my opinion 
that the disposition in this case should be "Appeal Dismissed." 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The status of the War Memorial Auditorium, as a municipal project, 
does not, in and of itself, prohibit its being granted a license to 
dispense alcoholic beverages for sale. Should the Auditorium Com- 
mission decide that alcohol should be dispensed on the Auditorium 
premises, the Commission may lawftdly proceed to secure the 
necessary facilities and personnel. 

Should the appropriate administrative authorities find that the applica- 
tion is proper, and should they determine that favorable action is 
warranted, participation by the city of Boston creates no legal 
impediment to the granting of the license. 

December 17, 1965. 

Hon. Quixtin J. Cristy, Chairman, Alcoholic Beverages Control 
Commission. 

Dear IMr. Cristy: — You have requested my opinion with regard to 
an application for transfer of a seven-day all alcohohc beverages 
Common Victualer license presently awaiting action by your Commis- 
sion. You have informed me that the application in question has been 
filed by one Harry Olins, Trustee in Bankruptcy of 660 Beacon Street, 
Inc.. for transfer of its license from 660 Beacon Street, Boston, to 900 
Boylston Street, Boston, the War Memorial Auditorium. The petition 
also seeks transfer of ownership of the license from 660 Beacon Street, 
Inc., to Hub Catering, Inc., Lee Fields, Manager. 

The Licensing Board of the City of Boston has not acted upon this 
application ; rather, the Board has informed your Commission that it has 
been unable to reach a final conclusion as a result of uncertainties of a 
legal nature. Accordingly, you have posed the following questions: 

"In the absence of special legislation to the contrary, we ask your good 
office to advise whether or not the law will allow a municipally owned 
and operated Auditorium, through an independent contractor, to dis- 
pense alcoholic beverages for sale where the profits from which are 
shared by the municipality and the private independent contractor. 

"If your answer should be in the affirmative, would this then in effect 
be permitting the municipality to engage in the business of dispensing 
alcoholic beverages for sale?" 

There can be no doubt that the War Memorial Auditorium — the 
location to which the license in question is sought to be transferred — has 
been constructed and is currently managed by a Commission which is 
public in nature. Construction of a municipal auditorium in the City of 



196 PD. 12 

Boston was authorized by the General Court in 1954, by c. 164 of the 
Acts of that year. Pursuant to this authorization, the City of Boston 
created a board to be known as the Auditorium Commission, the 
members to be appointed by the Mayor. The Commission is clearly an 
agency of the City of Boston, and the Auditorium itself is a public 
project of the municipality. 

The status of the War Memorial Auditorium as a municipal project, 
however, does not — in and of itself — prohibit the license transfer which is 
contemplated. The Act of the Legislature which authorized construction 
of the Auditorium (St. 1954, c. 164) specifically provided that the 
structure was to include "an exhibition hall, assembly hall and accessory 
rooms suitable for exhibitions, conventions and other shows and gather- 
ings in said city (of Boston)." Although the dispensing of alcohol may 
not be crucial to the success of such events, it could reasonably be 
determined that its availability might be desirable. Certainly, such a 
determination would be well within the discretion of the Auditorium 
Commissioners. 

Should the Auditorium Commission decide that alcohol should be 
dispensed on the Auditorium premises, it is my opinion that the 
Commission may lawfully proceed to secure the necessary facilities and 
personnel. The authority of the Commission extends beyond the construc- 
tion of the building to the care and management of the project. It has 
been clearly provided that the Commission "shall contract for the care 
and management thereof after its completion ; and for such purposes may, 
subject to the approval of the mayor, make such contracts and employ 
such experts, assistants and employees as they may think necessary or 
expedient." [See City of Boston Ord. 1957, c. 2.1 The Commission 
may — as part of its responsibility to manage the Auditorium — determine 
that alcohol is to be sold on the premises and make necessary arrange- 
ments with regard to such sale. 

The fact that profits from such sales will be shared by the Commission 
(in effect, the municipality) and an independent contractor who is 
actually in charge of the selling operation does not mean that the City of 
Boston is itself engaging in the business of dispensing alcholic beverages. 
The Auditorium Commissioners may well prefer to contract with the 
vendor on the basis of percentages rather than on the basis of a set fee. 
This is a common practice which is followed by a multitude of halls, 
hotels and other public places, and cannot in any practical sense be said 
to constitute a real participation in the sale of alcoholic beverages on the 
part of the City of Boston. The City is simply a landlord; the business is 
conducted wholly by a vendor licensed under the provisions of G. L. c. 
138 and responsible for observance of all relevant statutes and regula- 
tions. [Should the facts be such that the City actually did become an 
unlicensed vendor, the legal implications would, of course, change; but 
your request does not indicate this to be the case.] 

Accordingly, I find nothing which would prevent the licensing of a 
dispenser of alcoholic beverages at the location in question merely on the 
basis of the municipal nature of the premises. The application and 
petition of Harry Olins, Trustee, should be acted upon by the local 
licensing board and by your Commission pursuant to G. L. c. 138, § 23 



P.D. 12 197 

and other relevant provisions of law. Should the appropriate administra- 
tive authorities find that the application is proper and should they 
determine that favorable action is warranted, participation by the City 
of Boston to the extent discussed above creates no legal impediment to 
the granting of the requested transfer. 

Very truly yours, 

Edward W. Brooke, Attorney General 



Article LXV of the Amendments to the Constitution of the Common- 
wealth prohibits acceptance by a present member of the Legislature 
of appointment to one of the new positions on the enlarged Advisory 
Council on Education. 

Upon the enactment of H 4385 the membership of the Advisory Council 
will be immediately expanded to a total of fifteen persons, and that 
ten of such persons must vote to approve the list of noyninees for 
appointment to the Board of Higher Education and the Board of 
Trustees of State Colleges. 

December 21, 1965. 
His Excellency, John A. Volpe, Governor of the Commonwealth. 

Dear Governor Volpe: — You have requested my opinion with regard 
to the interpretation of G. L. c. 15, § IH, as inserted by c. 572 of the 
Acts of 1965 ("An Act to improve and extend educational facilities in 
the Commonwealth"), and the effect of H. 4385, an amendment to this 
section recently passed to be enacted and now awaiting Executive action. 
General Laws c. 15, § IH provided, in its original form, for an Advisory 
Council on Education consisting of nine residents of the Commonwealth 
to be appointed by the Governor. The section further provided that no 
member of the Council "shall be employed by or derive regular 
compensation from any educational institution, or school system, public 
or private, in the commonwealth or be employed by or derive regular 
compensation from the commonwealth, or be a member of a board of any 
public institution for higher education in the commonwealth or of any 
state board of education . . ." 

Included among the responsibilities of the Advisory Council is the 
making of recommendations to the Governor for appointments to certain 
boards of education of the Commonwealth. 

"The council shall submit to the governor for his consideration for 
appointment to the board of higher education, the board of education, 
and the board of trustees of state colleges lists containing the names of 
three times as many qualified residents of the commonwealth as there are 
appointments to be made to such boards. Each such list shall be 
approved by a two-thirds vote of all the members of the council." 
[Emphasis supplied.] 

Alass. G. L. c. 15, § IH. 
I gather from your inquiry that the Advisory Council as presently 



198 P.D. 12 

constituted (prior to the appointment of the six additional members 
which would be authorized by enactment of H. 4385) is now prepared to 
submit recommendations pursuant to the language quoted above. 

House 4385 would, if enacted, expand the membership of the Advisory- 
Council from nine to fifteen; furthermore, it would ciualify the prohibi- 
tion against appointment of persons receiving regular compensation from 
the Commonwealth. ["No member of the council shall ... be employed 
by or derive regular compensation from the commonwealth expressly 
excluding members of the general court . . ."] [Emphasis supplied.] 

Accordingly, you have posed the following two questions: 

"1. In view of Article LXV of the Amendments to the Constitution 
of the Commonwealth, may a present member of the General Court be 
appointed to one of the new positions on the enlarged Advisory Council? 

"2. Pending the appointment of additional members (whether or not 
legislators) to the Advisory Council as enlarged by H. 4385, is the 
approval of two-thirds of the present nine members sufficient for 
purposes of submission to me of the lists of nominees to the Board of 
Higher Education, and the Board of Trustees of State Colleges provided 
for in Section IH of Chapter 15 of the General Laws?" 

Article LXV of the Amendments to the Constitution of this Common- 
wealth imposes a specific prohibition upon the acceptance of certain 
positions in the public service by members of the General Court. 

"No person elected to the general court shall during the term for which 
he was elected be appointed to any office created or the emoluments 
whereof are increased during such term, nor receive additional salary or 
compensation for service upon any recess committee or commission 
except a committee appointed to examine a general revision of the 
statutes of the commonwealth when submitted to the general court for 
adoption." 

Const, of the Comm., Amends., Art. LXV 

Thus a legislator may not lawfully occupy a position during the term of 
the General Court in which such position has been created, or in which 
the compensation payable for service in the position has been increased. 
For a recent ajiplication of this principle by the Supreme Judicial Court, 
see Opinion of the Justices, 1964 Mass. Adv. Sh. 1201, involving the 
office of Registrar of Motor Vehicles. 

It cannot be disputed that membership on the Advisory Council on 
Education represents more than mere era]")loyment by the Common- 
wealth. Such membership constitutes the holding of an "office," and the 
provisions of Article LXV of the Amendments clearly apply. This session 
of the General Court has — by the passage of H. 4385 — autliorized the 
creation of six additional offices in the government of the Common- 
wealth. I am aware that adoption of this measure by the Legislature 
could conceivably be viewed simply as alteration of a single existing 
office. But such an approach would in my opinion improperly conflict 
with the spirit and objective of Article LXV. 

"The obvious purpose of this statute is to remove from a member of 



P.D. 12 



199 



the Legislature any temptation to be influenced in his vote by reason of 
the possibility that he may be a candidate for the place created by the 
Legislature of which he is a member." 
I. Op. Atty. Gen. p. 347. 

The General Court has, from a practical point of view, made available 
new positions to which — were it not for Article LXV — its own members 
might be appointed. It is my opinion, therefore, in response to your first 
question, that Article LXV prohibits acceptance by a present member of 
the Legislature of appointment to one of the new positions on the 
enlarged Advisory Council. This limitation does not, however, under the 
language of Article LXV, extend beyond the present term of the 
members of the General Court, (for similar views of the effect of Article 
LXV, see III Op. Atty. Gen. p. 118; IV Op. Atty. Gen. p. 238.) 

You have asked in addition whether a vote of two-thirds of the 
present nine members will be sufficient for submission of the lists of 
nominees required by G. L. c. 15, § IH. Should H. 4385 be enacted, c. 
15, § IH will provide: "There is hereby established an advisory council 
on education. Said council shall consist of fifteen persons. . . ." 
[Emphasis supplied.] The original provision containing a reference to a 
nine-member council will have been stricken, and no authority for a 
body with such a membership will exist. Furthermore, use of an 
emergency preamble by the Legislature is an additional indication that 
the General Court intended the Advisory Council to function with fifteen 
members without delay. Section IH specifically provides that the lists of 
nominees shall be approved by a two-thirds vote of all of the members of 
the Council prior to submission to the Governor. Clear language of this 
nature cannot be varied by interpretation. It is my opinion that upon 
the enactment of H. 4385 the membership of the Advisory Council on 
Education will be immediately expanded to a total of fifteen persons, 
and that ten of such persons must vote to approve the lists of nominees 
for appointment to the Board of Higher Education and the Board of 
Trustees of State Colleges. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The amendment to contract No. 11081 betiveen the Department of 
Public Works and the Springfield Redevelopment Authority relative 
to relocation assistance properly falls within the duties of the 
Department of Public Works under § 8B of c. 79 of the General 
Laws. 

Proposed rules submitted by the Department of Public Works fall within 
the purview of the statutory authority of that department. 

December 29, 1965. 

Hon. Francis W. Sargent, Commissioner, Department of Public Works. 

Dear Commissioner Sargent: — You have requested my opinion on 
the following questions: 

(1) Does the amendment to Contract No. 11081, appended to your 



200 PD- 12 

letter, properly fall within the duties of the Department of Public Works 
under Section 8B of Chapter 79 or any other provision of the General 
Laws? 

(2) Do the proposed rules of procedure, attached to your letter, 
properly comply with the authority of the Department referred to in 
question 1 ? 

Contract No. 11081 is an agreement between the Department of Public 
Works and the Springfield Redevelopment Authority relative to reloca- 
tion assistance. The amendment referred to in question 1 above provides 
for certain limited management services to be provided by your Depart- 
ment with reference to the structures involved. It is understood that the 
purpose of this amendment is to remedy the situation in which the 
former landlords have divested themselves of any responsibility for 
maintenance of structures taken even though tenants continue to occupy 
the premises for the four months allowed in section SB of Chapter 79 of 
the General Laws. 

It is my opinion that the amendment to Contract No. 11081 properly 
falls within the duties of the Department of Public Works under section 
8B of Chapter 79 of the General Laws. 

Chapter 111, section 5, of the General Laws, as amended by Chapter 
390, of the Acts of 1963 provides for standards of fitness for dwelling 
places, and further provides for the enforcement of the law relative to 
minimum housing standards. Said Chapter 390 reads as follows: 

"Section 5 of chapter 111 of the General Laws is hereby amended by 
striking out the paragraph inserted by section 1 of chapter 172 of the 
acts of 1960 and inserting in place thereof the following two paragraphs: 

"Said code may provide for the demolition, removal, repair or cleaning 
by local boards of health of any structure which so fails to comply with 
the standards of fitness for human habitation or other regulations in said 
code as to endanger or materially impair the health or well-being of the 
public. Upon a determination by the board of health, after examination 
as provided in said code, that a building, tenement, room, cellar, mobile 
dwelling place or any other structure (a) is unfit for human habitation, 
(b) is or may become a nuisance, or (c) is or may be a cause of sickness 
or home accident to the occupants or to the public, it may issue a written 
order to the owner or occupant or any of them thereof, requiring the 
owner or occupant to vacate, to put the premises in a clean condition, or 
to comply with the regulations set forth in said code which are not being 
complied with or to comply with the rules and regulations adopted by the 
board of health as being necessary for the particular locality. The order 
shall be served in the same manner as is provided for the service of an 
order by section one hundred and twenty-four. A copy of such order shall 
be served upon any mortgagee of record by sending the same by reg- 
istered mail, return receipt requested. If the ovmer or occupant refuses to 
comply with such order, the board of health may cause the premises to 
be properlv cleaned at the expense of the ownier or occupant, remove the 
occupant forcibly and close up the premises, or it may issue a written 
notice to the owner of such building, as appearing in the current records 
of the assessors of such town, setting forth the particulars of such 



P.D. 12 201 

unfitness and requiring that the conditions be remedied. If tlic person so 
notified fails within a reasonable time to remedy the conditions thus set 
forth, the superior court on a petition in equity brought by the board of 
health, shall have jurisdiction, by injunction or otherwise, to enforce the 
requirements of the board of liealth. A copy of such written notice shall 
be served upon any mortgagee of record, by sending the same by 
registered mail, return receipt requested. Premises closed up under the 
provisions of this section shall not be occupied as a human habitation 
without written permission of the board of health. If within one year 
from the date the premises have been so closed up compliance with the 
regulations contained in said code has not been effected, the board of 
health may cause such structure to be demolished or removed, and a 
claim for the expense so incurred by said board shall constitute a debt 
due the city or town upon the completion of the work and the rendering 
of an account therefor to the owner of such structure, and shall be 
recoverable from such owner in an action of contract." 

Your letter indicates "not only is the physical condition of the 
buildings involved grossly inadequate for human habitation, but there is 
a heavy tenancy in these buildings. ..." You further indicate that in 
some cases the former landlord has failed to furnish to the tenants such 
items as water, heat and other utilities after the property is taken. 

This would appear to be a clear violation of Chapter 111, section 5, as 
amended by Chapter 390 of the Acts of 1963. If the Department of 
Public Works were not able to remedy this situation within the authority 
of section 8B of Chapter 79 of the General Laws, there would be a 
conflict between said section and section 128B of Chapter 111. An act of 
the Legislature itself would thus result in the same hazard to the health 
and safety of the public which the General Court had attempted to 
remedy by other legislation. 

"A statute is to be interpreted with reference to the pre-existing law. . . . 
If reasonably practicable, it is to be explained in conjunction with other 
statutes to the end that there may be an harmonious and consistent 
body of law. Statutes alleged to be inconsistent with each other, in whole 
or in part, must be so construed as to give reasonable effect to both, 
unless there is some positive repugnance between them." City of Everett 
V. City of Revere, 344 Mass. 585. 

These two statutes are not naturally repugnant to each other. If, 
however, the Department of Public Works were not allowed to correct 
this serious problem, such a repugnance might well arise. This would be 
contrary to the rule of statutory interpretation set forth in the above 
case. 

Section 8B of Chapter 79 as most recently amended by St. 1965, 
Chapter 468 of the General Laws was clearly aimed at a problem 
existing at the time of its passage. Its aim was to remedy the situation in 
which the individual in possession of the property taken would not have 
sufficient time to secure proper living accommodations and would be 
forced to accept substandard housing. That the Legislature intended this 
to apply to tenants as well as owner-occupants is clear from the fact that 
the statute at its inception as House Bill 1760 pertained to "owners of 



202 P.D. 12 

land" and before enactment was changed to refer to ''person in posses- 
sion of property." The 1965 amendment further expanded the section to 
include "tenant or lessee in possession." 

It is presumed that the General Court intended to remedy the evil at 
which legislation appears to be aimed. See Van Dresser v. Firlings, 305 
Mass. 51; Friend Bros. v. Seaboard Surety Co., 316 Mass. 639; Johnson's 
Case, 318 Mass. 741. To deny the Department the right to amend the 
contract to remedy the problem would result in increasing the very evil 
which the Legislature apparently hoped to abolish. Such barrenness of 
accomplishment is not lightly to be imputed to the Legislature. See 
Selectmen of Topsfield v. State Racing Comm., 324 Mass. 309. 

After examining the proposed rules of procedure referred to in your 
letter, it is my opinion that they do fall within the purview of the 
statutory authority of the Department of Public Works. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



The Division of Industrial Accidents shoidd continue to levy assessments 
for expenses against former self-insurers who originally established 
their status by posting surety bonds, and who, after ceasing to be 
self-insurers, have not complied with their statutory obligations. 

December 31, 1965. 

Hon. James J. Gaffney, Jr., Chairman, Division of Industrial Acci- 
dents. 

Dear Sir: — I am in receipt of your request for my opinion on the 
following question: 

"Does a self-insurer whose license is obtained by furnishing a surety 
bond running to the Commonwealth under Mass., G. L., c. 152, Section 
25A, sub-paragraph (b) of sub-section 2, and who subsequently ceases to 
be a self-insurer, and who fails after demand t-o deposit with the State 
Treasurer, an amount of securities equal to the penal sum of the bond or 
a single premium non-cancellable policy, or a guaranty bond continue 
subject to its proportionate assessment for such expenses as shall be 
determined annually by the Department of Administration and Finance 
to carry out the provisions of Chapter 152 relating to self-insurance, in 
accordance with the provisions of 25A, sub-section 4?" 

Section 25A of c. 152 of the General Laws provides in part: 

"[E]very employer shall provide for the payment to his emi)loyees of 
the compensation provided for by this chapter in the following 
manner: — 



"[b] By furnishing annually a bond running to the connnonwcalth, 
with some surety company . . . said bond, however, to be ujion the 
condition that if the license of the principal shall be revoked or if the 



P.D. 12 203 

principal shall cease to transact business in the commonwealth or if the 
division shall refuse to renew the license or if the principal shall insure 
with an insurer, the principal shall upon demand deposit with the state 
treasurer an amount of securities equal to the penal sum of the bond or a 
single premium non-cancellable policy issued by some insurance com- 
pany authorized to transact the business of workmen's compensation 
insurance in this commonwealth, ... or a bond executed as surety by 
some company authorized to transact the business aforesaid in this 
commonwealth, in an amount and form approved by the division, 
guaranteeing the payment of any liability on his part that may have 
arisen under this chapter. . . ." 

Thus, by the terms of this section, a self-insurer must do one of three 
things when he ceases to be a self-insurer without at the same time 
taking out a regular policy with an insurance company. He must: 

(1) deposit securities ; 

(2) take out a single-premium insurance policy, or 

(3) obtain a guaranty bond. 

A separate portion of § 25 A of c. 152 establishes a formula for 
apportioning the costs of the self-insurance program among the self- 
insurers themselves. Paragraph (4) provides that these expenses: 

"... shall be assessed against all self-insurers, including for this 
purpose employers who have ceased to exercise the privilege of self- 
insurance but whose securities are retained on deposit in accordance with 
the rules of the division. The basis of the assessment shall be the 
proportion of such expense that the total securities deposited by each 
self-insurer or penal sum of bond or bonds furnished by each self-insurer 
at the close of each fiscal year bears to the total deposits and bonds of 
all self-insurers. . . ." 

Whether a self-insurer establishes his status by depositing securities or 
by obtaining a suretj'' bond, he is liable for a proportion of the expenses 
of administration. When a self-insurer who has established his status by 
obtaining a surety bond ceases to be a self-insurer, he will remain liable 
for a proportion of the expenses if he chooses to satisfy his remaining 
obligation by depositing securities. He will not remain liable if he 
obtains a single-premium insurance policy or if he obtains a guaranty 
bond. 

The Division of Industrial Accidents makes an assessment in the 
former case but not in the latter, because the division continues to incur 
expenses of administration when a former self-insurer deposits securities, 
Avhereas when the former self-insurer obtains a single premium insurance 
policy or a guaranty bond the division is relieved of further ad- 
ministrative expenses. 

In the situation described in the present question, the former self- 
insurer has refused to fulfill his obligation by any of the alternative 
means provided in the statute. Yet, although he has ceased to be a self- 



204 PD. 12 

insurer, he has not contracted with a workmen's compensation insurer or 
deposited a guaranty bond to assume the Habihty for outstanding 
claims, current and potential, which must still be incurred on his 
behalf. 

To insure the protection of the Workmen's Compensation Law to 
injured employees of a self -insurer, such as is described in the instant 
situation, it should be noted that the surety bond running to the 
Commonwealth under the provisions of § 25A (2) (b) of c. 152, would 
be retained by the division under these circumstances until such self- 
insurer complied with the statutory requirements. That self-insurer is 
thus, in effect, primarily liable on its obligations incurred under the 
provisions of c. 152 up to the effective date of termination of its license 
as a self-insurer. 

It was the intent of the General Court by enacting paragraph (4) of 
§ 25A of c. 152, to require self-insurers themselves to bear the cost of 
the administrative expenses of the self-insurance program. It would be 
contrary to that intent for a former self-insurer to escape assessment for 
these expenses during a period in which he continues to benefit from the 
administrative services required to carry out the provisions of self- 
insurance. Until a former self-insurer has made other arrangements with 
an insurance or guaranty company, he should continue to be assessed for 
his proportion of the administrative expenses. 

In rendering this opinion I am cognizant of a contrary opinion 
rendered by my predecessor, Robert T. Bushnell, on October 23, 1944. 
His opinion was based on the original § 25A of c. 152 of the General 
Laws enacted the previous year by c. 529, § 7 of the Acts of 1943. 
Subparagraph (b) of § 25A at that time did not permit a former self- 
insurer to satisfy his remaining obligations by obtaining a single- 
premium insurance policy or a guaranty bond. His only alternative when 
he ceased to be a self-insurer (without becoming an insured employer) 
was to comply with subparagraph (a), which then, as now, required the 
deposit of securities up to a certain market value. Thus, any former self- 
insurer who did not become an insured employer was obligated to leave 
securities on deposit with the division, regardless of whether he had 
originally become a self-insurer by complying with subparagraph (a) or 
with subparagraph (b). Therefore, the phrase "including for this purpose 
employers who have ceased to exercise the privilege of self-insurance but 
whose securities are retained on deposit in accordance with the rules of 
the division" should have been interpreted to include all former self- 
insurers who had not become insured employers, since under § 25A as 
originally enacted the only means by which such a former self-insurer 
could comply with the statute was by leaving securities on deposit with 
the Division of Industrial Accidents. Certainly, the General Court should 
not have been presumed to have intended that a former self-insurer 
should escape assessment for expenses because of his failure to deposit 
the required securities. It is my opinion that the views of my predecessor 
were based upon a mistaken interpretation of the purpose of the 
legislature in enacting paragraph (4) of § 25A of c. 152. 

It is, therefore, my opinion that the Division of Industrial Accidents 



P.D. 12 205 

should continue to levy assessments for expenses against former self- 
insurers who originally established their status by postmg surety bonds, 
and who, after ceasing to be self-insurers, have not complied with their 
statutory obligations. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Senate Bill No 21 oj the 1965 session of the General Court does not 
become law unless approved by the Governor within jive business 
days after Friday, December 31, 1965. 

January 7, 1966. 
His Excellency, John A. Volpe, Governor of the Commonwealth. 

Dear Sm:— You have requested my opinion on the following ques- 
tion: 

"I have before me Senate Bill No. 21 entitled 'An act authorizing the 
construction and maintenance of structures bridging Newbury Street in 
the City of Boston.' This bill was laid before me on Friday, December 
31, 1965. 

"Will you kindly advise me whether this bill will become law, or have 
force as such, if at the expiration of the five day period allowed me by 
the Constitution, I have taken no action on the bill." 
Ordinarily, if the Governor takes no action on a bill within five days 
after it is laid before him, the bill will become law This result is 
required by the provisions of 'Tart the Second," Chapter 1, Section 1, 
Article 2, of the Constitution of the Commonwealth of Massachusetts, 
which states: 

"No bill or resolve of the senate or house of representatives shall 
become a law, and have force as such, until it shall have been laid before 
the governor for his revisal; and if he, upon such revision approve 
thereof, he shall signify his approbation by signing the same But if he 
have any objection to the passing of such bill or resolve, he shall return 
the same, together with his objections thereto, in writing, to the senate or 
house of representatives, in whichsoever the same shall have originated; 
who shall enter the objections sent dowTi by the governor, at large, on 
their records, and proceed to reconsider the said bill or resolve. But if 
after such reconsideration, two thirds of the said senate or house of 
representatives, shall, notwithstanding the said objections, agree to pass 
the same, it shall, together with the objections, be sent to the other 
branch of the legislature, where it shall also be reconsidered, and if 
approved by two thirds of the members present, shall have the force of a 
law: but in all such cases, the votes of both houses shall be determined 
by yeas and nays; and the names of the persons voting for, or against, 
the said bill or resolve, shall be entered upon the public records of the 
Commonwealth. 

"And in order to prevent unnecessary delays, if any bill or resolve 



206 PD- 12 

shall not be returned by the governor within five days after it shall have 
been presented, the same shall have the force of a law. . . ." [Emphasis 
supplied.] 

Accordingly, in the usual course of events the Governor has five days 
in which to consider a given measure, after which time the bill will 
automatically become law in the absence of any action by him. In the 
present case, however, the Governor was unable to return the bill with 
his objections to the 1965 session of the Legislature after midnight on 
Tuesday, January 4, 1966, since the General Court was dissolved at that 
time under the provisions of Article X of the Amendments to the 
Constitution of the Commonwealth. Article X states: 

"The political year shall begin on the first Wednesday of January 
instead of the last Wednesday of May, and the general court shall 
assemble every year on the said first Wednesday of January, and shall 
proceed at that session to make all the elections, and do all the other acts 
which are by the constitution required to be made and done at the 
session which has heretofore commenced on the last Wednesday of May. 
And the general court shall be dissolved on the day next preceding the 
first Wednesday of January, without any proclamation or other act of 
the governor. . . ." 

Since the 1965 session of the General Court dissolved by operation of 
law less than five business days after Senate Bill No. 21 was presented to 
the Governor for his consideration, it is necessary now to consider the 
effect of the so-called "pocket veto" provision contained in Article I of 
the Amendments to the Massachusetts Constitution. Article I states: 

"If any bill or resolve shall be objected to, and not approved by the 
governor; and if the general court shall adjoiu-n within five days after 
the same shall have been laid before the governor for his approbation, 
and thereby prevent his returning it with his objections, as provided by 
the constitution, such bill or resolve shall not become a law, nor have 
force as such." 

Two subsidiary questions must be considered in determining whether 
Senate Bill No. 21 will become law in the absence of any action by the 
Governor: (a) For the purposes of a "pocket veto" is the term 
"dissolved" (Amendment X) equivalent to "adjourn" (Amendment I)? 
(b) If the Governor does not wish Senate Bill No. 21 to become law, 
may he simply take no action, or must he refer the bill with his 
objections to the 1966 session of the Massachusetts Senate, which was 
required bv Amendment X to assemble on Wednesday, Januarv 5, 
1966? 

It is my opinion that under Amendment I the dissolution of the 1965 
session of the General Court will have the same eff'ect on pending 
legislation as would its adjournment. Any bill which has been presented 
to the Governor for his approval within five days prior to dissolution, 
and which ho has not acted upon by the expiration of such five-day 
period, will be disposed of pursuant to Article I of the Amendments. This 
conclusion is required by the rationale which underlies that Article. 
While ordinarily a Governor who objects to a given measure must return 



P.D. 12 ''' 

It to the Legislature with his objections, he cannot do so if the session of 
[lie General Court to which the bill should have been returned is no 
longer in existence. Article I of the Amendments reflects an ai^parent 
belief that it is preferable in certain cases to permit the Governor to 
exercise an absolute "veto" after the adjournment of the Legislature 
than to require him (if he disapproves a bill) to return it with his 
objections before adjournment, thus depriving him of the usual oppor- 
tumtv to consider proposed legislation for a full five days. Just as an 
adiournment of the Legislature may prevent the Governor from consider- 
mg certain bills for a full five-day period, so also may its dissolution. 
Dissolution of the Legislature must— for the purposes ot Article i ot the 
Amendments— be considered simply an involuntary adjournment. 

In -answer to the second subsidiary question above, it is my opinion 
that the Governor cannot refer to the 1966 session of the General Court 
any bill which was presented to him by the 1965 session. The dissolution 
of the 1965 session on Tuesday, January 4, 1966, automatically term- 
inated all legislative action by the General Court. All consideration ot 
legislation must be begun anew by the 1966 session which assembled on 
Wednesday, January 5, 1966. u ++ 

The language of Article X of the Amendments to the Massachusetts 
Constitution contemplates that the business of each annual session of the 
General Court is to be separate and distinct from that of each other 
session. That article was approved by the people and added to the 
Constitution on May 11, 1831, at a time when the members ot the 
General Court were elected annually to serve one-year terms. 

When the terms of members of the General Court were changed from 
one to two years by Article LXIV of the Amendments, effective with the 
1920 elections, no corresponding alteration was made in Article X. 
Although subsequently in 1938 Article LXXII was adopted, such article, 
which provided for biennial sessions, was completely annulled m 1944 by 
Article LXXV, and is therefore of no present effect. 

It is my opinion that, for the purposes of legislative action, each 
annual session must still be regarded as a distinct and separate unit. It 
action on a particular matter has not been completed by the end of the 
legislative year, that matter— if it is to be treated at all— must be 
considered ab initio in the following annual session. 

In rendering my opinion on this subject, I am cognizant of the 
Opinion of the Justices to the Senate and the House of Representatives, 
reported at 291 Mass. 578. The Opinion concerned action by a joint 
session of the Legislature upon an initiative amendment under the 
provisions of Amendments, Article 48, Init., Part IV. The Court ruled 
that the legislative action required by the Constitution could lawfiilly be 
taken at the second as well as at the first session of the General Court, 
and remarked that the "official life of each branch of the General Court 
has been lengthened to two years instead of being limited to a single 
vear, as it was before the adoption of art. 64 of the Amendments. [Page 
586.] 

The effect of this Opinion of the Justices must be limited to actions 
taken under Article 48 of the Amendments. Pursuant to such 
Article, certain matters must be considered by two different General 



208 P.D. 12 

Courts as opposed to two sessions of the same legislative body. 
Consequently, the Court concluded that the Legislatui'e could freely 
decide to act upon such questions at either its first or its second session. 
This reasoning is entirely inapplicable to ordinary legislation, which 
originates in a given annual session. It has long been the custom of the 
General Court that ordinary legislative matters must be disposed of 
during the session in which they were introduced; and this approach is 
supported by the repeal of a constitutional Amendment which provided 
for biennial sessions. [See Amendments, Articles 72 and 75.] 

It is important to distinguish between the legislative function per- 
formed by the General Court and the legislative function performed by 
the Governor. Although the authority of the General Court to consider a 
piece of 1965 legislation terminates on January 4, 1966, the authority of 
the Governor to approve or disapprove that piece of legislation continues 
in effect for a five-day period after the measure was first presented to 
him. Adjournment or other termination of a session of the General Court 
cannot reduce the period available for the Governor's consideration. 

''The Legislature has no duties with respect to the act of the Governor in 
approving legislation. Bills which are signed are not to be returned. His 
act of approval, although a part of the legislative process, is performed 
by him alone. The Constitution allows for his consideration five days, a 
period which the Legislature has no power to shorten." 

Opinion of the Justices, 334 Mass. 765, 770 
Tuttle V. Boston, 215 Mass. 57, 59-60 

The power to approve implies by necessity the power to disapprove. 
Accordingly, once the General Court has adjourned (voluntarily or 
otherwise), the power to disapprove by failure or refusal to act likewise 
becomes a power to be exercised by the Governor alone within the five- 
day period established by the Constitution. In light of the above 
discussion, and the conclusion reached upon the two subsidiary questions, 
it is my opinion that upon the facts stated in the present case. Senate 
Bill No. 21 of the 1965 session of the General Court does not become law 
unless approved by the Governor within five business days after Friday, 
December 31, 1965. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

A lease entered into on December 30, 1964, by the Metropolitan District 
Commission and the Family City Development Corporation is a 
valid exercise of the authority vested in the Metropolitan District 
Commission by G. L. c. 92, §§ 35 and 83. 

January 10, 1966. 

Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District 

Commission. 

Dear Commissioner Whitmore: — On September 29, 1965, you asked 
this Department to render a formal opinion with respect to the leasing of 



P.D. 12 209 

certain land situated in South Boston near the William J. Day Boule- 
vard, the said lease having been executed on December 30, 1964, by the 
Metropolitan District Commission and the Family City Development 
Corporation. Specifically, you have asked "whether or not the execution 
of said lease was within the authority of the Metropolitan District 
Commission." 

By the terms of the instrument, the Commission leased approximately 
twenty-one thousand square feet of a parcel of land taken by it for park 
purposes in 1962 for a term of twenty-five years, with an option to renew 
the leasing arrangement for an additional twenty-five year period. 
Family City Development Corporation intends to use the leased strip for 
construction of an access road connecting the William J. Day Boulevard 
and a shopping center scheduled to be constructed upon other lands of the 
Corporation. In return, Family City Development has contracted to 
make an annual payment to the Metropolitan District Commission of 
$1,200. The Commission has also reserved the right to approve final 
plans and specifications of the proposed roadway and accompanying 
sidewalk. 

In August of last year, twenty-four taxpayers filed a petition in 
Suffolk Superior Court pursuant to the provisions of G. L. c. 29, § 63, 
asking that the lease negotiated by the Commission and by Family City 
Development Corporation be declared invalid, and praying that the 
parties be restrained from any further action with respect to the 
proposed access road to the Shopping Center. [See Evelyn F. Moakley v. 
Howard Whit7)iore, Jr., Suffolk Superior Court, No. 84319 Equity.] Since 
the subject matter of your request of September 29, 1965, had been 
placed in litigation, and a judicial determination appeared to be 
forthcoming, this Department issued no opinion in response to the said 
request. 

However, after responsive pleadings had been filed on behalf of the 
IVIetropolitan District Commission, the petitioners agreed not to continue 
the litigation, and further represented that they would be content to be 
governed by whatever opinion the Department of the Attorney General 
might render in answer to the September 29 letter referred to above. 
Accordingly, the petition having been dismissed, it is now appropriate for 
this Department to rule upon the validity of the questioned lease. 

The land in question is part of a parcel acquired by the Metropolitan 
District Commission under an Instrument of Taking dated January 18, 
1962. The Order of Taking was adopted by the Commission pursuant to 
authority conferred upon it by c. 509 of the Acts of 1949, the locus being 
taken from the City of Boston for the purposes of the said St. 1949, c. 
509, as well as for the purposes of § 33 of c. 92 of the General Laws. 

General Laws c. 92, § 33 identifies the communities which constitute 
the Metropolitan Parks District, and provides that the Commission may 
acquire and maintain in these communities open spaces to be used for 
exercise and recreation. Section 35 of c. 92 provides as follows: 

"The commission may connect any way, park or other public open 
space with any part of the towns of the metropolitan parks district under 
its jurisdiction by suitable roadways or boulevards, in this chapter called 
boulevards, and for this purpose exercise any of the rights and powers 



210 P.D. 12 

granted the commission in respect to reservations, and may construct and 
maintain along, across, upon or over lands acquired for such boulevards 
or for reservations, a suitable roadway or boulevard. The commission 
shall have the same rights and powers over and in regard to said 
boulevards as are or may be vested in it in regard to reservations and 
shall also have such rights and powers in regard to the same as, in 
general, counties, cities and towns have over public ways under their 
control." 

Accordingly, the Commission has been specifically authorized to connect 
any public way under its jurisdiction with any part of the communities 
included within the Metropolitan Parks District by "suitable roadways 
or boulevards." 

The powers vested in the Metropolitan District Commission may be 
implemented pursuant to the provisions of G. L. c. 92, § 83. 

"The commission may, for all purposes consistent with the purposes 
specified in sections thirty-three and thirty-five, erect, maintain and care 
for buildings, and grant easements, rights of ivay or other interests in 
land, including leases, in any portion of the lands taken or acquired by it 
for the purposes of said sections, and may accept and assent to any deed 
containing reservations of such easements or other interests in land, all 
for such considerations or rentals, and upon such terms, restrictions, 
provisions or agreements, as the commission may deem best. . . ." 
[Emphasis supplied.] 

Thus, if the Commission reasonably determines that a roadway author- 
ized by § 35 is desirable, it may — pursuant to § 83 — grant certain 
specified interests in land, including leases, in order to accomplish that 
purpose. Concurrence by the Park Commissioners of the City of Boston 
in the granting of such interests is not necessary. Such approval is 
required by the provisions of c. 92, § 85, which section relates to the sale 
of land or interest therein acquired by the Commission for park or 
boulevard purposes. Section 83 does not require such approval, and it is 
apparent that the Legislature did not desire such a requirement to be 
imposed. 

The Metropolitan District Commission has made a determination that 
it is in the public interest that the land to be developed by the Family 
City Development Corporation be connected by a roadway VN'ith the 
William J. Day Boulevard. This determination was made after a public 
hearing, and after consideration not only of expert opinion but also 
objections of residents of the area. The record of the Commission 
contains a report by its Chief Engineer indicating that such a roadway 
would be desirable for the purpose of lessening trafiic congestion. Given 
the said determination that such a roadway is desirable, it was clearly 
within the discretion of the Commission to provide for construction of 
the roadway by means of the leasing of a portion of land, thus 
transferring the costs of construction from the Commonwealth to the 
lessee. 

The lease which is the subject of this opinion represents an obvious 
economic advantage to the Family City Development Corporation. 
However, it is apparent that the Metropolitan District Commission has 



P.D. 12 211 

determined — on the basis of the proceedings and investigations con- 
ducted by it — that the economic benefit to be enjoyed by the lessee is 
secondary and incidental to the public advantage created by the 
construction of the roadway. Although a court might examine the 
findings of fact of the Commission to determine whether they were 
supported by the evidence presented, this Department is in no position 
to do so. Accordingly, on the facts presented, it is my opinion that the 
lease in question is a valid exercise of the authority vested in the 
Metropolitan District Commission by G. L. c. 92, §§35 and 83. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Any temporary or trial leave of a patient committed to the Bridgewater 
State Hospital under § 101 of chapter 123, M.G.L., can he 
accomplished only with the approval of the Governor. The author- 
ization of the Governor is a clear restriction and cannot he altered 
hy interpretation. 

January 11, 1966. 

Ames Robey, ]\I.D., Medical Director, Massachusetts Correctional Insti- 
tution, Bridgeivater. 

Dear Doctor Robey: — You have requested my opinion on the legality 
of authorizing so-called "trial visit weekends" and other temporary 
absences as a part of the process of treatment of patients committed to 
the Bridgewater State Hospital pursuant to G. L. c. 123, § 101. 

General Laws c. 123, § 101 provides 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 
discharge such a person therefrom when he is satisfied after an investiga- 
tion by the department that such discharge will not cause danger to 
others." 

It is clear — as you note in your letter — that the full discharge of any 
patient committed under § 101 may lawfully be authorized solely by the 
method prescribed in that statute. Although approval of such discharge 
by the Executive Council is no longer necessary [see St. 1964, c. 740, 
§ 4] , the language of G. L. c. 123, § 101 compels the conclusion that the 
Governor alone is ultimately responsible for final release of such 
patients. 

Section 101 of c. 123 does not refer to an absence or release which is 
less than a full discharge. However, the matter of the temporary release 
of patients in general, and of those committed under § 101 in particular, 
is dealt M-ith in § 88 of the same chapter. That section provides in part 
as follows: 

"The superintendent or manager of any institution, after the examina- 
tion required by section ninety-four has been made, may permit any 



212 PD. 12 

inmate thereof temporarily to leave such institution in charge of his 
guardian, relatives, friends, or by himself, for a period not exceeding 
twelve months, and may receive him when returned by any such 
guardian, relative, friend, or upon his own application, within such 
period, without any further order of commitment, but no patient 
committed under section one hundred and one shall be permitted to 
temporarily leave the state hospital without the approval of the governor 
and council, nor shall such permission terminate or in any way affect the 
original order of commitment." [Emphasis supplied.] 

In view of the plain and unambiguous language of the above-quoted 
provision, the conclusion is inescapable that any temporary or trial leave 
of a patient committed under § 101 can be accomplished only with the 
approval of the Governor. [Concurrence by the Executive Council is — as 
under § 101 — now unnecessary.] 

The practice of trial visits followed by other State institutions to which 
you have referred undoubtedly has arisen pursuant to other language 
contained in § 88. In the case of commitments under § 101, however, the 
General Court has specifically provided that even the briefest of 
absences must be authorized by the Chief Executive of the Common- 
wealth. This is a clear restriction which cannot be altered by interpreta- 
tion. Accordingly, I advise you that temporary releases from the 
Bridgewater State Hospital may be permitted solely in accordance with 
G. L. c. 123, § 88. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G. L. c. 156, § 100 must be construed in such a way as to effectuate in a 
practical way the object of the General Court, and that the 
authority of the Commissioner of Corporations and Taxation, under 
that section, therefore extends to all taxes due and payable by the 
corporation to the commonwealth. 

January 12, 1966. 

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

Dear Commissioner Rizzotto: — You have requested my opinion as to 
the extent of the Commissioner's obligations with respect to certificates 
(as to taxes) issued pursuant to G. L. c. 156B, § 100, as amended by St. 
1965, c. 685 (effective October 1, 1965). 

General Laws c. 156B, § 100, as amended, provides for the voluntary 
dissolution of corporations. Paragraph (d) of § 100 provides that the 
Secretary of State shall not receive articles of dissolution for filing unless 
the Commissioner of Corporations and Taxation certifies that "all taxes 
due and payable by the corporation to the commonwealth have been 
paid or provided for." The question arises whether this provision should 
be read in connection with G. L. c. 14, § 3,* so as to apply only to taxes 



P.D. 12 213 

administered and enforced by the Department of Corporations and 
Taxation or literally, so as to require the Commissioner's certificate to 
relate to all taxes. 

* G. L. c. 14, § 3, reads in material part as follows: "The commissioner shall bo 
responsible for administering and enforcing all laws which the department is or 
shall be required to administer and enforce. . . ." 

Since not all of the taxes which are due and payable by the 
corporation to the Commonwealth are administered by the Commis- 
sioner, adoption of the latter interpretation would require the Commis- 
sioner to review the payment of taxes which ordinarily are not subject 
to his control. Examples of these taxes are: 

(a) pari-mutuel taxes (c. 128A, §§ 4, 5) ; 

(b) athletic events taxes (boxing matches — c. 147, § 40) ; 

(c) unemployment compensation (payroll) tax — c. 151A. 

There are certain practical consequences to restricting the Commis- 
sioner's certification solely to those taxes which are administered and 
enforced by his Department. Having such a certificate, the Secretary of 
the Commonwealth could receive articles of dissolution for filing. Thus, 
the process for dissolving a corporation would be set in motion although 
it could well be that all taxes due and payable to the Commonwealth 
might not actually have been paid. 

It is my opinion that G. L. c. 156B, § 100 should be given a literal 
reading, so as to require the Commissioner's certificate to relate to all 
taxes and not solely to those taxes administered and enforced by the 
Department of Corporations and Taxation. The Legislature has given 
the Commissioner of Corporations and Taxation sole responsibility for 
issuing certificates (as to taxes) to corporations which seek to dissolve. 
No other officials have been vested with similar responsibility. It is 
extremely unlikely that the Legislature would select a single ofiicial to 
make the particular certification, and then reduce the effectiveness of the 
certificate by exempting certain taxes from his jurisdiction. 

Moreover, it would appear that the General Court intended the 
Commissioner's authority to extend to all taxes, since otherwise, as 
indicated above, there is a real danger that a corporation may dissolve 
prior to fulfillment of all of its tax obligations. While it is true that a 
corporation continues as a body corporate for three years after the time 
of dissolution for the purpose of prosecuting and defending suits (see G. 
L. c. 156B, § 102), it is nevertheless clearly advantageous to compel the 
settlement of all accounts with the Commonwealth prior to dissolution. 

General Laws c. 156B, § 100 requires that the Commissioner certify 
that "all taxes due and payable to the Commonwealth have been paid or 
provided for." [Emphasis supplied.] This obligation extends only to 
taxes imposed by and owed to the Commonwealth. It does not — as 
suggested in your letter — extend to general property taxes which are 
assessed and collected by the cities and towns. Accordingly, it is my 
opinion that the provisions of G. L. c. 156B, § 100 must be construed in 
such a way as to effectuate in a practical way the object of the General 



214 P.D. 12 

Court, and that the authority of the Commissioner under this section 
therefore extends to all taxes due and payable by corporations to the 
Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G. L. c. 128 A, § 3{tp) does not 'permit the establishment of a racing 
meeting within two radial miles {miles measured as the crow flies) 
of a church, school or housing development. 

January 13, 1966. 
Hon. Paul W. Walsh, Chairman, State Racing Commission. 

Dear Mr. Walsh: — The State Racing Commission has requested my 
opinion as to whether St. 1965, c. 629, in any way modifies my earlier 
opinion of January 18, 1965, that G. L. c. 128A, § 3(p) does not permit 
the establishment of a racing meeting within two radial miles of a 
church, school or housing development. I use the term "radial miles" to 
mean "miles measured as the crow flies" and to distinguish the same 
from miles measured along public ways. See Cleary v. Cardullo's, Inc., 
347 Mass. 337. 

In my earlier opinion I referred to G. L. c. 138, § 16C for purposes of 
contrasting that statute with G. L. c. 128A, § 3(p). At the time of my 
opinion, G. L. c. 138, § 16C read in part as follows: 

"Licenses for premises near churches or schools. Premises, except those 
of an innholder, located within five hundred feet, measured along public 
ways, of a church or school shall not be licensed for the sale of alcoholic 
beverages; but this provision shall not apply to the transfer of a license 
from premises located within the said distance to other premises located 
therein, if it is transferred to a location not less remote from the nearest 
church or school than its former location." 

I cited the above language merely to point out that when the 
Legislature intended the measurement of a distance to be "along public 
ways," it stated its intention explicitly. Apparently the Legislature has 
now decided to adopt a different standard of measuring distances from 
churches and schools for purposes of determining whether establishments 
at particular locations may be licensed for the sale of alcoholic bever- 
ages. In 1965, the General Court enacted c. 629, § 1, which declares: 

"Section 16C of chapter 138 of the General Laws is hereby amended 
by striking out the first paragraph and inserting in place thereof the 
following paragraph: — Premises, except those of an inn-holder, located 
within a radius of five hundred feet of a church or school shall not be 
licensed for the sale of alcoholic beverages; but this provision shall not 
apply to the transfer of a license from premises located within the said 
distance to other premises located therein, if it is transferred to a 



P.D. 12 215 

location not less remote from the nearest church or school than its former 
location." 

I see nothing in this amendment which would modify my interpreta- 
tion of G. L. c. 128A, § 3(p) given in the earlier opinion. That oi)inion 
did not say, nor did it in any way imply, that the method of measuring 
distances under G. L. c. 128A, § 3(p) must necessarily and forever differ 
from the method to be employed when distances are measured for the 
purposes of G. L. c. 138, § 16C. 

All legal authority tliat I have consulted indicates that my interpreta- 
tion of G. L. c. 128A, § 3(p), requiring that the distance between the 
nearest boundary of the racing establishment and the nearest church, 
school or housing development exceed two miles "as the crow flies," is 
correct. As far as I can determine, whenever the preposition "within" has 
taken as its object a word or phrase designating spatial distance, the 
courts, both in Massachusetts and elsewhere, have measured that dis- 
tance radially, unless, of course, there was an explicit requirement that 
the distance be measured "along public ways" or according to another 
non-radial standard. See Commonwealth v. Jones, 142 Mass. 573, 575- 
576 and Dougherty v. Kentucky Alcoholic Beverage Control Board, 279, 
Ky. 262, 267 (distance "along same street" measured radially) ; Board of 
Trustees of the Leland Stanford University v. State Board of Equaliza- 
tion, 1 Cal. 2d 784, 786; hi re Greenfield, 32 N.Y.S. 2d 471, 472, 473, 
Ralls V. Parish, 105 Tex. 253, 260; Territory ex. rel. Oklahoma v. 
Robertson, 19 Old. 149, 156. See also 96 A.L.R. 778-780. Cf. Cleary v. 
Cardullo's, Inc., supra; State Beverage Dept. v. Brentwood Assembly of 
God Church, 149 So. 2d (Fla.) 871, 874-876 (measurement along public 
ways explicitly required by statute.) 

Even were there authority for the proposition that the distance 
"within" which certain establishments are proscribed should ordinarily 
be measured along public ways when the distance is a relatively short 
one, I do not believe that such authority would apply to such longer 
distances as two miles. Whereas the purpose of G. L., c. 138, § 160 is, 
apparently, that worshippers and school children should not be disturbed 
by persons drinking in a public place, the purpose of G. L., c. 128A, § 
3(p) is, in my opinion, to protect churches, schools and housing 
developments (several of the latter are specifically for elderly persons — 
see G. L. c. 121, § 26SS et. seq.) from the intense night lighting and 
noise that frequently accompany racing. 

Such protection could not be afforded to those whom the Legislature 
intended to protect if the measurement of the prescribed distance were 
along public ways. Because of the turning and twisting of many public 
ways, particularly in rural areas, a church, school or housing develop- 
ment could well be within one radial mile or less of a racing establish- 
ment yet more than two miles away by public highway. Light and noise 
travel radially, not along public ways. 

You state in your letter that last year you "dismissed" the api^lication 
of Tyngsborough Enterprises, Inc. to conduct a racing establishment 
because it was within two radial miles of the Winslow School in 
Tyngsborough and that the same Tyngsborough Enterprises has filed 



216 PD. 12 

another application this year. Assuming that neither the racing establish- 
ment nor the school is now in a different location, I remain of the 
opinion that a license may not lawfully be issued to this applicant. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The application of § 9A, c. SO, M.G.L. requires that there he three 
immediate, consecutive years of service in a permanent position to 
qualify for the protection of that section. 

The vacating of a permanent position and acceptance of a temporary 
position terminates the immediate, continuous service in that per- 
manent position ayid thereby terminates the tenure acquired there- 
under. 

January 14, 1966. 

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

Dear Doctor Solomon: — In your letter of December 13, 1965, you 
have requested my opinion with regard to the tenure of a veteran who 
vacates his permanent position for a temporary period. 

You state that a veteran, as defined in G. L. c. 31, § 21, was appointed 
to a permanent position as Superintendent of State Hospital, under the 
provisions of G. L. c. 123, § 28, effective May 1, 1960. You further state 
that this veteran is now to be appointed by the Commissioner of Mental 
Health to the temporary position of Superintendent of State Hospital in 
the Central Department. 

On these facts, you ask "... whether or not a veteran . . . retains 
tenure in the permanent position he has vacated on a temporary basis?" 

Your request raises no question of the eligibility of this individual for 
classification as a veteran under G. L. c. 31, § 21 nor of his qualifications 
for the subsequent appointment as Superintendent of State Hospital 
under G. L. c. 123, § 28. Accordingly, for purposes of this opinion, I 
have assumed that the individual you describe is properly a veteran as 
defined in c. 31, § 21 and that he has been duly appointed to the 
permanent position of Superintendent of State Hospital under c. 123, 
§ 28. This opinion will, therefore, be limited solely to the question of 
whether tenure in his permanent position will continue during the period 
of his temporary employment in another position with the Department. 

The tenure of veterans employed in state service is provided for by G. 
L. c. 30, § 9A. That section provides in part as follows: 

"A veteran, as defined in section twenty-one of chapter thirty-one, 
who holds an office or position in the service of the commonwealth not 
classified under said chapter thirty-one, . . . and has held such office or 
position for not less than three years, shall not be involuntarily 
separated from such office or position except subject to and in accordance 
with the provisions of sections forty-three and forty-five of said chapter 
thirty-one to the same extent as if said office or position were classified 
under said chapter." [Emphasis supplied.] 



P.D. 12 217 

A veteran appointed under c. 123, § 28 to the position of Superinten- 
dent of State Hospital is the holder of a permanent position in the 
service of the Commonwealth not classified under c. 31. As such, having 
held that position since May 1, 1960, a period "not less than three 
years," he is clearly within the purview of c. 30, § 9A, and may not be 
separated involuntarily from that position except in accordance with the 
provisions of G. L. c. 31, §§ 43 and 45. 

The question remains, however, as to the legal effect of a temporary 
appointment upon his prior tenure rights earned under § 9A in the 
original position to which he expects subsequently to return. 

It has long been settled in this Commonwealth that the application of 
§ 9A requires that there be three immediate, consecutive years of service 
in a .permanent position to qualify for the protection of that section. 
[Chairynan of the State Housing Board v. Civil Service Commission, 332 
Mass. 241, 244, 245.) It does not appear to have been the intention of 
the General Court to allow veterans to leave their permanent positions 
for interim jobs and still retain their privileged status under § 9A. As 
was discussed in an opinion of my predecessor (Opinion of the Attorney 
General, Feb. 8, 1961), this would clearly frustrate the purpose of this 
statute, which is to insure "steadiness of occupation." There is no means 
of determining when, if ever, the temporary appointment would end. Nor 
is there any assurance that the individual in question would ultimately 
return to the permanent position in which he had originally acquired 
tenure. Such uncertainty in employment is precisely what the Legislature 
intended to avoid. The language of § 9A that 

"... a veteran who . . . has held such office or position for not less than 
three years, shall not be involuntarily separated from such office or 
position. . . P [Emphasis supplied.] 

confirms this by restricting the scope of the tenure to the immediate 
position in which the tenure was acquired. 

A veteran holding the permanent position of Superintendent of State 
Hospital for the period required by c. 30, § 9A would be entitled to the 
protection accorded civil servants under c. 31. However, upon his 
transfer to a new, temporary position, tenure is not transferred to the 
new position (Opinion of the Attorney General, Dec. 3, 1957, p. 39) and 
prior tenure would cease to exist. Consequently, tenure would not attach 
to the transferred employee during the period of his temporary appoint- 
ment, nor would tenure be restored to him upon return to his original or 
another permanent position. 

Upon the facts as you have stated them, therefore, it is my opinion 
that the answer to your question is in the negative. The vacating of the 
permanent position of Superintendent of State Hospital and acceptance 
of a temporary position in the Central Department terminates the 
immediate continuous service in that permanent position and thereby 
terminates the tenure acquired thereunder. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



218 P.D. 12 

The authority of the Lake Quinsigamond Commission to regulate the 
filling of Lake Quinsigamond must be shared with the Dept. of 
Public Works and the Dept. of Natural Resources in accordance 
with the provisions of c. 220 of the Acts of 1965. However, the 
commission's authority is not to be subservient to that of the other 
departments. 

The applications to fill the waters of Lake Quinsigamond must be made 
in accordance with the procedures prescribed therefor by the Com- 
mission and the procedure set forth in St. 1965, c. 220, and the filling 
of the Lake is subject to the concurrent authority of the Commission 
and the Departments referred to in the 1965 Act. 

January 14, 1966. 
Hon. Walter J. Moossa, Chairman, Lake Quinsigamond Commission. 

Dear Mr. Moossa: — You have requested my opinion with regard to 
the authority and jurisdiction of your Commission to regulate the filling 
of the waters of Lake Quinsigamond. 

Specifically, you have asked "whether or not the Lake Quinsigamond 
Commission has : 

(1) Jurisdiction (Sole). 

(2) Paramount authority under law over any other Constituted 
Body to regulate the filling or denial of such rights to fill any of the 
waters of Lake Quinsigamond. 

(3) Whether or not our authority is subservient to authority granted 
to others under Acts of 1965, Chapter 220 which Act regulates Inland 
Waters in The Commonwealth." 

The law of this Commonwealth applicable to the questions you raise is 
contained in Special Acts of 1916, c. 294, as amended by c. 435 of the 
Acts of 1935, and Acts of 1965, c. 220. 

Chapter 294 of the Special Acts of 1916, as amended, which sets out 
the authority of the Lake Quinsigamond Commission, provides in part as 
follows: 

"The said commission may establish reasonable rules and regulations 
for the protection and policing of the waters of Lake Quinsigamond. . . ." 

Chapter 435 of the Acts of 1935, further defining the authority of the 
Lake Quinsigamond Commission, contains the following provision: 

_ "The Lake Quinsigamond Commission ... is hereby authorized and 
directed to prohibit . . . the entrance or discharge therein of any 
substance which . . . might tend ... to fill in said lake. . . For the 
purposes of this section said commission may make orders, rules and 
regulations." 

Chapter 220 of the Acts of 1965, regulating inland Avaters, provides in 
part: 

"No person shall remove, fill or dredge any bank, flat, marsh, meadow 
or swamp bordering on any inland waters without fiHng written notice of 
his intention to so remove, fill or dredge . . . with the board of selectmen 



P.D. 12 219 

in a town or the mayor of a city, and with the state departments of 
public works and natural resources. . . . The selectmen or mayor may 
recommend such protective measures as may protect the public interest. 
The department 0/ public works shall determine whether the proposed 
activity would violate any provisions of chapter ninety-one and shall 
take such action as may be necessary to enforce such provisions. If the 
area on which the proposed work is to be done is determined by the 
department of natural resources to be essential to public or private water 
supply or to proper Hood control, the department shall by ivritten order 
signed by the commissioner impose such conditions as may be necessary 
to protect the interests described herein, and the work shall be done in 
accordance therewith. . . ." [Emphasis supplied.] 

If t.here is an irreconcilable conflict between a new legislative provision 
and a prior statute relating to the same subject matter, the latter 
expression of the Legislature must, of course, control. However, an effort 
must be made where possible to construe each statute or set of statutes in 
such a way as to effectuate as harmoniously as possible the provisions of 
each. 

In the present situation, prior to the enactment of c. 220 of the Acts of 
1965, the authority of the Lake Quinsigamond Commission to regulate 
the filling of Lake Quinsigamond was unrestricted. The mandate of c. 
294 of the Special Acts of 1916, clearly unlimited in its terms, must be 
deemed to have included any authority reasonably necessary and 
incidental to the protection of Lake Quinsigamond. In the context of the 
Conmiission's responsibility, authority to regulate the filling of Lake 
Quinsigamond could be considered reasonably necessary and incidental 
to the effective performance of the Commission's duties, even prior to the 
passage of St. 1935, c. 435. 

It would appear, therefore, that such authority was impliedly vested in 
the Lake Quinsigamond Commission by virtue of the general grant of c. 
294 of the Special Acts of 1916. Express authority to regulate the filling 
of Lake Quinsigamond was, however, granted the Commission by c. 435 
of the Acts of 1935. 

Subsequent to these grants of authority to the Lake Quinsigamond 
Commission, the Legislature enacted c. 220 of the Acts of 1965, which 
chapter authorized the Department of Public Works and the Depart- 
ment of Natural Resources to take certain actions with respect to lands 
bordering inland waters. Although St. 1965, c. 220 is the most recent 
relevant legislative pronouncement, its passage does not necessarily 
abrogate the earlier grants of authority to the Lake Quinsigamond 
Commission. Rather, in accord with the rules of statutory construction 
noted earlier, that enactment must — if possible — be construed in con- 
junction with the earlier statutes. 

Considering all of the relevant statutes, it would appear that the grant 
of authority in c. 220 of the Acts of 1965 does not abolish the similar 
authority vested in the Lake Quinsigamond Commission. The powers 
created by c. 220 are complementary to those of the Lake Quinsigamond 
Commission, the Legislature having limited the Commission's earlier 
unilateral exercise of control over the Lake. Chapter 220 of the Acts of 
1965 limits the authority of the Lake Quinsigamond Commission by 



220 PD- 12 

granting to the Department of Public Works and the Department of 
Natural Resources certain reciprocal powers to be exercised in the same 
context. 

It is my opinion, therefore — in giving fullest effect to the Acts in 
question — that the Commission's authority to regulate the filling of Lake 
Quinsigamond must be shared with the Department of Public Works and 
the Department of Natural Resources in accordance with the provisions 
of c. 220 of the Acts of 1965. Accordingly, the answers to your first two 
questions are in the negative. The Commission does not have either sole 
jurisdiction or paramount authority to act upon petitions for filling of 
the waters of Lake Quinsigamond. However, nothing in the above- 
mentioned Acts indicates that the authority of the Commission is to be 
subservient to that of the other Departments. The statutes contemplate 
dual responsibility, not complete subjection of one agency by another. 
Accordingly, in response to your third question, it is my opinion that 
applications to fill the waters of Lake Quinsigamond must be made in 
accordance with the procedures prescribed therefor by the Commission 
and the procedures set forth in St. 1965, c. 220, and that the filling of the 
Lake is subject to the concurrent authority of the Commission and the 
Departments referred to in the 1965 Act. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Legislature can coristitutionally abolish an office and cut off 
whatever tenure rights have attached thereto. 

The position, of Chairman of the State Housing Board, and Director of 
Urban and Industrial Renewal did not survive the reorganization 
effected by St. 1964, c. 636. Hence, employment in said positions 
must be considered to have terminated on the effective date of said 
Act, August 6, 1964. 

I January 14, 1966. 

fHoN. Theodore W. Schulenberg, Commissioner, Department of Com- 
merce and Development. 

Dear Commissioner Schulenberg: — On January 12, 1966, you re- 
quested my opinion with regard to the status of Mr. Leo F. Benoit and 
Mr. John A. Letteney, each of whom was tried and acquitted by a 
Suffolk County jury on January 11 of this year. You have recited the 
following relevant facts, all of which are a matter of public record. 

Mr. Leo F. Benoit was appointed by the Governor — with the advice 
and consent of the Executive Council, as then required — to the position 
of Chairman of the State Housing Board [see G. L. c. 6, § 64] on January 
7, 1960. On May 10, 1963, Mr. Benoit was indicted by a Suffolk County 
grand jury acting upon certain evidence presented to it after investiga- 
tions by the Massachusetts Crime Commission. On July 10, 1963, as a 
result of the indictment, Mr. Benoit was suspended by the Governor 
under the provisions of G. L. c. 30, § 59, the so-called Perry Law. On 
August 6, 1964, the State Housing Board was abolished [see St. 1964, c. 



P.D. 12 221 

636, § 10]. [The effective date of the abolition is — in accordance with St. 
1964, c. 636, § 23 — determined on tlie basis of the date of appointment 
and qualification of the new Commissioner of Commerce and Develop- 
ment.] Mr. Benoit was — as indicated above — tried in Suffolk County, 
and, on January 11, 1966, was acquitted by a jury. You have asked the 
following questions with respect to the status of Mr. Benoit: 

"(1) Does Leo F. Benoit's employment with the Commonwealth of 
Massachusetts terminate on August 6, 1964? 

"(2) Is Mr. Benoit entitled to his salary from July 10, 1963 (the date 
of his suspension) to August 6, 1964 (the effective date of the reorganiza- 
tion) or to January 7, 1965 (the date when his term of office would have 
expired) ?" 

Mr. John A. Letteney was appointed by the then Chairman of the 
State Housing Board to the position of Director of the Division of 
Urban and Industrial Renewal on July 30, 1961. After being indicted by 
a Suffolk County grand jury, he was suspended under c. 30, § 59 on July 
12, 1963. During the period of his suspension, Mr. Letteney — as a 
veteran of World War II — acquired tenure under c. 30, § 9A. On August 
6, 1964, the office of Director of the Division of Urban and Industrial 
Renewal was abolished [see St. 1964, c. 636, § 13]. Mr. Letteney was 
likewise acquitted by a Suffolk County jury on January 11, 1966. You 
have posed the following inquiries with respect to Mr. Letteney : 

"(1) Does Mr. Letteney have a legal right to a position in the 
Department of Commerce and Development? 

"(2) Is Mr. Letteney legally entitled to any salary from the date of 
his suspension? 

"(3) If Mr. Letteney is legally entitled to salary, is the date of the 
reorganization (August 6, 1964) a cut-off date?" 

You have further indicated that Mr. Letteney has another indictment 
pending against him, with no record of a suspension on file; accordingly, 
you also ask — if it be determined that Mr. Letteney has no present 
employment status — whether a suspension under c. 30, § 59 will be 
necessary. 

Your request necessitates an analysis of the provisions of c. 636 of the 
Acts of 1964, which Act created a new Department of Commerce and 
Development, and a careful application of the provisions of the Perry 
Law. I will deal first with these statutes as they are applicable to Mr. 
Benoit, and then as they are applicable to Mr. Letteney. 

Section 10 of c. 636 of the Acts of 1964 provides as follows: 

"The state housing board is hereby abolished. The powers and duties 
formerly exercised by said board are hereby transferred to the depart- 
ment of commerce and development established under the provisions of 
chapter twenty-three A of the General Laws, inserted by section one of 
this act." 

The State Housing Board was simply one of a variety of boards and 
agencies whose duties were transferred to the new Department of 



222 P.D. 12 

Commerce and Development. The General Court carefully provided for 
the concomitant transfer of many specific positions within or under such 
boards and agencies. 

"Upon the effective date of this section all permanent and temporary 
positions in any board, agency, division, bureau, section or other 
administrative unit under the department of commerce, the state housing 
board, the division of urban and industrial renewal, the mass transporta- 
tion commission and the Massachusetts commission on atomic energy 
existing immediately prior to the said date, except the chairman and 
members of the state housing board, the director of urban and industrial 
renewal, the chairman and members of the mass transportation commis- 
sion, and the coordinator and members of the Massachusetts commission 
on atomic energy, shall be transferred to the department of commerce 
and development. . . ."[Emphasis supplied.] 

St. 1964, c. 636, § 15. 

Thus, the position of Chairman of the State Housing Board did not 
survive the reorganization effected by this chapter. Likewise, it is clear 
that the Legislature did not intend to transfer the particular incumbent 
of that position. Section 16 of Chapter 636 of the Acts of 1964 provides 
for the transfer and classification of employees who had tenure rights in 
positions transferred to the new Department of Commerce and Develop- 
ment pursuant to the provisions of § 15 quoted above. Sections 17 and 
18 relate to the transfer and classification of employees who were 
without tenure, but also indicate that transfer of such employees is 
contingent upon the transfer of their positions under § 15. 

It is clear that Mr. Benoit did not have tenure as Chairman of the 
State Housing Board; nor was his position transferred to the new 
Department under the provisions of § 15 of the reorganization Act. 
Accordingly, since the position of Chairman of the State Housing Board 
has been abolished, and since no tenure or transfer provision operates so 
as to insure Mr. Benoit employment in the new Department of Com- 
merce and Development, it is my opinion that Mr. Benoit's employment 
with the Commonwealth must be considered to have terminated on the 
effective date of the reorganization Act [August 6, 1964] . 

Llowever, the fact that Mr. Benoit is not entitled to a position within 
the new Department of Commerce and Development does not mean that 
the Commonwealth may be exempted from meeting its past obligations 
to him. Since Mr. Benoit was suspended under the provisions of the 
Perry Law, he is entitled also to the protection of that statute. Chai)ter 
30, § 59 provides in relevant part: 

'Tf the criminal proceedings against the person suspended are ter- 
minated without a finding or verdict of guilty on any of the charges on 
which ho was indicted, his susjicnsion shall be forthwith removed, and he 
shall receive all compensation or salary due him for the period of his 
suspension, and the time of his suspension shall count in determining sick 
leave, vacation, seniority and other rights, and shall be counted as 
creditable service for purposes of retirement." [Emphasis supplied.] 

Since criminal proceedings instituted against Mr. Benoit have ter- 



P.D. 12 



223 



minated without a finding or verdict of guilty, Mr. Benoit niupt now be 
granted all compensation and other privileges which were withheld 
during the period of his suspension. However, the right of an employee of 
the Commonwealth to compensation and to other benefits relates solely 
to the period of time during which he actually held a given position. The 
Perry Law specifically provides for restoration of back-pay and other 
benefits due him for the period of his suspe7ision. x\n employee cannot be 
considered to have been suspended after the date on which his position 
was abolished by the Legislature. It is my opinion that Mr. Benoit's 
right to hold the' position of Chairman of the State Housing Board, and 
his suspension from that position came to an end simultaneously on 
August 6, 1964, the effective date of the creation of the Department of 
Commerce and Development. Accordingly, Mr. Benoit is now entitled to 
the compensation and other benefits which — were it not for the suspen- 
sion—he would have received from July 10, 1963 (the date of his 
suspension) to August 6, 1964 (the effective date of the reorganization) . 
The provisions of the Act reorganizing the Department of Commerce 
and Development and the provisions of the Perry Law apply in a similar 
way to the status of j\Ir. John A. Letteney. The office of Director of the 
Division of Urban and Industrial Renewal held by Mr. Letteney was 
abolished by section 13 of Chapter 636 of the Acts of 1964. 

''The office of the director of urban and industrial renewal is hereby 
abolished. The powers and duties formerly exercised by the division of 
urban and industrial renewal are transferred to the department of 
commerce and development established under the provisions of chapter 
twenty-three A of the General Laws, inserted bv section one of this 
act." 

Since Mr. Letteney enjoyed the tenure rights of a veteran under 
chapter 30, § 9A, his right to be employed within the new department 
depends upon the provisions of § 16 of the reorganization Act. 

''Upon the effective date of this section any employee of any board, 
agency, division, bureau, section or other administrative unit under the 
department of commerce, the state housing board, the division of urban 
and industrial renewal, the mass transportation commission, or the 
Massachusetts commission on atomic energy, who immediately prior to 
said date had tenure under section nine A of chapter thirty or section 
twenty-six S of chapter one hundred and twenty-one of the General 
Laws in any permanent position ivhich, pursuant to section fifteen, shall 
be transferred to the department of commerce and development estab- 
lished under the provisions of chapter twenty-three A of the General 
Laws, inserted by section one of this act, and shall be classified under 
chapter thirty-one of the General Laws, shall, without being subjected to 
a qualifying examination by the division of civil service or being 
required to serve a probationary period, be deemed to be permanently 
appointed to such position . . ." [Emphasis supplied.] 

Lender section 15 of the reorganization Act as previously quoted in this 
opinion, it is clear that the position of Director of Urban and Industrial 
Renewal was not transferred to the new Department. Since this office has 



224 P.D. 12 

not been transferred under § 15, the provisions of § 16 are not applicable 
to Mr. Letteney and he is not entitled to a position within the new 
Department. 

It is clear that the General Court has the authority to abolish a 
position despite the fact that its incumbent has acquired tenure rights 
therein. The Supreme Judicial Court has stated — in Bessette v. Commis- 
sioner of Public Works, 1965 Adv. Sh. 367 — that abolition of such a 
position is within the legislative power. 

"There is no basis for concluding that the change was made for any 
reason other than the public interest. That the petitioner is the only 
person . . . whose position was abolished shows no invasion of a 
constitutional right . . . The abolition of the office necessarily entailed 
the ending of the civil service . . . rights inherent in the office." [Pp. 
371-372.] 

Accordingly, it is my opinion that the Legislature could constitutionally 
abolish the office held by Mr. Letteney and cut off whatever tenure rights 
had attached thereto. It is clear that the Legislature has in fact done so, 
and that Mr. Letteney is not entitled to any position with the new 
Department of Commerce and Development. 

Nevertheless, as in the case of Mr. Benoit, the Commonwealth cannot 
lawfully withhold the rights which have accrued to Mr. Letteney under 
c. 30, § 59. Since the proceedings against Mr. Letteney have terminated 
without a finding or verdict of guilty, he is entitled to receive all 
compensation and other benefits which had been withheld during the 
period of his suspension. But the period of Mr. Letteney's suspension 
cannot, be said to extend beyond the date of abolition of the position 
from which he was suspended. Thus, he is entitled to receive all 
compensation and other benefits which would have accrued to him from 
July 12, 1963 [the date of his suspension] to August 6, 1964 [the date of 
abolition of his position.] Since Mr. Letteney has no present status as an 
employee of the Commonwealth, it is unnecessary to consider your 
questions with regard to a further suspension. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G. L. c. 90, § 9 authorizes the use of unregistered earth-moving vehicles 
simultaneously with general 'public use of the highway which is 
being altered or constructed, assurning of course that an officer is 
present to direct traffic as required in said section. 

January 17, 1966. 

Hon. Francis W. Sargent, Commissioner, Department of Public Works. 

Dear Commissioner Sargent: — You have requested my opinion on 
the application of G. L. c. 90, § 9 to certain eavth-moving vehicles used 
on highways which have already been opened for use by the public. 
Specifically, you have asked "whether said section (G. L. c. 90, § 9) 
applies in the case of a contractor using such equipment on a highway 



225 
P.D. 12 

which has been opened for --^7-^,!;^,^^^^/? ^^''^ ^"" '^ 
the completion of all the work called for by the contract. 
General Laws c. 90, § 9 provides in part as follows . 

?:^stl;Tdir:^ o?da:of:i;h1his^cha r.*':Sc, except that an earth. 
movinryeWcre used exch.sively for the building, repair and maintenance 
rwrhwavs may be operated without such registration for a distance 
nit efceSing thr eCndrert yards on any way adjacent to any highway 

?de crihed else«*ere in the statutes) has been issued by the commissioner 
m" bt wS or the board or officer haying charge of ^^^JJJ ^ 

'nrnvided further that such earth-moving vehicle shall be operatea unaer 
^^trmX rrhen directed by an officer authorized to dne^trafflc 
atthelZation where such earth-moving vehicle rs being operated. . . • 
[Emphasis supplied.] 

The lanmiaee of the above-quoted section is clear. E^^rth-moving 
eq^pmnfused exclusively for the building, repair ^^^ -^^^f b«; 
hishwavs mav, in accordance with the provisions ^^^o^ed above be 
o^e'tS without registration, on any way adjacent to any »/ o^ ^U 
road being constructed, relocated or improved. There is no ^^P^ess restnc 
tion upon the operation of such vehicles during pubhc use of the highway, 
and no such restriction is to be implied. • . „. ^f ^,,oh n re- 

Specific provisions of § 9 clearly negate the ^^^^.^f ^^°^j;i7,,^\[4 
stri tion. That section permits the operation of unregistered ecyth-mo^ing 
vehicles "onlv when directed by an officer authorized to direct tTaffic at 
the operational site of the work. This Provision, given its plain me.am^^^ 
demonstrates the intent of the Legislature that he vehicles ^^ f ^^^^^^ 
the statute be allowed to operate simultaneously with a regular tratnc 

^Ts a practical matter, considering both the ^ecessitv of keeping 
present roads open to the public and the continmng need for high^^ay 
improvement, it is apparent that the General Court sought to reconcile 
these sometimes competing demands whenever possible. L hus tne i^ey^- 
lature has provided that— in the absence of undue danger or impossi- 
bility of performance— the process of relocation and improvement 01 
highwavs should continue with as little disruption of normal use ot tne 
roads as possible. Accordinglv, it is my opinion that G. L. c. 90, y aoes 
authorize the use of unregistered earth-moving vehicles simultaneously 
with general public use of the highwav which is being altered or 
constructed, assuming of course that an officer is present to direct tratnc 
as required therein. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



226 



P.D. 12 



Playboy of Boston, Inc., is not a ''club" as that term is used in G. L. c. 
138. If the Alcoholic Beverages Commission is otherwise satisfied 
with the application filed by the corporation, and the latter has 
complied with all other relevant statutes and regulations, the 
Commission has the legal authority to grant Playboy of Boston, 
Inc., an all-alcoholic beverage restaurant license under the provi- 
sions of G. L. c. 138 § 12. 

January 17, 1966. 

Hon. Quintin J. Cristy, Chairman, Alcoholic Beverages Control Com- 
mission. 

Dear Mr. Cristy: — You have asked for my opinion with regard to an 
application for renewal of a seven-day all alcoholic beverages restaurant 
license filed by a corporation known as Playboy of Boston, Inc. You 
have forwarded to me — as a part of your request — copies of a statement 
filed with your Commission by Mr. Richard Perkins, President of 
Playboy of Boston, Inc., and a franchise agreement entered into by 
Plaj'^boy of Boston, Inc. and Playboy Clubs International, Inc., a 
Delaware corporation licensed to do business in the State of Illinois. The 
statement and the franchise agreement provide information which is 
necessary in order to determine the nature of the business to be 
conducted by Playboy of Boston, Inc. 

You have included among your questions the inquiry "whether or not 
Playboy of Boston, Inc., is in any way in violation of our statutes in 
guaranteeing payment of credits (customer charges), when keys are 
presented, and where the Playboy Clubs International, Inc. participate 
in the profits of the so-called "cover-charge" and other profits of the 
Playboy of Boston, Inc." You further ask — on the subject of the twenty- 
five dollar "cover-charge" fee — "whether or not (such a fee), as des- 
cribed for a paper key, is not excessive." However, it is apparent that 
these questions are subsidiary in nature, and I gather that you are 
primarily concerned with determining whether — given the facts you have 
provided — the operations contemplated by Playboy of Boston, Inc. 
would comply with the conditions upon which an all alcoholic beverages 
restaurant license is issued. 

Playboy of Boston, Inc. has sought the renewal of an all alcoholic 
beverages restaurant license under the provisions of G. L. c. 138, § 12. 

"A common victualler duly licensed under chapter one hundred and 
forty to conduct a restaurant ... in any city or town wherein the 
granting of licenses under this section to sell all alcoholic beverages or 
only wines and malt beverages, as the case may be, is authorized by this 
chapter . . . , may be licensed by the local licensing authorities, subject 
to the prior approval of the commission, to sell to travellers, strangers 
and other patrons and customers not under twenty-one years of age, such 
beverages to be served and drunk . . . only in the dining room or dining 
rooms. . . ." 

An establishment which operates under the authority of such a license 
must, in accordance with the language quoted above, serve the public in 
general, and cannot elect to cater to a restricted clientele. 



RD. 12 227 

Those wishing to dispense alcohoUc beverages to a limited class of 
persons may — mider other provisions of c. 138 — apply for a so-called 
"Club" hcense. A "Club" is defined in § 1 of c. 138 as "a corporation 
chartered for any purpose described in section two of chapter one 
hundred and eighty . . . , including also any organization or unit 
mentioned in clause twelfth of section five of chapter forty, owning, 
hiring, or leasing a building, or space in a building, of such extent and 
character as may be suitable and adequate for the reasonable and 
comfortable use and accommodation of its members. . . ." [Emphasis 
supplied.] Such organizations may be licensed to dispense alcoholic 
beverages in accordance with G. L. c. 138, § 17: 

"Irrespective of the number of licenses that may otherwise be granted 
in cities and towns as provided in clauses (1) to (5), inclusive, of this 
section, the local licensing authorities may grant to legally chartered 
clubs in any such city or towTi five additional licenses under section 
twelve, and such authorities in any city or town having a population 
exceeding twenty-five thousand may grant one additional license as 
aforesaid for each population unit of ten thousand or fraction thereof 
over twenty-five thousand. . . ." 

A club is characterized by the fact that certain restrictions upon 
membership are imposed, and that the public in general is not admitted. 
The club ordinarily reserves the right to reject applicants for membership 
and to maintain some degree of exclusiveness with respect to those who 
are to be allowed to take advantage of its facilities. But the all alcoholic 
beverages restaurant license authorized by § 12 of c. 138 discussed above 
requires that the public at large be accommodated. Clearly, a holder of 
such a license could not lawfully follow the more restirctive policies 
which are typical of the ordinary club. Accordingly, the primary 
question to be resolved is whether Playboy of Boston, Inc. is in fact a 
club for purposes of c. 138. Should it be determined that the corporation 
does actually operate as a club, it would follow that it does not qualify 
for the type of license (one which authorizes service to the general 
public) for which it has applied. 

The documents which you have provided indicate the following with 
respect to the operational policies of Playboy of Boston, Inc. A member 
of the public may gain access to the corporation's establishment in one of 
two ways. He may apply for and — after a satisfactory check of his credit 
rating — be issued a metal key. The fee which must accompany such an 
application is twenty-five dollars for those in Metropolitan Boston. 
Possession of such a key authorizes the holder to enter any Playboy 
establishment in Boston or elsewhere at any time during normal hours 
with no further charge (except of course for food, drink, etc., purchased 
once the customer is inside) . 

However, possession of a key is not necessary to enter the premises. 
Any member of the public may — upon payment at the entrance of a 
twenty-five dollar fee — immediately be admitted. At the same time, he 
will be given a receipt (referred to in the franchise agreement as a 
Franchisee-issued paper key) evidencing the twenty-five dollar payment 
which— like the metal key— will guarantee him admittance to any 
Playboy establishment at any time with no further admission charge. 



228 PD- 12 

The only distinction drawn between those who hold metal keys and 
those who hold the paper variety is that the former — whose credit ratings 
have been examined — are entitled to purchase food, drink and other 
items on credit, whereas the latter are obliged to pay for what they 
receive in cash. The metal key opens no door, and secures admittance for 
the holder no more quickly than does the paper receipt. The metal key 
seems to represent more or less what a credit card represents — i.e., simply 
that the bearer has a charge account. None of the information which is 
before me warrants the conclusion that guests with metal keys are 
treated in any way differently from those with paper receipts. 

Based upon the facts recited above, nothing more appearing, it is my 
opinion that Playboy of Boston, Inc. contemplates the operation of an 
establishment which serves the general public, and which cannot be said 
to be a "club" for purposes of c. 138 of the General Laws. It is apparent 
that any member of the public may enter upon payment of the twenty- 
five dollar fee, a payment which must be made only a single time. The 
fact that some guests may have charge account privileges and that others 
are compelled to pay cash represents only a method of doing business 
chosen by the corporation, and does not lead to a conclusion that those 
favored by the possession of what is referred to as a key, but is actually 
a credit card, are really members of a club who are to be given preferred 
treatment. The provisions of the franchsie agreement which describe 
contemplated campaigns to solicit new keyholders indicate that the 
officers and directors of the contracting corporations are primarily 
concerned with expanding rather than limiting their clientele. These are 
profit-making organizations, and profits generally increase with the 
numbers availing themselves of the entertainment offered. Although 
labels used or avoided by the parties are admittedly not determinative, it 
is interesting to note that the Playboy establishment in Boston is not 
referred to as a "club" by its organizers, nor are the prospective 
customers called "members." 

It is of minor importance to the resolutions of this question whether 
the initial twenty-five dollar fee is to be called a "membership fee" or a 
"cover-charge." The charging of admission does not by itself mean that a 
place is not open to the public. 

". . . it does not follow that the imposition of an admission fee — on 
payment of which any member of the public may enter plaintiff's 
premises and purchase liquor for consumption thereon — in any way 
makes plaintiff's premises not open to the general public. . . . 

Playboy Club of Neiv York Inc. v. Hostetter, New York Supreme 
Court, Index No. 5091-1963; Aff'd., Appellate Division, Vol. 150, 
N.Y. L. J., No. 86, p. 12 (1963) . Affirmed without opinion by the Court of 
Appeals on July 10, 1964. 

... a place may be public though a weekly, monthly or seasonal basis 
for charging admission is employed. . . . Matter of Castle Hill Beach 
Club, V. Arbury, 2 N.Y.2d 596, 601." 

The general public frequents a variety of places which charge admission 
fees by the day, season or some other time-period— restaurants, athletic 
stadia, beaches, national monuments, etc. It is not for the Attorney 



P.D. 12 229 

General to determine that a twenty-five dollar fee is too large, or that 
the practice of requiring a single initial admission payment should be 
discontinued. These are matters for the judgment of private businessmen, 
and do not — at least in the present case — affect the conclusion that 
Playboy of Boston, Inc. serves the public in general. 

This very question has been considered by the Court of Appeals of the 
State of New York in the Hostetter case cited above, and by the 
Supreme Court of Illinois in Walton Playboy Clubs, Inc. v. City of 
Chicago, 185 N.E.2d 719. In each case, the Court has ruled that the 
Playboy establishment in question did in fact service the public in 
general without discrimination, and that the regulatory statutes of the 
State had not been violated. In the Walton case, the Court commented 
as foll.ows: 

"The plaintiff's facilities are open to the public; the $50.00 require- 
ment [$50.00 was the fee in Illinois] is the only restriction on admission 
and anyone who is willing to pay this one-time fee can enter, with 
guests, as often as he wishes. In this respect it does not differ, except in 
the size of the fee, from many other places where alcoholic beverages and 
food are served and where entertainment is presented. If it is visited with 
some frequency or with guests, the fee is far less than charged by other 
Chicago establishments where a cover charge is exacted for each individ- 
ual each time the establishments are patronized." 

Both New York and Illinois have provisions in their alcohol regulation 
statutes similar to the Massachusetts requirement of service to the 
general public by ordinary licensees. Nothing distinguishes the operation 
which is planned by Playboy of Boston, Inc. from those in New York 
and Illinois, which the court of last resort of each state has concluded 
are public rather than private in nature. 

I am well aware of the fact that the Playboy establishment in Boston 
will — like those already opened in other major cities — have the veneer of 
a club. Playboy Clubs International, Inc. and the organizations which 
that corporation has enfranchised for the purpose of operating dining 
and entertainment spots, have, intentionally or unintentionally, given 
the impression that there is something exclusive about their operations, 
and that these establishments have been developed primarily for persons 
of sophistication. There appears to be a fairly widespread public 
misconception about the existence of restrictions upon entry into a 
Playboy location. But this ruling cannot be based upon the fashion in 
which certain members of the public may happen to view the operation 
of the corporations in question. All of the facts which are before me 
indicate that Playboy of Boston, Inc. does not plan to impose restric- 
tions upon those wiio may enter, and that the corporation will cater to 
the general public without limitation. I can see nothing in the proposed 
plan of operation which would violate any of the provisions of c. 138 or 
any of the conditions upon which an all alcoholic beverages restaurant 
license is ordinarily issued. 

The fact that Playboy of Boston, Inc. is willing to do a certain 
amount of business on a credit basis by guaranteeing the charges of those 
customers who hold metal keys does not — in response to your remaining 



230 P.D. 12 

questions — contravene any of the statutes of the Commonwealth. The 
corporation may freely choose to advance credit to its customers ; this is a 
business decision, and is not subject to any provision of c. 138. Likewise, 
those parts of the franchise agreement which provide for participation in 
profits by Playboy Clubs International, Inc. represent only a method of 
compensating International for the granting of the franchise. The parties 
have chosen that such compensation shall be made on the basis of a 
percentage of profits, rather than by a single lump sum payment; this 
also is a business decision which is well within the discretion of the 
parties involved. It does not constitute the sale of alcoholic beverages in 
Massachusetts by Playboy Clubs International, Inc. (See my opinion to 
your Commission, dated December 17, 1965, on the subject of the 
dispensing of alcoholic beverages in the War Memorial Auditorium in 
Boston, in which the question of participation by another party in the 
profits of a licensee is fully discussed.) 

It is therefore my opinion that Playboy of Boston, Inc. — despite its 
rather unusual application and "cover-charge" procedures — is not a 
"club" as that term is used in c. 138. Assuming that your Commission is 
otherwise satisfied with the application filed by Playboy of Boston, Inc., 
and that the corporation has complied with all other relevant statutes 
and regulations, your Commission has the legal authority to grant to 
Playboy of Boston, Inc. an all alcoholic beverages restaurant license 
under the provisions of § 12 of c. 138. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The authorization of technical and other assistance found in G. L. c. 15, 
§ 11, inserted by St. 1965, c. 64I, § 2, does not imply that the 
Department of Education may lawfully transfer funds to a munici- 
pality for the purpose of aiding pupil transportation plans, even in 
cases in which such plans have been developed to eliminate or to 
reduce racial imbalance. 

The Department of Education may, under appropriate circumstances, 
recommend the transportation of pupils as a means of eliminating or 
reducing racial imbalance in the public schools. Assuming that no 
written protests have been lodged with the school committee under 
c. 71, § 37D, such transportation may lawfully be provided without 
violating any of the provisions of G. L. c. 71, § 68. 

January 18, 1966. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have requested my opinion 
with regard to two questions concerning the interpretation of c. 641 of 
the Acts of 1965, entitled "An Act Providing For The Elimination Of 
Racial Imbalance In The Public Schools." Your two questions are as 
follows: 

"(1) May the Department of Education pay currently or reimburse 



P.D. 12 231 

a city under the language 'and other assistance in the formulation and 
execution of plans' where transportation is provided in order to eliminate 
or reduce racial imbalance? 

"If the answer is in the affirmative, what source would it come from 
and how would it be raised? 

" (2) If the Board of Education were to recommend transportation of 
students under two miles or even over two miles, what effect would 
Chapter 71, Section 68 of the General Laws have on the transportation 
recommendations of the Board of Education under Chapter 641 of the 
Acts of 1965?" 

In answer to your first question, it is my opinion that the quoted 
portion of G. L. c. 15, § 11, inserted by St. 1965, c. 641, § 2, was not 
intended to authorize payments to cities and towns as reimbursement for 
additional pupil transportation expenses created by the development of a 
plan under the said c. 641. It is clear from its context that the phrase 
"technical and other assistance" was intended to include only those 
services which the Department of Education might be able to render 
within the framework of its normal operations. 

The Department could, for example, assist a municipality by helping 
to plan the most eflficient placement of new schools, by computing the 
most convenient pupil transportation pattern or by acting as a clearing- 
house for information concerning new programs and experiments. The 
Department might also advise municipalities as to the availability of 
grants and other assistance from private universities and foundations. 
Such activities would conform closely with the regular operations of the 
Department, and would not constitute a new and separate program of 
state aid to municipalities. 

It is significant to note that there already exist several extensive 
programs of educational aid for cities and towns. Yet, unlike the 
assistance referred to in the first paragraph of the new c. 15, § 11, all of 
these programs for financial aid are described and limited in considerable 
detail by the different provisions of law under which they are estab- 
lished. For examples of such state aid programs, see: 

G. L. c. 70, §§ 1-10 (State program of general school aid) ; 

G. L. c. 71, § 7A (Reimbursement of a portion of local pupil 
transportation expense) ; 

G. L. c. 71, § 46E (State aid to provide higher salaries for teachers of 
mentally retarded children) ; 

G. L. c. 71, § 78 (Reimbursement of a portion of expense of municipal 
junior college instruction). 

Thus, in cases in which it has been the intention of the Legislature to 
authorize actual payments to municipalities, the General Court has 
evidenced such intention by the use of clear language and precise 
regulation of payments. Section 1 I itself contains a specific reference to 
payments to municipalities in its final paragraph (relating to the School 
Building Assistance Commission). The General Court ordinarily regu- 
lates the expenditures of state departments and agencies with great care, 



232 P.D. 12 

and it is apparent that the Department of Education is no exception. I 
cannot assume that the Legislature has departed from this practice _ in 
this single instance. Accordingly, it is my opinion that the authorization 
of "technical and other assistance" does not imply that the Department 
may lawfully transfer funds to a municipality for the purpose of aiding 
pupil transportation plans, even in cases in which such plans have been 
developed to eliminate or to reduce racial imbalance. 

Your second question relates to a possible conflict between the 
provisions of the so-called "Racial Imbalance Act" referred to above 
and those of § 68 of c. 71 of the General Laws. The latter section 
provides in part as follows: 

". . . If the distance between a child's residence and the school he is 
entitled to attend exceeds two miles and the nearest school bus stop is 
more than one mile from such residence and the school committee 
declines to furnish transportation, the department [of education], upon 
appeal of the parent or guardian of the child, may require the town to 
furnish the same for a part or for all of the distance between such 
residence and the school. . . ." 

Consequently, each school committee is obliged to provide transportation 
for each student of the public schools of a given municipality who resides 
more than two miles from the school which he is entitled to attend, and 
more than one mile from the nearest school bus stop. As you indicate in 
your letter, no school committee is required under this section to provide 
transportation in cases in which a pupil resides at a location which is less 
than two miles from his school. 

On the other hand, c. 641 of the Acts of 1965 implies that transporta- 
tion of students is a device which may be used to combat racial 
imbalance. This indication appears in the statute in a negative form of 
provision ("No school committee or regional school district committee 
shall be required as part of its plan to transport any pupil to any school 
outside its jurisdiction or to any school outside the school district 
established for his neighborhood, if the parent or guardian of such pupil 
files written objection thereto with such school committee. . . .") ; but it 
is clear that the Act contemplates the possible use of pupil transportation 
under certain circumstances. Thus, it v/ould be entirely within the 
purview of the Act for the Department of Education to recommend — in 
appropriate situations — that pupils be transported as a means of reduc- 
ing racial imbalance. 

If in fact there is a conflict between the provisions of St. 1965, c. 641 
which authorize your Department to recommend pupil transportation 
plans and the provisions of c. 71, § 68, such conflict may easily be 
reconciled. Chapter 71, § 68 is a general statute, applicable to all school 
committees and at all times. It states a continuing policy of the 
Legislature, i.e., that pupils residing a great distance from the public 
school to which they have been assigned should not be compelled to 
furnish their own transportation. Chapter 641 of the Acts of 1965 is, on 
the other hand, designed wholly for the purpof=;e of meeting a specific 
situation — the existence of so-called "racial imbalance" in the public 
schools of the Commonwealth. 



P.D. 12 233 

It must be assumed that the General Court was aware of the existence 
of c. 71, § 68 when it enacted the more recent statute. Each act of the 
Legislature must be given effect in its proper sphere. As legislation 
designed to relate to a specific problem, St. 1965, c. 641 must control 
when actions intended to combat that problem are at issue. 

It is, however, by no means necessary to assume that a conflict of 
provisions exists. General Laws c. 71, § 68 states only that school 
committees shall be required to furnish transportation in certain specific 
instances. The statute in no way prohibits school committees from 
choosing to provide transportation at other times as well. A minimum 
requirement alone is stated, and nothing appears which would in any 
way compel a school committee to withhold transportation in cases in 
which, pupils resided less than two miles from their school. (Several 
communities within the Commonwealth do in fact presently provide such 
a service.) 

Accordingly, there is nothing to indicate that each of the statutes in 
question may not be fully implemented. The Department of Education 
may — under appropriate circumstances — recommend the transportation 
of pupils as a means of eliminating or reducing racial imbalance in the 
public schools. Assuming that no written protests have been lodged with 
the school committee under c. 71, § 37D, such transportation may 
lawfullv be provided without violating any of the provisions of c. 71, 
§68. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 

No racing dates may be awarded by the State Racing Commission prior 
to local approval of a racing site, and, after the expiration of six 
years from the time of a particular approval, the location must 
again be so approved before the commission shall grant a license for 
a racing meeting in said town. 

The State Racing Commission cannot grant conditional racing dates 
contingent upon the successful completion of the local approval 
process. The authority to award dates on such an unusual basis must 
be granted by specific statutory language, and cannot be vested in 
the Commission solely by implication. 

January 19, 1966. 

Hex. Paul F. Walsh, Chairman, State Racing Commission. 

Dear Mr. Walsh: — The State Racing Commission has requested my 
opinion with respect to an application for racing dates filed on January 
4, 1966, by Berkshire Downs, Inc. This corporation desires to conduct a 
racing meeting on property owned by it in the Town of Hancock, 
Berkshire County, a location formerly known as Rabouin Farm. Berk- 
shire Downs, Inc. has conducted racing meetings at this location 
pursuant to licenses issued by your Commission from the year 1960 
through the year 1965. 

Your letter relates primarily to the provisions of G. L. c. 128A, § 13A, 



234 PD. 12 

and to their application to the present request by Berkshire Downs, Inc. 
The second paragraph of this section, inserted by c. 437 of the Acts of 
1948, provides as follows: 

"... Provided, nevertheless, that in the case of towns said approval by 
the selectmen, excepting only the approval of locations where racing 
meetings have already been held, other than in connection with state and 
county fairs, prior to May first, nineteen hundred and forty-eight, shall 
not become effective unless and until it shall be ratified and confirmed 
by vote, taken by Australian ballot, of a majority of the registered 
voters of said town voting at the next annual election. In the event that 
a location of a race track has been disapproved by the town officials or at 
a town election as aforesaid, no petition for approval of the same 
location shall be received by town authorities and no hearing shall be 
held on the question of approving or disapproving of the same location for 
a period of three years from the date of disapproval. Said approval by the 
selectmen of the location of a race track, excepting only the approval of 
locations where racing meetings have already been held, other than in 
connection with state and county fairs, prior to May first, nineteen 
hundred and forty-eight, shall be effective for a period of six years at the 
expiration of which time the location shall again be so approved before 
the commission shall grant a license for a racing meeting in said town." 
[Emphasis supplied.] 

Since racing was not conducted at this location prior to May 1, 1948, it 
is clear that approval of the location, as required in the paragraph 
quoted above, is a condition precedent to the lawful awarding of racing 
dates. 

You have provided the following facts relative to the present applica- 
tion for dates and to previous approvals of the location in question. The 
property owned by Berkshire Downs, Inc. was first approved for racing 
by the Board of Selectmen of Hancock on January 20, 1953, following a 
public hearing held the previous day. On February 2, 1953, a majority of 
the registered voters of the Town of Hancock voted to ratify and confirm 
the approval by the Selectmen of the location in question. 

Pursuant to the second paragraph of c. 128A, § 13A, the Board of 
Selectmen of Hancock again considered the question of approval of the 
Berkshire Downs location early in 1959. The Board again approved the 
location on January 23, 1959; this approval was likewise ratified by the 
voters at the Town Election on February 2, 1959. This is the last 
recorded approval of the Berkshire Downs location. 

On January 4, 1966, Berkshire Downs, Inc. filed the application for 
racing dates which is the subject of your request. You have informed me 
that your Commission called to the attention of the corporation's 
representative the fact that — under c. 128A, § 13A— the 1959 approval 
of location was no longer effective. The applicant has now taken steps to 
secure new approval of the site. The Board of Selectmen of Hancock will 
give the required seven-days' notice, and will hold a public hearing on 
the question of approval in the very near future. The Town Election, at 
which the voters will have the apportunity to ratify or reject approval 
by the Selectmen (assuming that such approval is granted) is scheduled 
to be held on February 8, 1966. Your Commission must, however, under 



P.D. 12 235 

the provisions of G. L. c. 128A, § 2, take action upon this application on 
or before January 30, 1966. 

You have indicated in your letter that in all probability approval by 
the Board of Selectmen of Hancock will be granted before January 30, 
1966, and that the Selectmen's approval will be ratified by the voters at 
the Town Election of February 8, 1966. Assuming that such approval 
and ratification will actually occur, and considering the facts set forth 
above, you have asked the following questions : 

"(1) Is the application of Berkshire Downs, Inc. for license to conduct 
a running horse racing meeting in the Towti of Hancock during the 
calendar year of 1966 eligible for consideration by the Commission in the 
awarding of 1966 racing dates? 

"(2J Is it permissible for the Commission, if it sees fit, to grant a 
conditional license to Berkshire Downs, Inc. for racing dates for the year 
of 1966. The condition of the license to be set forth in the vote of the 
Commission among other conditions that the Commission may determine 
that the voters of the Town of Hancock shall ratify the approval of the 
Selectmen, if said Selectmen approve the site before January 30th, 1966, 
at the annual town election in early February 1966 — otherwise the 
license to be null and void. The license certificate not be issued until all 
conditions are met." 

Prior to 1948, c. 128A, § 13A required that locations of race tracks be 
approved once by the Mayor and Aldermen or by the Selectmen. Such 
approval having been given, it was beyond the power of these executive 
authorities to revoke or withdraw it. 

North Shore Corporation v. Selectmen of Tops field, 
322 Mass. 413, 417 

By St. 1948, c. 437, the General Court added additional requirements 
with respect to approval by boards of selectmen. Such approval would 
now no longer become effective unless and until it was ratified by a vote 
of a majority of the registered voters of the town at the next annual 
election. In addition, the said approval, as ratified, would no longer be 
valid indefinitely; "said approval . . . shall be effective for a period of six 
years at the expiration of which time the location shall again be so 
approved before the commission shall grant a license for a racing meeting 
in said toTNTi." 

Both the language and the purpose of the new paragraph indicate that 
the Legislature contemplated both approval by the Selectmen and 
ratification by the registered voters every six years. The act of ratifica- 
tion by the voters has been made an integral part of the approval 
process ; approval is not complete without it, and cannot be effective until 
such ratification has been accomplished. Likewise, the purpose of the 
amendment is served solely by requiring such voter ratification at each 
approval period. 

". . . The dominant purpose of the statute was to give the registered 
voters in towns the right to say whether the approval of the selectmen 
should be ratified or rejected. . . ." 



236 PD- 12 

Selectmen of Topsfield v. State Racing Commission, 
324 Mass. 309, 313 

Such control by the registered voters of the town is not possible if they 
are to be limited solely to ratification or rejection of the first approval 
by the Board of Selectmen. Nor will the legislative intent be effectuated if 
approval by the Selectmen is given some legal status prior to action by 
the voters. The voters must — in order to effectuate the purpose of this 
amendment — be permitted to express themselves on the merits of each 
approval. 

The last approval by the Board of Selectmen of Hancock, and 
ratification thereof, occurred early in 1959. Such approval was effective, 
under § 13A, until February 2, 1965. The 1959 approval had therefore 
expired prior to the filing of the present application. Neither Berkshire 
Downs, Inc. nor the Selectmen themselves had initiated new approval 
proceedings. 

The statute is — in my opinion — clear to the effect that no racing dates 
may be awarded by your Commission prior to local approval of the racing 
site. After the expiration of six years from the time of a particular 
approval, the location must "again be so approved before the commission 
shall grant a license for a racing meeting in said town." [Emphasis 
supplied.] Since prior approval of the location in question has now 
expired, and since no new approval has been effected, your Commission 
cannot, at this time, lawfully award dates for racing to be conducted at 
this location. 

Nor do I believe, in response to your second question, that the State 
Racing Commission may grant conditional dates contingent upon the 
successful completion of the local approval process. Chapter 128A of the 
General Laws contains no provisions which authorize the conditional 
awarding of racing dates. Furthermore, it is provided in § 2 of the 
chapter that "the commission shall grant or dismiss (applications) not 
later than the thirtieth day of January. . . ." The General Court has — by 
insertion of this specific cut-off date — indicated that action upon all 
applications is to be completed within a given period of time. This is not 
possible if conditional dates have been awarded. It is apparently the 
purpose of the Legislature to ensure that final decisions as to the awarding 
and withholding of dates be made by January 30 of each calendar year. 
The authority to award dates on such an unusual basis must, in my 
opinion, be granted by specific statutory language, and cannot be vested 
in the State Racing Commission solely by implication. 

I am familiar with the decision rendered in 1965 by the Massachusetts 
Supreme Judicial Court in the case of Almeida Bus Lines v. Department 
of Public Utilities, 1965 Mass. Adv. Sh. 55, in which the Court concluded 
that an agency could lawfully enter an order "nunc pro tunc." There is, 
however, a substantial difference between the situation which was at issue 
in Almeida, and that which is the subject of this opinion. In Almeida, the 
Court ruled that the agency could lawfully affix a prior date to its order 
so that the time spent by it in resolving the matter would not prejudice 
the prevailing party. In the present case, it is not the date of an order of 
the State Racing Commission which is at issue; rather, it is the effective 
date of a local election. Neither the language of Almeida nor the theory 



237 

P.D. 12 

upon which that decision is based warrants the conclusion that the 
effective date of an election-as opposed to the date of an order entered 
by a quasi-judicial agency-may be varied. I appears tha ma 
community such as Hancock, in which the annual election is held after 
the January 30 date of termination of the State Racmg Commission the 
process o? Approval would have to be completed in the year prior to that 
fn whfcS a given application is to be filed. The effectuation of both 
section 2 and section 13A of Chapter 128A compels this resu t. 

It is apparenl^based on the facts you have provided-that the 
property of Berkshire Downs, Inc. is not presently approved for racing 
purposes. Such approval cannot be completed until February 8, 1966, a 
date subsequent to the time by which your Commission must make its 
final decisions with regard to the licensmg of racing meetings. Your 
Commission cannot award racing dates to Berkshire Do^^•ns, Inc. on or 
before January 30, 1966; neither can it make a conditional award of 
dates contingent upon ultimate local approval of the site. Accordingly, it 
is my opinion that the application filed by Berkshire Downs, Inc. on 
January 4, 1966, must be dismissed. 

Very truly yours, 

Edward W. Brooke, Attorney General 

Land sales and abandonments by the Metropolitan Distnct Commission 
mut under the provisions of c. 92, § 85, be approved by the 
Governor, but need no longer be approved by the Executive 
Council. 

January 31,1966. 

Hon. Keesler H. Montgomery, Executive Secretary, Executive Council. 
Dear SiR:-In your letter of January 6, 1966, you stated the following: 
"The Executive Council has directed me to request from you an 
opinion as to the meaning of General Laws, Chapter 92, Section 85 
^p'ecifically, with reference to the power of the CouncU to entertam such 
question, in the light of Chapter 740 of the Acts of 1964. 
I gather from this that you desire an opinion as to whether the consent 
of the Executive Council is still required in order to confirm the sale or 
abandonment by the Metropolitan District Commission of certain public 
Lnds iHSht o'f the provisions of St^ 1964 c^740 [''An Act Repeahng 
Statutory Powers of the Governor's Council Which Interfere With The 
Efficient Operation of the Executive Department of the Common- 
wealth."] ^ . „ 
General Laws c. 92, § 85 provides in part as follows: 

"If the [metropolitan district] commission votes, under this or the 
preceding section, to abandon or sell any portion of the lands or rights m 
land so taken or acquired by it, and the park commissioners m any town 
where said property or right in property is situated refuse or fail to 
concur with the commission within fourteen days from the giving of 
written notice of such vote to said park commissioners, the commission. 



238 P.D. 12 

upon written notice of not less than seven days to said park commis- 
sioners, may appear before the governor and council and ask their 
concurrence in such sale or abandonment; and if the governor and 
council, after hearing, concur in such sale or abandojiment it shall have 
full force and effect." [Emphasis supplied.] 

Thus, "concurrence" by the Governor and Council in such sales or 
abandonments is required only when the park commissioners of a 
municipality in which the land in question is located have failed or have 
refused to agree to the sale or abandonment themselves. 

The enactment of c. 740 of the Acts of 1964 repealed most of the 
statutory powers of the Executive Council [see Barnes v. Secretary of 
the Commonwealth, 1965 Mass. Adv. Sh. 441]. Section 4 of the statute 
provides: 

"... 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 limita- 
tion, any deposit, borrowing, loan, investment, endorsement, validation, 
surety or bond, or any lease, license, purchase, acquisition, sale, con- 
veyance, disposition or transfer, or any contract or other agreement, or 
any permit or license, or any rules or regulations, is hereby repealed." 
[Emphasis supplied.] 

This repeal does not extend to certain specific statutory powers enumer- 
ated in § 2 of the Act, none of which relates to c. 92, § 85 in any way. 
Neither does the repeal reach constitutional powers of the Executive 
Council (see Barnes, supra, at page 443) ; but I know of no provision of 
the Constitution of this Commonwealth which requires that the Execu- 
tive Council approve the sale or abandonment of public land. 

The language of St. 1964, c. 740, § 4 quoted above makes it 
abundantly clear that the authority formerly vested in the Executive 
Council under c. 92, § 85 no longer exists. It has been the function of the 
Council under this section to examine land sales and abandonments 
recommended by the Metropolitan District Commission, and to deter- 
mine whether such sales and abandonments should be approved. This 
clearly represents "advice and consent of the council with respect to any 
action ... by any . . . agency ... in the executive department . . ." as 
referred to in § 4, and accordingly is a function no longer vested in the 
Executive Council. Even were c. 92, § 85 to be interpreted so as to vest 
in the Governor primary authority to approve land sales and abandon- 
ments of the Metropolitan District Commission, leaving the Council with 
simply the responsibility to advise the Governor on this matter, the 
Council's function has still been eliminated [". . . so much of each 
provision of the General Laws ... as requires the advice and consent of 
the council with respect to any action ... by the governor ... is hereby 
repealed." St. 1964, c 740, § 4.] 

Accordingly, it is my opinion that land sales and abandonments 
contemplated by the Metropolitan District Commission must, under the 



239 
P.D. 12 

provisions of c. 92, § 85, be approved by the Governor, but need no 
longer be approved by the Executive Council. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

aZtilmlcode is in conMct mth the Board's regulahons. the 

latter must apply. , *i, ? 7 

Th. TPmmements for the issuance of a permit, inspection by the LocaL 

^ IZZtZandthe payment of a fee are not negated hy thepowen 

conPed upon the Board hy St. 1964, c. 51,6 and St. 1960 c. 596. 
The requirements apply equally to public and private schools. 

February 4, 1966. 
Mrs. Ruth Morey, Chairman, Board of Schoolhouse Structural Stan- 
dards, Department of Public Safety. 
Dear Mrs. MoREY:-In your letter of December 3, 1965, you state: 
"Thi«, Board as required by Chapter 675, Acts of 1955, and 596, Acts 
of 1%^ ~nde"b\ ChapL 546, Acts of 1964 do^ -rutt^rls'^ '' 
for the construction of public and private schoolhouse structures 

I assume that the words "does in eff-t ^^ ^-" ^^ ^l^^tn^H 

si^ns quoted 'n your letter (which need not be repeated), you a.k. 

"1. Which code prevails-municipal or town code, or Board of School- 
house Structural Standards Code? 

"2 If the Board of Schoolhouse Structural Standards code prevails 
does'this negate the requirements for: (a) the issuance of a permit, (b) 
inspection by the local inspector; (c) payment of a fee I 

"3. In this regard, do these requirements apply equally to public 
and private schools?" 

I assume that the first question should be read as if the ^or^^^^^^^ 
construction of schoolhouses" were included after the ^^«J^ P^^^J^'^^^^ 
view of St. 1960, c. 596, § 1, the Board clearly ^as au\^^^^^ 
regulations "relating to structural safe y and PJ^^^^j °^ , ^^/J,%e^ 
connection with the construction, reconstruction, and alteration or re 
modeling of all public and private schoolhouses and ^-elating to the 
Tandards of materials to be used therein " On the other hand «. L. c^ 
U*^ § «? confers unon cities (unless restricted by their charter or uy 
special i:fZ tols the power to ''regulate the insp-j^on, maten^^^^^^ 
construction, alteration, repair, demolition, removal, heigh ; a^ea,^^^^^^ 
tion and use . . . of buildings and other structures within its hmits, 



240 PD- 12 

except such as are owned and occupied by the United States, or owned or 
occupied by the commonwealth or by any county, and except bridges, 
quays and wharves," Thus, it might appear that both cities and towns 
and the Board have been given authority to establish regulations for the 
construction of schoolhouses (except for such schoolhouses as may be 
owned by the United States, the Commonwealth or a county) . 
However, G. L. c. 143, § 3 also contains a paragraph which states: 

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

Although neither St. 1964, c. 546, § 2 nor St. 1960, c. 596, § 1 is 
literally a "provision" of G. L. c. 143, both the 1964 and 1960 
enactments confer authority upon the Board to be exercised in conjunc- 
tion with certain sections of c. 143. Thus, St. 1964, c. 546, § 2 provides as 
follows: 

"Section 2 of said chapter 675, as most recently amended by section 2 
of said chapter 457, is hereby further amended by striking out, in line 4, 
the word 'nine' and inserting in place thereof the word: — twelve, — so as 
to read as follows: — Section 2. The regulations issued under section fifty- 
four of chapter one hundred and forty-three of the General Laws shall, 
in so far as they pertain to schoolhouses, be issued for a period of twelve 
years by the board of schoolhouse structural standards, any provisions of 
said section to the contrary notwithstanding." 

And St. 1960, c. 596, § 1 states: 

"In issuing a certificate for the approval of the erection or alteration 
of a schoolhouse under section fifteen of chapter one hundred and forty- 
three of the General Laws, a supervisor of plans shall, in addition to any 
other requirements of said chapter, determine that the plans and 
specifications required to be filed under said section fifteen conform to 
the rules and regulations made under this section. . . ." 

I treat St. 1964, c. 546, § 2 as if it were part of G. L. c. 143, § 54, 
which authorizes regulations for the uniform enforcement of §§ 15 to 52 
inclusive; and I treat St. 1960, c. 596, § 1 as if it were part of G. L. c. 
143, § 15, which provides that plans for certain public buildings shall be 
filed with and approved by a supervisor of plans in the Department of 
Public Safety of the Commonwealth. Such treatment is indicated in view 
of the temporary nature of the Board's existence (St. 1964, c. 546, § 1), 
because of which the Legislature doubtless did not include any provi- 
sions relating to the Board in G. L. c. 143. See "Sutherland Statutory 
Construction (3rd Ed.)" § 4829. I conclude that a city or town may, 
pursuant to G. L. c. 143, § 3, regulate the construction of school 



P.D. 12 ^^^ 

buildings to the extent of imposing "further" restrictions {i.e., restrictions 
not covered in the regulations of the Board) but that, if any provision of 
a municipal code is in conflict with the Board's regulations, the latter 
must apply. A contrary ruling would permit a city or town to "minimize, 
avoid or repeal" a provision of G. L. c. 143 and would frustrate the clear 
legislative intent of St. 1950, c. 596, that the Board provide "reasonable 
unifonn requirements of safety" throughout the Commonwealth. [Em- 
phasis supplied.] . . r i-i T 1/IO 

Your second question relates to whether the provisions ot G. L. c. 1^6, 
§ 3 (already quoted) for the licensing and inspection of schoolhouse 
construction bv local authorities and for assessing a local licensing fee 
are negated by the powers given to the Board by St. 1964, c. 546 and St. 
1960. c. 596. At a time when the powers now exercised by the Board were 
largely exercised by the Metropolitan District Police (see St. 1913, c. 
655; cf. St. 1943, c. 544), the Supreme Judicial Court considered this 
precise question and squarely held that a city "might lawfully make" 
requirements for obtaining a permit to build a schoolhouse and for 
"payment of a fee in obtaining such a permit." M. Spinelli & Sons, Inc. 
V. Cambridge, 306 Mass. 342, 343. Since the language in G. L. c. 143, § 3 
relevant to the Court's decision has since been re-enacted in substantially 
the same form, it may be assumed that the Legislature approved of the 
Court's interpretation. Commonwealth v. Benoit, 346 Mass. 294, 297 and 
cases cited. In any event, I see nothing in St. 1964, c. 546 (or any of its 
predecessors, e.g., St. 1955, c. 675) or in St. 1960, c. 596 that derogates 
from the powers of cities and towns clearly spelled out in G. L. c. 143, § 
3. Since one of these powers is inspection, I am of opinion that, although 
this power was not in issue in the Spinelli case, supra, it has not been 
taken from local authorities. My answer, therefore, to all parts of your 
second question is "No." 

In response to your third question, I see no reason why the powers of 
the Board or of the cities and towns do not apply equally to the 
construction of private as well as of public schools. The entire statutory 
scheme evidences an explicit legislative intent that public and private 
school construction should be subject both to the provisions of G. L. c. 
143 and to the regulations of the Board. Section 1 of c. 143 defines a 
public building as "any building or part thereof used as a public or 
private . . . schoolhouse," while § 15 applies to any "building whiph is 
designed to be used ... in whole or in part, as ... a public or private 
school." On the other hand, the provisions of St. 1960, c. 596, § 1 
(already quoted) confer authority upon the Board to make regulations 
for the construction of "all public and private schoolhouses." In ray 
opinion, the answer to your third question is "Yes." 

Very truly yours, 

Edward W. Brooke, Attorney General. 



242 PD. 12 

A bequest to the John Birch Society would qualify jor exemption under 
c. 65, § 1 M.G.L., if it is found that the Society is an organization 
whose property is generally free from taxation under G. L. c. 59, § 5. 
This is fundamentally a factual determination which must be made 
by the Commissioner of Corporations and Taxation, subject of course 
to judicial review upon petition by an aggrieved party. 

February 7, 1966. 

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

Dear Commissioner Rizzotto: — You have requested my opinion as to 
whether a legacy, under the will of a Massachusetts decedent, to the 
John Birch Society, a corporation organized in Massachusetts under G. 
L. c. 180, is a bequest "to or for the use of charitable, educational or 
religious societies or institutions" which would qualify for an exemption 
under G. L. c. 65, § 1. 

General Laws c. 65, § 1 provides, in material part, that: 

"All property within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein belonging to inhabitants of the 
commonwealth, . . . which shall pass by will, . . , except (1) to or for the 
use of charitable, educational or religious societies or institutions . . . shall 
be subject to a tax. . . ." 

The test for applying the exemption under G. L. c. 65, § 1 is whether 
the society or institution is one whose property is generally exempt from 
taxation under G. L. c. 59, § 5. First Universalist Society in Salem v. 
Bradford, 185 Mass. 310; Carroll v. Commissioner of Corporations and 
Taxation, 343 Mass. 409. 

General Laws c. 59, § 5, cl. 3 provides, in material part, that: "The 
following property . . . shall be exempt from taxation: . . . Third, 
Personal property of a charitable organization, which term, as used in 
this clause, shall mean (1) a literary, benevolent, charitable or scientific 
institution or temperance society incorporated in the commonwealth . . . 
and real estate owned . . . and occupied by it . . . ; provided, however, 
that: — (a) If any of the income or profits of the business of the charitable 
organization is divided among the stockholders, the trustees or the 
members, or is used or appropriated for other than literary, benevo- 
lent, charitable, scientific or temperance purposes, its property shall not 
be exempt. . . ." 

However, the exemption clause in c. 65, § 1 does not find in G. L. c. 59, 
§ 5 the counterpart which its language would lead one to expect. There is 
no clause in c. 59, § 5 specifically exempting the property of "charitable, 
educational or religious societies or institutions" from taxation. However, 
G. L. c. 59, § 5, cl. 3 has been applied to charitable and educational 
societies or institutions as those terms are used in G. L. c. 65, § 1. First 
Universalist Society in Salem v. Bradford, 185 Mass. 310. The John 
Birch Society^ is within the class of a "charitable, educational . . . 
[society] . . . organized under the laws of . . . the commonwealth." G. L. 
c. 65, § 1. The word "charitable" has been defined in very broad terms. 



P.D. 12 243 

Jackson v. Phillips, 14 Allen 539, 556 quoted in Parkhurst v. Treasurer & 
Receiver General, 228 Mass. 196, 199. A college has been held to be a 
charitable institution and likewise its alumni association. New England 
Trust Co. V. Commonwealth, 327 Mass. 113. An organization founded to 
educate the public as to the evils of war was also found to be a 
charitable institution. Parkhurst v. Treasurer & Receiver General, supra. 
In fact, it is questionable whether the word "educational" has any real 
meaning because "charitable" has been defined in terms broad enough to 
include educational purposes. In any event, the John Birch Society is 
within the class of a "charitable educational . . . [society]" under G. L. 
c. 65, § 1, and a bequest to it is on its face within the exemption of G. L. 
c. 65, § 1. However, the exemption depends upon this question: Is the 
society one whose property is generally exepipt from taxation under G. 
L. c. 59, §5? 

^ The records of the Secretary of the Commonwealth show that the said Society 
was incorporated December 23, 1958 as a Chapter 180 corporation, whose corpo- 
rate purpose has been set forth in its papers as: 

"To promote civic interest in national and international affairs bj' an educational 
program and collection of literature and dissemination of the same for educa- 
tional purposes; and to do any and all things which may be necessary and incidental 
to the foregoing and in general to do all other things which may be legally per- 
mitted to this corporation by Massachusetts General Laws, Chapter 180, and acts 
in amendment thereof and in addition thereto." 

The criteria under c. 59, § 5 are " ' . . . the language of its [the 
society's] charter or articles of association, constitution and by-laws. . . . 
the objects which it serves and the method of its administration' {Little 
V. Newburyport, 210 Mass. 414, 415), that is, '. . . its purposes declared 
and the work done.' Parkhurst v. Treasurer & Receiver General, 228 
Mass. 196, 199-201." Assessors of Boston v. Garland School of Home 
Making, 296 Mass. 378, 384. Carroll v. Commissioner of Corporations and 
Taxation, 343 Mass. 409, 410. Massachusetts Medical Society v. Asses- 
sors of Boston, 340 Mass. 327, 332. 

There may very well be charitable or educational societies none of 
whose property is exempt, namely, societies where "any of the income or 
profits of the business of the charitable organization is divided among 
the stockholders, the trustees or the members, or is used or appropriated 
for other than literary, benevolent, charitable, scientific or temperance 
purposes." G. L. c. 59, § 5, cl. 3. These societies would not be exempt 
from taxation under G. L. c. 59, § 5, cl. 3 and therefore would not be 
exempt from an inheritance tax under G. L. c. 65, § 1. 

Accordingly, resolution of the problem you have posed depends upon a 
determination whether the John Birch Society is that type of "chari- 
table, educational . . . [society] . . ." whose personal and real estate is 
generally exempt from taxation under G. L. c. 59, § 5, or is an 
organization none of whose property is exempt because of certain 
activities engaged in by it. This is fundamentally a factual determina- 
tion which must be made by the Commissioner of Corporations and 
Taxation, subject of course to judicial review upon petition by an 
aggrieved party. Absent such a factual determination, I am able to 
advise you only that a bequest to the John Birch Society would qualify 



244 PD. 12 

for exemption under c. 65, § 1 if it is found that the society is an 
organization whose property is generally free from taxation under c. 59, 
§5. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



G. L. c. 112, § 5i (1) applies only to persons who have applied for 
licenses in this Commonwealth, and does not apply to persons whose 
licenses are pending in the other states. One awaiting licensure in 
another state cannot practice professional or practical nursing in this 
state regardless of Massachusetts residence, unless she applies for 
licensure in the Commonwealth. 

A practical nurse licensed in another state after withdrawal from nursing 
school {in accordance with provisions comparable to St. 1956, c. 371, 
§ 2) may he reciprocally licensed in Massachusetts. 

February 9, 1966. 

Miss Winifred V. Shuman, R.N., Executive Secretary, Board of Regis- 
tration in Nursing. 

Dear Miss Shuman: — You have requested my opinion as to the scope 
of G. L. c. 112, § 81. You state that you "receive numerous inquiries 
from prospective [nursing] graduates located in other states who plan to 
apply for registration in the other state, write the examination there, and 
tlien become employed in Massachusetts" and that the persons making 
these inquiries apparently do "not plan to become registered" in this 
Commonwealth. In view of these inquiries, you ask the following 
questions : 

"1. Is subsection (1) of section 81 applicable to the person whose 
license is pending in the other state? 

"2. If not, can we state in our interpretation that the new graduate, 
awaiting licensure in the other state, cannot practice professional or 
practical nursing in this state regardless of Massachusetts residence, 
unless she applies for licensure in this state?" 

Section 81 of G. L. c. 112 exempts from the operation of statutes 
forbidding unlicensed professional or practical nursing {inter alia) "any 
graduate of any school for nurses or practical nurses duly approved in 
accordance with this chapter, during the period from such person's 
graduation until announcement of the results of the first licensing 
examination for registered nurses or licensed practical nurses, as the case 
may be, thereafter held in accordance with this chapter." The statute, by 
its bare language, would appear to allow any graduate of an approved 
nursing school to practice until the results of the first examination after 
graduation are announced. Despite this broad language, however, it 
would appear that the intention of the Legislature was to allow 
graduates of approved nursing schools (see G. L. c. 112, §§ 81A-81C) to 
practice until they have shown at the earliest possible time, by failing an 



P.D. 12 245 

examination given by the Board (G. L. c. 112, § 74A), that they do not 
meet the nursing standards established in this Commonwealth. It would 
be inconsistent with this statutory intention to permit a person to 
practice nursing until the announcement of the results of the first 
examination held after her graduation from nursing school, where such 
person has not applied to take that examination. Furthermore, excep- 
tions to statutes establishing general qualifications for the practice of a 
profession are to be strictly construed. Crawford, STATUTORY CON- 
STRUCTION, § 358 and cases cited in n. 60. See Commonivealth v. -S. S. 
Kresge Co., 267 Mass. 145, 149. 

Whether a person has applied for a nursing license or taken an 
examination in another jurisdiction is irrelevant, since such examinations 
are not "held in accordance with this chapter [G. L. c. 112j." I conclude 
that the exemption of G. L. c. 112, § 81(1) applies only to persons who 
have applied for licensure in this Commonwealth and that the first 
question should be answered "No." As I am aware of no reason why the 
Board may not interpret G. L. c. 112, § 81 in accordance with this 
opinion and communicate that interpretation to any interested person, 
the answer to the second question is "Yes." 

You also ask several questions as to the interpretation of St. 1956, c. 
371, § 2 (amended in a manner not relevant to this opinion by St. 1959, 
c. 415, § 4) . Chapter 371, § 2 reads: 

"Notwithstanding any contrary provision of section seventy-four A of 
chapter one hundred and twelve of the General Laws, any person of good 
moral character, who is at least nineteen years of age and who furnishes 
satisfactory proof that he was a student in an approved school for nurses 
located within the commonwealth and was at the time of his withdrawal 
therefrom in good standing and that he received therein theoretical 
instruction and clinical experience equivalent to that required for 
graduation from schools for practical nurses which are approved by the 
approving authority established by section fifteen A of chapter thirteen 
of the General Laws shall, upon application and upon the payment of 
five dollars, be examined by the board of registration in nursing, and, if 
found qualified, shall be licensed as a practical nurse as provided in said 
section seventy-four A." 

I shall not repeat the questions verbatim. In essence, you ask whether a 
practical nurse licensed in another state after withdrawal from nursing 
school (in accordance with provisions comparable to St. 1956, c. 371, 
§ 2) may be reciprocally licensed in Massachusetts. Relevant to this 
question is G. L. c. 112, § 76, which states: 

"The board may register or license in like manner, without examina- 
tion, any person who has been registered as a nurse or licensed as a 
practical nurse, as the case may be, in another state under laws which, in 
the opinion of the board, maintain standards substantially the same as 
those of this commonwealth for nurses or for practical nurses, as the case 
may be. The fee for registration or licensing without examination under 
this section shall be ten dollars." 

It is conceivable that other states may license as practical nurses 
persons who (a) have withdrawn from approved (see G. L. c. 143, §§ 81 A 



246 PD. 12 

and 81B) schools for professional nursing after satisfactory comple- 
tion of so much of tlie professional nursing course as would comprise a 
course in practical nursing; and (b) have passed an examination of 
similar difficulty to the examination in practical nursing given in this 
Commonwealth; and (c) have met the requirements of competence, 
training, citizenship and character imposed upon practical nurses by the 
laws of Massachusetts. Such states obviously "maintain standards sub- 
stantially the same as those of this commonwealth ... for practical 
nurses" and, in general, I see no reason why practical nurses licensed in 
such states should not be eligible to be licensed here under G. L. c. 112, 
§76. 

I am aware that St. 1956, c. 371, § 2 applies only to "an approved 
school for nurses located within the commonwealth." [Emphasis sup- 
plied.] This language apparently has suggested to the Board that the 
provisions of G. L. c. 112, § 76 notwithstanding, persons licensed in other 
states pursuant to statutes comparable to St. 1956, c. 371, § 2 may not 
be licensed in Massachusetts unless they attended a school located here. 
The failure to include the provisions of St. 1956, c. 371, § 2 in the 
General Laws (in view of the fact that the statute's effectiveness is 
neither temporally nor geographically restricted) "suggests an intention 
that § 2 have a limited application." Vaughan v. Max's Market, Inc., 
343 Mass. 394, 397. Thus, if there were any conflict between the 
provisions of G. L. c. 112, § 76 and St. 1956, c. 371, I should be inclined 
to regard the former as controlling. 

However, G. L. c. 112, § 76 and St. 1956, c. 371, § 2 are in pari 
materia and should be interpreted "to the end that there may be an 
harmonious and consistent body of law" with "reasonable effect to both 
[statutes], unless there be some positive repugnancy between them." 
Everett v. Revere, 344 Mass. 585, 589 and cases cited. Applying this rule 
of statutory construction to the question now before me, I conclude that 
St. 1956, c. 371, § 2 permits persons not licensed anywhere or persons 
licensed in states that do not meet the Massachusetts standards for 
practical nurses to take the examination pursuant to c. 371, § 2 only if 
the nursing school from which they have withdrawn is one "approved" 
by the Board and "located within the Commonwealth." (This conclusion 
applies, of course, only to persons seeking examination and licensure 
under St. 1956, c. 371, § 2 and not to applicants generally.) I also 
conclude, however, that persons licensed in states which do meet 
Massachusetts standards for practical nurses should not be denied 
reciprocal licensure under G. L. c. 143, § 76 merely because they have 
attended schools outside of the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 ^^^ 

Relative to procedures which should be followed in obtaining authoriza- 
tion for surgery on certain mentally incompetent patients committed 
to institutions of the Department of Mental Health pursuant to G. 
L. c. 123, §§ 51, 66, 69, 100, 101, 104 or 105. 

February 9, 1966. 

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

Dear Commissioner Solomon:— You have requested my opinion as to 
the procedures which should be followed in obtaining authorization for 
surgery on certain patients committed to institutions of the Department 
of Mental Health pursuant to G. L. c. 123, §§ 51, 66, 69, 100, 101, 104 or 
105. It may be assumed that the patients concerned are not mentally 
competent to give permission for surgery and that a physician has 
determined that a surgical operation may "prolong the life expectancy of 
[such] patient, and/or ... be a factor in successful care and treatment." 
From your statement that "such surgery might not come within the area 
of life or death," I assume that your request is directed at clarification of 
procedures in circumstances that do not constitute an emergency. 

Implicit in your letter is the assumption that legal consent is necessary 
before surgery may be performed on any person. This assumption is 
correct. Purchase v. Seelve, 231 Mass. 434, 437. Reddington v. dayman, 
334 Mass. 244, 246-247. Cf. Jackovach v. Yocum, 212 Iowa 914, 925 and 
cases cited, and Luka v. Lowrie, 171 Mich. 122, 132-133, (consent 
unnecessary or implied as a matter of law in case of emergency surgery) . 
I shall not repeat the questions of your letter verbatim. In essence, you 
ask my opinion as to who may give consent to non-emergency surgical 
operations on patients who are mentally incompetent to decide for 
themselves whether such operations should be performed. 

If a patient has not attained his majority and is unmarried, the 
consent of his parents, as natural guardians, is necessary. Reddington v. 
dayman, supra. See 70 C.J.S. 986. If either parent is dead, the 
permission of the surviving parent should be sufficient. G. L. c. 201, § 5. 
See Nightingale v. Withington, 15 Mass. 271, 274. If the child is 
illegitimate, the mother is guardian and only her consent is needed. 
Wright v. Wright, 2 Mass. 109, 110. Commonwealth v. Hall, 322 Mass. 
523, 528. But Cf. G. L. c. 190, § 7 legitimizing children born out of 
wedlock after marriage of the natural parents and acknowledgment by 
the father. The weight of opinion is that at common law upon the 
mother's death, the putative father becomes the guardian of an 
illegitimate child. See 65 L.R.A. 689 and cases cited in note V(c) on p. 
696. If the Probate Court has entrusted guardianship over the child's 
person to anyone, whether parent, relative or stranger, and whether by 
virtue of the divorce, separation, death or unfitness of the natural 
parents, the consent of that guardian should be obtained. G. L. c. 119, 
§ 23(c) and (e) ; c. 201, § 5; c. 208, § 28. Adoptive parents have the same 
rights with respect to those whom they adopt as the natural parents had 
prior to adoption. Bottoms v. Carlz, 310 Mass. 29, 33. 

The Supreme Judicial Court of this Commonwealth, it would appear, 
has not had occasion to decide whether grandparents are the "natural" 
guardians of children whose parents are deceased. (See Petition for 



248 P.D. 12 

Revocation of a Decree for Adoption of a Minor, 345 Mass. 663, 671. Cf. 
Merrill v. Berlin, 316 Mass. 87, 89-90.) Where the question has arisen in 
other jurisdictions, the decisions have been conflicting. See In re 
Mendellsobins Adoption, 39 N.Y.S. 2d 384, 387. Cf. In re Guardianship 
of Lehr, 249 Iowa 625, 636. In view of the liabilities that may result 
from performance of an unauthorized operation, I am of opinion that the 
consent of a court-appointed guardian should be obtained for surgery to 
be performed on any mentally incompetent minor who has no parents 
and no spouse. I shall discuss the procedures for appointment of a 
guardian later in this opinion. 

Although a person is not the "guardian" of a mentally incompetent 
spouse unless formally appointed by the Probate Court (see Ryder v. 
Ryder, 322 Mass. 646, 648), the common law appears to be that a 
patient's husband or wife is the appropriate person to give consent to a 
surgical operation where the patient is incompetent. Pratt v. Davis, 224 
111. 300, 305-306. Barnett v. Bachrach, 34 A. 2d 626, 627 (D. C. Mun. 
App.). Rishworth v. Moss, 159 S.W. 122, 125 (Tex. Civ. App.). See 
Denny v. Tyler, 3 Allen 225, 227. Cf. State, Use of Janney v. 
Housekeeper, 70 Md. 162, 170 (consent of husband unnecessary when 
wife is competent). If, however, the patient's spouse is missing or 
incompetent, the appointment of a guardian, for a husband under G. L. 
c. 201, § 6 and for a wife under G. L. c. 201, § 24, is advisable; the 
consent of that guardian for surgery upon the ward should then be 
obtained. 

The commitment of a person to an institution for the mentally ill is 
"not equivalent to the appointment of a guardian over" that person. 
Mitchell V. Alitchell, 312 Mass. 165, 168. Permission to perform surgery on 
any patient incompetent to decide for himself whether to undergo such 
surgery requires the permission of that patient's guardian. Lawyers' 
Medical Cyclopedia, § 2.15. Reinstatement of the Law of Torts, § 59 (2). 
I have already discussed the circumstances in which the appropriate 
"guardian" is the patient's parents or spouse. In other circumstances, the 
guardian of a mentally ill person is formally appointed by the Probate 
Court. G. L. c. 201, § 6. 

When a guardian has been appointed, the Probate Court is required 
by the statute to send "a copy of such appointment" to the Department 
of Mental Health. If no guardian has been appointed in this Common- 
wealth, the Department is specifically authorized by c. 201, § 6 to file a 
petition requesting guardianship. After a guardian has been appointed, 
he may give permission for the ward to undergo whatever surgery he 
believes will be in the ward's best interest. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 ^^^ 

The opinion of the Attorney General, dated Aug^ist 20, 1963, to the 
Commissioner of Education, applies to like rehgwus practices and 
activities in the elementary schools within the institutions of the 
Department of Mental Health. 

It would not appear to be appropriate for the Attorney General, in an 
opinion, to comment upon any extra-legal matters. 

No child committed for care and custody to the Department of Mental 
Health should ever be coerced by the institution into engaging in 
any religious activities, and provisions for religious activities for 
persons of difjering creeds should be non-discriminatory, as nearly as 
is possible and practical. 

Reasonable requests concerning religious services, etc., should be granted. 
In general, there are no restrictions ivhich would prevent chaplains 
from engaging in orderly, schedided religious activities in which 
patients participate voluntarily. 

February 10, 1966. 

Hon. Harry C. Solomon, M. D., Commissioner of Mental Health. 
Dear Sir: — You have requested my opinion as to the constitutionality 

of certain religious practices sanctioned by the Department of Mental 

Health and also as to the scope of an earlier opinion which I gave to the 

Commissioner of Education. I shall consider the questions in the order 

presented. 

"1. Does your opinion of August 20, 1963 apply to like religious 

practices and activities in the elementary schools within the institutions 

of the Department of Mental Health?" 

The schools to which vou refer are established within certain institu- 
tions pursuant to G. L. c. 123, §§ 2, 3 and 45. You state that they are 
staffed by qualified teachers, principals and other educntion administra- 
tors and exist "for the purpose of giving formal instruction to those 
children who are educable, and who are patients in residence." 

I shall not repeat the contents of my opinion to Commissioner 
Kiernan, in which I attempted to consider as exhaustively as possible the 
effect of recent decisions of the United Stites Supreme Court on religioiis 
practices in the public schools of this Commonwealth. You have indi- 
cated that you are alreadv familiar with such opinion. In view of the 
fact that the schools maintained at the institutions of your Department 
are supported by public funds to provide as much formal education as 
possible to the residents, mv opinion applies to these schools preciselv as 
it would to ordinarv public schools. See Attorney General v. School 
Committee of North Brookfeld. 347 Mass. 775; Waite v. School 
Committee of Newton, 348 Mass. 767. With the proviso that this answer 
pertains only to the schools within the institutions, and not necessarily 
to the institutions in their entireties, I answer your first question 
"Yes." 

"2. Is new legislation necessary to define religious education practices 
and activities in elementary schools in institutions of the Department of 
Mental Health?" 



250 P.D. 12 

New legislation is not necessary in order to apply the principles 
enunciated by the United State Supreme Court in the Schempp and 
Murray decisions of 1963. Whether new legislation might be desirable or 
necessary for other reasons turns upon considerations of policy within the 
province of the Legislature rather than upon legal considerations. It 
would not appear to be appropriate for the Attorney General, in an 
opinion, to comment upon such extra-legal matters. 

"3. Are there any responsibilities or limitations for the religious 
activities for children while they are not in actual attendance in the 
elementary schools in the institutions of the Department of Mental 
Health, but who are committed for care and custody, and remain more 
or less continuously in the institution?" 

The scope of your question makes it impossible to treat this subject 
matter with anything approaching completeness. The variety of situa- 
tions which could conceivably arise, and the sensitivity of the issues 
which may be created, compel me to limit my response to a general 
approach to the responsibilities imposed upon your Department. 

Providing for the religious needs of persons confined to, or voluntarily 
resident in medical, military, penal and, occasionally, educational insti- 
tutions supported at government expense may on occasion pose vexatious 
constitutional problems. The First Amendment to the Constitution of the 
United States, applied to the states via the Fourteenth Amendment, 
forbids government from either establishing religion or abridging its free 
exercise. However, the practical restrictions which institutional life 
imposes upon the individual may render some abridgment of free exercise 
unavoidable. Particularly, it is often not feasible for residents of these 
institutions to attend the religious sanctuaries of their choice either to 
worship or to receive instruction. Although judicial authority on the 
subject is scarce, government generally has been permitted to provide the 
setting and personnel for voluntary religious activities in public institu- 
tions. Mr. Justice Brennan's concurring opinion in School District of 
Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 296-299 
contains a succinct discussion of the problem and citations of relevant 
cases and authorities. See also Illinois ex rel. McCollum v. Board of 
Education, 333 U.S. 203, 245-248, 254-255 (Mr. Justice Reed dissenting) . 

While, as I have indicated, it is impossible to discuss all conceivable 
"responsibilities or limitations for the religious activities of children" 
committed to the institutions of the Department, the following guidelines 
may be helpful: 

"1. No child should ever be coerced by the institution into engaging in 
any religious activities. West Virginia State Board of Education v. 
Barnette, 319 U.S. 624, 631-632. People ex rel. Ring v. Board of 
Education, 248 111. 234. 

"2. As nearly as is possible and practical, provisions of religious 
activities for persons of differing creeds should be nondiscriminatorv. 
Abington School District case, supra, 374 U.S. 203, 215-216 and cases 
cited. 

'3. Reasonable requests for permission to consult a clergyman or lay 



P.D. 12 251 

leader, to participate in religious services or instruction or to read 
particular religious literature should be granted, although, of course, in 
many instances whether a particular request is reasonable will depend on 
the mental and physical condition, intelligence and adjustment of the 
person making it. Broion v. McGinnis, 10 N.Y.2d 531, 535-536. 

You also state in your letter: 

"In each of the institutions of the Department of Mental Health there 
are assigned chaplains of the Catholic, Protestant and Jewish faiths. In 
addition, there is one chaplain of the Greek-Orthodox faith who visits all 
of the institutions. These clergymen are defined as non-employees and 
are compensated from appropriated funds. Subsidiary Account -03. Their 
role is- to provide religious services and care for all other religious needs 
of patients of their respective faith." 

You then ask: 

"Are there any restrictions or limitations on these chaplains so far as 
their religious activities are concerned?" 

For the same reasons mentioned with respect to your previous ques- 
tion, I cannot give a complete answer to this inquirj'. It is impossible to 
foresee all conceivable "religious activities" in which individual chap- 
lains may want to engage, and to define any and all possible limitations 
thereon. If particular activities arise which seem to you to raise a 
question, I shall be happy to furnish my opinion on the facts of each 
case. In general, I will say that I see no restrictions which would prevent 
chaplains from engaging in orderly, scheduled religious activities in 
which patients participated voluntarily. See Brown v. McGinnis, supra; 
McBride v. McCorkle, 44 N.J. Super. 468, 480. Cf. Cox v. New 
Hampshire, 312 U.S. 569, 577-578; In re Ferguson, 55 Cal. 2d 663, 672; 
People ex rel. Ring v. Board of Education, supra. As the Supreme Court 
of the United States observed in Zorach v. Clauson, 343 U.S. 306: 

"We are a religious people whose institutions presuppose a Supreme 
Being , . . We guarantee the freedom to worship as one chooses. . . We 
sponsor an attitude on the part of government that shows no partiality 
to any one group . . . Government may not . . . use secular institutions 
to force one or some religion on any person. But we find no constitu- 
tional requirement which makes it necessary for government to be hostile 
to religion and to throw its weight against efforts to widen the effective 
scope of religious influence." 

Subject to the limitations outlined above, therefore, my answer to your 
fourth question is "No." 

Very truly yours, 

Edward W. Brooke, Attorney General. 



252 P.D. 12 

In cooperative ventures between the Department of Mental Health and 
private charities where the latter collect a fee to defray costs, the 
Department need not claim any of the amounts collected. 

Februaey 14, 1966. 

Hon. Harry C. Solomon, Commissioner, Department of Mental Health. 

Dear Doctor Solomon: — In your request for an opinion of January 17, 
1966, you state that, in accordance with the provisions of G. L. c. 123, 
§ 13A, several non-profit charitable agencies are cooperating with the 
Division of Mental Hygiene (see G. L. c. 19, § 4A) in the maintenance 
of out-patient clinics. Section ISA of G. L. c. 123 reads as follows: 

"Such of the powers and duties conferred or imposed upon the 
dei')artment, relating to the cause and prevention of mental disease, 
feeble-mindedness, epilepsy and other conditions of abnormal mentality, 
as the commissioner may determine may be exercised and performed by 
the division of mental hygiene. In addition to said powers and duties, 
said division shall institute inquiries and investigations for the purpose 
of ascertaining the causes of mental disease, including epilepsy and 
feeble-mindedness, with a view to its prevention. It may also establish, 
foster and develop out-patient clinics. Said clinics may be established in 
collaboration with public schools, private schools or other agencies 
providing co-operative or complementary facilities to the state clinics. In 
all instances the site and location of the clinic, number of employees, the 
hours to be worked, and other regulations, shall be subject to approval 
by the commissioner and shall be in accordance with all laws and 
regulations governing state employees of the appropriate classes." 

You further state : 

"A review of the program of the Department's Division of Mental 
Hygiene reveals that these non-profit organizations make a real and 
lasting contribution to the Commonwealth. It is estimated for example 
that all thirty-five non-profit organizations contribute approximately 
$1,000,000 annually for community services to the area served bv c'inics 
of the Division of Mental Hygiene. This is in addition to professional 
salaries paid by the Commonwealth. . . . 

"These non-profit organizations collect a fee from patients seen at the 
clinic in order to defray the cost of their financial contribution involved 
in assuming responsibilities ... as a cooperating incorporated agency 
(See Acts of 1958, Chapter 124) with the Division of Mental Hygiene. 
In no instance is any citizen of the Commonwealth deprived of service 
because of inability to pay such fee. The total of such fees amounts to 
17% of the sum total ($1,000,000) from all sources {e.g. United Fund) 
presently used by the Associations for community services. Professional 
salaries paid by the Commonwealth are not included in this sum. The 
Department of Mental Health does not wish to change this fee practice 
but it is requesting an opinion about the legality of considering this 
practice as a matter relating solely to the Associations. The Department 
does not disapprove of the practice unless it is contrary to law. The fee 
referred to is not necessarily construed as a solicitation." 



P.D. 12 



253 



Your specific question is whether "tliis Department [Mental Health] 
need not claim this fee." I am unaware of any rule of law which holds 
that in cooperative ventures between government and private charities, 
the latter are not permitted to charge a fee for their services or that such 
fees, if charged, must be turned over to the government. The opposite 
rule' has generally been stated, or at least assumed, by the courts. People 
ex rel. New York Inst, for the Blind v. Fitch, 154 N.Y. 14, 25, 35-36. 
Craig v. Mercy Hospital-Street Memorial, 209 Miss. 427, 449, 495. See 
14 C.J.S. § 70. Accordingly, I answer that the Department "need not 
claim" any fees charged by private agencies in the circumstances 
outlined in your request. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



The term "employer" as defined in clause (5) of ^ 1 of c. 151B, 
M.G.L., includes "the commonwealth and all political subdivisions, 
boards, departments, and commissions thereof." 

The Legislature has placed the administration and enforcement of the 
fair practices laws in the hands of the Massachusetts Commission 
Against Discrimination; this includes the responsibility on its part 
to make reasonable judgements as to whether the policy and 
purposes of these laws apply to particular classes of individuals. 

February 16, 1966. 

Mr. Walter H. Nolan, Executive Secretary, Massachusetts Commission 
A gainst Discnmination. 

Dear Mr. Nolan: — You have asked whether certain allegations of 
Juanita M. Griffin, contained in an affidavit dated January 5, 1966, come 
within the provisions of G. L. c. 151B, § 4 (1). Mrs. Griffin's affidavit is 
part of a complaint which she has filed with your Commission against 
the City of Springfield and the Springfield School Committee. 

Mrs. Griffin states in the affidavit that she is a student at American 
International College in Springfield; that she expected to graduate in 
June of this year and be certified to teach English on the secondary 
school level; that just prior to the opening of school last fall, she was 
advised that the Springfield School Department had denied her the right 
to practice teach in the Springfield schools; that without such practice 
teaching, she will be eligible neither for certification nor for sufficient 
credits to graduate from her college: that the School Department "could 
find nothing lacking in her qualifications"; and that, because she has not 
been allowed to accumulate the credits necessary to gain future employ- 
ment, she feels she has been discriminated against because of her race 
and color. 

I gather that you are concerned primarily with whether the granting 
of the position in question would create an employment relationship 
between Mrs. Griffin and the Springfield School Department such as to 
bring her complaint under G. L. c. 151B, § 4(1). 



254 P.D. 12 

General Laws c. 151B, § 4 reads, in pertinent part, as follows: 
"It shall be an unlawful practice: 

1. For an employer, by himself or his agent, because of the race . . . 
[or] color ... of any individual, to refuse to hire or employ or to bar or 
to discharge from employment such individual or to discriminate against 
such individual in compensation or in terms, conditions or privileges of 
employment. . . ." 

The term "employer" is defined in clause (5) of § 1 of G. L. c. 151B 
to include "the commonwealth and all political subdivisions, boards, 
departments, and commissions thereof." Thus the School Committee of 
Springfield would be an "employer" within the meaning of G. L. c. 151B 
if it should be established that practice teaching creates an employment 
relationship. 

In remedial and social legislation such as the Massachusetts fair 
practice lav/s, the terms "employment," "hire" and "employ" may be 
construed broadly. Meaning should be given them that will accomplish 
the aims of the legislation, having regard to its history, context and 
purposes. See Holland v. Celehrezze, 223 F. Supp. 347, 349, 350 (D.C. 
Tenn.). Ringling Bros. — Barnum & Bailey Combined Shows v. Higgins, 
189 F. 2d 865, 867 (C.A.N.Y.). 

In N.L.R.B. V. Hearst Publications, 322 U.S. Ill (1944), the United 
States Supreme Court discussed a problem somewhat analogous to that 
posed by your Commission. The N.L.R.B. had ruled that independent 
news vendors (although not actually hired by the newspapers) were 
"employees" of the newspapers and hence entitled to coverage under the 
National Labor Relations Act. The Board's ruling was reversed by the 
United States Court of Appeals, but affirmed by the United States 
Supreme Court. The Supreme Court said : 

"Whether, given the intended national uniformity, the term 'employee' 
includes such workers as these newsboys must be answered primarily 
from the history, terms and purposes of the legislation. The word 'is not 
treated by Congress as a word of art having a definite meaning. . . .' 
Rather 'it takes color from its surroundings . . . [in] the statute where it 
appears' . . . and derives meaning from the context of that statute, which 
must be read in the light of the mischief to be corrected and the end to 
be attained.'" (124) 

The Court said that Congress "had in mind a wider field than the 
narrow technical legal relation of 'master and servant,' as the common 
law had worked this out in all its variations, and at the same time a 
narrower one than the entire area of rendering service to others." (124) 

The Court also said that Congress had assigned "primarily to the 
agency created by Congress to administer the Act" (the N.L.R.B.) the 
task of determining which groups in society were in such a relationship 
to require the protection of the Act. (129) 

"Like the commissioner's determination under the Longshoremen's & 
Harbor Workers Act, that a man is not a 'member of a crew' ... or that 
he was injured 'in the course of employment' ... and the Federal 



P.D. 12 



255 



Communications Commission's determination that one company is under 
control of another . . ., the Board's determination that specified persons 
are 'employees' under this Act is to be accepted if it has a 'warrant in 
the record' and a reasonable basis in law." 

Turning now to Mrs. Griffin's affidavit, it provides no information 
about the nature and terms of the practice teaching position denied her. 
While most school systems in the Commonwealth offer practice teaching 
programs, the establishment and conduct of these programs are deter- 
mined by the local school committees and their details vary greatly from 
community to community. It is impossible to learn all the pertinent 
characteristics of the program operated in Springfield merely by reference 
to state law or regulations promulgated by the state Department of 
Education. The latter merely refers to two semester hours of "supervised 
student teaching" in listing requirements for certification. I understand 
that most colleges actually require more than two semester hours of 
practice teaching for a bachelor's degree in education. Students are 
usually not paid for practice teaching; they perform duties under the 
supervision of a regular classroom teacher and their services may confer 
some benefit upon the school system. In at least some communities the 
student teacher's college reimburses the regular classroom teacher for 
providing supervision of the trainee. 

To decide whether the granting of the position denied Mrs. Griffin 
would create an employer-employee relationship between her and the 
Springfield School Department requires more factual information. The 
duties that someone in her category would perform in the Springfield 
system ; the time to be devoted to them ; the benefits to the school system ; 
her likely responsibilities; the formalities of her appointment; whether 
being turned down by the Springfield system makes it impossible, from a 
practical point of view, for her ever to gain the practice teaching 
experience needed for certification — all of these facts, and perhaps others, 
could be relevant to the question you ask. 

It would not, however, be proper for me, as Attorney General, to 
conduct an investigation into these facts and then decide whether Mrs. 
Griffin's complaint comes within the statute. The Legislature has placed 
administration and enforcement of the fair practice laws in the hands of 
your Commission. This includes the responsibility on j^our part to make 
reasonable judgments as to whether the policy and purposes of these laws 
apply to particular classes of individuals. See N.L.R.B. v. Hearst 
Publications, supra, 130-12. Your position is analogous to the National 
Labor Relations Board in that case. You have statutory powers and 
procedures under which you may hold hearings and receive evidence. In 
the present case, it is my considered opinion that the question you ask 
should be answered by the Commission itself after a full agency hearing 
at which all interested parties may appear and present evidence. Only 
after a hearing, can you determine, on the basis of an adequate record 
interpreted in the light of your o\\ti experience and policy (and with 
such further legal advice as you may request from this office) , whether 
"the mischief to be corrected" and "the end to be attained" by the cited 
statute, and related statutes, bring Mrs. Griffin under the jurisdiction 
and protection of your Commission. 



256 P-D- 12 

In deciding this question, you should not view paragraph (1) of § 4 in 
isolation. It is to be read as part of a comprehensive statutory scheme to 
combat discrimination. General Laws c. 151B, forbids discrmimation m 
private and public employment, in membership in a labor organization, 
in the insurance or bonding business, in the granting of mortgage loans, 
and in the sale and rental of housing. General Laws c. 151C, § 2 forbids 
an "educational institution": 

"(a) To exclude or limit or otherwise discriminate against any United 
States citizen or citizens seeking admission as students to such institu- 
tions because of race, religion, creed, color or national origin." 

Section 1 of the Act inserting G. L. c. 151B, provides: 

"The right to work without discrimination because of race [or] color . . . 
is hereby declared to be a right and privilege of the inhabitants of the 
commonwealth." 

Section 1 of the Act inserting G. L. c. 1510, provides: 

"It is hereby declared to be the policy of the commonwealth that the 
American ideal of equality of opportunity requires that students, other- 
wise qualified, be admitted to educational institutions without regard to 
race [or] color, . . ." 

In the light of such sweeping enactments and policy statements 
against discrimination both in employment and education, the Comrnis- 
sion may well decide that a complaint such as that filed by Mrs. Griffin 
(if — and, of course, only if — it can be factually supported) deals with 
"mischief" which the Legislature intended to correct. 

In this regard, I would call to your attention the very real possibility 
that a practice teaching position falls within G. L. c. 151C, relating to 
fair educational practices, rather than G. L. c. 151B, § 4 (1), relating to 
employment. It may be that the teacher training afforded by the 
Springfield school system is an educational program to which Mrs. Griffin 
was seeking admission. Refusal, on grounds of color or race, to admit a 
qualified student to such program might well be a violation of the Fair 
Educational Practices Act. 

Nevertheless, only after hearing the full range of pertinent evidence, 
will you be able to make a final determination. Without such evidence, 
neither you, nor a reviewing court, can satisfactorily answer the ques- 
tion. Moreover, it would not be fair either to Mrs. Griffin or to the 
School Committee of the City of Springfield to rule finally on this 
question without affording them the opportunity to be heard and to 
present evidence. 

Accordingly, while respectfully declining to answer your question in 
the form submitted, I would express the opinion that you have reason- 
able grounds at this preliminary stage of the proceeding to believe that 
the Commission may have jurisdiction, although perhaps more likely 
under G. L. c. 151C than G. L. c. 151B. Under such circumstances, I 
would advise you to process the complaint in your usual fashion and to 
assert jurisdiction until such time as the Commission is able to make a 



P.D. 12 257 

definitive jurisdictional ruling after public hearing (should the case be 
carried that far) . 

For your guidance, I make the following specific suggestions as to 
future procedure: 

(1) Mrs. Griffin should be advised of the possibility of amending the 
legal basis of her complaint to include G. L. c. 151C, § 2(a). 

(2) Her complaint should be processed in accordance with your 
regular procedures, including investigation and consideration of whether 
there is probable cau^e for crediting its allegations. If a determination of 
no probable cause is made, the complaint should be dismissed. If 
probable cause is found, conciliation should be attempted. If conciliation 
succeeds, the matter will, of course, be ended, and there will be no further 
proceedings. If conciliation fails, the investigating commissioner must 
determine whether to submit the case for a public hearing. 

(3) If the case is sent to public hearing, the respondents mav, if they 
choose, raise the issue of the Commission's jurisdiction. All parties, 
including the Commission, may then put into the record evidence 
material to the nature of the practice teaching position sought by Mrs. 
Griffin, and the Commission's jurisdiction over her complaint. Thereafter, 
in the light of this evidence, the Commission can rule on the issue of 
jurisdiction, subject to judicial review as provided by law. 

Very truly yours, e 

Edward W. Brooke, Attorney Generf^ 

<i 

Atiy prievance of emploi/eeft, irhether based on '^Employment Proce- 
dures" or not, is not a proper subject for the procedures set vp by G. 
L. c. SO, § 58 et seq, when it relates to a matter excluded from those 
procedures by the explicit lannunge of the statute. An administra- 
tive body cannot assume jurisdiction not granted to it by the General 
Court. Any portion of the aqreewevt on "Emvloyment Procedures" 
which involves "assignments of tours of duty" is plainly not within 
the jurisdiction of the Personnel Appeals Board, and any alleged 
violation thereof cannot be considered by that agency. 

February 16, 1966. 

Hon. Johx J. McCarthy, Commissioner of Administration, Executive 
Office for Administration and Finance. 

Dear Commissioner McCarthy: — You have requpsted my opinion as 
to the scope of authority of the Personnel Appeals Board (G. L. c. 30, 
§ 54) with respect to certain grievances of emplovees in the Department 
of ]\Iental Health. You state in your request: "The Commissioner of the 
Department of ]\Tental Health and employee representatives voluntarily 
entered into an agreement called 'Employment Procedures' on August 14, 
1962." You further state that certain employees have subsequently 
presented grievance petitions in which they allege that "the appointing 
authority had abused his discretion in the assignment of tours of duty in 
violation of the terms of said 'Employment Procedures'," and that the 



258 PD. 12 

Commissioner of Mental Health has questioned the jurisdiction of the 
Personnel Appeals Board to hear or decide such petitions. 

You ask whether an alleged violation of the "Employment Proce- 
dures" may properly qualify as a grievance under the provisions of G. L. 
c. 30, §§ 53 to 57 inclusive, and under the rules promulgated by the 
Director of Personnel and Standardization as required by § 53. 

Chapter 30, § 53 states in part: 

'The director of personnel and standardization shall make . . . rules 
and regulations providing informal procedure for the prompt disposition 
of any grievance of any employee of the commonwealth, or of any group 
of such employees employed by the same appointing authority, relating 
to classification, hours of employment, vacations, sick leave or other 
forms of leaves of absence, overtime, and other matters relating to 
conditions of employment, except assignments of tours of dutij. No such 
grievance shall be so disposed of if the disposition thereof is within the 
jurisdiction of the civil service commission or the contributory retirement 
appeal board. . . ." [Emphasis supplied.] 

Although the above statute makes no mention of agreements entered 
into between department heads and representatives of employees within 
their respective departments, it is my opinion that certain grievances 
which might arise under such agreements may properly fall within the 
jurisdiction of the grievance procedure established by § 53, supra. The 
existence of an agreement governing selected aspects of the employer- 
.^'nployee relationship cannot operate to exclude from the grievance 
...I'ocedure any matter which would otherwise be clearly cognizable. In 
(, iiort, if jurisdiction exists over a particular class of grievances in the 
absence of any agreement, jurisdiction over that class will not be 
defeated or otherwise affected by the fact that a department head and 
his employees have entered into an agreement which happens to include 
provisions which relate to such grievances. The terms of an agreement 
may affect the eventual disposition of a grievance, but they may not 
expand or contract the administrative jurisdiction set out in c. 30, 
§53. 

However, it is clear that any grievance of employees, whether based on 
the ''Employment Procedures" or not, is not a proper subject for the 
procedures set up by G. L. c. 30, § 53, et seq., when it relates to a matter 
excluded fi'om those procedures by the explicit language of the statute. 
An administrative body cannot assume jurisdiction not granted to it by 
the General Court. Hathaivay Bakeries v. Labor Relations Commission, 
316 Mass. 136, 141; Scannell v. State Ballot Law Commission, 324 Mass. 
494, 501 ; Chamberland v. Selectmen of Middleborough, 328 Mass. 628, 
631. Any portion of the agreement on "Employment Procedures" which 
involves "assignments of tours of duty" is plainly not within the Board's 
jurisdiction, and any alleged violation thereof may not be considered by 
that agency. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 ^'^^ 

Upon enactment oj the provisions of c. 7, § 30K, M.G.L., it was 
expected that the costs and charges certified by the Director of 
Hospital Costs to the Commissioner of Administration would be 
based upon investigation and examination of presently available 
facts and figures, and not upon speculation as to future develop- 
ments in hospital economics. The statute requires of the Director 
certification of concrete and reliable figures, and provides him with, 
the necessary authority to acquire whatever data may be relevant to 
his determination. 
The proper certification by the Director of present costs and charges is a 
condition precedent to lawful establishment of rates by the Commis- 
sioner of Administration under c. 7, § SOK, and the rates certified by 
the- Commissioner on the basis of projected or estimated ward costs 
and charges have not been legally established in accordance with 
statute. 
Chapter 7, § SOK does not authorize the Commissioner to establish 
different rates for well new-born infants or for any other specialized 
group of welfare patients. 

February 16, 1966. 
Hon. Thomas A. Chadwick, Clerk of the Senate. 

Dear Mr. Chadwick:— You have transmitted to me a copy of an 
order adopted by the Senate on February 10, 1966, which relates to the 
setting and promulgation of certain rates for the hospital care of welfare 
patients pursuant to the provisions of § SOK of c. 7 of the General Laws. 
This order contains a request for the opinion of the Attorney General on 
certain matters, and relates the following factual information: 

The Commissioner of Administration conducted a hearing on January 
26, 1966, in conformity with G. L. c. 30A, § 3, in order to determine 
hospital rates to be certified by him in accordance with G. L. c. 7, § 30K 
for the calendar year 1966. The order states that "it also appears that 
the Director of Hospital Costs and Finances has not certified to said 
Commissioner the costs and charges which in accordance with said 
section SOK it is provided should be so certified but in lieu thereof, and 
by order of said Commissioner, by letter to said Director dated January 
7, 1966, filed ivith the Commissioner projected or estimated ward costs 
and charges for the year commencing January 1, 1966." [Emphasis 
supphed.] After such filing by the Director of Hospital Costs and 
Finances, and subsequent to the hearing referred to above, the Commis- 
sioner of Administration certified a set of rates for the hospital care of 
welfare patients. 

In light of the facts contained in the order, the Senate has posed the 
following questions of law: 

"1. In view of the foregoing, are the rates so certified by said 
Commissioner legally and properly established in accordance with 
statute? 

"2. Does said section SOK of said chapter 7 authorize the Commis- 
sioner of Administration to establish special rates of payment for well 
new-bom infants? 



260 P.D. 12 

"3. Since the establishment of rates under said section 30K of said 
chapter 7 constitute 'regulations' as defined in section 1 of chapter 30A 
of the General Laws, and require that the procedures set forth in said 
chapter 30A (State Administrative Procedure Law) be followed (Mass. 
Gen. Hospital v. City of Cambridge, 347 Mass. 519), and since the 
Commissioner of Administration called a hearing on such rates in the 
year 1965 in conformity with the provisions of section 2 of said chapter 
30A, and called a hearing on such rates in the year 1966 in conformity 
with the provisions of section 3 of said chapter 30A, which of said 
sections is the proper section under which to call a hearing prior to 
determining any such hospital rates?" 

I will consider these inquiries in the order in which they appear. 

The procedures developed by the Legislature in § 30K of c. 7 appear 
to contemplate a cooperative effort in the setting of the rates in question 
between the Commissioner of Administration and the Director of Hos- 
pital Costs and Finances. The statute provides in relevant part as 
follows: 

"The director of hospital costs and finances shall determine from time 
to time and certify to the commissioner of administration, at least as 
often as annually, the average all-inclusive per diem charge to the 
general public for public ward accommodations or their equivalent, the 
all-inclusive per diem cost of care in such accommodations and the all- 
inclusive per diem cost of care for all patients of each hospital, 
sanatorium and infirmary licensed by the department of public health 
under section seventy-one of chapter one hundred and eleven. In 
determining such all-inclusive charges and costs, charges for and costs of 
ancillary services shall be included. If he is unable to determine the all- 
inclusive per diem cost of care in public ward accommodations or their 
equivalent of any hospital, sanatorium or infirmary, he shall certify as 
aforesaid in lieu thereof an amount equal to seventy-five per cent of the 
all-inclusive per diem cost of care for all patients of such hospital, 
sanatorium or infirmary, said cost, however, shall not exceed the sum of 
fifteen dollars per diem. 

"Each such hospital, sanatorium or infirmary shall file with the 
director from time to time on request such data, statistics, schedules or 
information as he may reasonably require to enable him to determine 
such charges and costs. . . . The director shall have the power to 
examine the books and accounts of any such hospital, sanatorium or 
mfirmary if in his opinion, such examination is necessary to determine 
such charges and costs. The director shall make his determination as 
aforesaid in accordance with a uniform system of hospital accounting 
and cost analysis and shall take into account the value of services by 
members of religious orders regularly working in a hospital which are 
rendered for partial or no payment, depreciation and a fair return on 
invested capital for proprietary hospitals, but shall not include grants-in- 
aid for which no services are rendered. . . ." [Emphasis supplied.] 

It is clear that the complex task of accumulating data relative to 
hospital costs and charges has been assigned to the Director of Hospital 



P.D. 12 261 

Costs and Finances; this relieves the Commissioner of Administration 
from the responsibility of investigating and compiling a large amount of 
statistics and other materials which must be identified and examined 
before accurate hosi)ital rates may be established. Responsibility for such 
investigation would impose a real burden upon the Commissioner, 
considering the many other duties vested in his office by the General 

Court. 

As an alternative, the Legislature has created within the so-called 
Fiscal Affairs Division of the Executive Office for Administration and 
Finance a Bureau of Hospital Costs and Finances headed by a Director 
[G. L. c. 7, § 4B1. Under c. 7, § 30K, the Director must fulfill certain 
responsibilities with respect to the identification of current hospital costs 
and charges in order to provide the Commissioner of Administration with 
information essential to accurate setting of the particular rates. Once he 
has received the necessary information from the Director of Hospital 
Costs and Finances, the Commissioner of Administration must then 
proceed to establish appropriate rates and to certify them to the 
departments, boards and commissions concerned. 

"The commissioner shall certify annually to each of the various 
departments, boards or commissions of the commonwealth purchasing 
care in such hospitals, sanatoria and infirmaries, or reimbursing cities or 
towns for such care purchased by them, such rates with respect to each 
such hospital, sanatorium and infirmary as will reflect reasonable hos- 
pital costs or charges made to the general public, whichever is the lower. 
All departments, boards or commissions of the commonwealth purchasing 
such service shall pay the rates so certified. The various subdivisions of 
the commonwealth purchasing hospital care and receiving reimbursement 
therefor, in whole or in part from the commonwealth, shall pay the 
hospitals, sanatoria and infirmaries for such care at the rates so certified. 
The commissioner shall also certify at least annually to the department 
of industrial accidents the all-inclusive per diem cost of care for all 
patients for each such hospital, sanatorium and infirmary." 

These rates are presumably based upon reliable information as to current 
hospital costs and charges furnished by the Director in accordance with 
the first two paragraphs of c. 7, § 30K. 

It is my opinion that when the General Court enacted the provisions 
of c. 7, § 30K it expected that the costs and charges certified by the 
Director to the Commissioner of Administration would be based upon 
investigation and examination of presently available facts and figures, 
and not upon speculation as to future developments in hospital 
economics. The statute requires of the Director certification of concrete 
and reliable figures, and provides him with the necessary authority to 
acquire whatever data may be relevant to his determinations. The first 
sentence of § 30K calls for certification of an "average all-inclusive per 
diem charge"; determination of an average connotes the availability of 
varying figures, from which one "average" figure may be derived. It does 
not suggest prediction of a figure which the Director believes may be 
accurate for the coming year. 

The statute contains specific directions with respect to the procedures 



262 P.D- 12 

of the Director. In his determination, "charges for and costs of ancillary- 
services shall be included." The Director must employ "a uniform system 
of hospital accounting and cost analysis and must take into considera- 
tion the value of services rendered by members of religious orders for 
partial or no payment, depreciation factors and the desirability of a fair 
return on capital invested by proprietary hospitals. He shall not consider 
"grants-in-aid for which no services are rendered." Should he conclude 
that the per diem cost of care in a given institution is excessive compared 
to that of hospitals of equivalent size and character, he is authorized to 
determine "a weighted average all-inclusive per diem cost of care" for 
the particular institution and certify the same to the Commissioner of 
Administration. 

Each institution must cooperate by providing the Director with data 
necessary to his investigation. 

"Each such hospital, sanatorium or infirmary shall file with the 
director from time to time on request such data, statistics, schedules or 
information as he may reasonably require to enable him to determine 
such charges and costs. . . ." 

Persons failing to furnish information as reasonably requested, or filing 
false returns, may be subjected to criminal penalties. And the Director 
may himself examine the books and accounts of a given institution if he 
believes that such an audit is necessary to accomplish his objective. 

The specific nature of the statutory instructions applicable to the work 
of the Director, and the extensive authority given him to compel produc- 
tion of data relevant to present costs and charges, clearly indicate that 
the General Court intended the Director to certify current rather than 
future figures. There is available to the Director all of the material which 
he would ordinarily need to determine present costs and charges, and the 
Legislature has included in the statute several concrete directions as to 
how such material is to be treated. Such a precise approach is totally 
inconsistent with certification based upon prediction and projection. 

Nor do I believe that the authority to predict costs and charges may 
be implied as an acceptable alternative should the Director be unable to 
reach a conclusion on the basis of data which is available to him. The 
General Court has itself provided an alternative in the case of the per 
diem cost of care for public ward accommodations: 

"If he [the Director] is unable to determine the all-inclusive per diem 
cost of care in public ward accommodations or their equivalent of any 
hospital, sanatorium or infirmary, he shall certify as aforesaid in lieu 
thereof an amount equal to seventy-five per cent of the all-inclusive per 
diem cost of care for all patients of such hospital, sanatorium or 
infirmary; said cost, however, shall not exceed the sum of fifteen dollars 
per diem." 

G. L. c. 7, § SOK. 

No alternatives having been provided in the statute for the making of 
the other determinations assigned to the Director, I can only conclude 
that the Legislature assumed that the Director would in those instances 



P.D. 12 



263 



be able to make a reasonable certification, and that no substitute method 
was necessary. 

The statute clearly does not authorize the type of projection of figures 
to which the Senate has referred in its order of February 10, 1966. 
Certification based upon prediction is, as I have indicated above, 
inconsistent with the precision apparently called for by c. 7, § 30K, and 
unnecessary in light of the obvious availability to the Director of all 
data which might reasonably be required to reach a conclusion. Predic- 
tion cannot provide the type of reliable figures which the Commissioner of 
Administration must have in order properly to set the rates in question. 
Accordingly, in response to the Senate's first question, it is my opinion 
that proper certification by the Director of present costs and charges is a 
condition precedent to lawful establishment of rates by the Commis- 
sioner of Administration under c. 7, § 30K, and that rates certified by 
the Commissioner on the basis of projected or estimated ward costs and 
charges have not been legally established in accordance with statute. 

The Senate has in addition asked whether § 30K of c. 7 of the General 
Laws authorizes the Commissioner of Administration to establish special 
rates of payment for well new-born infants. The rates recently estab- 
lished by the Commissioner do not contain special figures applicable to 
new-born infants, and it has not been the practice to have special rates 
for particular categories of patients. Rather, the Commissioner has in the 
past set a single figure for each hospital or other institution for which 
rates must be established, with such single figure intended to be 
applicable to each welfare patient irrespective of the type of treatment 
given. I gather that — in question No. 2 of its order — the Senate is 
concerned with (1) whether the Commissioner must by law establish 
special rates for special categories of welfare patients; and (2) whether 
the Commissioner may in his discretion establish such special rates if he 
desires. 

It is my opinion that c. 7, § 30K does not authorize the Commissioner 
of Administration to establish different rates for well new-born infants or 
for any other specialized group of welfare patients. It is plain that the 
statute simply does not provide the tools with which the Commissioner 
could effectively set rates for varying categories of patients. It is the 
responsibility of the Director of Hospital Costs and Finances to certify 
to the Commissioner cost and charge figures for patients in general and 
for welfare patients in particular. The Director is not required to provide 
separate figures for different types of patients, and the Commissioner 
therefore does not have the material upon which varying hospital rates 
applicable to different welfare patient groups could be based. 

Rather, it appears to have been the intention of the General Court 
that a single rate for each hospital or other institution be established. 
Section 30K of c. 7 does not, in my opinion, contemplate attempts by the 
Commissioner to establish rates which vary with the particular services 
provided. Such an approach would require not only the setting of rates 
applicable to specialized groups such as well new-born infants, but also 
the calculation of reimbursement figures dependent upon the services 
provided by the given hospital — surgical services, rehabilitation, etc. 



264 P.I>. 12 

Establishment of rates in this manner is virtually impossible under c. 7, 
§ 30K as that statute is presently drafted. 

Since the Legislature has not provided statutory procedures imder 
which such individualized rates may be calculated, I can only conclude 
that the Legislature intended that a flat rate be set for each institution, 
such rate to be applicable irrespective of the nature of the services given 
the patient. It may well be that the General Court has proceeded upon 
the theory that the rates— applied in this fashion— will approximately 
reflect the total services provided by a given institution. Be that as it 
may, it is my opinion that the Commissioner of Administration may 
not — under the present statutory framework — lawfully establish special 
rates for particular groups of welfare patients, and I accordingly answer 
the second question in the negative. 

The final question posed by the Senate in its order relates to the 
section of G. L. c. 30A [the State Administrative Procedure Act] under 
which the rates discussed above should be established. The order 
indicates that the Commissioner of Administration followed the provis- 
ions of § 2 of the Act when setting rates for the year 1965, but that he 
has operated pursuant to § 3 with respect to the 1966 rates. Accordingly, 
the Senate has inquired "which of said sections is the proper section 
under which to call a hearing prior to determining any such hospital 
rates." 

Section 2 of c. 30A relates to the adoption or amendment of regula- 
tions "as to which a hearing is required by law" [see Massachusetts 
General Hospital v. Commissioner of Public Welfare, 346 Mass. 739, 
740] , and regulations under which criminal penalties may be imposed for 
violations. This section requires the holding of a public hearing with 
respect to the proposed regulation. Section 3 of the Administrative 
Procedure Act is applicable to all other regulations; under § 3, the 
agency which seeks to promulgate regulations may dispense with a 
public hearing, although it must ordinarily at least provide an oppor- 
tunity for the expression of views in writing. 

The rates established by the Commissioner of Administration under c. 
7, § 30K are "regulations" as that term is defined in c. 30A, § 1(5). 

Massachusetts General Hospital v. Citij of Cambridge, 347 Mass. 519, 

522 

It is clear that they are regulations which may be enacted pursuant to 
the provisions of § 3 of c. 30A. These regulations are not criminal in any 
sense. Nor does there appear any statutory provision which expressly 
requires the holding of a public hearing with respect to them; certainly c. 
7, § 30K does not contain such a provision. [Cf. c. 7, § 30L relating to 
the setting of nursing home rates in which a hearing is specifically 
required. See also Massachusetts General Hospital v. Commissioner of 
Public Welfare, supra, which involved the requirement of a hearing 
under c. 121, § 3.] The Supreme Judicial Court has indicated that the 
rates in question may appropriately be enacted pursuant to § 3. 

Massachusetts General Hospital v. City of Cambridge, supra, at page 

523 

The fact that the Commissioner may have chosen to hold a public 



265 
P.D. 12 

u ■ r\^ iha nflc:t does not bind him to do so in the future. Neither does 
it'oSe to'S'hda^^^^ § 3 of c. 30A estabhshes minimum 

Lcedures whicl'^ be observed, and does not prohibit an agency 
K eSng to comply with stricter standards Accor^gly, in response 
to the Senate's third question, it is my opimon that, ^1^^ e ! J ot c^ ^UA 
is the more appropriate, the Commissioner may proceed under either 2 
or § 3 of that chapter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Board of State Examiners of Plumbers does not have th^ .'fj^i^ority 
to promulgate a rule or regulation which would conflict unth any of 
the provisions of c. W of the General Laws. Should the Board 
restrict the issuance of plumbing permits to master plumbers only, 
the Board would in effect be attempting to amend provisions of the 
statute which governs its operations. Such a regulation would 
conflict with provisions of G. L. c. W, and accordingly may not 
lawfully be promulgated by the agency. 

February 23, 1966. 

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

Dear Mrs. Sullivan:— On February 4, 1966, you requested an 
opinion on behalf of the Board of State Examiners of Plumbers relative 
to the following question: 

"Under Chapter 358, Acts of 1965, would it be constitutional for this 
Board to make a ruling that . . . Permits to perform plumbmg shall be 
issued to master plumbers only." 

Section 1 of c. 358 of the Acts of 1965 repealed G. L. c 142 § 8. 
Section 8 had provided for the formulation by the Board of State 
Examiners of Plumbers of rules relative to the construction, alteration 
repair and inspection of plumbing within towns which had not prescribed 
such regulations pursuant to c. 142, § 13 or corresponding provisions of 

earlier laws 

Section 2" of c. 358 of the Acts of 1965 repealed c. 142, § 13 (as most 
recently amended by St. 1963, c. 228, § 2). Section 13 had required that 
each city, except Boston, and each town with 2,000 or more inhabitants 
or with a system of water supply or sewerage must by ordinance or by- 
law promulgate plumbing regulations. St. 1965, c. 358, § 2 substituted 
the following: 

"In all cities, except Boston, and in each town which has two thousand 
inhabitants or more, the examiners fthe Board of State Examiners of 
Plumbers], subject to the approval of the department of public health, 
shall make and "from time to time in like manner alter, amend and repeal 
rules and regulations relative to the construction, alteration, repair and 
inspection of plumbing in such cities and to\\Tis, which rules and 
regulations shall be reasonable, uniform, and based on generally accepted 
standards of plumbing practice ; provided, however, that the application 



266 



P.D. 12 



of such rules and regulations may be varied by the examiners in a 
particular city or town upon petition of the board of health or health 
department thereof." 

By § 3 of c. 358 of the Acts of 1965, the General Court provided that 
any ordinance, by-law or regulation adopted prior to the effective date of 
this chapter, and in effect on that date, would continue in effect until 
superseded by the rules and regulations to be promulgated by the Board 
of State Examiners of Plumbers. 

The purpose of St. 1965, c. 358 is to remove from the cities and towns 
of the Commonwealth primary responsibility for the promulgation of 
plumbing regulations and to vest such responsibility in the Board of 
State Examiners of Plumbers. Formerly, the Board had been called upon 
to formulate regulations only when petitioned to do so by a local board 
of health under the provisions of c. 142, § 8. Now the Board has been 
given the responsibility of promulgating rules and regulations which will 
govern plumbing in most of the communities of Massachusetts. You have 
asked whether — given this new authority — th^ Board may lawfully 
promulgate a regulation which would authorize the issuance of plumbing 
permits to master plumbers only. 

It is an axiom of administrative law that an agency authorized to 
promulgate rules and regulations may not enact a regulation which is 
inconsistent in any way with its governing statute. The fact that the 
Legislature has chosen to vest rule-making responsibility in a state 
agency rather than in agencies of municipal governments does not affect 
the application of this principle. It is clear that the Board of State 
Examiners of Plumbers does not have the authority to promulgate a rule 
or regulation which would conflict with any of the provisions of c. 142 of 
the General Laws. 

Chapter 142 refers to both master plumbers and journeymen. "Jour- 
neyman" is defined in § 1 of the chapter as "a person who himself does 
any work in plumbing subject to inspection under any law, ordinance, 
by-law, rule or regulation." 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." Journeymen are referred to in § 3 
relative to the necessity, exhibition and display of a license. Section 4 
provides for the examination of journeymen, and § 5 relates to fees for 
such examinations. Section 16 provides for journeymen who are not law- 
fully registered or licensed. 

It is clear that the General Court contemplated the existence of two 
classes of plumbers — master plumbers and journeymen — and authorized 
the performing of plumbing operations by each. This legislative treat- 
ment cannot lawfully be altered by administrative action. Should the 
Board of State Examiners of Plumbers restrict the issuance of plumbing 
permits to master plumbers only, the Board would in effect be attempt- 
ing to amend provisions of the statute which governs its operations. It is 
my opinion that such a regulation would conflict with provisions of G. L. 
c. 142, and accordingly may not lawfully be promulgated by the 
agency. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



267 
P.D. 12 

An armorer not subject to the forty-hour week working in excess of his 
Zualwork may he compensated for such extra hours at a fixed 
hZrly rate for services, assuming that an avwovnation were 
provided for that purpose. 

^n°krs of funds from om governmental agency to another, 
Moutimlodng eontractual rights and tiabiimes as such. 

February 23, 1966. 

Major General Joseph M. Ambrose, The Adjutant General. 

T^ n...Tr>RAT Ambrose-— In a recent request for an opinion, you 
po?nrou?Thrth":"eventy-four armories and -r ^-tallations 
S^ed by the Military Division of the Commonwealth and state. 

"Section 122 of Chapter 33 provides that armories, when not required 
for ^ tary puioses may be rented for certain public and private 
^urooses a^^ armor/and air installation receives a great deal of 

STon-i^nLTy use throughout tl- jear P-^^^^^^^^^^^ an annual return 
to the State Treasury in Fiscal Year 1965 of $65,452.43. . . . 

In connection with the rental of armories and air installations for 
certain non-military purposes see G. L. c. 33, ^ 122(c) ana (ejj, 
accordinrto your letter, ''the Military Division requires the rentmg 
oraaSion to . . . compensate personnel designated by the ... 
Son who a?e on duty [while the facility is rented] for the purpose of 
Soternrthe bunding and military equipment, supervising utilities 
^^Sand closing th! bmldmg prior and ^^ter^ Hs use remo..^^^^ an^d 
reolacing military equipment, and cleanmg the building alter use. 
NormZ because of their famiharity with the bmldmgs, utilities and 
security requirements, armorers and laborers who are regu arly employed 
by thfcoi™^^ are designated by the Military Di-sion for thi. 
purpose, occasionally assisted by members of the active National Guaid 
who are not otherwise employed by the Commonwealth. 

You add: . .„^ . 

-Notwithstanding the provisions of paragraph (d) of Section 122 o 
Chanter 33 it appears that from time immemoria , the personnel 
2^;Ced for the ab'ove purposes, have been paid directly by the renti^^^ 
organization, with the balance of the rental costs paid to the State 
Treasury." 

You assume that direct payment to armorers and others by persons 
ren^^ng an a"or air installation is ''illegal" and do not request my 
opinio! as to the correctness of this assumption Smce, m any vent you 
seem to be opposed to such direct payment, whether such direct payment 
is legal or otherwise, I shall not express an opinion on the subject. 



268 PD. 12 

In light of these facts, you ask the following questions: 

"1. May an armorer, not subject to the forty-hour week, be paid in 
addition to his regular pay, by the Military Division, assuming that an 
appropriation were provided for the purpose, at a fixed hourly rate for 
services performed in guarding an armory or air installation, in moving 
military equipment, and in cleaning the facility, in connection with the 
rental of the installation for non-military purposes, for which services 
the Commonwealth is reimbursed as part of the rental? 

"2. May a laborer, second-class power-plant engineer or carpenter 
likewise receive additional pay at the same fixed hourly rate for such 
services, notwithstanding the fact that he is subject to the forty-hour 
week and would be entitled to overtime compensation under Section SOB 
of Chapter 149 of the General Laws for extra work required by the 
Military Division in his usual capacity, as distinguished from non- 
military-use employment? 

"3. Are the personnel referred to in questions 1 and 2 considered to be 
in the scope of their employment as employees of the Commonwealth 
while performing the services described in question 1 in connection with 
non-military use of military installations? 

"4. Are other personnel, military or civilian, who are not regular 
employees of the Commonwealth, deemed to be employees of the 
Commonwealth while employed at a fixed hourly rate to perform services 
described in question 1 ? 

"5. In the rental of a military installation to another department or 
agency of the Commonwealth, may that department or agency be 
charged a rental which includes the cost of personnel services described 
in question 1?" 

I shall consider these questions in the order in which they have been 
posed. 

1. I assume that the first question applies to services by armorers in 
excess of their usual work week and should be read as if the words "by 
the Legislature" appeared after the word "purpose." Although G. L. c. 
149, § 30A, establishing a maximum forty-hour work week for certain 
employees of the Commonwealth, explicitly excludes "armorers" {inter 
alia) from its scope, I see no reason why the Legislature may not provide 
that armorers working in excess of their usual work week to guard (or 
perform other duties at) armories and air installations during the rental 
thereof shall be compensated for such extra hours "at a fixed hourly rate 
for services." See Woods v. Woburn, 220 Mass. 416, 418. It follows that 
the Legislature may appropriate the money for such compensation. 
Opinion of the Justices, 323 Mass. 764, 767-768. The first question should 
be answered "Yes." 

I treat questions 2 and 3 as one question. I assume that you are in 
effect asking whether armorers and laborers, second-class power-plant 
engineers and carpenters, while engaging in "non-military use employ- 
ment" at armories and air installations under rental, are "employees of 



269 
P.D. 12 

the Commonwealth" and thus entitled to the benefits of G. L. c. 149, § 
SOB. 

Section SOB of G. L. c. 149 states in part: 

^f fnrtv hours in any one work week 

^^id enX? for every hour or fraction thereof of such services 
rendered. ..." 

mmiiwmi 

nrimarily for the benefit of the employer and lis b^^smess /JJ^'l^''^,^ 
pinnaiiiy ^"', , , j , qoi tt q t^QO f^QS • Jewel Ridqe Loai Lo. v. 
Coal Co. V. Muscoda Local, 321 U.b. ^^}^'^^^\;f%X' TT S 161 164-165; 
Local No. 6167, United Mine Workers oj America, S25 U.b. 1^1, ib^ loo 

Revuhlican Publishing Co. v. American ^^^^«P«f ^.f ^^ ^^ ^J^^ 2d gS' 
04^ rc A 1) • Martin y. Graham Shiv-hy-Truck Co., 176 b.W. -Jd 84^, 
847 Kan. City Mo. Ct. of App.). See also Restatement o the Lo 
Aeency 2d § 228, § 233 [comment (a)]; Dnscoll v. Towle, ^^}^^^^' 
4^6 419 It makes no difference in the case that you present that the 
employer happens to be the Commonwealth. orr^r^lnvpr^ 

employer I p^ seemed to contemplate that the regular employers 

wouM gSa^d maintain armories and air installations rented pursuant 
to statute, for G. L. c. 33, § 122 states: 

"M^ Comnensation for the use of any armory or air installation under 
sub ec\ion "a 1 be fixed by the adjutant general with the approva 
ofthe c°mmander-in-chief, and shall be at least ^^^^'^'"^X'^'X,^ 
expenses of lighting, heating, and guarding 'l^^'^^^'^.^^^^t^T^^ 
and similar expenses. Such compensation shall be paid to the aajuiani 
general, who shall pay the same to the commonwealth. 

"(e) Subject to subsection (b) an armory or air installation may be 
used for: 

(2) For a period not exceeding three days, for ^!^y/^|;f "^b\le 
products of abor, agriculture or industry, including any automobile 
exhibition conducted by a responsible organization, ^^^l^^J^^.^^;^^^^^ 
of decorating the premises, for such additional ^^"^VCnnnrovI^^^^^^ 
ing said period, not exceeding eighteen hours, as may ^e X'^^^^.^^^e of 
military custodian and the adjutant general, and for tbe purpose ot 
removing decorations, exhibits or equipment, for s^^^^ , ^^^^^^*^°^^^^^ 
immediately following said period, not ^^^^^^ing eighteen^ W^^^^ 
may so be approved; provided, that the compensation for such uses shall 



270 



P.D. 12 



in no case be less than the fair rental value, for the entire period during 
which the armory or air installation is occupied by any such exhibit or 
equipment, of halls of a similar nature in the same or a similar city or 
town, together with a sum sufficient to cover the expenses of providing 
such 'guards and labor as may be necessary to protect the armory or air 
installation while so used and to remove and replace items of military 
equipment while so used. ..." 

In view of this statute and the information contained in your letter, I 
assume that the personnel kept on duty while armories and air installa- 
tions are under rental perform the kind of w^ork they usually perform, 
that such work occurs within the time contemplated by G. L. c. 33, § 122 
(d) and (e)(2), that such personnel remain subject to the control of 
their superiors, and, most important, that they are primarily serving the 
interests of the Commonwealth in guarding and maintaining its 
property. 

Armorers, as you state in your letter, are explicitly excepted from the 
coverage of G. L. c. 149, § SOB. The employees to whom you refer in 
question 2 are, as already pointed out, not excepted. Employees of the 
Commonwealth not specifically exempted from the operation of G. L. c. 
149, § 30B are entitled to its benefits. See 1956 Report of the Attorney 
General, pp. 52-53. I conclude that the second question should be 
answered "No" and the third question, except in so far as it relates to 
whether armorers are entitled to time-and-a-half pay under G. L. c. 149, 
§ SOB, should be answered "Yes." 

4. To determine whether particular temporary personnel are employees 
of the Commonwealth, I would have to know who hires these persons 
and exercises control over their activities, the terms on which they are 
employed, and the purpose for which they are hired. None of this 
information with regard to the employees referred to in the fourth 
question is contained in your request. Moveover, a person may be an 
employee of the Commonwealth for some purposes but not for others. In 
view of the general nature of your fourth question, and the absence of 
necessary information, I am unable to respond to it. 

5. The Legislature specifically considered the possibility that certain 
non-military agencies of the Commonwealth would find occasion to use 
armories and air installations, and in G. L. c. 33, § 122 (c) provided: 

"Subject to subsection (b), armories or air installations may be used 
temporarily for the following purposes : 

"(1) A public meeting or hearing held by a state department, board or 
commission. 

"(2) An examination conducted by a state department, board or 
commission. . . ." 

Without making any exception for uses of the armories by a "state 
department, board or commission," the Legislature provided in part (d) 
of this section (already quoted) that compensation for the use of any 
armory or installation under § 122(c) "shall be paid to the adjutant 
general, who shall pay the same to the commonwealth." Since, like the 
Military Division, state boards, departments and commissions are gener- 



271 
P.D. 12 

ally not bod.es poUUc a.Kl corporate which ma^ exist a^ financial 

^e^V^a^ni^LrLra^^ncl ^o'i ^ XSte the pLdo. the 

Coimnomvealthincm's an obligation to itseit ^^^^ 

It has been held in numerous .J^";^ff^^^^^;°^4^^tsis upp^ Trustees 

of making a contract as an ^^^^/^^^^d^^Vn Fll m 130 3e exrel. Plock 
of the Internal Imp. Fund ^-Bailey, 10 Fla ^l?' 1^^ Mate e 

i Co. V. Cobb, 64 Ala^ 127, 156. Carry. ff>J^\^\Zay v- 
Saratoga State Waters Corp. v. Pratt, 227 N.\. 42y,J^u. y 

^7 7 ^: oA TT Q Aq9 445 See cases collected at 49 Am. Jr. zi% nu xt, 

^i^s'eiTcrinnfriVhr^^^^^^ 

^'l^'k^si^d'Ed^S? 8lo8?Sndr,e^traUh^cgS 

F'^' £1% i^r rr s^ oi^ rf.J^Soro.^ 

Loomis, 139 Mass. dU/, duo;, ui cii j acrpncv is a body po itic and 

-tcS.. jts i=n^ = HHEiS^^i"^^ 
itrLranTrt^s^"^^^^^^^^ 

control to another for the use of armories. In the ^^nse t^,at ^o suj^ 
departments, boards or commissions may become .^^^^l^^ ^^^ ^^^^^^^ 
Division for the use of its facilities or for the services of its personnel, 
answer the fifth question "No." 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 

Devartment of Mental Health may determine as to voluntary admit- 
^taZor involuntary commitments to medical center at Lowell. 

March 1, 1966. 

Hon Harry C. Solomon, Commissioner of Mental Health. 

Dear Doctor Solomon:-You request an opinion ^^«..^«f;%f \^9^g^^,^ 
mental health center now under construction J" -Lo^^^ j^^^ S^' ^^^^' '- 
477) By way of background information your lettei states 

"The mental health center will not be ^\^^ ^^^^J,^", f^'^ts fund 
be an integral part of the central department of mental health tsunds 
being a portion of those appropriated to the f ^^^^ ^^P^J,^^^^^^^^ ^^^ 
have a Superintendent as its Professional and admmistative ^,ea^^^^ but 
will not have a Board of Trustees, as do State Hospitals under tne 
control of the department. 

"The mental health center plans to provide a program of mental 



272 PD- 12 

health services to the Lowell community consisting of, but not restricted 
to the following: 

In patient services; Out patient services; Partial hospitalization ser- 
vices; (i.e. day care, night care, weekend care); Emergency services; 
Consultation and educational services; Diagnostic services; Rehabilita- 
tive services; Pre-care and After-care services; Training; Research and 
evaluation. 

''The mental health center at Lowell will have available forty (40) 
beds for adult patients in residence, plus a few additional beds for 
children. 
***** 

"It can be foreseen that at the Lowell Mental Health Center situations 
will arise in the course of treatment programs when it will be in the best 
interest of certain patients that they be committed for a period of care 
and observation, or for an indefinite period for treatment or custody, or 
that they be received into the mental health center for a period of 
temporary care. 

"It also is probable that certain persons may desire to submit 
themselves voluntarily for a period of time, for treatment in the mental 
health center. The question has arisen whether or not there is sufficient 
statutory authority in Chapter 123 of the General Laws, as amended, to 
do this." 

In view of this information, you ask the following questions: 

"L Is the Lowell Mental Health Center a State Hospital, or 'other 
state institution' as defined in Section 1 of Chapter 123, of the General 
Laws, as amended? 

"2. May persons be involuntarily committed or received at the 
Lowell Mental Health Center for periods of care and observation, or for 
indefinite periods for treatment or custody, as provided in Chapter 123 
for State Hospitals under the control of the Department of Mental 
Health? 

"3. May persons who submit themselves voluntarily for a period of 
time for treatment in the mental health center be accepted, as provided 
in Chapter 123 for State Hospitals under the control of the Department 
of Mental Health?" 

I shall treat all of these as one question. In essence you ask whether 
the new medical center at Lowell is a State hospital for the care of the 
mentally ill within the purview of G. L. c. 123. If it is, involuntary 
commitments may be made or voluntary admissions accepted to this 
medical center as to other hospitals (see G. L. c. 123, § 25) . 

Chapter 123 contains no specific definition of a "mental health 
center." The provisions of G. L. c. 123, § 29(f) state: 

"They [trustees of state hospitals] may encourage the establishment of 
mental health centers or clinics in any community and inform the public 
of measures that may be taken to prevent mental disease and thus 
reduce mental hospital admissions." 



P.D. 12 273 

This would seem to indicate that the Legislature thought of mental 
health centers as types of "clinics," in which temporary, out-patient care 
was to be given to patients who, without such care, would need 
hospitalization. [See Burke v. John Hancock Mutual Life Insurance 
Com'pamj, 290 Mass. 249, 304, which distinguishes between hospitals and 
dispensaries.] 

However, it is my opinion that § 29 is not controlling as to the 
legislative intent to define "mental health centers." I note that in G. L. 
c. 123, § 25 the Massachusetts Mental Health Center is listed among 
several hospitals {e.g., Worcester State Hospital, Danvers State Hos- 
pital) as a state institution under the control of the Department of 
Mental Health. Furthermore, the definition of "state hospital" to include 
any "state colony, state school or other state institution under the 
control of the department" is certainly broad enough to include mental 
health centers. [Emphasis suppHed.] 

Whether a particular institution is classified as a hospital for purposes 
of voluntary admission or involuntary commitment should, in the 
absence of a legislative intent to the contrary, depend largely upon the 
facilities available. "A hospital is an institution for the reception and 
treatment of sick or injured, an asylum for the reception of the insane." 
Grain v. Louisville, 298 Ky. 421, 424. Noble v. First National Bank of 
Anjiiston, 241 Ala. 85, 87. Bennett v. Bennett, 27 111. App. 2d 24, 30. Cf. 
Salvation Army of Massachusetts, Inc. v. Board of Appeals of Boston, 
346 Mass. 492, 495. I assume on the basis of the information contained in 
your letter that the medical center at Lowell will function as a fully 
equipped hospital, dispensing the type of services which hospitals for the 
mentally ill customarily dispense. On this assumption I conclude that, 
within a district to be determined by the Department (see G. L. c. 123, 
§ 10) , patients may be voluntarily admitted (G. L. c. 123, § 86 et seq.) , 
or involuntarily committed (see, e.g., G. L. c. 123, § 50) to the medical 
center at Lowell upon its completion. 

I attach a proviso to this opinion. Certain sections of G. L. c. 123 
provide for the commitment of persons to specific institutions. See, for 
example, § 103 providing for the commitment of certain insane male 
prisoners to the Bridgewater State Hospital. Nothing in this opinion 
should be read as authorizing the commitment of persons under such 
sections to the medical center at Lowell or to an}^ institution other than 
that specified in the appropriate section. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



274 P.D. 12 

The requirements of the federal Highway Beautifucation Act of 1965 {23 
U.S.C. §§ 131 y 319), which as it relates to roads other than state 
highways, directs the Department of Public Works to expend state 
funds for "the construction of needed improvements on other 
through routes not designated as state highways". Chapter 679 of 
the Acts of 1965 does not authorize expenditures for the purposes of 
the federal Highway Beautification Act of 1965. 

March 2, 1966. 
Hon. Francis W. Sargent, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion as to whether expendi- 
tures for the purpose of the Highway Beautification Act of 1965 (23 
U.S.C. §§ 131, 319) may be charged to the account established by St. 
1965, c. 679 [An Act Relative To The Accelerated Highway Program]. 

Chapter 679 of the Acts of 1965 is a legislative directive to your 
Department: 

". . . to expend a sum, not to exceed three hundred and twenty million 
dollars, for projects for the laying out, construction, reconstruction, 
resurfacing, relocation or improvement of highways . . . and for con- 
struction of needed improvements on other through routes not designated 
as state highways. . . ." 

With regard to highways which are "through routes not designated as 
state highways," your Department is to construct needed improvements; 
the General Court has authorized expenditure of portions of $320,000,000 
for such improvements. Such through routes which are not designated as 
state highways include the Federal Interstate Highway. 

The Federal legislation to which you have referred, namely, 23 U.S.C. 
§§ 131, 319, addresses itself to the very real problem of unsightliness 
along this country's highways. The congressional statement of policy 
takes cognizance of this problem. 

"The Congress hereby finds and declares that the erection and 
maintenance of outdoor advertising signs, displays, and devices in areas 
adjacent to the Interstate System and the primary system should be 
controlled in order to protect the public investment in such highways, to 
promote the safety and recreational value of public travel, and to 
preserve natural beauty." 

23 U.S.C. % 131 (a). 

Accordingly, the Highway Beautification Act of 1965 is intended to 
control outdoor displays, signs and devices which are within 660 feet of 
the nearest edge of the right of way of the roads referred to and which 
are visible from the main way. 

Effective control means, in the terms of the statute, that such displays, 
signs and devices are, after January 1, 1968, to be limited to three types: 
traffic and scenic or historical notices; advertisements for sale of the 
property upon which the sign is located; and advertisements of activities 
taking place on the property where the sign is located. Clearly, many 
signs that are now in place must be removed by January 1, 1968, should 
the Commonwealth act pursuant to the Highway Beautification Act of 



P.D. 12 275 

1965. Provision is also made for the shielding of junkyards by fences or 
trees from public view [see 23 U.S.C. § 131(c)]. Use of the zoning power 
to regulate signs and junkyards is a feature of the Act (although 
junkyards in industrial zones are exempted from the statute's opera- 
tions), [23 U.S.C. §§ 131(d) and (g)J. Additionally, as your letter 
states, qualification for all the federal funds to which the Commonwealth 
might be entitled involves the preparation of a study. 23 U.S.C. § 302 
requires your Department to make certain studied evaluations in con- 
junction with the Secretary of Commerce. 

The State, and in particular the state agency charged with highway 
development, is the instrumentality for carrying on the outlined control 
sought. The federal-aid highway funds apportioned to a state pursuant 
to 23 U.S.C. § 104 may be reduced by ten per cent should a state fail to 
provide for effective control of those problems which the Act seeks to 
regulate. As a matter of law, however, your Department may not 
lawfully act beyond the authority granted to it by the Legislature. 
Consequently, it must be determined whether the statutes which apply to 
the Department of Public Works authorize the type of action contem- 
plated by the Highway Beautification Act of 1965. 

It is my opinion that the requirements of the Highway Beautification 
Act of 1965 are not encompassed within the terms of St. 1965, c. 679. 
Chapter 679, as it relates to roads other than state highways, directs the 
Department to expend state funds "for [the] construction of needed 
improvements on other through routes not designated as state highways." 
[Emphasis supplied.] Many of the provisions of 23 U.S.C. §§ 131, 319 
will result in removal rather than "construction." (In so far as these 
removals would be a taking of property by eminent domain, your 
Department does not have statutory authority to make such takings 
adjacent to highways solely for the preservation of natural beauty. See 
Opinion of the Attorney General, October 5, 1965.) A possible exception 
is 23 U.S.C. § 131(c) which provides that junkyards "shall be screened 
by natural objects, plantings, fences, or other appropriate means. . . ." 
Such screening could conceivably involve the process of "construction." 
However, all of the construction and improving to be done pursuant to 
St. 1965, c. 679 is to be done on the roads specified. The federal 
legislation at issue concerns itself with an area that is beyond the 
confines of the highway. The Highway Beautification Act of 1965 
addresses itself to "the effective control ... of outdoor advertising signs, 
displays, and devices which are within six hundred and sixty feet of the 
nearest^ edge of the right of way. . . ." [Emphasis supplied.] There is no 
indication in c. 679 that improvements are to be made outside of the 
right of way. Indeed, the legislation speaks only of "improvements on 
[the] through routes. . . ." [Emphasis supplied.] 

Accordingly, for the reasons stated above, it is my opinion that c. 679 
of the Acts of 1965 does not authorize expenditures for the purposes of 
the federal Highway Beautification Act of 1965. 

Very truly yours, 

Edwakd W. Brooke, Attorney General, 



276 PD. 12 

Instructions issued by the Commissioner of Correction to the Superinten- 
dents of the Correctional Institutions of the Commonwealth to the 
effect that persons returned to prison after parole violations must 
serve a period of six months before sentences may be reduced under 
c. 127, § 129 are correct. 

March 2, 1966. 

Hon. John A. Gavin, Commissioner of Correction. 

Dear Commissioner Gavin: — You have requested my opinion with 
respect to the calculation of good conduct deductions and discharge dates 
pursuant to a recent amendment to G. L. c. 127, § 129. Section 3 of c. 
884 of the Acts of 1965, which becomes effective on April 6, 1966, 
amended the third paragraph of c. 127, § 129 by adding the following 
sentence: 

"A prisoner released on parole by the parole board, who has failed to 
observe all the rules of his parole and has been returned to a correctional 
institution for the violation of his parole, shall not receive deductions 
described in this section for any of the first six months after he is 
returned to the correctional institution." [Emphasis supplied.] 

You have indicated that the ambiguous phrasing of the new provision 
has caused your Department substantial difficulty in determining its 
proper application. Accordingly, you have asked for my interpretation as 
to the method which is to be used in computing good conduct credits in 
cases in which paroles have been revoked and parolees have been 
returned to prison. 

Chapter 127, § 129 provides that every prisoner "whose record of 
conduct shows that he has faithfully observed all the rules of his place of 
confinement, and has not been subjected to punishment, shall be entitled 
to have the term of his imprisonment reduced by a deduction from the 
maximum term for which he may be held under his sentence. . . ." The 
statute proceeds to set forth the method to be used in computing such 
deductions. Deductions for good behavior are considered part of the 
sentence imposed by the Court and must be recognized and granted. 

Lembersky v. Parole Board of the Department of Correction, 332 Mass. 

290, 294 

It has been the practice of the Department of Correction to calculate 
good conduct credits immediately upon a given prisoner's confinement, 
and to reduce his sentence accordingly. The time deducted is of course 
subject to forfeiture in the event that the prisoner does not conform to 
good conduct requirements. I have indicated in an earlier opinion that 
this method of computation is correct. (See Opinion of the Attorney 
General to the Department of Correction, dated January 15, 1964.) 

Given the requirement of good conduct deductions, and the method of 
computation called for by the statute, application of the recent amend- 
ment could result in a substantial degree of confusion. It appears that 
there are two possible interpretations of St. 1965, c. 884, § 3, each of 
which I will consider. One interpretation involves a literal reading of the 



P.D. 12 277 

amendment, but produces a result which does not appear to reflect the 
intentions of the General Court. The other, although not so strict a 
contruction of the language used, does, in my opinion, reach the result 
which the Legislature actually contemplated. 

The amendment in question states that a prisoner who has violated the 
conditions of his parole, and who has accordingly been returned to 
prison, "shall not receive deductions ... for any of the first six months 
after he is returned to the correctional institution." A literal reading of 
this language indicates that the Legislature sought only to deprive the 
prisoner in question of good conduct credits which might possibly accrue 
during the six-month period subsequent to his return to the institution. 
The language does not reveal any intention to interfere with, or 
otherwise affect, other good conduct deductions to which the prisoner 
might be entitled. 

This interpretation will in some instances lead to an anomalous result. 
Paroles ordinarily occur during the latter part of a given sentence. By 
this time, the prisoner may well have accumulated a large amount of 
good conduct credit. He of course receives no good conduct credit during 
the period of his parole. But, upon return to the institution after parole 
has been revoked, he is entitled to have good conduct deductions 
calculated for the remainder of his sentence, and to have the said 
sentence reduced accordingly. The amendment in question (St. 1965, c. 
884, § 3), if read literally, provides only that no good conduct 
deductions be credited for the first six months after the prisoner's return 
to the institution. Even omitting deductions for this six-month period, 
the remaining deductions will, in certain cases, be sufficient to au- 
thorize an immediate discharge. Consequently, by violating the condi- 
tions of his parole, the prisoner in such a case actually receives a final 
discharge at a date earlier than what his discharge date would have been 
had he complied with the rules and regulations of the Parole Board. 

I do not believe that the Legislature intended this result. It is my 
opinion that the alternative interpretation reflects more closely the 
intention of the General Court. It would appear that the language of the 
amendment to the effect that the prisoner "shall not receive deductions 
... for any of the first six months after he is returned to the 
correctional institution" was intended to indicate that — in the event of 
violation of parole — good conduct deductions should not be calculated so 
as to authorize discharge of the prisoner during the first six months after 
his return to the institution. This can be accomplished by suspending the 
calculation of good conduct credits for the term which remains after the 
end of the parole period until the six-month period in question has 
expired. If, upon the calculation of credits at that time, the prisoner is 
entitled to a sufficient reduction in sentence, he may of course be 
discharged immediately; but he has at least suffered some penalty for 
having violated the conditions of his parole. 

The law in question has been ambiguously drafted, and final deter- 
mination of the legislative intention may well require a further amend- 
ment to the statute. Absent further legislative definition, however, I 
believe that a construction which rewards a parolee for violation of the 
conditions of his parole should be avoided. Such cannot have been the 



278 P.D. 12 

intention of the General Court. Accordingly, it is my opinion that the 
instructions issued by you to the Superintendents of the Correctional 
Institutions of the Commonwealth to the effect that persons returned to 
prison after parole violations must serve a period of six months before 
sentences may be reduced under c. 127, § 129 are correct. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Department of Corporations and Taxation may not legally term- 
inate a lease executed on November 30, 1961, between it and the 
Boston Common Realty Trust on the basis that no monies have 
been appropriated for the balance of the term. 

With or without an appropriation, the Commonwealth will be liable for 
rents under the lease after April 30, 1966. 

The Commonwealth may not lawfully terminate its agreement because 
of the failure of the lessor adequately to maintain the premises 
pursuant to Section 7. a. of the lease. 

March 3, 1966. 

Hon. John J. McCarthy, Commissioner of Administration, Executive 
Office for Administration and Finance. 

Dear Commissioner McCarthy: — This is to acknowledge your letter 
of February 18, 1966, in which you propounded three questions concern- 
ing a lease executed on November 30, 1961, between the Commissioner of 
Corporations and Taxation and the Boston Common Realty Trust, 
covering the premises located at 80 Mason Street, Boston. 

You have asked: 

"1. Whether the Department of Corporations and Taxation may 
legally terminate the aforesaid lease as of April 30, 1966 on the basis 
that no monies have been appropriated and there will be no available 
appropriations after that date to pay the rent prescribed in the lease. 

"2. Whether, lacking available appropriations, the Department of 
Corporations and Taxation or the Commonwealth of Massachusetts will 
be legally liable for rents under this lease after April 30, 1966. 

"3. Whether the failure of the lessor to adequately maintain the 
premises pursuant to Section 7.a. of the lease will legally permit the 
Department of Corporations and Taxation to terminate the lease." 

The lease in question was executed pursuant to G. L. c. 8, § IDA, 
which provides that: 

"The commonwealth, acting through the executive or administrative 
head of a state department, commission or board and with the approval 
of the superintendent and of the governor and council and of the 
commissioner of administration, may lease for the use of such depart- 
ment, commission or board, for a term not exceeding five years, premises 
outside of the state house or other building owned by the commonwealth, 



P.D. 12 279 

if provision jor rent of such 'premises for so much of the term of the lease 
as falls within the then current fiscal year has been made by appropria- 
tion. . . ." [Emphasis supplied.] 

From the information which you have furnished me, I note that 
"provision for rent of such premises for so much of the term of the lease 
as falls within the then current fiscal year has been made by appropria- 
tion. . . ." See Accounts #1201-03-16 and #1202-02-16 of fiscal year 
1962. This requirement of c. 8, § lOA having been met, the Commissioner 
of Corporations and Taxation could and did in fact enter into a valid 
lease for a term of five years. Whether future appropriations would be 
made would not affect the validity of this obligation. 

Section 5 of the lease, after reciting the yearly rental, states: 

"Air obligations of the Lessee hereunder shall be subject to available 
appropriations." 

The Supreme Judicial Court has recently considered the effect of a 
similar lease containing a "subject to available appropriations" phrase. 
In United States Trust Company v. Commonwealth, 1965 Mass. Adv. 
Sh. 107, suit was brought on a five-year lease executed by the United 
States Trust Company and the Commissioner of Corporations and 
Taxation covering the premises located at 40 Court Square. 

The Commonwealth had agreed, "subject to available appropriation," 
to restore the demised premises prior to termination of the lease. The 
lease terminated, yet no restoration was done. The Court, on demurrer, 
rejected the Commonwealth's contention that, as a matter of law, an 
appropriation to defray the cost of restoration was a condition precedent 
to the validity of that obligation. Said the Court at pages 112-113: 

"An examination of the original declaration on file in the Superior 
Court discloses that these words [subject to available appropriation] 
were added in typewriting by caret to a prepared form. Other than to 
state that the words do not create a condition precedent to obligation, we 
shall not speculate about them without knowing the circumstances of the 
negotiation and execution of the lease. . . ." [Emphasis supplied.] 

My answer to your first question, therefore, is that you may not 
legally terminate the lease in question on the basis that no monies have 
been appropriated for the balance of the term. 

In answer to your second question, it is my opinion that, with or 
without an appropriation, the Commonwealth will be liable for rents 
under this lease after April 30, 1966. Whether the Commonwealth will 
ever be able to make payment for same, however, depends upon 
appropriation by the Legislature. See Opinion of the Attorney General 
dated January 19, 1960: 

"Although a lease for several years may be negotiated on behalf of the 
Commonwealth as lessee, even though the rent for future years has not 
then been appropriated, the right of a lessor to be paid such future 
accruing rents is dependent on future appropriations being made by the 
Legislature. Even if suit is instituted against the Commonwealth for 
such future rents, recovery is expressly limited by G. L. c. 258, § 3, 



280 P.D. 12 

which provides that judgments against the Commonwealth shall be paid 
by the Treasurer '. . . from any appropriations made for the purpose by 
the General Court.' " 

In your third question, you ask "Whether the failure of the lessor to 
adequately maintain the premises pursuant to Section 7.a. of the lease 
will legally permit the Department of Corporations and Taxation to 
terminate the lease." 

This section of the lease provides for the general maintenance and 
servicing of the premises with a further provision that if a dispute arises 
as to what is "adequate," the dispute will be submitted to a certain form 
of arbitration. A breach of this covenant for maintenance and servicing 
of the premises will usually make the premises less desirable. However, 
the fact that this diminution in enjoyment resulted from a breach of the 
lessor's covenants, while it will entitle the tenant to damages of a limited 
nature, will not — in and of itself — justify avoidance by the lessee of its 
further responsibilities under the lease. 

Accordingly, it is my opinion that the Commonwealth may not 
lawfully terminate its agreement because of the failure of the lessor 
adequately to maintain the premises pursuant to Section 7. a. of the 
lease. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Despite the failure of the Legislature to repeal G. L. c. 15, §§ 9, 13 and 
15A, the division to which these sections refer must go out of 
existence with the reorganization of the Department of Education 
pursuant to St. 1965, c. 572. However, the Division of Youth 
Services, created by G. L. c. 120, § ^A, continues, with the same 
functions as before, the provisions of St. 1965, c. 572 notwith- 
standing. 

All license requirements concerning private correspondence schools, and 
all authority to grant licenses, contemplated by G. L. c. 75C, remain 
in effect as if St. 1965, c. 572 had not been enacted. 

March 9, 1966. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have requested my opinion as to 
the interpretation of several sections of St. 1965, c. 572, popularly known 
as the Willis-Harrington Act. 

Your first question and the appropriate background information 
provided therewith reads as follows: 

"1. Section 4 of Chapter 15 of the General Laws sets forth the 
present divisions in the Department. Section 8 of Chapter 572 repeals 
Section 4 and becomes effective when the new Board of Education is 
organized. (Section 43 of Chapter 572.) Section I-F of Chapter 572 states 
that the new Board shall establish five divisions, two of which are to be 



P.D. 12 281 

headed by Associate Commissioners and three by Assistant Commis- 
sioners. 

"Chapter 15, Section 9 of the General Laws which refers to the 
Division of Library Extension was not repealed although it is one of the 
divisions listed in Section 4 of Chapter 15. Section 13 of Chapter 15 of 
the General Laws which refers to the Division of the Blind was not 
repealed although this division is listed under Section 4 of Chapter 15. 
Chapter 15, Section 15A refers to the Division of Special Education 
which section was not repealed although this division is listed in Section 
4 of Chapter 15. Chapter 120, Section 4A refers to the Division of Youth 
Services in the Department of Education, and states that this division is 
in the Department but not under its control. This section was not 
changed. 

"In view of the fact that the aforementioned sections were not 
repealed or changed by Chapter 572, what is their status especially since 
Section I-F of Chapter 572 provides for the establishment of only five 
divisions?" 

Your statements as to the provisions of the statutes which you cite are 
correct. 

It is my opinion that despite the failure of the Legislature to repeal G. 
L. c. 15, §§ 9, 13 and 15A, the divisions to which these sections refer 
must go out of existence with the reorganization of the Department of 
Education pursuant to St. 1965, c. 572. St. 1965, c. 572, § 8 upon its 
effective date clearly repeals G. L, c. 15, § 4, which is the source of 
legislative authority for the existence of these divisions. Furthermore, c. 
572, § IF provides for the existence of five divisions: "(a) curriculum 
and instruction, (b) administration and personnel, (c) research and 
development, (d) school facilities and related services, and (e) state and 
federal assistance." St. 1965, c. 572 does not provide for any other 
divisions in the Department. 

In the recent case of Doherty v. Cow,mis doner of Administration, 1965 
Mass. Adv. Sh. 1367, 1370, the Supreme Judicial Court stated: 

". . . Although the principle fof implied repeal] is one which the court, 
in deference to the Legislature, does not regard wdth favor and applies 
with caution, it has its proper place in judicial construction of legislative 
enactments. It derives from the basic concept that it is the duty of the 
court to ascertain the legislative intent and to effectuate it. The test of 
the applicability of the principle of implied repeal is whether the prior 
statute is so repugnant to and inconsistent with the later enactment 
covering the subject matter that both cannot stand. Commonwealth v. 
Bloomberg, 302 Mass. 349, 352. Repugnancy and inconsistency may exist 
when the Legislature enacts a law covering a particular field but leaves 
conflicting prior prescriptions unrepealed. Homer v. Fall Fiver, 326 Mass. 
673. 676, and cases cited. Bond JAqnor Store, Inc. v. Alcoholic Beverages 
Control Commn., 336 Mass. 70, 74. Where such a conflict does appear it is 
the court's duty to give effect to the Legislature's intention in such a 
way that the later legislative action may not be futile. The earlier 
enactment must give way. Sullivan v. Worcester, 346 Mass. 570, 573, and 
cases cited." 



282 P.D. 12 

This language is clearly applicable to the legal problem raised by your 
first question. To the extent that G. L. c. 15, §§ 9, 13 and 15A would 
appear to continue the existence of the Divisions of Library Extension, 
of the Blind, and of Special Education after the effective date of St. 
1965, c. 572, § 8, these sections of c. 15 must be regarded as impliedly 
repealed. 

However, the Division of Youth Service, created by G. L. c. 120, § 4A, 
is on a different footing from the divisions created by G. L. c. 15, § 4. As 
you correctly point out, "this Division is in the Department but not 
under its control." I assume that this arrangement was established to 
comply with Art. 66 of the Articles of Amendment of the Constitution of 
Massachusetts. See 1949 Report of the Attorney General, pp. 17, 18. Its 
existence was in no way dependent on G. L. c. 15, § 4. Although St. 
1965, c. 572, §1F could be read as a repeal of G. L. c. 120, § 4A, repeal 
by implication is — as indicated above — ^not favored. Hersh v. Police 
Commr. of Boston, 319 Mass. 428, 432 and cases cited. I am of opinion 
that the Division of Youth Service continues, with the same functions as 
before, the provisions of St. 1965, c. 572 notwithstanding. 

Your second question and the appropriate background information 
provided therewith read as follows: 

"2. Section I-D of Chapter 15 which provided for the appointment of 
an Assistant Commissioner of Education to be in charge of the education 
of the mentally handicapped, physically handicapped and the emotion- 
ally disturbed children was repealed. Dr. Philip G. Cashman is the 
Assistant Commissioner of Special Education in this area. 

"Section 44 of Chapter 572 provides in part, 'The classification, title 
and salary of each member of the professional staff of the department of 
education and the state colleges immediately prior to the effective date 
of this act shall remain in effect until changed by their respective 
boards.' Dr. Cashman has been in the Department for many years and is 
a veteran. 

"What is Dr. Cashman's status in view of Section 44 of Chapter 572, 
and the fact that Chapter 15, Section 15A which provides for a Division 
of Special Education has not been repealed or changed but is not one of 
the five divisions listed in Section I-F of Chapter 572?" 

The repeal of G. L. c. 15, § ID by St. 1965, c. 572, § 2, for reasons 
discussed in my answer to your first question, clearly abolishes the 
position of "assistant commissioner of education ... in charge of the 
education of mentally handicapped, physically handicapped, and 
emotionally disturbed children." This position was created by St. 1964, c. 
712, § 1, and not by St. 1954, c. 514, § 2, which originally inserted G. L. 
c. 15, § 15A providing for the Division of Special Education. Since the 
position held by Dr. Cashman no longer exists, neither he nor anyone 
else can be said to hold that position. Nichols v. Commissioner of Public 
Welfare, 311 Mass. 125, 130. 

Inasmuch as Dr. Cashman's "classification, title and salary" remain in 
effect until changed by the Board, he should receive the same salary as 
he received prior to the effective date of St. 1965, c. 572 and should 
continue to hold the title of Assistant Commissioner of Education until 



P.D. 12 283 

the Board decides otherwise. The term "classification," I assume, merely 
refers to broad classes of employees {e.g., laborers, professionals) categor- 
ized for seniority and other purposes. Ault v. Hurley, 291 Mass. 176, 177. 
See McDonald v. City Manager of Fall River, 273 Mass. 368, 370; 
Deveney v. Boston, 223 Mass. 270; Attorney General v. Tillinghast, 203 
Mass. 539. See also G. L. c. 30, §§ 45-50; c. 31, § 3. Accordingly, it 
would appear that Dr. Cashman's classification prior to the effective date 
of c. 572 continues thereafter until changed as indicated above. 

Your third question (in two parts) and the relevant background 
information provided therewith read as follows: 

"3. The Division of University Extension has operated under the 
provisions of Chapter 69, Section 7 of the General Laws and under said 
section this division conducted university extension classes and corres- 
pondence courses on all levels, such as, the college graduate level, the 
college undergraduate level, the high school level, and the non-credit 
level wherein there are no educational requirements. . . . 

"Section 7 of Chapter 69 of the General Laws under which all the 
above courses were conducted was changed by Chapter 572, Section 9 by 
striking out the word 'department' and substituting the phrase 'board of 
higher education.' 

"Under Section I-D of Chapter 572 it is stated in the last two 
sentences 'The Board' (referring to the Board of Higher Education) 
'shall establish and maintain university extension courses.' 'The board 
shall establish and maintain citizenship classes for the foreign born, 
teacher training, training for veterans in the division of vocational 
education, fellowship or loan programs, and other voluntary, post high 
school, occupation-oriented programs as it shall deem necessary.' [Em- 
phasis supplied.] 

"Under Section 31 of Chapter 572 which refers to the University of 
Massachusetts, it is stated, 'The university shall offer the adult educa- 
tion services of the university extension program.' 

"In Section I-F of Chapter 572 in the next to the last sentence 
(referring to the Board of Education) it is stated in part, 'The board 
shall also establish audio-visual service, day care service and adult 
education facilities not collegiate in nature.' 

"Some correspondence courses which have been operated by the 
Division of University Extension of the Department of Education under 
Chapter 69, Section 7 of the General Laws require a high school diploma 
or its equivalent. All correspondence schools located in Massachusetts 
and salesmen operating therein are required to be licensed by the 
Commissioner of Education in the Department of Education under 
Chapter 75C. If the correspondence courses which require a high school 
diploma or its equivalent leave the Department and go to the Board of 
Higher Education, what is the effect of Chapter 75C which has not been 
changed relative to licensing? 

"In view of the aforementioned changes in the law, what courses 
remain in the Department of Education and what functions will come 



284 P.D. 12 

under the jurisdiction of the Board of Higher Education and the 
University of Massachusetts?" 

In reply to the first part of this question, it is clear that G. L. c. 75C, 
providing for the licensing of private correspondence schools (not "all" 
such schools, as you state in your request), has not been amended or 
repealed by St. 1965, c. 572. All license requirements and all authority to 
grant licenses, contemplated by G. L. c. 750, remain in effect as if St. 
1965, c. 572 had not been enacted. 

The last paragraph of St. 1965, c. 572, § ID, which is quoted in your 
letter, requires the Board of Higher Education, established by c. 572, 
§ lA, to offer a broad spectrum of courses which would generally not be 
part of a formal degree — or diploma-oriented course of study. The 
penultimate paragraph of § 10 charges the Board to "establish and 
maintain university extension courses." The University of Massachusetts 
under c. 572, § 31 "shall offer the adult education services of the 
university extension program." (The University of Massachusetts may 
have offered extension courses prior to the enactment of c. 572, since G. 
L. c. 69, § 7 permitted the Department of Education to "cooperate with 
existing institutions of learning in the establishment of university 
extension and correspondence courses.") I assume that the "university 
extension program" in § 31 refers to the "university extension courses" of 
§ ID. In general, it seems to have been the intention of the Legislature 
that degree-oriented extension courses, or such courses as are usually 
oriented toward persons working toward degrees or other academic 
status, be offered by the University and that other extension courses be 
offered directly by the Board. 

However, the Board of Higher Education has wide administrative 
authority over public higher education under St. 1965, c. 572, § ID, 
which states in part: 

"The purposes of the board shall be to support, facilitate, and 
delineate functions and programs for public institutions or of higher 
education in the commonwealth segments of such institutions, to allocate 
to them the responsibility and autonomy to discharge such functions and 
programs, and to plan and develop efficient and effective coordination 
among them; provided, however, that the determination of individual 
courses within a general program of study shall be the sole responsibility 
of each public institution of higher education. 

"The board shall promote the best interests of all public higher 
education throughout the commonwealth. 

"The board shall plan and support orderly and feasible expension of 
each segment of public higher education and of public higher education 
as a whole. The board shall have the power to receive allotments to the 
commonwealth under federal programs of aid to public higher education, 
and to disburse such funds in accordance with official plans, not to 
include grants to individuals, or for projects carried on at any given 
institution. 

"The board shall coordinate through its staff such educational services 
as are common to all segments and institutions of public higher 
education." 



P.D. 12 286 

In view of this broad power, I assume that the determination of which 
courses shall be offered through the university and which shall be offered 
directly by the Board is largely a matter for the Board's discretion. See 
Anlt V. Hurley, supra. 

Under St. 1965, c. 572, § IF the Board of Education is authorized to 
establish "adult education facilities not collegiate in nature." It is not 
clear whether the "facilities" in question are merely inanimate objects 
such as buildings and classrooms to be staffed by the Board of Higher 
Education (see Sloss-Sheffield Steel & Iron Co. v. Smith, 185 Ala. 607, 
611) or whether the word in this context includes teachers and adminis- 
trators (see State ex rel. Knight v. Cane, 20 Mont. 468, 471, 475-476). 
Because of the ambiguity of this term, it is particularly appropriate for 
administrative interpretation. See Cleary v. Cardullo's Inc., 347 Mass. 
337. 344. 

If the Board of Education should decide that the Legislature intended 
for it to staff the facilities mentioned in c. 572, § IF, the curriculum 
offered at these facilities should be generally equivalent to courses 
generally offered in primary or secondary schools. I assume that most of 
the students at these facilities will be adults who did not have an 
opportunity to receive twelve years of education. In general, it seems to 
have been the Legislature's intention that the reorganized Board of 
Education concern itself mainlv with primary and secondary education 
in the Commonwealth. See St. 1965, c. 572, § IG. 

I am aware that regardless of efforts to separate divisional and 
departmental functions in the area of extension courses, some duplication 
of curriculum and facilities is probably inevitable. But without such 
duplication the broad beneficial purpose of the statute probably could 
not be realized. 

Your fourth question and the background information provided there- 
with read as follows: 

"4. Section 23 of Chapter 572 made a change in Section 22 of 
Chapter 74 of the General Laws in substance by striking out the words 
'for vocational education' so that it would be the state Board or the 
Board of Education which would use the funds mentioned in said 
section. This section states 'That the state board may use the funds 
received under the act of Congress mentioned in section twenty as 
supplementary to state aid for salaries of teachers of vocational subjects 
in schools complying therewith. It may also use such funds (1), for 
salaries of teachers giving types of training selected by it as especially 
needing stimulus; or (2), for courses for the preparation of teachers of 
vocations selected by it; or (3), to arrange with schools and colleges to 
give the proper types of training to teachers of vocations under its 
supervision; or (4), to enable local school authorities to conduct, under 
its supervision, classes for the training of vocational teachers; or (5), for 
travel as provided for under said act of Congress. Such payments shall 
be subject to conditions prescribed by said board.' 

"Under Section I-D of Chapter 572 which refers to the Board of 
Higher Education, it states as follows in the last sentence, 'The board 
shall establish and maintain citizenship classes for the foreign born, 
teacher training, training for veterans in the division of vocational 



286 P.D. 12 

education, fellowship or loan programs, and other voluntary, post high 
school, occupation-oriented programs as it shall deem necessary.' 

"How can this section as far as teacher training be reconciled with the 
previous mentioned section, namely, Section 23 of Chapter 572 of the 
Acts of 1965 which amended Section 22 of Chapter 74 of the General 

Laws?" 

I see no conflict in St. 1965, c. 572, between the provisions of § 23 and 
those of § ID relating to teacher training, since the latter refer to 
teacher training generally and the former to the training of vocational 
teachers. Nothing in § ID authorizes the Board of Higher Education to 
use the federal funds referred to in St. 1965, c. 572, § 20 — i.e., "funds 
allotted to the commonwealth from appropriations made under the Act 
of Congress approved [February 23, 1917] . . . relating to vocational 
education in agriculture, distributive occupations, household arts and 
trades and industries." The Board of Education, on the other hand, is 
clearly authorized to use these funds. Although it appears that the 
authority of the Board of Higher Education under § ID to "establish . . . 
teacher training" is broad enough to include vocational training, I 
assume that this Board will as far as possible avoid duphcation of 
facilities and courses in the training of vocational teachers offered 
pursuant to § 23 and subsidized, at least in part, by federal aid. 

I shall not repeat your fifth question verbatim. In essence, you state 
that the Department now sponsors courses in electronics, machine tool and 
design, mechanical technology, practical nursing, dental technology, and 
medical secretarial skills. You add: 

"The Department sponsors Supervisor-Instructor training courses for 
the benefit of industry, hospitals, business establishments, etc.; also 
courses on the Techniques of Supervision, Training for Conference 
Leadership, and Work Simplification Courses. The various establish- 
ments select the people to be trained. . . ." 

You asked whether the Board of Education should now transfer to the 
Board of Higher Education the responsibility for these courses. 

According to your letter, enrollment in several of these courses requires 
or usually requires a high school diploma. In any event, these courses are 
not related to adult primary and secondary education or to the training 
of vocational teachers. They seem to fall well within the scope of the 
programs to be established by the Board of Higher Education pursuant 
to the last paragraph of St. 1965, c. 572, § ID. I conclude that the 
purposes of St. 1965, c. 572 will best be served by transfer of responsi- 
bility for these courses to the Board of Higher Education. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 287 

The lease of a military reservation is neither a "sale" or "transfer" 
within the meaning of St. 1955, c. 665, § 1. The -power to lease a 
military reservation to the United States for military purposes 
remains in the Governor, although the power to dispose of such a 
reservation "by sale, transfer or otherwise" is in the Military 
Reservations Committee {upon recommendation of the Commis- 
sioner of Administration and approval by the Governor.) 

The advice and consent of the Executive Council is no longer needed 
with regard to the lease, sale, disposition or transfer of any property 
owned by the Commonwealth, including military reservations. 

March 21, 1966. 
Major General Joseph M. Ambrose, The Adjutant General. 

Dear General Ambrose: — ^You have requested my opinion as to the 
authority of the Military Reservations Commission (see St. 1935, c. 196) 
to negotiate a lease of Otis Air Force Base to the Federal government, 
presumably for use by the armed forces of the United States. You ask 
two questions: 

"1. INIay the Massachusetts Military Reservation (commonly known 
as Otis Air Force Base and/or Camp Edwards) , be leased by the governor 
under the authority of General Laws Chapter 33, Section 114; or must 
any said lease be made by the Military Reservation Commission, on 
recommendation of the Commissioner of Administration with the 
approval of the governor as set forth by Chapter 665 of the Acts of 
1955? 

"2. Is the consent of the Council now required under either statute?" 

I shall consider these questions separately. I quote St. 1955, c. 665, 
§1: 

"Upon recommendation of the commission on administration and 
finance and with the approval of the governor and council, the special 
military reservation commission established by section one of chapter 
one hundred and ninety-six of the acts of nineteen hundred and thirty- 
five, as most recently amended by chapter twenty of the acts of nineteen 
hundred and forty-one, is hereby authorized to dispose of, by sale at 
public auction, by sale or transfer to other agencies of the common- 
wealth, or by sale or transfer to political subdivisions of the common- 
wealth in which the properties are located any or all properties, including 
land and buildings, under the jurisdiction of said military reservation 
commission, which properties have been certified by it to be no longer 
necessary for its program. Upon like recommendation and with like 
approval, said military reservation commission may dispose of, by sale, 
transfer or otherwise, to agencies of the United States government any or 
all properties, including land and buildings, under its jurisdiction." 

The last sentence of this statute gives the Commission power to 
"dispose of, by sale, transfer or otherwise, to agencies of the ITnited 
States government any or all properties . . . under its jurisdiction." 
There is a decided conflict of authority as to whether the power to 



288 P.D. 12 

"dispose of" property includes the power to grant a leasehold therein. 
Cases holding that the power to lease is subsumed under the power to 
"dispose of" include United States v. Gratiot, 14 Pet. 526, 537-538; Hill 
V. Sumner, 132 U.S. 118, 123-124, and Illinois Life Insurance Co. v. 
Beifield, 184 111. App. 582, 593-595. A contrary interpretation of the 
words "dispose of" was reached in In re Hubbell's Trust, 135 Iowa 637, 
644. The Supreme Judicial Court of this Commonwealth in another 
context has said: "It is evident that the words 'disposed of meant a 
complete divestment of title." Lord v. Smith, 293 Mass. 555, 562. 

I am of the opinion that the lease of a military reservation is neither a 
"sale" nor a "transfer" within the meaning of St. 1955, c. 665, § 1. See 
Black's Law Dictionary (4th ed.), pp. 1503 and 1669. Whether the 
power to "dispose of . . . otherwise [than by sale or transfer]" includes 
the power to lease is difficult to determine on the face of the statute. In 
these circumstances it is permissible to resort to other statutes dealing 
with the same subject in order to interpret the statute under considera- 
tion. Davis V. School Committee of Somerville, 307 Mass. 354, 361. I 
consider G. L. c. 33, § 114, which states: 

"The governor, with the advice and consent of the council, may lease 
to, or permit to be used by, the armed forces of the United States, 
military property belonging to the commonwealth, upon such terms and 
conditions as will fully protect the interests of the commonwealth." 
[Emphasis supplied.] 

This statute is unambiguous. It was inserted by St. 1939, c. 425, § 1 
and most recently amended by St. 1954, c. 596, § 1. Clearly, a military 
reservation owned by the Commonwealth is military property {Northern 
Pacific Railway Co. v. United States, 64 F. Supp. 1) which the Governor 
is empowered to lease to the "armed forces of the United States." To 
hold that St. 1955, c. 665, § 1 conferred upon the Military Reservations 
Commission the authority to lease Otis Air Force Base would be to 
countenance an implied partial repeal of G. L. c. 33, § 114. Repeal by 
implication is not favored. Hersh v. Police Commissioner of Boston, 319 
Mass. 428, 432 and cases cited. Statutes dealing with the same or similar 
subjects should be interpreted "to the end that there may be an 
harmonious and consistent body of law" with "reasonable effect to both 
[statutes], unless there be some positive repugnancy between them." 
Everett v. Revere, 344 Mass. 585, 589 and cases cited. I conclude that 
the power to lease a military reservation to the United States for 
military purposes remains in the Governor, although the power to dispose 
of such a reservation "by sale, transfer or otherwise" is in the Commis- 
sion (upon recommendation of the Commissioner of Administration and 
approval by the Governor) . 

Section 4 of St. 1964, c. 740 provides as follows: 

". . . 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 limita- 
tion, any deposit, borrowing, loan, investment, endorsement, validation, 
surety or bond, or any lease, license, purchase, acquisition, sale, convey- 



P.D. 12 289 

ance, disposition or transfer, or any contract or other agreement, or any 
Dermit or license, or any rules or regulations, is hereby repealed." 
[Emphasis supplied.] 

The emphasized language speaks for itself. The "advice and consent" 
Df the Council is no longer needed with regard to the lease, sale, 
disposition or transfer of any property owned by the Commonwealth, 
including military reservations. Accordingly, I answer your second 
question in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A statute re-pealed and simultaneously re-enacted remains in jull force 
and effect. The State Sanitary Code, adopted by the Department of 
Public Health under the provisions of ^ 5 of Chapter 111, M.G.L., 
contiime in full force and effect, the provisions of St. 1965, c. 898, § 1, 
notwithstanding. 

March 21, 1966. 

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

Dear Doctor Frechette: — You have requested my opinion as to the 
status of the State Sanitary Code (adopted by the Department of Public 
Health) in view of St. 1965, c. 898. This code, which you state is "being 
enforced by local boards of health" and is "the basis of local programs of 
housing code enforcement by numerous municipalities," was adopted 
pursuant to the second paragraph of G. L. c. Ill, § 5, which reads: 

"Said department [of Public Health] shall adopt and may from time 
to time amend, public health regulations to be known as the state 
sanitary code, which may provide penalties for violations thereof not 
exceeding five hundred dollars for any one offence. Said code shall 
become effective and have the force of law upon filing with the state 
secretary or at such later date as may be specified by the department. 
The code shall deal with matters affecting the health and well-being of 
the public in the commonwealth in subjects over which the department 
takes cognizance and responsibility. Nothing contained in the code shall 
be in conflict with any general or special laws. This section shall not be 
deemed to limit the right of any board of health to adopt such rules and 
regulations as, in its opinion, may be necessary for the particular locality 
under its jurisdiction; provided, such rules and regulations do not conflict 
with the laws of the commonwealth or the provisions of the code." 

As you point out, St. 1965, c. 898, § 1 "repealed" the above language 
by repealing all of G. L. c. Ill, § 5 after the first paragraph. However, 
St. 1965, c. 898, § 3 re-enacted substantially the same language as 
appeared in paragraph 2 of c. Ill, § 5, making it part of G. L. c. Ill, 
§ 127A. In view of this action by the Legislature, you ask three questions: 

"1. Will the Articles of the State Sanitary Code, adopted by the 



290 P.D. 12 

Department under the provisions of Section 5 of Chapter 111, remain 
effective after April 7, 1966, the effective date of Chapter 898 of 1965? 

"2. If the answer to the above question is in the negative, will it be 
necessary for the Department to advertise, hold a hearing, and then 
adopt these Articles of the Sanitary Code in accordance with the 
provisions of the new Section 127A of Chapter 111, or could the 
Department simply vote to adopt the Articles and then file them with 
the Secretary of State? 

"3. Could any other action be taken which would validate the 
Articles of the State Sanitary Code and avoid serious and costly 
interruption to the local enforcement programs?" 

Only the first question need be considered. It is a well-established rule 
of law that a statute "repealed and simultaneously re-enacted" remains 
in full force and effect. Wayne v. Bureau of Private Investigators & 
Adjusters, 201 Cal. App. 2d 427, 439. Bear Lakes & River Water Works 
& Irrigation Co. v. Garland, 164 U.S. 1, 11-12, Florida Central & 
Peninsidar RR Co. v. Foxworth, 41 Fla. 1, 59. Heath v. State, 173 Ind. 
296, 298. Van Dyke's Appeal, 217 Wis. 528. Horack, Sutherland Statu- 
tory Construction (3rd ed.), § 2036. See Commonwealth v. Anselvich, 
186 Mass. 376, 379-380; Crawford, Statutory Construction, § 322. I 
conclude that the State Sanitary Code continues in full force and effect, 
the provisions of St. 1965, c. 898, § 1 notwithstanding. It is, accordingly, 
unnecessary to consider the other questions contained in your request. 

Very truly yours, I 

Edward W. Brooke, Attorney General. 



The Superintendent of the Massachusetts Correctional Institution at 
Bridgewater may legally grant permission to make an educational 
film within that institution. 

March 21, 1966. 

Hon. John A. Gavin, Commissioner of Correction. 

Dear Commissioner Gavin: — In your recent request for an opinion, 
you provided the following information: 

"I have been asked by Frederick Wiseman of Cambridge for permis- 
sion to make an educational film about M.C.I. Bridgewater. Mr. 
Wiseman is an attorney and an experienced film-maker. I have told him 
that I would give him permission to make the film. Provided, however, 
that the rights of the inmates and patients at Bridgewater are fully 
protected. Mr. Wiseman has assured me that he will only use the 
photographs of inmates and patients who are legally competent to sign 
releases and that he will obtain a written release from each inmate and 
patient whose photograph is used in the film." 

In light of the above, you have asked whether you may legally grant 
Mr. Wiseman permission to make such a film. 
I direct your attention to G. L. c. 125, § 14 (relating to the 



291 
P.D. 12 

Massachusetts Correctional Institution, Bridgewater) , which reads as 

Lttor^^fo^tr^^^^^ 

shall govern and employ them P^^ f ^^^ ,*°^^^X^^ dis- 

untU Ln sentences have been P-" ^^^^^^^^^^ 

charged by due course of la^^, or they are remuvt; ^ . ^ ^ ^he 

and ihall also have the charge and ^'^'^'^^l^^^^'''^^^^^^ and all 

land, buildings, furniture, tools, nuplement., stock, provisions, 

other property belonging to it or withm its precmcts. 

Unless your rules or regulations provide othe^^^^^' ^^^ J^.^'lupU^ 

200. O'Brien v. Pabst Sales Co 124 Ff f. l^^' 1^^V^23 Mich 411, 
^t^V^^n'^ ^46^141^1^762 'k ^Tl.'^'e of a 
i 1 r%SrecfontHn^^^^^^^^^ entrusted to the ^ajler wh^^^^^^^^^^ 
the sheriff or another [in the case of the Institution at ^ndge^ater the 
Superintendent]. It is Ins duty . . . to maintain order, as ^^^^^^^ 
exclude intruders therefrom. In the execution «/ /l^^^l ^^^^^^^Vh ' to^^^ 
[or Superintendent] has a large discretion m ^etermmmg at ^hat ti^^^^ 
inder what circumstances, and what persons not ^^^^^g j^^f.^^^^^^^^^^ 
may be permitted to enter the jail, or to have access to the prisoners^ 41 
Am. Jul' 888. See Laughlin v. Cummings 105 ^-^^/l' J^' ^^f ^^' ^^^ 
State, 104 Ala. 35, 37-38. I conclude that the Superintendent may if he 
deems it advisable, permit Mr. Wiseman to make his film at the 
Institution. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

If proper certification of the costs and charges called for by c. 7, ^fOKis 
made by the Director of Hospital Costs and Finances, and if all 
other statutory conditions have been complied with, the rates 
promulgated by the Commissioner of Administration on t ebruary 
16, 1966, have been properly established. Provision by the Director 
of additional information than required by c. 7, § 30K would not 
alter the fact that he has complied with the statutory mandate. 

March 22, 1966. 

Hox. John J. McCarthy, Commissioner of Administration. 
Dear Commissioner McCARTHY:-On March 4, 1966, you submitted 

to me a request for my opinion upon five questions relating to the setting 



292 P.D. 12 

of rates for rciinhiirscnicnt of hospitals, sanatoria and infirmaries for care 
of welfare i)atients under the provisions of G. L. c. 7, § 30K. Since I 
have rendered an opinion on this subject matter within the past month 
[see Opinion of the Attorney General to the Senate dated February 16, 
1966 1, I believe that it is desirable to include a brief statement of recent 
activity with respect to the setting of the rates at issue. The questions 
which you have just posed may thus be j)laced in their projier context. 

Much of the relevant information is contained in your letter. In 
Auf2;ust of 1965, having already established a set of rates under the 
provisions of c. 7, § 30K, you asked me to advise whether you could 
lawfully promulgate a second set of rates during that year in order more 
closely to reflect the statutory directive that the rates in question should 
be the equivalent of the lower of reasonable hospital costs or charges. I 
responded on August 30, 1965, by ruling that c. 7, § 30K authorized the 
promulgation of hospital rates for the care of welfare patients only once 
in a calendar year, and that accordingly any additional rates established 
by the Commissioner of Administration would be a nullity. This opinion 
has recently been upheld by a Justice of the Superior Court [see order 
by Moynihan, J., in the case of Massachvsettft General Tlon'pifal v. 
Commimover of Administration, Suffolk Sujicrior Court No. 607,756]. 

In the first jiai'agraph of your letter of March 4, 1966, you state 
that — on Feburary 3, 1966 — you certified under the provisions of c. 7, § 
30K, ". . . to each of the various departments, boards, or conmnissions of 
the commonwealth purchasing care in . . . hospitals, sanatoria and 
infirmaries, or rcimbm'sing cities or towns for such care purchased by 
them, . . . rates with respect to each such hospital, sanatorium and 
infirmary as will reflect I'easonable hospital costs or charges made to the 
general public, whichever is the lower." On Febmavy 10, 1966, the Senate 
of the (Commonwealth adopted an Order requesting an opinion of the 
Attorney General with respect to the rates certified the previous week. 
The Order of the Senate contained the following statement of fact: 

". . . it also appears that the Director of Hospital Costs and Finances 
has not certified to said Commissioner fof Administration] the costs and 
charges which in accordance with said section 30K it is provided should 
be so certified, but in lieu thereof, and by order of said Commissioner, by 
letter to said Director dated January 7, 1966, filed with the Commis- 
sioner projected or estimated ward costs and charges for the year 
commencing January 1, 1966." 

The Order of the Senate continued: 

"In view of the foregoing are the rates so certified by said Commis- 
sioner legally and properly established in accordance with the statute?" 

On February 16, 1966, as indicated above, I rendered an opinion in 
response to the questions i)osed by the Senate. This opinion, based upon 
the statement of fact provided by the Senate embodied in the previous 
paragraph, contained the following language: 

"It is my opinion that when the General Court enacted the provisions 
of Chapter 7, section 30K it expected that the costs and charges certified 
by th(> T^ir(H'tor to the Commissioner of Administration and examination 



P.D. 12 293 

of presently availul)lc facts and figures, and not upon speculation as to 
future developments in hospital economics. The statute requires of the 
Director certification of concrete and reliable figures, and provides him 
with the necessary autiiority to acfjuire whatever data may be relevant 
to his determinations." 

Thus, I advised the Senate that the Director of Hospital Costs and 
Finances could not lawfully project costs and charges for the year 1966, 
and that rates established by the Commissioner of Administration on the 
basis of such projected figures were invalid. Your present letter states: 
"Because the Order and opinion, based on the assumed facts, have cast 
doubt on the validity of the 1966 rates, it is my desire to clarify the 
status of those rates." 

You have now indicated that the Senate's "characterization and 
inter])rotati()n of the figures presented ... by the Director . . . docs not 
coincide" with your own. You advise me that — prior to your certification 
of rates on February 3, 1966 — the Director of Hospital Costs and 
Finances had provided you not only with projected and estimated figures 
for the year 1966 (as stated by the Senate), but also with figures which 
reflected actual hospital costs and charges. Given the facts as they are 
stated in your letter, I will answer your questions in the order in which 
they are posed. 

"1. Assuming I was correct in my interpretation that the figures 
certified to me by the Director within the twelve-month period preceding 
the February 3 rate certification fulfilled his statutory obligation, and all 
other statutory conditions had been complied with, was the certification 
of rates on February 3 valid?" 

General Laws c. 7, § 30K contains certain steps which must be 
completed by the Director of Hospital Costs and Finances before the 
Commissioner of Administration may lawfully certify the rates called for 
by that statute. 

"The Director of Hospital Costs and Finances shall determine from 
time to time and certify to the Commissioner of Administration, at least 
as often as annually, the average all-inclusive per diem charge to the 
general public for public ward accommodations or their equivalent, the 
all-inclusive per diem cost of care in such accommodations and the all- 
inclusive per diem cost of care for all patients of each hospital, 
sanatorium and infirmary licensed by the Department of Public Health 
under section seventy-one of chapter one hundred eleven." [Emphasis 
supplied.] 

Thus the Director of Hospital Costs and Finances must make available 
to the Commissioner of Administration three different figures with 
respect to hospital costs and charges; these figures will ordinarily serve as 
the basis upon which the Commissioner will establish the eventual rates 
under the third paragraph of c. 7, § 30K. 

I gather from your letter that prior to your e-stablishment of rates on 
February 3, 1966, the Director of Hospital Costs and Finances provided 
you with a variety of figures relating to hospital costs and charges. You 
state that you have treated the Director's communications as certifica- 



294 PD. 12 

tions of the costs and charges called for by c. 7, § 30K, and I will not 
examine this contention. Rather, I will address myself to your questions 
upon the assumption that proper certification of the sets of figures has 
been made by the Director. 

Assuming that such proper certification has been made, and that^-as 
stated in your reques1>-all other statutory conditions have been com- 
plied with, it is clear that the rates promulgated by you on February 3, 
1966 have been properly established. My opinion of February 16, 1966 
indicated that the rates in question were invalid because the Director 
had provided estimated figures for the Commissioner's consideration, 
rather than actual cost and charge averages. If, as you state, the 
Director did in fact provide the type of concrete, reliable figures 
contemplated by the statute, the procedural flaw discussed in my earlier 
opinion does not exist, and— given compliance with the remainder of c. 7, 
§ 30K and with the provisions of c. 30A, the State Administrative 
Procedure Aci^the rates remain fully effective. [I of course do not pass 
upon the substance of the rates— i.e., the specific dollar amounts set by 
the Commissioner as standards upon which each hospital or other 
institution is to be reimbursed. This opinion, as well as the opinion of 
February 16, 1966, relates only to the procedures followed in establishing 
the rates at issue.] 

"2. Assuming the answer to the first question is in the affirmative, if 
the Director had properly certified to me figures as therein stated, and 
had in addition thereto filed with me 'projected or estimated ward costs 
and charges for the year commencing January 1, 1966,' would the 
furnishing of this additional material invalidate the February 3 rate 
certification?" 

General Laws c. 7, § 30K states a minimum requirement which must 
be followed by the Director of Hospital Costs and Fiiiances. The 
Director must certify to the Commissioner of Administration average 
charges to the general public for public ward accommodations, the all- 
inclusive cost of care in such accommodations and the all-inclusive cost 
of care for all patients. Such certification is a condition precedent to 
valid establishment of rates by the Commissioner. 

But I see nothing in the statute which would prohibit the Director 
from providing additional information if such information happens to be 
available. Whether such additional information happens to be figures 
with respect to related subjects, or projections as to future costs and 
cliarges, or something else, its existence would not affect rate-setting 
actions subsequently taken by the Commissioner. At worst, the addi- 
tional information provided by the Director would be surplusage that 
could be ignored by the Commissioner. At best, this information might 
be of sufficient value to warrant its consideration by the Commissioner 
prior to the final promulgation of rates. The Commissioner need not 
make any use of the additional information. But if the Director has 
actually provided the figures called for by c. 7, § 30K, provision by him 
of additional information does not alter the fact that he has complied 
with the statutory mandate. Accordingly, I answer your second question 
in the negative. 



P.D. 12 295 

"3. If the most recent cost figures that the Director is able to certify 
to me are costs for a time period substantially earlier than the period for 
which I must certify rates, am I permitted by said Section 30K to certify 
rates based on a reasonable projection or estimate of what costs will be 
for such later period, provided that such projections or estimates are in 
turn based on the Director's most recent certified cost figures?" 

It is a practical fact that the Director of Hospital Costs and Finances 
cannot possibly hope to provide cost and charge figures which are 
applicable to the exact day upon which rates are to be promulgated. Our 
present economy is an inflationary one. In addition, it may well be that 
certain methods of accounting used by the institutions in question 
contribute to the inability to arrive exactly at present costs and charges. 
It cannot be assumed that the Legislature intended the Director to 
accomplish the impossible. Probably the Director can at best certify 
costs and charges from a period somewhat earlier than the present. It 
would be beyond the scope of this opinion to speculate upon how long 
such a "time-lag" should be. Suffice it to say, it is my opinion that there 
has been compliance with the statute if the Director of Hospital Costs 
and Finances makes a reasonable attempt to provide figures which reflect 
present hospital costs and charges as closely as possible. 

I believe that — under c. 7, § 30K — the Commissioner of Administra- 
tion possesses the authority to take this inevitable "time-lag" into 
consideration. The General Court has clearly contemplated the making 
of independent decisions and calculations by the Commissioner; other- 
wise, the Commissioner could simply "rubber stamp" the figures pro- 
vided by the Director, and the provision contained in the third 
paragraph of § 30K to the effect that the Commissioner must make an 
independent certification of the rates would be unnecessary. 

The Commissioner may exercise reasonable discretion in selecting the 
elements to be considered. These elements may be presented to him at a 
public hearing, if he chooses to hold one, or they may be called to his 
attention in other ways. The only requirement is that the considerations 
which go into the setting of the final rates be reasonable. 

It is my opinion that the Commissioner may — in his discretion — take 
the figures provided by the Director and update them. This may be done 
by estimating what increases in hospital costs and charges may have 
taken place during the period between the date of the Director's figures 
and the present. This in no way conflicts with my opinion rendered to 
the Senate on February 16, 1966. At that time, I indicated only that the 
Director of Hospital Costs and Finances could not substitute such 
projection and estimation for actual concrete figures. I find nothing in 
the statute which would prevent the Commissioner from employing such 
projections, assuming that they are reasonable and that they are based 
upon the figures made available by the Director. Chapter 7, § 30K in 
fact appears to contemplate such action by the Commissioner, since it 
vests final authority to establish rates in his office rather than in the 
office of the Director. 

"4. If the most recent audited charge figures that the Director is able 
to certify to me are charges for a time period substantially earlier than 



296 P.D. 12 

the period for which I must certify rates, am I permitted by said Section 
30K to consider in addition thereto in determining rates reliable informa- 
tion as to actual charges at a later date, even though not certified by the 
Director?" 

My response to your third question covers this inquiry as well. The 
Commissioner of Administration may lawfully take into consideration 
any information which may reasonably assist him in the establishment 
of a proper reimbursement rate. If reliable information relative to more 
recent hospital costs and charges comes to his attention, it would be 
unreasonable to insist that it be ignored. However, the Commissioner 
may act solely upon facts upon which he can reasonably rely. The 
question arises whether facts and figures so recent that they could not 
be certified by the Director will meet the criterion of reliability. This 
however is a determination which must be made by the Commissioner 
upon all of the facts which are at his disposal. 

My responses to the above four questions do not in any way represent 
a withdrawal or a limitation of my opinion of February 16, 1966. The 
two opinions are complementary, dealing with two separate factual 
situations. I make no comment upon which set of facts presented to 
me — that of the Senate or that of the Commissioner of Administration — 
may^ be the more accurate. My opinion of February 16, 1966 is 
applicable should the facts be as presented by the Senate; the above 
responses apply to the facts described in the present request. 

You have recognized that the presentation to the Department of the 
Attorney General of different sets of facts, and the subsequent issuance 
of opinions based on those facts, could potentially result in confusion in 
the mind of the public. Accordingly, you propose to take steps to resolve 
the uncertainty as to whether a valid set of rates has been certified for 
the calendar year 1966. You state: 

"Now, in order to allay any uncertainty as to whether the 1966 rates 
have been properly certified, and because of the overriding necessity of 
resolving doubts in this vital area, it is my desire to promulgate and 
again certify rates to the various departments, boards and commissions 
specified in Section 30K. Because the cost figures certified by the 
Director subsequent to February 3 are in substance the same as those on 
which I relied in certifying rates on February 3, and because, upon 
careful re-examination, I have determined that the rates certified 
February 3 ^ 'reflect reasonable hospital costs or charges made to the 
general public, whichever is the lower' in accordance with my duty under 
Section 30K, the rates I desire to certify now would be identical with 
those certified on February 3. This seems to me to be the prudent course 
to resolve any remaining doubt as to the validity of the 1966 rates." 

In light of the above, your final question is as follows: 

"5. Would my certification of identical 1966 rates again at this time 
conflict with your opinion of August 30, 1965?" 

The decision to promulgate rates for 1966 once again is administrative 
m nature, and I will not comment upon it. I will however — as you 



P.D. 12 297 

request — indicate whether such action will conflict with my opinion of 
August 30, 1965. 

In that opinion, I stated that the Commissioner of Administration 
could lawfully promulgate the rates in question only once in a calendar 
year, and that any additional rates established by the Commissioner 
would be a nullity. Thus, it is clear that the application of my opinion of 
August 30, 1965 will depend upon the facts presented. Should the facts 
described in the Order of the Senate of February 10, 1966 be taken as 
true, the action taken by you on February 3, 1966 was ineffective; 
consequently, no rates having lawfully been promulgated for the year 
1966, you not only may, but must, set new rates for this year. If, on the 
other hand, the facts presented in your letter of March 4 are accurate, it 
would appear that the rates already certified by you were lawfully 
promulgated. Accordingly, you would not be able to set another rate for 
the same calendar year. Such new rate w^ould be of no legal effect, and 
the hospitals and other institutions would be reimbursed on the basis of 
the rate established by you on February 3, 1966. 

In any event, it would appear that your plan to "re-establish" the rates 
originally promulgated on February 3, 1966 will result in identification 
of positive legal rates upon which both the institutions involved and the 
public at large may rely. Since you propose to certify rates which are 
the same in all respects as those certified earlier in the year, it will be of 
no legal consequence which statement of facts is determined to be the 
true one. It will not, as a practical matter, be necessary to decide 
whether the first or the second set of rates should be applied, since the 
same figures were included in each certification. Accordingly, it would 
appear that a re-establishment of 1966 rates at this time would have the 
legal effect of ensuring that the Commonwealth will have a valid set of 
rates for the present calendar year. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The words ''service in said division of the state police" mean all service, 
including that as a civilian employee, and consequently this employ- 
ment must he counted in computing the number of years of service 
under G. L. c. 32, § 28A. 

March 29, 1966. 

Hon. Robert Q. Crane, Treasurer and Receiver General. 

Dear Sir: — In your letter dated March 14, 1966, you request my 
opinion concerning an interpretation of G. L. c. 32 § 28A. Specifically, 
you ask whether service as a civilian employee in the Division of State 
Police can be counted toward the twenty years of service required by 

General Laws c. 32, § 28A states that: 

"Any provision in sections one to twenty-eight, inclusive, to the 
contrary notwithstanding, any officer of the division of state police in the 
department of public safety appointed under section nine A of chapter 



298 PD- 12 

twenty-two who has performed service in said division of state police for 
not less than twenty years shall, at his own request, be retired by said 
retirement board. . . ." [Emphasis supplied.] 

The above statute does not specify the particular branch or nature of 
the service that must be performed by an officer in the Division of State 
Police in order to qualify for retirement benefits. The only requirement 
appears to be that the officer was appointed under G. L. c. 22, § 9A and 
that he has at least twenty years of service in the Division. If the 
Legislature had intended service in a particular branch of the Division 
of State Police, it could have so specified (see G. L. c. 22, § 9Q, wherein 
the Legislature specifies service in the uniformed branch of the Division 
of State Police) . 

The General Court has not made it clear whether it intended the 
provisions of this section to apply to officers part of whose time of service 
had been spent as civilian employees. However, the statute has been 
drafted in general terms, and I cannot add to it an exception by 
interpretation. Accordingly, it is my opinion that the words "service in 
said division of state police" mean all service, including that as a civilian 
employee, and consequently this employment must be counted in com- 
puting the number of years of service under G. L. c. 32, § 28A. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



"Assistance" from the Ag7icidtural Purposes Fund was intended by the 
Legislature to mean financial assistance in the ordinary meaning of 
that term, and the mere inspection by the Department of Agricul- 
ture does not constitute receipt of such aid within the meaning of G. 
L.c.l28A,^3{2). 

March 29, 1966. 
Hon. Charles H. McNamara, Commissioner of Agriculture. 

Dear Sir: — In a recent request for an opinion, you state in essence 
that the Nantucket Agricultural Society, Inc. (operating a County Fair 
in Foxboro) has received money from the Agricultural Purposes Fund in 
each year from 1962 to 1965, inclusive. In 1961 the Society received no 
money from the Fund but was inspected by a representative of the 
Department. 

The Society has now applied for a racing license pursuant to G. L. c. 
128A. The Society is apparently aware of the provision in G. L. c. 128A, 
§ 3 that a license cannot lawfully be issued to a county fair unless "such 
fair has been operating for each of the five consecutive years immedi- 
ately preceding the date of filing such application and had received for 
each of said five consecutive years assistance from the Agricultural 
Purposes Fund." The Society claims that the inspection which it received 
in 1961 constituted such assistance. 

I assume that the representatives who inspected the fair in Foxboro 
are paid out of the Agricultural Purposes Fund, as the Society has 



299 
P.D. 12 

J ^r^ ,rrM, "Mpvprtheless I find no basis for the 
suggested in a memorandum to yo^j "^^^^^^^^^^^^ constituted "assis- 
contention that mspection ^Y buc i rep, ese constitute 

tance," especially of a fi"77'°f"','p,Vtrnt biding, private school 
assistance, every restaurant theater apartinent s,. i ^^.^^ ^^^ 

and church, to mention ju>t a few o th« > P^ ^„,„3 ,^ ;„ their 

SK^SonrTeK^^^^ 

^:i^^^:^'t^^^^^^^^- shiuld be reached 

in this matter. . "a=cistance" from the Agricultural 

Accordingly, it is my ^P^j^^f ,*^^^,, ^'ffp?sTature to mean financial 

Purposes Fund was mtended by the ^^&'^^^^^^ ^^^"^^^^ ^^e mere 

C.128A, §3(2). 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Lord's Prayer in the public schools. 
c f. RV/7 Nn 7U vrovidinQ for the opening of each school day with a 
''"Tio" Tfeni SaTl does Zt co«/l.o* m*/. '"^.^ST a 

tU First Amendment to the Constitution "fthejjmted States as 

those provisions have been applicabU to the States through the 

Fourteenth Amendment. 

April 4, 1966. 

His Excellency, John A. Volpe, Governor of the Commonwealth. 
DEAR Governor Volpe: -Your letter of March 31 1^^^^^ infonns^ m^ 

MEDITATION, has been placed before you for approval. The complete 
textof the Act follows: 

"Chapter 71 of the General Laws is hereby amended by insertmg after 
section 1 the following section:— 

Section lA. At the commencement of the first ^^^ ^^^^ ^'1^ ^^^.^^^ 
grades in all public schools the teacher m ^^^Jg^/V /w /n .Le'S 
Lh class is held shall announce that a period of ^f^^J^^^^f^^^J.^^;'^; 
one minute in duration shall be observed /^''^^^^^^^ !^!;'. ^"^t '^^^ -^l 
such period silence shall be maintained and no activities engaged m. 

[Emphasis supplied.] 

You have asked me to advise whether enactment of this measure would 



300 PD- 12 

violate either the Constitution of the United States or the Constitution 
of the Commonwealth. 

Your question relates primarily to that part of the First Amendment 
to the Federal Constitution which provides that "Congress shall make no 
law respecting an establishment of religion, or prohibiting the free 
exercise thereof. . . ." These prohibitions have clearly been made 
applicable to State governments through the Fourteenth Amendment. 
Everson v. Board of Education, 330 U.S. 1, 13-16; Cantwell v. State of 
Connecticut, 310, U.S. 296, 303-304. 

The Massachusetts Constitution contains the equivalent of the Federal 
Constitution's "freedom of religion" clause, although it does not specifi- 
cally prohibit an "establishment" of religion. 

"... no subject shall be hurt, molested, or restrained, in his person, 
liberty, or estate, for worshipping God in the manner and season most 
agreeable to the dictates of his own conscience; or for his religious 
profession or sentiments; provided he doth not disturb the public peace, 
or obstruct others in their religious worship." 

Constitution of the Commonwealth, Articles of Amendment, Article II. 

It is clear that the Federal Constitution has created controls over the 
operations of government with respect to matters of religion which are at 
least as severe as those imposed by the Constitution of this Common- 
wealth. Accordingly, it is necessary to measure the validity of the Act in 
question solely against the language and meaning of the United States 
Constitution's First Amendment. 

The concept that the State shall not involve itself with matters which 
are the primary concern of the Church is as old as our system of 
government itself. "There cannot be the slightest doubt that the First 
Amendment reflects the philosophy that Church and State should be 
separated." Zorach v. Clausen, 343 U.S. 306, 312; See McGowan v. State 
of Maryland, 366 U.S. 420, 441-442. 

The United States Supreme Court has recently had further opportunity 
to emphasize the constitutionally required separation of spiritual and 
secular governments. In 1963, in the companion cases of School District 
of Abington Township v. Schempp and Murray v. Curlett, 374 U.S. 203, 
the Court ruled that a Pennsylvania statute and a Maryland School 
Committee rule which required the reading of the Bible each day in the 
public schools were unconstitutional. 

". . . In light of the history of the First Amendment and of our cases 
interpreting and applying its requirements, we hold that the practices at 
issue and the laws requiring them are unconstitutional under the 
Establishment Clause, as applied to the States through the Fourteenth 
Amendment." School District of Abington Township, supra, at page 205. 

On August 20, 1963, in an opinion requested by the Commissioner of 
Education, I indicated that the school prayer decision of the United 
States Supreme Court applied to the Commonwealth of Massachusetts 
despite the fact that the Commonwealth had not been a party to the 
particular legal proceedings. 



P.D. 12 301 

"As a constitutional ruling under the Fourteenth Amendment, these 
decisions set forth the supreme law of the land, and are binding on the 
states and all political subdivisions thereof," 

The Supreme Judicial Court of IMassachusetts has since confirmed the 
conclusion which was reached in that opinion. Attorney General v. School 
Committee of North Brook field, 347 Mass. 775; Waite v. School Com- 
mittee of Newton, 1964 Mass. Adv. Sh. 1259. 

Consequently, it can no longer be disputed that the Commonwealth — 
whether acting through the General Court or through a local school 
committee- — ^cannot constitutionally provide for the devotional reading of 
the Bible or for the recitation of the Lord's Pra^^er in the public 
schools. 

The Act which is presently before you for consideration calls not for a 
prayer but for "a period of silence not to exceed one minute in duration 
[to] be observed for meditation. . . ." The term "meditation" is 
frequently not used synonymously with "prayer." Although the two 
expressions may upon occasion be used interchangeably, and although 
some may in their own minds equate one with the other, "meditation" is 
a word which encompasses many things. It is a word which connotes any 
of a myriad of forms of reflection, while prayer is simply one form of 
reflection. 

To direct a person of school age to "meditate" will inevitably be to 
evoke a variety of responses. Some will undoubtedly pray. Others may 
reflect upon school or home. There will be thoughts of friends, moving 
pictures, baseball. A few will — at best — simply remain silent. 

It cannot be said that the General Court has — by the provisions of 
Senate Bill No. 734 — authorized or directed the practice of a period of 
prayer in the public schools. I have already indicated — in the opinion 
addressed to the Commissioner of Education dated August 20, 1963, cited 
above — that a moment of meditation would not be proscribed. 

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

The General Court is entitled to the presumption that its statutes are 
constitutional. An act of the Legislature should not "be treated as void 
unless it is impossible by reasonable construction to interpret its 
provisions in harmony with the fundamental law of the Common- 
wealth." Commonwealth Y. Higgins, 277 Mass. 191, 193; Commonwealth 
V. S. S. Kresge Company, 267 Mass. 145, 148. 

The General Court has called for the practice of a dailv "meditation" 
period in the public schools of the Commonwealth; there is no reason to 
believe that the Legislature has used the term "meditation" in its 
narrowest rather than in its broadest sense. The fact that a part of the 
student body may choose to use the period of silence for purposes of 



302 



P.D. 12 



prayer represents a decision of a personal and independent nature, and 
does not place the Commonwealth in the position of fostering or 
supporting a religious exercise. 

It is apparent that the General Court was aware of possible constitu- 
tional difficulty. The bill which is now designated as Senate Bill No. 734 
was originally filed as House Bill No. 1733, and provided in part as 
follows: 

"... Chapter 71 of the General Laws, is hereby amended by inserting 
after section 1 the following section: — Section lA. The school day in all 
the public schools of the commonwealth shall commence in silence for 
one moment so that any pupil who so desires may offer a prayer in 
silence." [Emphasis supplied.] 

In the form in which the Act has been presented to you, silent "prayer" 
has been replaced by "meditation." This change is extremely persuasive 
that the Legislature sought to avoid the attachment of a religious 
connotation to the period of silence which was being prescribed. It is my 
opinion that the Legislature has avoided the kind of contact with 
matters of religion which the First Amendment prohibits, and that — on 
its face — Senate Bill No. 734 violates none of the provisions of the 
Federal Constitution. 

However, I am compelled to add an important proviso to the 
aforementioned conclusion of law. The actual administration of this 
statute on a local basis will be of extreme significance; the attitudes and 
approaches taken by school committees and especially by individual 
teachers will be crucial in determining whether this statute is to have an 
effect consistent with the First Amendment guarantees. The "period of 
silence ... for meditation" must not be simply a camouflage for a school 
prayer. Educators upon all levels who may be concerned with the 
administration of this legislative directive must maintain at all times a 
strict neutrality and indifference to the subject upon which the individ- 
ual student may choose to reflect. 

If enacted, Senate Bill No. 734 must not be implemented so as to 
provide merely an opportunity for disguised school prayer. The constitu- 
tionality of this statute depends upon the presumption that its passage 
does not represent a desire to evade the United States Supreme Court 
decision of 1963. 

". . . so far as interference with the 'free exercise' of religion and an 
'establishment' of religion are concerned, the separation must be com- 
plete and unequivocal. The First Amendment within the scope of its 
coverage permits no exception; the prohibition is absolute " 

Zorach v. Clauson, supra, at page 312. 

If the effect of an Act of the Legislature is to advance or inhibit a 
specific religion or religion in general in any way, "then the enactment 
exceeds the scope of legislative power as circumscribed by the Constitu- 
tion." *^ 

School District of Abington Township, supra, at page 222. 
Accordingly, based upon the principles and reasoning which I have 
discussed above, it is my opinion that Senate Bill No. 734 does not 



P.D. 12 303 

conflict with the provisions of the First Amendment to the Constitution 
of the United States, as those provisions have been made appUcable to 
the States through the Fourteenth Amendment. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A town may not unilaterally withdraw from a superintendency union. In 
the event a member town in a union joins with other towns to form 
a region, the status of the towns, and of the superintendent 
appointed by the participating school committees, would remain the 
same. 

The vote of all of the towns in a union to form a regional district does 
not, even in a situation where dual membership would not be 
possible, automatically dissolve the superintendency union. 

April 11, 1966. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have asked the following ques- 
tions with regard to the dissolution of a superintendency union: 

"(1) If a town is a member of a union and wishes to join in a 
kindergarten through twelve regional school district, involving different 
towns, is it necessary that the above provision contained in Chapter 71, 
Section 61 of the General Laws be observed, or does a vote by all the 
towns to form the region automatically dissolve the union? 

" (2) If a member town in a union may join with other towTis to form 
a region and there are four towns in the union, what would be the status 
of the superintendent who enjoys tenure in the union?" 

With regard to your first question, the law of this Commonwealth 
regulating superintendency unions is contained in G. L. c. 71, § 61. That 
section provides as follows: 

"The school committees of two or more towns, each having a valuation 
less than two million five hundred thousand dollars, and having an 
aggregate maximum of seventy-five, and an aggregate minimum of 
twenty-five, schools, and the committees of four or more such towns, 
having said maximum but irrespective of said minimum, shall form a 
union for employing a superintendent of schools. A town whose valuation 
exceeds said amount, may participate in such a union but otherwise 
subject to this section. Such a union shall not be dissolved except by vote 
of the school committees representing a majority of the participating 
towns with the consent of the department, nor by reason of any change 
in valuation or the number of schools." [Emphasis supplied.] 

Under the language of this section, it is clear that there is a particular, 
exclusive procedure for dissolution of a superintendency union. There is 
no basis in the express, concise wording of § 61 for asserting the existence 
of any alternatives to the procedures designated therein. Consequently, 



304 P.D. 12 

to dissolve such a union, there must be a vote to dissolve taken by the 
school committees representing a majority of the participating towns 
and, in addition, the consent of the Department of Education. Dissolu- 
tion is, therefore, a two-step process and cannot be accomplished solely 
by the unilateral action of a town or group of towns. 

It is my opinion that the vote of a town to participate in a regional 
school district does not automatically dissolve its membership in a prior 
existing superintendency union. First, as indicated above, it is not 
possible for a town or group of towns to withdraw from a union other 
than by dissolution of that union voted by the majority of its members 
and with the consent of the Department of Education. Secondly, it is 
common for a town or towns simultaneously to belong to both a 
superintendency union and a regional school district. Certain towns 
belong to a superintendency union for the first eight grades and a 
regional school district for grades nine through twelve. Under these 
circumstances, there being no inconsistency in dual membership, a vote 
under c. 71, § 15 to join a regional school district would have no effect 
upon a prior membership in a superintendency union. Consequently, 
membership in a regional school district, subsequent and supplementary 
to membership in the superintendency union, would not automatically 
dissolve that earlier affiliation with the said superintendency union. 

Your request raises the specific problem whether a vote under c. 71, § 
15 to form a regional school district for all grade levels and, therefore, 
not in supplement of but in substitution for the superintendency union, 
automatically supersedes the requirement to vote dissolution under § 61 
of the superintendency union governing those same grades. 

It is my opinion that the vote of all of the towns in a union to form a 
regional district does not, even in the situation where dual membership 
would not be possible, automatically dissolve the superintendency union. 
Although such a vote may well indicate the desire of the members to 
dissolve the union, it does not comply with the strict statutory standards 
developed by the Legislature. Had the General Court intended that a 
vote to form a regional school district could be a satisfactory substitute 
for the ordinary requirements relating to dissolution of a superinten- 
dency union, it presumably would have so provided. In the absence of 
express language in either § 61 or §§ 14 through 161, the vote to form a 
regional district cannot by implication be considered as a vote to dissolve 
a prior existing superintendency union. 

Furthermore, nothing appears in the relevant statutory provisions 
which would relieve the members of the requirement of securing the 
consent of the Department of Education. 

It follows— in response to your second question— that a town mav not 
unilaterally withdraw from a sujierintendency union. Accordingly, on the 
facts which you state, the status of the towns in question, and of the 
superintendent appointed by the participating school committees, would 
remain the same. 



Very truly yours, 

Edwaed W. Bkooke, Attorney General. 



P.D. 12 305 

// a constituent municipality {of a regional planning district) refuses to 
pay its lawful share of the district expenses upon order of the 
District Commission, a writ of mandamus lies against the munici- 
pality and the treasurer to compel such payment. 

There is no statutory provision for the dissolution of regional planning 
districts after they are formed pursuant to G. L. c. 40B, § 3. 

The voting rights of a member of a regional district commission cannot, 
in absence of express statutory authority, be suspended by the 
commission because the member's municipality has not paid its 
share of expenses. 

April 11, 1966. 
Hoisi. Theodore W. Schulenberg, Commissioner, Department of Com- 
merce and Development. 

Dear Sir: — You have requested my opinion on the following questions 
concerning the operation of G. L. c. 40B, which provides for the 
establishment and operation of regional planning districts: 

"(1) A community having voted to become a member of a planning 
district, what statutory provision of Chapter 40B, as amended, required 
that the community pays to the district treasurer that sum certified by 
the Commission as the community's proportion of the costs and expenses 
of the District? 

"(2) A community having properly voted to become a member of a 
Chapter 40B District, what method or methods of withdrawal, disasso- 
ciation, or resignation from the District are available to that com- 
munity? 

"(3) The District Commission having certified a member munici- 
pality's share of the costs and expenses of the District, for the current 
year, what means are available to the District for the collection of this 
assessment from a community which has failed to pay current or 
previous assessments, to the district treasurer? 

"(4) Can the Planning District Commission suspend the voting 
rights of a member community or communities which have not paid 
those sums certified by the District Commission as the share or shares of 
the costs and expenses of the District?" 

I shall consider questions (1) and (3) together. I assume that in 
question (1) "required" is a typographical error for "requires." The 
requirement that each member municipality of a regional planning 
district pay its share of the expenses of the district is found in G. L. c. 
40B, § 7, which states (in part) : 

"Said commission shall, annually in the month of December, estimate 
the amount of money required to pay the costs and expenses of the 
district for the following year, shall fix and determine the proportion of 
such costs and expenses to be paid by the constituent cities and towns 
thereof during such year which, however, may not exceed any limit or 
maximum amount fixed by the city council of any city or town meeting 
of any town which votes to become a member of such planning district 
and shall certify the amount so determined for each city and town to the 



306 P.D. 12 

assessors thereof who shall include the sura in the tax levy of each year. 
Such apportioned cost shall be on a per capita basis in direct proportion 
to the population of the city or town and the planning district as they 
appear in the most recent national census, exclusive of the population in 
county, state or federal institutions. Upon order of the commission, the 
treasurer of each constituent municipality thereof shall, from time to 
time, subject to the provisions of section fifty-two of chapter forty-one 
of the General Laws, pay to the district treasurer sums not exceeding the 
amount certified by the commission as the municipality's share of the 
costs and expenses of the district. . . ." [Emphasis supplied.] 

If a constituent municipality refuses to pay its lawful share of the 
district expenses upon order of the Commission, I am of the opinion that 
a writ of mandamus lies against the municipality and the treasurer to 
compel such payment. Taylor County Farm Bureau v. Board of Super- 
visors of Taylor County, 218 Iowa 937, 939-942. Calhoun v. Maricopa 
County Muji. Water Cons. Dist. No. 1, 37 Ariz. 506, 509. State ex rel. 
Smith V. Highway Commn. of Kansas, 132 Kan. 327, 335. County Bd. of 
Education of Boyle County v. Caldwell, 248 Ky. 571, Board of 
Education of Oklahoma City v. Excise Bd. of Oklahoma, 175 Okla. 363, 
365-366. See Department of Public Welfare v. Billerica, 1966 Mass. 
Adv. Sh. 9, 10-11 (establishing the principle that mandamus is available 
to compel a municipality to disburse money in obedience to its statutory 
duties.) Cf. G. L. c. 71, §§ 16B and 34 (expressly authorizing bill in 
equity to compel member municipality of regional school district to pay 
proper share of district expenses) ; Regional Dist. School Commn. of the 
Bridgewater-Raynham Regional School Dist. v. Bridgewater, 347 Mass. 
289. 

It appears, in response to your second question, that there is no 
statutory provision for the dissolution of regional planning districts after 
they are formed pursuant to G. L. c. 40B, § 3. Although there do not 
appear to be any Massachusetts cases in point, it has been held in 
analogous cases in other jurisdictions that the constituent municipalities 
of a regional district do not have "the power to withdraw therefrom 
without legislative authority." Regional High School Dist. No. 3 v. 
Newtown, 134 Conn. 613, 620-621. Knapp v. Swift River Valley Com- 
munity School Dist., 152 Me. 350, 354. I conclude that the only "method 
... of withdrawal, disassociation, or resignation from [a regional 
planning! district" is by legislative action. See Kingman, petitioner, 153 
Mass. 566, 573; cf. Weymouth & Braintree Fire Dist. v. County Commrs. 
of Norfolk, 100 Mass. 142 (Legislature could authorize means of 
withdrawal from fire district by member town). 

It is not clear from your fourth question whether the "voting rights of 
a member community" refers to the right of a designated commissioner 
from any particular member community to vote at meetings of the 
commission, or to the rights of member communities to designate such 
commissioners. I assume, however, that the former interpretation is 
intended. 

The procedure for selecting the members of a regional planning 
commission is set forth in G. L. c. 40B, § 4, which states: 

"In each planning district so established there shall be a district 



P.D. 12 307 

planning commission consisting of one member of the planning board of 
each city and town voting to join such district, elected annually by said 
planning board. There may be a designee, who may or may not be a 
planning board member, appointed annually by the mayor in a city, 
confirmed by the council, or by the selectmen in a town, who may attend 
meetings of the district planning commission, and who shall assume the 
rights and duties of the planning board member in his absence. In a 
member town which has not established a planning board, the selectmen 
shall annually appoint a member of the district planning commission. 
Such district planning commission shall annually elect a chairman, a 
treasurer who shall give the commission a bond, with a surety company 
authorized to transact business in the commonwealth as surety, for the 
faithful performance of his duties in such sums and upon such conditions 
as the commission may require, and a clerk from among its members. 
The said commission may employ experts and clerical and other assis- 
tants. All meetings of the commission shall be held at the call of the 
chairman and at such other times as the commission may determine." 

It has been held generally that ofificers of a body, politic and corporate, 
even when such a body exercises authority wholly within a given town 
or city, are officers of the particular body and not of the municipality. 
Morse v. Ashley, 193 Mass. 294, 296. Sweeney v. Boston, 309 Mass. 106, 
108-110. Worburton v. Quincy, 309 Mass. Ill, 117. I consider it an 
a fortiori proposition that officers of regional bodies politic and corporate, 
such as a regional planning district (see G. L. c. 40B, § 3), which is 
composed of several municipalities, are officers of these bodies and not 
of the municipalities from which they are designated. See Goodale v. 
Commissioners of Worcester County, 277 Mass. 144, 152 ("County 
commissioners are county officers.") This is true even in cases such as 
the present where the officers in question are elected from and presumably 
"represent" the individual municipalities that comprise the region. Myers, 
V. Post, 256 Mich. 156, 158-159. 

In this Commonwealth there is no authority for removal of any officers 
of towns and cities except that which is given by statute. Attorney 
General v. Stratfon, 194 Mass. 51, 53-54. Considering the reasoning of 
the opinion in that case, I would assume that the decision applies to 
regional bodies as well. What the Court, quoting the earlier case of 
Stetson V. Kempton, 13 Mass. 272, 278, said of cities and towns is, at 
least equally, true of regional planning districts (p. 53) : " 'Their 
corporate powers depend upon legislative charter or grant. . . .' " See 
Williams v. City Manager of Haverhill, 330 Mass. 14, 15. I do not think 
it material that your question concerns suspension of voting rights rather 
than outright removal. "Members of the governing board of a municipal 
corporation are entitled to vote therein." 62 C.J.S. 760. I assume that 
this statement is equally applicable to the governing boards of regional 
districts. I conclude that the voting rights of a member of a regional 
district commission cannot, in absence of express statutory authority, be 
suspended by the commission because that member's municipality has 
not paid its share of expenses. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



308 P-D. 12 

The Board of Library Commissioners may not enter into any contract to 
pay a Regional Reference and Research Center for its services where 
such payment is unrelated to expenditures. 

The Board may enter into an agreement with the trustees of the Boston 
Public Library pursuant to which the Boston Public Library will 
carry out the purposes of paragraph {1) o/ § 19C of c. 78 M.G.L., 
providing the books and services mentioned therein to several 
municipalities in Eastern Massachusetts. 

April 13, 1966. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have asked several questions 
relating to the interpretation of G. L. c. 78, § 19C. I quote the statute in 
full: 

"The board shall establish a comprehensive state-wide program of 
regional public library service, consisting of regional public library- 
systems, which shall not exceed five. For such purpose there shall be 
appropriated annually an amount equal to twenty-five cents for each 
resident in each regional area for which such a regional library system is 
established. The board shall apply said appropriation in the following 
manner: — 

" (1) In so far as practicable the board shall enter into an arrangement 
or arrangements with such public library or libraries in each regional 
area as it may determine under the terms of which such library or 
libraries shall supply services or space, equipment, personnel, books, 
periodicals and other library materials to communities having fewer than 
twenty-five thousand inhabitants, the cost of which shall not exceed an 
amount equal to fifty cents per annum for each resident in such regional 
community having less than twenty-five thousand inhabitants ; 

"(2) Said board shall also designate such public library or libraries 
in each area or an additional such public library or libraries in the area 
to serve as a regional reference and research center or centers to meet the 
reference and research library needs of the residents of all the cities and 
towns in the area; the amount allocated for such reference and research 
service to be applied only to the cost of such reference and research 
books, periodicals and other library materials and to the cost of the 
personnel employed in such reference and research service; the cost of 
such reference and research service not to exceed an amount equal to 
twenty-five cents per annum for each resident in such regional area." 

In essence you ask two questions, which I paraphrase from your 
letter : 

1. Does the above statute permit the Board of Library Commis- 
sioners (referred to as the Board in § 19C) and the Trustees of the 
Boston Public Library to enter into a contract pursuant to which the 
Boston Public Library, serving as a reference and research center as 
defined in paragraph (2) of § 19C, will receive for its services monthly 
payments "unrelated to [actual] expenditures"? 



P.D. 12 309 

2. May the Board, acting on behau of the Commonwealth and the 
Trustees of the Boston Public Library, enter into an agreement pursuant 
to which the Boston Public Library will carry out the purposes of 
paragraph (1) of § 19C by providing the books and services mentioned 
therein to several towns and cities in Eastern Massachusetts? (Under the 
proposed agreement, the Boston Public Library would also provide 
personnel, books, and audio-visual and other library materials to public 
libraries in Andover, Falmouth, Taunton and Wellesley. Personnel and 
material so provided would then be available "to individuals resident in" 
the towns and cities to which the Boston Public Library will also supply 
services directly. The Boston Public Library will be supervised in the 
performance of this agreement by the Board and will receive monthly 
reimbursement for these services.) 

I assume, for purposes of this opinion, that the trustees of the Boston 
Public Library are empowered to enter into the proposed agreement. I 
note also that the Board is generally competent to "contract with any . . . 
city or town, public or private library to provide improved library 
services in an area, or to secure such library services as may be agreed 
upon." G. L. c. 78, § 19. These premises are applicable to both questions, 
which I now proceed to consider separately. 

The Board may not enter into any contract to pay a regional reference 
and research center for its services where such payment is, as you state in 
your letter, "unrelated to expenditures." Money expended by the Board 
for such centers, pursuant to § 19, para. 2, may be "applied only to the 
cost of . . . reference and research books, periodicals and other library 
materials [maintained in the centers] and to the cost of personnel 
employed in . . . reference and research service." [Emphasis supplied.] 
The word "cost" (see Newton, petitioner 172 Mass. 5) in the sense in 
which it is used in the statute seems to contemplate "only disbursements 
reasonably made and actually required." Ahmed's Case, 278 Mass. 180, 
185. To permit the Board to enter into the type of contract mentioned in 
question 1 would be to turn the research and reference center in Boston 
into a profit-making (or losing) operation for the Trustees. Clearly, this 
type of expenditure is beyond the authority given to the Board in G. L. 
c. 78, § 19C, para. 2 to establish such centers. See Gould v. Mount 
Greylock Commn., 1966 Mass. Adv. Sh. 431. 

The Board's power under G. L. c. 78, § 19C, para. 1 to enter into "an 
arrangement or arrangements with such public library or libraries" to 
supply personnel and materials to communities with fewer than 25,000 
people is restricted only in the amount that the Board may spend to 
obtain such items. The restriction is that the Board may spend no more 
than fifty cents per year for each resident of each community to be 
supplied. Furthermore, G. L. c. 78, § 19 (as already noted) authorizes 
the Board to "contract with any other state agency, city or towTi, public 
or private library to provide improved library services in an area, or to 
secure such library services as may be agreed upon." 

I have no reason to assume that the Board's proposed contract with 
the Trustees of the Boston Public Library is not a satisfactory "arrange- 
ment" under G. L. c. 78, § 19C, para." 1 for the carrying out of the 
Board's duties under that paragraph. I assume that under this agreement 



310 PD- 12 

the Board will observe the requirement that the expenditure for any one 
community not exceed fifty cents annually for each resident thereof. As 
long as the requirements of the statute are observed, the Board would 
appear to have broad power to cooperate with pubhc agencies and 
private organizations to realize the purposes of the statute. See Massa- 
chusetts Bay Transportation Authority v. Boston Safe Deposit & Trust 
Co., 348 Mass. 538, 542-543. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The Director of the Division of Personnel and Standardization may not 
act under G. L. c. 30, § 4^^, paragraph 5A, to approve the recruitment 
at a rate above the minimum of the grade, of any person ivho has 
been "in the service of the Commonwealth" within a year of such 
recruitment. 

April 14, 1966. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — In a recent request for an opinion 
you state : 

"On July 27, 1965, in accordance with directive of Leonard A. Kelley, 
Director of Personnel and Standardization dated May 13, 1964, this 
Department processed a recruitment letter dated July 27, 1965, to 
appoint Lawrence W. Latour as a Supervisor in Education. As a result 
thereof permission was granted to recruit Mr. Latour at Grade 15-F, Step 
5, at a salary of $169.20 per week. 

"Recently, we have been advised that Mr. Latour was employed as a 
Lifeguard in the Department of Natural Resources for the period May 
29, 1965 to June 15, 1965 therefore our statement that Mr. Latour had 
not been in the service of the Commonwealth during the preceding 
twelve month period was in error." 

Paragraph 5A of G. L. c. 30, § 46 states (in part) : 

"The said director [of personnel and standardization] shall permit the 
recruitment of professional personnel at a rate above the minimum and 
Mdthin 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 required by the general salary schedule had such 
service been entirely in the service of the commonwealth. 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 hospitals and clinics, including the administration 
thereof, persons employed for the instruction of students, and engineers 
and chemists. . . ." 

Presumably acting pursuant to this statute, the Board on June 30, 
1965, voted to appoint Mr. Latour at an annual salary of $8,798.40. 



P.D. 12 311 

Since this salary was in excess of the minimum for this position, on July 
27, 1965, you requested the Director of Personnel and Standardization to 
approve' this salary. In view of Mr. Latour's employment by the 
Department of Natural Resources from May 24, 1965 to June 15, 1965, 
the question arises as to whether such approval violates the provisions of 
St. 1964, c. 337, § 6A, which declares: 

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

This broad language is unambiguous. The director may not act under 
G. L. c. 30, § 46, paragraph 5A, to approve the recruitment at a rate 
above the minimum of the grade, of any person who has been "in the 
service of the commonwealth" within a year of such recruitment. Clearly, 
when Mr. Latour served as a lifeguard for the Department of Natural 
Resources, up to within two weeks of the date of his appointment, he was 
"in the service of the commonwealth"; that is, he was involved in a 
master-servant relationship with the Commonwealth. Humphrey's Case, 
227 Mass. 166, 167. Cameron v. State Theatre Co., 256 Mass. 466, 467, 
and cases cited. Warren's Case, 326 Mass. 718, 719. It does not appear 
from your letter whether Mr. Latour informed the Department of Natural 
Resources, when he was employed as a lifeguard, that he was simultane- 
ously seeking employment with the Department of Education. Whether 
or not he did so, it may well have been a purpose of St. 1964, c. 337, § 
6A to discourage a person seeking employment with one agency of the 
Commonwealth from accepting employment with another such agency 
and then leaving when he obtains the job that he prefers. If this is the 
purpose of the statute, approval of Mr. Latour's recruitment at the 
higher rate would contravene not only the language of the statute but 
also its intention. In any event, the meaning of the words of the statute 
is clear, and conjecture as to its purpose is unnecessary. Corcoran v. 
S. S. Kresge Co., 313 Mass. 299, 303, and cases cited. I conclude that 
approval of Mr. Latour's recruitment at a rate above the minimum of 
the grade would be improper. 

I have considered the possibility that St. 1964, c. 337, § 6A was not in 
force at the date of Mr. Latour's recruitment. If the date of recruitment 
was June 30, 1965, the date on which Mr. Latour was appointed, the 
applicability of the statute under § 1 thereof is not subject to question. 
But even if July 27, 1965, the date of the letter to the director requesting 
the recruitment at a rate above the minimum, be considered the date of 
recruitment, the statute would probably be in force. "All acts of legislation 
not in terms limited in their operation to a particular term of time, are in 
legal contemplation perpetual or declared to be in force forever; which 
means until duly altered or changed by competent authority." Welling- 
ton, petitioner, 16 Pick. 87, 102. Despite the statement in St. 1964, c. 
337, § 1 that the funds appropriated by the act are "for the fiscal year 
ending June thirtieth, nineteen hundred and sixty-five," the operation of 



312 PD. 12 

§ 6A does not seem to be "limited ... to a particular term of time." In 
any event, the Legislatm'e apparently still favors the policy embodied in 
St. 1964, c. 337, § 6A, para. 1, for it enacted exactly the same language 
in St. 1965, c. 824, § 6A. My conclusion as to the impropriety of 
recruiting Mr. Latour at a grade above the minimum applies regardless 
of the date of his recruitment. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The word "law" used in Article 48, P- 43, § 1, of the Amendments to the 
Constitution refers to a specific Act of the Legislature, and not 
merely to one or more sections of an Act. The three referendum 
petitions which relate to individual sections of c. 14 of the Acts of 
1966 do not conform with the requirements of Articles 48 and 74 of 
the Constitution of the Commonwealth, and the questions contained 
therein may not properly appear on the November ballot. 

Chapter 14 of the Acts of 1966 in no way appropriates money for the 
current or ordinary expenses of the Commonwealth or for any of its 
departments, boards, commissions or institutions, and would not be 
excluded from the referendum for that reason. 

The referendum petition which relates to c. 14 of the Acts of 1966 as a 
whole refers to matters which are proper subjects for the referendum 
under the provisions of the Constitution of the Commonwealth, and 
such referendum petition may lawfully appear on the ballot at the 
biennial state election in November, 1966. 

April 14, 1966. 
Hon. Kevin H. White, Secretary of the Commoiiwealth. 

Dear Mr. White:— By letters of March 28 and March 31, 1966, you 
indicate that four referendum petitions have been presented to you 
pursuant to the provisions of Articles 48 and 74 of the Amendments to 
the Constitution of Massachusetts. In accordance with §§3 and 4 of 
Article 74 of the Amendments, your Office is required to print upon 
petitions to be circulated for the collection of signatures, and subse- 
quently upon the ballot, a fair and concise summary (drawn by the 
Attorney General) of the measure upon which the vote is to be taken. 
You have requested my opinion as to whether the legislative provisions 
which are the subject of the several petitions are matters which may be 
made subject to the referendum. 

Each of the referendum petitions in question relates to c. 14 of the 
Acts of 1966, entitled "AN ACT IMPOSING A TEMPORARY TAX 
ON RETAIL SALES, AND A TEMPORARY EXCISE UPON THE 
STORAGE, USE OR OTHER CONSUMPTION, OF CERTAIN 
TANGIBLE PERSONAL PROPERTY, REVISING AND IMPOSING 
CERTAIN OTHER TAXES AND EXCISES, ESTABLISHING THE 
LOCAL AID FUND, AND PROVIDING FOR THE DISTRIBUTION 
OF FUNDS THEREFROM TO CITIES AND TOWNS." The first 



P.D. 12 313 

petition relates solely to subsection 2 of § 1 of said c. 14, which 
subsection provides : 

"An excise is hereby imposed upon sales at retail of tangible personal 
property in this commonwealth by any vendor at the rate of three per 
cent of the gross receipts of the vendor from all such sales of such 
property, except as otherwise provided in this section." 

The second petition relates to all of § 1 of c. 14, which section includes 
all of the provisions relating to the establishment, imposition and 
administration of the limited sales tax. The third petition relates to §§ 1 
through 4, inclusive, of c. 14, which sections provide for the sales tax and 
a use tax, and for certain exemptions therefrom. The fourth petition 
relates to all of c. 14 of the Acts of 1966. 

It must first be resolved whether a section of a given Act of the 
Legislature may by itself be the subject of a referendum petition apart 
from the remainder of the Act. Article 48 of the Amendments to the 
Massachusetts Constitution provides, in Ref., Pt. 3, § 1 : 

"A referendum petition may ask for a referendum to the people upon 
any law enacted by the general court which is not herein expressly 
excluded." [Emphasis supplied.] 

The Supreme Judicial Court has never attenipted to frame a precise 
definition of the word "law." It has indicated only that the word 
"imports a general rule of conduct with appropriate means for its 
enforcement declared by some authority possessing sovereign power over 
the subject." Opinion of the Justices, 262 Mass. 603, 605. 

It is my opinion that the word "law," as it is used in that part of 
Article 48 of the Amendments which is quoted above, refers to a specific 
Act of the Legislature, and not merely to one or more sections of an Act. 
A similar conclusion has been reached by a former Attorney General: 

"The word 'law' as used in the amendment connotes an act of the 
Legislature, approved by the Governor, regarded as an entity. The word 
has no application to a single part or section of such an act taken by 
itself. That the word is to be so construed is made clear by an 
examination of the proceedings of the Constitutional Convention, by 
which the initiative and referendum provisions were framed. It follows 
that a particular section of an act may not of itself be the subject of a 
referendum." 

VIII Op. Atty. Gen., p. 331, 333-334. 

It is the purpose of the referendum provisions of the Massachusetts 
Constitution to enable the people to pass upon action taken by the 
Legislature. In the present case, the General Court has chosen to enact c. 
14 of the Acts of 1966 as a whole. If certain petitioners desire to have 
such legislative action reviewed at the polls, they must place before the 
people the matters in question in the form in which they were passed by 
the General Court and approved by the Governor. No rights are lost by 
thus limiting the referendum. If a single section of c. 14 is of primary 
concern to a given group of petitioners, it may be amended or repealed 
by means of the initiative petition. 



314 PD. 12 

Accordingly, it is my opinion that the three referendum petitions 
which relate to individual sections of c. 14 of the Acts of 1966 do not 
conform with the requirements of Articles 48 and 74 of the Constitution 
of the Commonwealth, and that the questions contained therein may not 
properly appear on the November ballot. It remains, therefore, to 
consider whether the referendum petition which relates to c. 14 as a 
whole is a proper petition under the relevant constitutional provisions. 
This requires an analysis of § 2 of Pt. 3 of Article 48 of the 
Amendments, The Referendum, relating to excluded matters. 

This section of the Constitution provides as follows : 

"No law that relates to religion, religious practices or religious 
institutions; or to the appointment, qualification, tenure, removal or 
compensation of judges; or to the powers, creation or abolition of courts; 
or the operation of which is restricted to a particular town, city or other 
political division or to particular districts or localities of the common- 
wealth; or that appropriates money for the current or ordinary expenses 
of the commonwealth or for any of its departments, boards, commissions 
or institutions shall be the subject of a referendum petition." [Emphasis 
supplied.} 

Article 48 of the Amendments is a relatively detailed part of the 
Constitution, and its provisions are mandatory. Opinion of the Justices, 
294 Mass. 610, 614. 

Accordingly, if c. 14 of the Acts of 1966 in any way appropriates 
money for the current or ordinary expenses of the Commonwealth, or for 
any of the Commonwealth's departments, boards, commissions or institu- 
tions, it may not lawfully be the subject of a referendum petition. The 
General Court need not specifically use the word ''appropriate" in order 
for a particular act to be considered an appropriation measure. Any 
action of the Legislature which directs the use to which a particular sum 
of money is to be put, and which restricts the funds in question to that 
use, must be considered an appropriation. Opinion of the Justices, 297 
Mass. 577, 580. If the Legislature has directed the distribution of money, 
and no further appropriation act is necessary, the Act which directs such 
distribution is itself an "appropriation" in the constitutional sense. 

Opinion of the Justices, 300 Mass. 630, 636 
Cf. Opinion of the Justices, 309 Mass. 571, 583 

It cannot be disputed that a tax measure is subject to the referendum. 
The raising of taxes by itself represents only an accumulation of funds, 
and does not specifically indicate to what use such funds are to be put. 
Earmarking money for specific purposes may or may not be an appro- 
priation. Section 23 of c. 14 of the Acts of 1966 indicates that a certain 
portion of the excises collected under § 6 of the Chapter are to be paid 
into the General Fund. Such payment into the General Fund cannot be 
considered an appropriation. Likewise, § 25 of the Act directs that two- 
thirds of all sums received under c. 64G of the General Laws shall be 
credited to the General Fund, and one-third of all such sums shall be 
credited to the Tourism and Industrial Promotion Fund. This latter fund 
shall be used, subject to appropriation, for the development and promo- 



P.D. 12 



315 



tion of tourism in the Commonwealth. Since a further act of appropria- 
tion is necessary in order to authorize the payment of money out of the 
fund, the legislation which directs the placement of money in the fund 
cannot itself be considered an appropriation. 

However, c. 14 of the Acts of 1966 does contain certain provisions 
which — in my opinion — are appropriations. Section 28 of the Act creates 
the Local Aid Fund for the purpose of assisting the cities and towns of 
the Commonwealth in accordance with the state-aid-for-education pro- 
visions of §§ 18 and 18A of c. 58 of the General Laws. Section 29 of c. 
14 rewrites § 18 of c. 58 to provide for the crediting of certain amounts 
to the Local Aid Fund. And § 30 of c. 14 rewrites § 18A of c. 58 to 
provide for an annual distribution from the Local Aid Fund to all of the 
municipalities of the Commonwealth. 

Accordingly, §§ 28, 29 and 30 of c. 14 provide for the specific use of 
certain amounts paid into the so-called Local Aid Fund. Such amounts 
will automatically be distributed by the Treasurer to the cities and 
towns pursuant to the provisions of c. 58, § 18A without the necessity of 
further action by the General Court. The Legislature has thus directed 
the usage of a particular sum of money, which sum can no longer be used 
for any other purpose. Such action by the Legislature must be considered 
to be an appropriation. 

However, identification of an appropriation in certain sections of c. 14 
of the Acts of 1966 does not of necessity mean that the subject matter of 
the said c. 14 is excluded from the referendum. The Constitution of the 
Commonwealth provides, as quoted above, that no law which "appro- 
priates money for the current or ordinary expenses of the commonwealth 
or for any of its departments, boards, commissions or institutions" shall 
be the subject of a referendum petition. The Constitution does not 
exclude all appropriations; rather, it excludes only those appropriations 
made for the ordinary expenses of the Commonwealth, and for the 
Commonwealth's various departments and agencies. 

Chapter 14 of the Acts of 1966 does not contain a single appropriation 
for the Commonwealth or for its agencies. Receipts from the various 
taxes which have been imposed are either paid directly into the General 
Fund, or allotted in accordance with a formula to the cities and towns. 
Those sections which can be said to contain appropriations direct the 
payment of funds to municipalities only, and cannot in any sense be said 
to contain appropriations for the Commonwealth. Accordingly, it is my 
opinion that c. 14 of the Acts of 1966 in no way appropriates money for 
the current or ordinary expenses of the Commonwealth or for any of its 
departments, boards, commissions or institutions, and would not be 
excluded from the referendum for that reason. 

Nor do I find that the operation of this Act "is restricted to a 
particular town, city or other political division or to particular districts 
or localities of the commonwealth." Restrictions to a particular subdivi- 
sion, district or locality must be specified in the law in question in terms 
which are geographically descriptive of a particular limited area in order 
for such a law to be an excluded matter. 

Town of Mount Washington v. Cook, 288 Mass. 67, 74 
Cf. Opinion of the Justices, 261 Mass. 523, 554 



316 PD. 12 

The Act in question does not relate to a specific district or subdivision 
in a way which would exclude it from the referendum. The funds which 
are to be distributed pursuant to c. 14 are not limited to particular 
municipalities, but will be paid to each of the 351 cities and towns in the 
Commonwealth. It is clear that c. 14 is not a law which is restricted in 
the sense of § 2 of Pt. 3, Article 48 of the Amendments, The 
Referendum. 

Accordingly, in light of the above, I advise you that the referendum 
petition which relates to c. 14 of the Acts of 1966 as a whole refers to 
matters which are proper subjects for the referendum under the provi- 
sions of the Constitution of the Commonwealth, and that such refer- 
endum petition may lawfully appear on the ballot at the biennial State 
election to be held in November, 1966. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Fair and concise sumrnary of the provisions of c. 14 of the Acts of 1966, 
which has been made the subject of a referendum petition. 

April 15, 1966. 

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

Dear Mr. White: — In accordance with Articles 48 and 74 of the 
Amendments to the Constitution of Massachusetts, I have prepared a 
"fair and concise summary" of the provisions of c. 14 of the Acts of 
1966, entitled "AN ACT IMPOSING A TEMPORARY TAX ON 
RETAIL SALES, AND A TEMPORARY EXCISE UPON THE 
STORAGE, USE OR OTHER CONSUMPTION, OF CERTAIN 
TANGIBLE PERSONAL PROPERTY, REVISING AND IMPOSING 
CERTAIN OTHER TAXES AND EXCISES, ESTABLISHING THE 
LOCAL AID FUND, AND PROVIDING FOR THE DISTRIBUTION 
OF FUNDS THEREFROM TO CITIES AND TOWNS." This Chapter 
has been made the subject of a referendum petition filed in your office by 
ten qualified voters, and the following summary must appear on the 
signature sheets to be distributed by the petitioners. 

Summary 
The Act imposes a temporary tax upon all retail sales of tangible 
personal property at the rate of three per cent of the selling price. Sales 
of certain items are exempted from the tax, including but not limited to 
sales of food products for human use, articles of clothing, prescription 
medicines, agricultural machinery and certain publications. The statute 
contains specific provisons relating to the registration of vendors, the 
filing of returns and the payment of the amounts collected by such 
vendors. Vendors may apply to the State Tax Commission for abate- 
ments of the amounts owed where they believe such amounts to be 
excessive, and decisions of the Commission on such applications may be 
reviewed by the Appellate Tax Board. The Commissioner of Corpora- 
tions and Taxation shall have the usual powers and remedies provided 



P.D. 12 317 

for tax collection for the collection of the taxes imposed by this section. 
The State Tax Commission shall issue regulations necessary for proper 
administration and enforcement of the section. 

The Act further imposes a temporary excise upon the storage, use or 
other consumption in Massachusetts of tangible personal property at the 
rate of three per cent of the sales price of such property. Sales upon 
which the retail sales tax described above has been imi)osed, or which are 
exempt from the retail sales tax, shall be exempt from the use tax. Sales 
upon which a tax has been paid in another jurisdiction shall also be 
exempt. Assessment, abatement and collection of the use tax shall be 
governed by the provisions which relate to the tax upon retail sales. The 
tax upon retail sales and the excise upon storage, use or other consump- 
tion shall be effective during the period from April 1, 1966 to December 
31, 1967. 

Each qualified taxpayer shall be entitled to a credit of four dollars for 
himself, four dollars for his spouse and eight dollars for each qualified 
dependent, but such credit shall not be allowed if the taxable income of 
such individual and his spouse exceeds five thousand dollars for the year. 
In addition to the taxes described above, the Act provides for new excises 
upon certain banks; new taxes upon the income of certain corporations; 
new taxes upon cigarettes; a room occupancy excise upon rent paid for 
the use of hotel rooms and other lodging places; and excises upon sales of 
certain alcoholic beverages. 

The Act creates the Local Aid Fund for the purpose of providing 
educational assistance, and authorizes the periodic distribution of 
amounts from such Fund to the cities and towns. In addition, the Act 
contains a variety of provisions relating to the program of State aid to 
public schools, and to its administration. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



A regulation 'prohibiting beauty shops jrom being established in an 
enclosed room entirely within another unrelated place of busiiiess is 
not within the ambit of the enabling legislation, and adoption of 
such a rule or regulation is not authonzed by the Legislature. 

April 18, 1966. 
Mrw. Irene E. Bode, Chairman, Board of Registration of Hairdressers. 

Dear Mrs. Bode: — In a recent request for an opinion you call my 
attention to the following proposed regulation of the Board of Registra- 
tioi of Hairdressers: 

"No shop shall be conducted or maintained in any room or enclosure 
in which any other business, trade, occupation or activity is carried on 
except so far as may be permitted bj^ the provisions of Section 87CC of 
Chapter 112 of the General Laws and other applicable provisions of 
law." 



318 P.D. 12 

You then ask : 

''In view of General Laws, Ch. 112, Sec. 87CC is the promulgation or 
enforcement of the above rule authorized by the Legislature with respect 
to: 

"a. A beauty shop carried on within the same room or enclosure as 
another unrelated business ; 

"b. A beauty shop carried on within a separate room or enclosure 
which is enclosed entirely within another unrelated place of business." 

Section 87CC of G. L. c. 112 states (in part) : 

"The board shall make such uniform and reasonable rules and 
regulations as are necessary for the proper conduct of its business, the 
establishment of proper standards of professional skill in relation to, and 
the proper supervision of, hairdressers, demonstrators, manicurists, 
operators, beauty shops, manicure shops, schools, students and instruc- 
tors, and especially may prescribe such sanitary rules, subject to the 
approval of the department of public health, as it may deem necessary 
to prevent the spreading of infection or contagious diseases, or both, but 
nothing herein shall authorize the board to limit the number of 
hairdressers, demonstrators, manicurists, beauty shops, manicure shops, 
schools, operators, students or instructors in the commonwealth or in any 
given locality, or to regulate or fix compensation or prices, or to refuse to 
register a shop solely for the reason that such shop is to be conducted by 
a person in his own home on a full or part time basis. The board shall 
not make any rule or regulation restraining the normal and incidental 
business of hairdressers' shops or similar establishments by restricting in 
any way the sale at retail in such places of so-called beauty prepara- 
tions, lotions, salves, toilet articles, jewelry and gift novelties." 

It is a well-settled principle of law that administrative regulations 
must be "within the ambit of the enabling statute [in this case, § 
87CC]." Commonwealth v. Diaz, 326 Mass. 525, 527-528 and cases cited. 
Furthermore, under the Constitution of this Commonwealth neither the 
Legislature nor an administrative body can impose an "arbitrary inter- 
ference with business or irrational or unnecessary restriction." Coffee- 
Rich, Inc. V. Commissioner of Public Health, 348 Mass. 411, 425. 
Mansfield Beauty Academy, Inc. v. Board of Registration of Hair- 
dressers, 326 Mass. 624, 627. 

It may be the Board's opinion (based on its experience) that facts 
could be adduced to show that in a hairdressing shop maintained within 
the same area as another place of business from which such shop is 
totally unenclosed, "standards of professional skill" are likely to suffer 
and "proper supervision of hairdressers . . . [and] beauty shops" 
becomes difficult. If so, my opinion is that the regulation containe(' in 
your letter may be applied to prohibit the operation of beauty shops 
under the conditions described in part (a) of your question. 

On the other hand, if there is any rational distinction between the 
operation of beauty shops in separate stores and private homes (opera- 
tion of shops in the latter may not be prohibited by the Board in 
accordance with § 87CC) and the operation of such shops in enclosed 



P.D. 12 319 

areas that happen to be located within other unrelated business {e.g., 
department stores) , I am unable to perceive it. This regulation does not 
appear to advance "the establishment of proper standards of professional 
skill in relation to, and the proper supervision of, hairdressers . . . [or] 
beauty shops," nor does it appear to be a "sanitary rule." Obviously, the 
rule is not related to the "necessary conduct of [the Board's] business." 
If the purpose of the rule is to "limit the number of . . . beauty shops," 
(certainly this limitation is likely to be, at least, an incidental effect of 
the rule), the rule is prohibited by the explicit terms of G. L. c. 112, § 
87CC. In any event, I am unable to see how the prohibition of beauty 
shops in an enclosed room which happens to be within a separate 
business is in any way related to the legitimate authority of the Board, 
and- I am of the opinion that the regulation in question as applied in 
part (b) of your question is not "within the ambit of the enabling 
statute." Commonwealth v. Diaz, supra. Adoption of this rule to prohibit 
such a shop would not appear to be authorized by the Legislature. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



In the absence of very clear statutory language, legislation is not applied 
retroactively in such a mariner as to affect substantive rights. 
Consequently, the Board of Registration of Hairdressers cannot 
refuse to register a school, previously approved, for non-compliance 
with regulations adopted subsequent to approval of said school. 

April 18, 1966. 

Mrs. Irene E. Bode, Chairman, Board of Registration of Hairdressers. 

Dear Mrs. Bode: — In a recent request for an opinion you state: 

"On December 21, 1965 the Broms Academy applied for registration as 
a school instructing in hairdressing pursuant to General Laws, Chapter 
112, Section 87BB. 

"On December 29, 1965. the school was inspected by the full Board. 
Upon inspection, the school was found to meet the standards set forth in 
the statutes (see General Laws, Ch. 112, Sec. 87T et seq.) and the 
applicable regulations. 

"The Director of the School verbally was informed that his school met 
these standards, but that registration would not be issued until approval 
of the school by the Department of Public Safety (see General Laws, 
Ch. 143) . The Department has since granted its approval. 

"On February 16, 1966, new regulations for the operation of hairdress- 
ing schools were adopted by the Board (see General Laws, Ch. 112, Sec. 
87CC) and filed with the Secretary of the Commonwealth (General 
Laws c. 30 A, § 5). 

"The effect of these new regulations, among other things, is to increase 
the bond which new schools must file with their applications, to increase 
the number of students who must be enrolled at the time of registration 



320 PD. 12 

of the school, and to increase the amount of professional equipment 
which a school must maintain in order to be registered. 

"If these new regulations had been in force at the time that the Broms 
Academy was inspected the school would not have met these require- 
ments." 

You then ask : 

"In view of the fact that there is no provision in the new regulations 
explicitly requiring prospective or retrospective operation thereof, may 
the Board now refuse to register Broms Academy for non-compliance 
with the new regulations?" 

It appears that the new regulations are not being applied to schools 
registered before they took effect. In the circumstances indicated in your 
letter, to apply the new regulations to the Broms Academy would be to 
apply them retroactively: see Cohen v. Board of Registration in 
Pharmacy, 1966 Mass. Adv. Sh. 231, 235, fn 4; Barber v. Barber, 327 
Mich. 5, 12. The Supreme Judicial Court has held, with numerous 
citations: "At least in the absence of very clear statutory language, we 
do not apply legislation retroactively in such a manner as to affect 
substantive rights." Building Inspector of Acton v. Board of Appeals of 
Acton, 348 Mass. 453, 456-457. The right to operate an academy to train 
hairdressers is doubtless a "substantive" right. See Milligan v. Board of 
Registration in Pharmacy, 348 Mass. 491, 495-499. And Avhat the Court 
said about retroactive operation of acts of the Legislature would apply, 
at least equally, to administrative regulations. Miller v. United States, 
294 U.S. 435, 439, rehearing denied, 294 U.S. 734. I conclude that the 
new regulations do not apply to the present registration of Broms 
Academy and that the Board's question should be answered in the 
negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

Persons who perform remunerative work for "any educational institu- 
tion, or school system, public or private," in whatever capacity, 
whether full or part-time and whether for all or part of the calendar 
or academic year, are "employed" thereby, and retired employees of 
any such institution who receive regular retirement benefits from 
their institutions or school committees receive regular compensation 
therefrom. Consequently, they are precluded from sitting on the 
Board of Higher Education, although, if the institution or school 
system by ivhich they are employed or from which they receive 
compensation are located outside the Commonwealth, they may be 
appointed to the Board of Education, or as trustees of the Board of 
State Colleges. 

April 18, 1966. 

Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — ^In a recent letter you state: 

"In several sections of Chapter 572 of the Acts of 1965 restrictions are 



P.D. 12 321 

placed on the eligibility of members who serve in the school and 
collegiate systems of the Commonwealth. . . . 

"As the new Advisory Council on Education examines the back- 
grounds of individuals to be nominated for the Governor's consideration 
in appointing members to the new Board of Education and the new 
Board of Higher Education, questions have been raised as to how 
restrictive the statutory language is. Specifically, could a distinguished 
lawyer or surgeon who teaches part-time at a college or university be 
considered as eligible for membership?" 

Section lA of G. L. c. 15 (as inserted by St. 1965, c. 572, § 2) which 
establishes the Board of Higher Education, contains the following 
language: 

"No member of said board shall be employed by or derive regular 
compensation from any educational institution, or school system, public 
or private." 

This language is substantially repeated in G. L. c. 15, § IE (as inserted 
by St. 1965, c. 572, § 2), which provides for the Board of Education: in 
c. 15, § IH (as inserted by c. 572, § 2), which provides for the Advisory 
Council on Education; and in c. 15, § 20A (as inserted by c. 572, § 3), 
which establishes the Board of Trustees of State Colleges. However, in 
§§ IE, IH and 20A the words "in the commonwealth" are inserted after 
the word "private." 

I am aAvare of the fact that in the contemporary college and university 
a significant part of the faculty and staff may consist of persons whose 
connection with the institution is less than "full-time." These persons 
may be designated as teaching fellows, research associates, lecturers or by 
other titles too numerous to categorize. As you point out, "their liveli- 
hoods are earned in a profession separate from the field of education, and 
their part-time services represent a contribution to the general academic 
world." I must assume that the Legislature was also aware of this fact 
when it enacted St. 1965, c. 572. Everett v. Commissioner of Corpora- 
tions & Taxation, 317 Mass. 612, 615. Nevertheless, it chose broad terms 
to express the prohibition against service on certain boards by persons 
connected with education in various ways. Its apparent purposes were to 
ensure that the members of these boards would be unbiased and 
unfettered in their judgments and to avoid rivalries between schools and 
school systems for "places" on the various boards. 

In your letter you ask for my "opinion on the professional limitations 
as contained in fSt. 1965] Chapter 572." I cannot possibly attempt an 
abstract determination of eligibility for service on boards, but the 
following guidelines may be helpful: 

1. Persons who give occasional lectures, take part in random seminars 
or panels or do infrequent substitute teaching are not employees of the 
institutions or school systems which receive their services. See Radio 
City Music Hall Corp. v. United States, 135 F.2d 715, 717-718 (CCA. 
2); Miller & Rose v. Rich 195 Wis. 468, 470-471. If they receive 
honorariums for their services, these do not constitute "regular compen- 
sation." See Ocean Accident & Guarantee Corp. v. Carter, 62 Ga. App. 



322 P.D. 12 

188, 191. Such services, per se, do not disqualify the person rendering 
them from sitting on the boards in question. 

2. Persons whose books have been published by college or university- 
owned presses and who receive royalties therefrom do not, because of this 
fact alone, receive "regular compensation" from these institutions, unless 
such persons are under contract to write several books or series of books 
over a period of time and receive compensation at regular intervals. 

3. All other persons who perform remunerative work for "any 
educational institution, or school system, public or private," in whatever 
capacity, whether full or part-time and whether for all or part of the 
calendar or academic year, are "employed" thereby. Thus, to consider 
the example you pose, a lawj^er or surgeon who teaches on a regular basis 
but for only a short period each week is employed by the institution at 
which he teaches. See Bulton v. Day, 204 Va. 547, 557-558, holding that 
a professor employed half-time at the University of Virginia Law School 
was a "regular employee" of the Commonwealth of Virginia and, 
therefore, was precluded from receiving salary for services rendered to a 
bar association. It would seem a fortiori that such a person is an 
"employee" of the institution at which he teaches, whether or not his 
status is deemed "regular." See also De Weerdt v. Springfield, 295 Mass. 
523, 526. 

4. Retired employees of "any educational institution, or school 
system, public or private," who receive regular retirement benefits from 
their institutions or school systems receive "regular compensation" 
therefrom. See Everett v. Commissioner of Corporations & Taxation, 317 
Mass. 612, 615. 

^ All persons included in categories 3 and 4 above are precluded from 
sitting on the Board of Higher Education by the language of G. L. c. 15, 
§ IE (as inserted by St. 1965, c. 572). Such persons, however, may be 
appointed to the Board of Education (§ IE) or as Trustees of the Board 
of State Colleges (§ 20A) if the institutions or school systems by which 
they are employed or from which they receive compensation are located 
outside the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Disbursements from the treasury, under G. L. c. 58, §§ 18 and 20, 
require the approval of the Governor and Council as a condition 
precedent. 

April 20, 1966. 

Hon. Robert Q. Crane, Treasurer and Receiver General. 

Dear Sir: — You have requested my opinion as to whether the 
"treasury [may] disburse" certain of its revenues to cities and towns 
without the approval of the Governor and Council. The disbursements 
are those required by G. L. c. 58, §§ 18 and 20. 



P.D. 12 323 

No purpose would be served by quoting these statutes. I do quote Pt. 
2, c. 2, § 1, Art. 11 of the Constitution of Massachusetts. 

"No moneys shall be issued out of the treasury of this commonwealth, 
and disposed of (except such sums as may be appropriated for the 
redemption 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 defence 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." 

Since all of the revenues which are to be distributed pursuant to G. L. 
c. 58, §§ 18 and 20 are constitutionally required to be paid into the 
treasury (Art. 63, § 1 of the Articles of Amendment), these revenues 
cannot be paid out except by warrant of the Governor with the advice 
and consent of the Council. Opinion of the Justices, 13 Allen 593. 
Opinion of the Justices, 302 Mass. 605, 612. Inasmuch as neither § 18 
nor § 20 "purport [s] to deprive the Governor and the Council" of their 
constitutional authority under Pt. 2, c. 2, § 1, Art. 12, the statute should 
be interpreted as requiring approval of the Governor and the Council as 
a condition precedent to disbursement thereunder. Opinion of the 
Justices, 309 Mass. 609, 626. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The manner in which the proper care and treatment of the mentally 
retarded and mentally ill is better achieved is a matter for the Dept. 
of Mental Health to determine on the basis of its expert understand- 
ing of the problems involved. 

Except for patients voluntarily admitted or committed for observation 
under G. L. c. 123, § 77, any patient may be transferred who in the 
opinion of the Department is a proper subject for care and 
treatment in the institution to which he is to be transferred. 

April 20, 1966. 
Hon. Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Commissioner Solomon: — In a recent request for an opinion, you 
point out that the "overcrowding in the State Schools [for the mentally 
retarded] ... has created a major problem." In view of this problem, 
you ask the following questions : 

"1. May mentally retarded persons be committed or admitted to 
State Hospitals as opposed to state schools (for the retarded) as 
provided in the various commitment and admission sections of Chapter 
123 of the General Laws, as amended? 

"2. May I establish at our State Hospitals a separate section for the 
mentallv retarded? 



324 P.D. 12 

"3. If the answer to No. 2 above is in the affirmative, may I 
intermingle the care and treatment of the mentally retarded with the 
mentally ill? 

"4, May I transfer mentally retarded patients from the State Schools 
for the retarded to the State Hospitals, for care and treatment and for 
the purpose of relieving overcrowding in the State Schools? 

"5. May epileptic mentally retarded persons be committed or 
admitted to State Hospitals in addition to the Monson State Hospital, as 
provided in the commitment and admission sections of Chapter 123 of 
the General Laws, as amended? 

"6. May I transfer epileptic mentally retarded patients from the 
Monson State Hospital to other State Hospitals for the same purposes as 
outlined in No. 4 above?" 

Except for questions 2 and 3, which I shall consider separately, each of 
the above questions may be answered with reference to G. L. c. 123, 
§ 20 which states: 

"The department, subject to section twenty A, may transfer to and 
from any hospital or school any patient who in its opinion is a proper 
subject for care and treatment in the institution to which he is to be 
transferred, except that no patient shall be transferred between institu- 
tions while he is present as a voluntary patient, or while committed for 
observation under section seventy-seven." 

Section 20A of G. L. c. 123 pertains to special problems concerning the 
treatment of veterans and does not appear to be applicable to your 
questions. The language of § 20 is clear. Except for patients voluntarily 
adrnitted or committed for observation under G. L. c. 123, § 77, any 
patient may be transferred who in the opinion of the Department is a 
proper subject for care and treatment in the institution to which he is to 
be transferred. Adams v. Inhabitants of Ipswich, 116 Mass. 570, 572. 
Attorney General's Report (1943) p. 139. 

I am unable to answer questions 2 and 3, as presented. I assume that 
the Department would not disobey the clear intent of the statute by 
transferring a patient to an institution where he would not be a proper 
subject for care and treatment. Whether the proper care and treatment 
of the mentally retarded and the mentally ill is better achieved by 
segregation or integration of these groups is a matter for the Department 
of Mental Health to determine on the basis of its expert understanding 
of the problems involved. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 325 

The actions of the Board of Trustees, at its meeting on January 20, 1966, 
defining the duties of the President of Lowell Technological Insti- 
tute and voting to file the job description of the Office of President, 
were within the scope of its authority. However, their vote to fix 
and approve the salary of the Office of President was outside the 
scope of its then current authority. 

The salary approved by the trustees on January 20, 1966, cannot be paid 
to the President until action by the Trustees is properly taken 
after the effective date of c. 828, Acts of 1965. 

May 3,1966. 

Hon. Samuel Pinanski, Chairman, Board of Trustees, Lowell Techno- 
logical Institute. 

Dear Mr. Pinanski: — You have requested my opinion with regard to 
the legality of certain actions taken by the Board of Trustees of Lowell 
Technological Institute, at their meeting of January 20, 1966, in defining 
the duties and fixing the salarj'- of the President of the Institute. 

You state the following as facts: 

"Consideration was directed to the need for revision in the method of 
employment and payment of the President of Lowell Technological 
Institute particularly as this same subject was treated in Chapter 828 of 
the Acts of 1965. (It was acknowledged by all trustees present that 
Chapter 828 of the Acts of 1965 would become effective not before April 
4. 1966). Mindful of this the trustees directed, by appropriate vote 
unanimously agreed upon: (1) to define the duties of the President of 
Lowell Technological Institute as the trustees are authorized and di- 
rected to do by section 12 of Chapter 75A of the General Laws; (2) to 
file the descriptive job specifications relating to this position with the 
officers and committees enumerated in the same said Section 12; and (3) 
to fix and approve the salary of the President of Lowell Technological 
Institute, effective not sooner than 90 days after the signing of Chapter 
828 of the Acts of 1965, at the weekly rate of $448.20— which approved 
rate will then 'not exceed the salary rates in the professional salary 
schedule in section forty-six B of Chapter thirty.' " 

On the basis of the above facts, you have specifically asked the 
following two questions: 

"Question 1. Do the actions of the Board of Trustees at the meeting of 
January 20, 1966 comply with the requirements of Section 12 of Chapter 
75A of the General Laws as am.ended bv Chapter 701 of the Acts of 
1963, Chapter 801 of the Acts of 1963, Chapter 357 of the Acts of 1964, 
and Chapter 828 of the Acts of 1965? 

"Question 2. May the amount approved by the Board of Trustees at 
their meeting of January 20, 1966. to take effect not sooner than April 4, 
1966, be paid to the employee entitled thereto?" 

With regard to your first question, the law of this Commonwealth 
regulating the Board of Trustees of Lowell Technological Institute in 
this context is contained in G. L. c. 75A, § 12, as amended by c. 701 of 



326 P.D. 12 

the Acts of 1963, c. 801 of the Acts of 1963, c. 357 of the Acts of 1964 
and c. 828 of the Acts of 1965, which became effective on April 3, 1966. 
Chapter 75A, § 12, as amended, prior to the effective date of c. 828 of 
the Acts of 1965, provided in part as follows: 

"The trustees shall elect the president . . . and shall define the duties 
and tenure of office in accordance with the appropriate laws of the 
commonwealth; . . . the president shall be paid a salary of eighteen 
thousand dollars, and shall devote his full time during business hours to 
the duties of his office. 

"The classification, title, salary range within the general salary 
schedule, and descriptive job classifications for each position shall be 
determined 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 with the joint committee 
on ways and means. . . ," 

Chapter 828 of the Acts of 1965, however, added the following 
provision : 

"The president shall devote his full time during business hours to the 
duties of his office and he shall be paid such salary as the board of 
trustees may approve; provided, however, that the said salary shall not 
exceed the salary rates in the professional salary schedule in section 
forty-six B of chapter thirty." 

At its meeting of January 20, 1966, the Board of Trustees voted to 
define the duties of the President of Lowell Technological Institute. The 
express, unequivocal language of c. 75A, § 12, as amended, manifestly 
gives the Board of Trustees of Lowell Technological Institute the 
authority to define the duties of the Office of President. Consequently, 
the action of the trustees in voting to so define the duties of the 
President is clearly within the scope of their statutory authority. 

As a second action, the Board of Trustees voted to file the descriptive 
job specifications of the Office of President with the Governor, Budget 
Director, Director of Personnel and Standardization and the Joint 
Committee on Ways and Means. Chapter 75A, § 12, paragraph 9, 
expressly requires the Board of Trustees to file descriptive job specifica- 
tions with the offices and committees enumerated above. Consequently, 
in voting to file as indicated, the trustees quite properly adhered to the 
procedural requirements of c. 75A, § 12, as amended, and thereby acted 
properly in this context. 

As a third action taken, the Board of Trustees voted to fix and 
approve the salary of the President of Lowell Technological Institute in 
accordance with the provisions of c. 828 of the Acts of 1965, to take 
effect as of the effective date of that Chapter. In this instance, it is my 
opinion that the Board of Trustees did not act within the scope of its 
authority. Since the amendment of c. 75A, § 12 by c. 828 of the Acts of 
1965 was not effective until April 3, 1966, the Board of Trustees as of 
January 20, 1966 had no authority under c. 828. Consequently, in 



P.D. 12 327 

attempting to fix the salary of the President under authority granted by 
a then merely prospective amendment, the Board of Trustees did not act 
within the scope of its then current authority. Had the Legislature 
intended that the Board of Trustees be able immediately to utilize the 
authority of c. 828, that Chapter would presumably have been promul- 
gated with an emergency preamble. In the absence of such an emergency 
preamble, it is clear that pursuant to Article 48 of the Amendments to 
the Constitution the effective date of c. 828 is ninety days after its 
approval. Consequently, only on or after April 3, 1966, when c. 828 of 
the Acts of 1965 which was approved on January 3, 1966 became 
effective, would the Board of Trustees be able legally to vote a salary 
under the provisions of that Chapter. 

Regarding your second question, it is my opinion that the answer 
thereto is in the negative. Since c. 828 of the Acts of 1965 did not become 
effective until April 3, 1966, the Board of Trustees on January 20, 1966 
had no authority under that Act to vote a salary. Their action in doing 
so at that time was, therefore, a nullity. Consequently, the salary 
approved by the Trustees on January 20, 1966 cannot be paid to the 
President until action by the Trustees is properly taken after the 
effective date of c. 828. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



The salaries of the Associate Commissioners and the Assistant Commis- 
sioners of Education are to be established by the Board of 
Education. 

The salary of the Deputy Commissioner is to be fixed pursuant to the 
authority vested in the Director of Personnel and Standardization 
by G. L. c. 30, § 45. 

May 3, 1966. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — In a recent request for an opinion, 
you point out that G. L. c. 15, § IF (added by St. 1965, c. 572, § 2) 
"authorizes the Board of Education to appoint two Associate Commis- 
sioners and three Assistant Commissioners [of education], and further 
states it [the Board] '. . . shall establish their salaries.' " In view of this 
language, you ask: 

"Does this mean the Board can set the salaries for these positions or is 
it limited to setting salaries within the professional salary schedule as set 
forth in Chapter 30, Section 46 of the General Laws and only with the 
approval of the Director of Personnel and the Commissioner of Adminis- 
tration, in which instance the maximum Job Group is 33P?" 

I quote the relevant language of G. L. c. 15, § IF. 

"The board shall, by a majority vote of all its members, appoint the 
associate commissioners and the assistant commissioners, and shall 
establish their salaries." 



328 P.D. 12 

I am aware that on at least one occasion an Attorney General has 
ruled that the explicit power given to an agency of the Commonwealth 
to fix the salaries of certain employees was to be exercised subject to G. L. 
c. 30, § 46. VI Op. Atty. Gen., 601, 603. 

On two other occasions, however, an Attorney General has taken a 
contrary position. Attorney General's Report (1958) p. 49. Attorney 
General's Report (1961) pp. 98-101. The latter opinion, given to the 
Commissioner of Administration, seems particularly well reasoned in 
holding that the authority of the Government Center Commission to fix 
the salary of its Executive Secretary is not subject to the powers of the 
Director of Personnel and Standardization or those of the Commissioner 
of Administration under G. L. c. 30, § 46. As the Attorney General 
indicated (p. 100) : 

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

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

This language is relevant to the instant question, since G. L. c. 30, 
§ 46B (which concerns the salaries of professional employees and presum- 
ably would govern the salaries of the Associate and Assistant Commis- 
sioners) was enacted in 1963 (see St. 1963, c. 775, § 3) , whereas G. L. c. 
15, § IF was enacted in 1965. 

Furthermore. G. L. c. 30, §§ 46 and 46B (Parts of § 46 are 
incorporated by reference into § 46B by virtue of the first paragraph 
thereof) are general statutes fixing salaries for employees of the Com- 
monwealth, whereas G. I., c. 15, § IF is a specific statute governing 
(inter alia) the establishment of salaries for assistant and associate 
commissioners. It is a well-settled principle of statutory construction that 
a special statute will control one that is general. Copeland v. Mayor cfc 
Aldermen of Sprinnfield, 166 IMass. 498, 504. Worcester v. Covnty 
Commrs., 167 Mass. 565. Boston & Albany R.R. v. Public Service 
Commrs., 232 ]\Tass. 358. Cohen v. Price, 273 Mass. 303, 308. Clancy v. 
Wallace. 288 Mass. 557, 564. ^f.^y^^, 

When the Legislature saw the possibility of reasonable doubt as to 
whether compensation paid to a state employee would be subject to G. L. 
c. 30, §§ 46 or 46B nnd intended that it should be subject to these 
statutes, it stntcd its intention unmistakably. See. for example, G. L. c. 
12, § 2, concerning the compensation of the Chief Clerk in the Office of 
the Attorney General. Absent such a statement of intention in G. L, c. 



P.D. 12 329 

15, § IF, the statute must be presumed to mean what it says: that the 
salaries of the Associate and Assistant Commissioners shall be established 
by the Board of Education. 
You also ask : 

"If the Board is not limited to the salary schedule and the maximum 
step of Job Group 33P, what is the position of the Deputy Commissioner 
who is now on the salary schedule at Job Group 27P?" 

Since, as you point out, St. 1965, c. 572 is silent as to any authority of 
the Board of Education or any other agency to establish the salary of 
the Deputy Commissioner, it must be fixed pursuant to the authority 
vested in the Director of Personnel and Standardization by G. L. c. 30, § 
45 to "classify all appointive offices and positions in the government of 
the commonwealth," with certain exceptions not relevant to this opinion. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 

Chapter 123, § 96, M.G.L., does not authorize the Commission on 
Administration and Finance to establish higher rates for insured 
patients than for patients who are not insured. 

May 4, 1966. 
Hon. Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Doctor Solomon: — You have requested my opinion as to 
"whether or not the Commission on Administration and Finance has the 
authority to establish different rates of support for patients who are 
covered by group hospitalization insurance plans." The patients in 
question are inmates of the various institutions operated by the Depart- 
ment of Mental Health; the authority of the Commission to establish 
rates for such patients in general is set forth in G. L. c. 123, § 96. The 
relevant portion of this statute reads as follows: 

"The price for the support of inmates of state hospitals, except for 
insane inmates of the Tewksbury state hospital and infirmary and of 
the Bridgewater state hospital shall be determined for each person by the 
department on the basis of the actual weekly cost of care as determined 
by the commission on administration and finance annually on or before 
October first in each year for each person, and ma^'' be recovered of such 
persons or of the husband, wife, father, mother or child, if of sufficient 
ability. A married woman shall be subject to the said liability as though 
sole. Such action shall be brought by the attorney general in the name of 
the state treasurer. . . ." [Emphasis supplied.] 

According to your letter the per diem rate now in effect for patients in 
state mental hospitals is $4.50 for uninsured parties and $6.00 for 
patients whose charges are "payable by third parties such as the 
Veterans Administration and insurance companies" except that in the 
Massachusetts Mental Health Center the per diem rate is $23.00 and 
$25.00, respectively. You add that "many insurance companies have 
questioned ... the additional charges and have refused to pay them." 



330 



P.D. 12 



You list the following "additional services furnished" to insured 
patients which you say justify the higher charges to them at both the 
Mental Health Center and other hospitals: 

" (a) The setting of the higher rate of support when insurance coverage 

is ascertained. 

(b) The obtaining of a diagnosis from the institution, 

(c) The preparation and forwarding of a claim form by the Depart- 
ment. 

(d) The preparation of a duplicate bill to be sent to the Insurance 
Company. 

(e) The obtaining of a signature to authorize the release of mental and 
physical condition information. 

(f ) The obtaining of an assignment of benefits. 

(g) The reduction in the rate of support when the insurance coverage 
has terminated." 

I am of the opinion that the rates issued by the Commission under G. 
L. c. 123, § 96 are regulations {Massachusetts General Hospital v. 
Cambridge, 347 Mass. 519, 522) and are thus subject to the familiar rule 
that administrative regulations must be "within the ambit of the 
enabhng statute." Commonwealth v. Diaz, 326 Mass. 525, 527-528. 
Winthrop v. New England Chocolate Co., 180 Mass. 464, 466. Cases 
from other jurisdictions collected at 2 Am. Jur. 2d §§ 300, 301, 303. 
Under G. L. c. 123, § 96, the enabling statute for the Commission to 
determine charges, the "price for the support of inmates of state 
hospitals" must be based on the "actual weekly cost of care." 

It does not seem that any of the "services furnished" to insured 
patients which I have quoted from your letter constitute part of the 
"actual . . . cost of care" for such patients. Items (a) and (g) on your 
list are costs incurred by the setting of higher rates for insured patients; 
these costs are not occasioned by the treatment of such patients as your 
letter would imply. Items (b), (c), (d), (e) and (f) seem to be routine 
bookkeeping costs incurred in obtaining payment from insurance com- 
panies ; they do not appear to be related to the "care" (see Johnson v. St. 
Paul & Western Coal Co., 131 Wis. 627, 632) that the patient receives. 
Furthermore, the cases in this Commonwealth indicate that the term 
"actual cost" generally does not include ancillary expenses. Newton, 
petitioner, 172 Mass. 5, 9-11. Fillmore v. Johnson, 221 Mass. 406, 412- 
413. Cj. Boston Molasses Co. v. Molasses Distributors Corp., 274 Mass. 
589, 595. When the Legislature intended that a third party be made 
liable for a patient's hospital expenses, medical assistance and medical 
care generally, as opposed to the "actual cost of care," it stated this 
intention explicitly. See, e.g., G. L. c. 117, § 24; c. 118, § 2; c. 118A, 
§§ 1 and 14; c. 152, § 30. It is not necessary to determine at this time 
whether, under any of the aforementioned statutes, the party liable for 
the patient's care could be made to pay such costs as are comprehended 
in items (b)-(f). In any event, I conclude that the Legislature, in G. L. 



P.D. 12 331 

c. 123, § 96, did not authorize the Commission to set higher rates for 
insured patients than for patients who are not insured. 

I am mindful of the constitutional questions that might arise if 
legislation were enacted permitting the Commission to set higher rates 
for insured patients, particularly in view of an earlier opinion of this 
office [Attorney General's Report, 1961, p. 60] that such rates could not 
be charged to persons insured by Blue Cross. See Associated Hospital 
Service of Maine v. Mahoney, 213 A.2d 712, 722-723 (Me.). While it is 
unnecessary to consider such questions in this opinion, I note in passing 
that where administrative regulations are likely to raise constitutional 
problems, it is particularly important to determine that such regulations 
reflect a policy ordained or at least permitted by the Legislature. 
Treasurer of Worcester v. Department of Labor and Industries, 327 
Mass. 237,241. 

You state in your letter: "The higher charges [now purportedly in 
effect] for support [of insured patients] were established in conformity 
with the opinion of the Attorney General, dated April 6, 1955, (unpub- 
lished) due to the additional services furnished." Upon perusal of the 
1955 opinion, signed by an Assistant Attorney General, I find that it 
pertains to the setting of higher rates only for patients who are veterans 
and for whose expenses the Veterans Administration is responsible. Since, 
according to your letter, the Veterans Administration "does not object to 
the higher rate of the support charges," there is no present need to 
reconsider that opinion. 

Considering the constitutional questions which could be created by the 
practice of imposing higher payment rates upon third parties, I am 
compelled to give the statute which governs this matter a strict reading. 
Had the Legislature intended expenses of a bookkeeping nature such as 
those enumerated by you to be chargeable under this section, it 
presumably would have used a phrase somewhat broader than "the ac- 
tual weekly cost of care." Accordingly, it is my opinion that c. 123, § 
96 does not authorize the establishment of higher rates for insured 
patients than for patients who are not insured. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



332 PD- 12 

Where the Board of Fire Prevention Regulations has established rules 
and regulations relating to oil burner equipment, the responsibility 
for enforcement of these rules rests with the parties enumerated in 
G. L. c. 14s, § 4, i.e., the State Fire Marshal, an inspector, the head 
of a fire department, or a person delegated by the Marshal or the 
head of the fire department. 

Since the responsibilty for the oil burner apprentice and his work rests 
with the certified technician, it would appear that the performance 
of those tasks which involve some danger or complexity shoidd be 
accomplished either personally by the certified technician or under 
his close personal supervision. 

May 5, 1966. 

Hon. Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin: — You have requested my opinion with 
regard to the enforcement of the laws governing oil burner construction, 
installation and operation and with regard to the supervision of apprentice 
oil burner technicians. Your first question is as follows: 

"Once an examiner has granted a certificate as oil burner technician, 
upon whom does the duty of enforcement of the law and rules and 
regulations relative to oil burner construction, installation and operation 
of oil burner equipment lie; upon the inspectors of the Division of 
Inspection, Department of Public Safety or upon the Marshal, an 
inspector or police officer of the Division of Fire Prevention of the 
Department of Public Safety or the head of the fire department or 
person designated by them?" 

The duties of the Division of Inspection of the Department of Public 
Safety with regard to oil burner technicians are set out in the following 
sections: 

Chapter 146, § 67A provides that: 

"The chief of inspections, the supervising inspector of the division or 
an inspector of the division shall act as an examiner for the certification 
of oil burner technicians. The chief of inspections shall cause examina- 
tions to be held in such cities and at such times as he may deem 
necessary." 

Chapter 148, § lOD provides in part that: 

"Any person desiring to obtain a certificate as an oil burner technician 
shall make application to the department . . . the applicant shall be 
examined . . . and, if found by an examiner to be qualified, he shall 
forthwith be issued a certificate. . . ." 

Chapter 148, § lOG provides that: 

"Any certificate may, after due notice and hearing, be suspended or 
revoked by an examiner for a violation by the certificate holder of any 
rule or regulation promulgated by the board relative to construction, 
installation and operation of oil burning equipment. Any applicant for 
an oil burner technician certificate or holder of such certificate aggrieved 
by the action of an examiner in refusing to issue or in revoking or 



P.D. 12 ^^^ 

suspending such certificate may, within ten days, appeal therefrom to the 
chief of inspections of the department, who shall designate three 
inspectors to sit as a board and to conduct a hearing on such appeal 
within thirty days. The decision of said board shall be final. 

The above-quoted sections govern the duties of the Division of 
Inspection. Under the concise language of those sections, those duties are 
quite narrow. In substance, the duties of members of the Division ot 
Inspection include acting as examiners for oil burner technicians, admin- 
istering the examinations, issuing licenses, suspending or revoking h- 
censes after holding hearings, and hearing appeals from such suspensions 
or revocations. There is no basis in the language of either c. 146 or c. 148 
for concluding that the duties of the Division of Inspection are any more 
extensive than indicated above. The only power of the Division of 
Inspection to act in the enforcement of the rules and regulations 
promulgated by the Board of Fire Prevention Regulations in this context 
is that arising out of its authority under c. 148, § lOG to suspend or 
revoke licenses upon proof of violation thereof. This authority of the 
Division of Inspection to sit in judgment, however, does not permit the 
conclusion that such authority also includes the duty or even the right 
directly to enforce those rules and regulations. Consequently, in the 
absence of any express statutory provision to that effect, there is no basis 
upon which to predicate the existence of any such direct duty of enforce- 
ment in the division of Inspection. 

With regard to the Division of Fire Prevention Regulations of the 
Department of Public Safety, the duties of that agency are contained 
generally in G. L. c. 148. The following sections have particular 
relevance to the question which you have asked. 

Chapter 148, § 4 provides in part as follows: 

"The marshal, an inspector, the head of the fire department, or any 
person to whom the marshal or the head of the fire department may 
delegate the authority, may, in the performance of the duties imposed 
by this chapter, or in furtherance of the purpose of any provision of any 
law, ordinance or by-law relating to the subject matter of this chapter, 
or of any nde or regulation of the board of fire prevention regulations, 
established under section fourteen of chapter twenty-two, in this chapter 
referred to as the board, or any order of the marshal or head of the fire 
department, enter at any reasonable hour any building or other premises, 
or any ship or vessel, to make inspection or investigation, without being 
held or deemed to be guilty of trespass." [Emphasis supplied.] 

Chapter 148, § 5 provides in part as follows: 

"The marshal, the head of the fire department or any person to whom 
the marshal or the head of the fire department may delegate his 
authority in writing, may, and upon complaint of a person having an 
interest in any building or premises or property adjacent thereto, shall, 
at any reasonable hour, enter into buildings and upon premises, which 
term for the purposes of the remainder of this section shall include alleys 
adjacent thereto, within their jurisdiction and make an investigation as 
to the existence of conditions likely to cause fire. They shall, in \NTiting, 
order such conditions to be remedied. . . ." 



334 



P.D. 12 



Chapter 148, § 10 provides in part as follows: 

"The board of fire prevention regulations shall make, and from time to 
time may alter, amend and repeal, rules and regulations relative to fire 
prevention which said board is authorized or required under any provi- 
sion of this chapter to adopt or make " 

Under the provisions of c. 148, § 10, quoted above, it is clear that the 
duty to make rules and regulations relative to fire prevention rests with 
the Board of Fire Prevention Regulations. In compliance with the duty 
imposed on them by § 10, the Board has established rules and 
regulations governing the construction, installation and operation of oil 
burner equipment. These rules and regulations are contained in bulletin 
FPR-3. 

The enforcement of the rules and regulations of FPR-3 is provided for 
in §§ 4 and 5 of c. 148. Section 4 of that chapter grants express 
authority to the fire marshal, an inspector, the head of the fire 
department or any person to whom the marshal or the head of the fire 
department may delegate such authority to inspect and investigate any 
building, premises or ship in furtherance of any rule or regulation of the 
Board of Fire Prevention Regulations. By virtue of this grant of 
authority, it is clear that the duty of inspection and investigation 
includes the duty to enforce the rules of the Board. Thus, where the 
Board has promulgated rules and regulations relating to oil burner 
equipment, the responsibility for enforcement of these rules rests with 
the parties enumerated in § 4: i.e., the marshal, an inspector, the head of 
the fire department, or a person delegated by the marshal or head of the 
fire department. 

Section 5 of c. 148, which grants authority to the marshal and the 
head of the fire department or their delegates to investigate complaints 
and order remedial efforts, similarly imposes a duty upon those parties to 
enforce the rules and regulations of the Board of Fire Prevention 
Regulations. 

Regarding your second question, the law of this Commonwealth 
relative to the licensing of apprentice oil burner technicians is set out in 
G. L. c. 148, § lOE, which provides as follows: 

"An examiner shall upon payment of three dollars issue without 
examination an apprentice certificate to any person who applies therefor, 
which certificate shall permit him to assist and work under the super- 
vision of a person holding a certificate as an oil burner technician in the 
alteration, repair or installation of oil burning equipment. An apprentice 
certificate shall be valid for two years from the date of issue, and shall 
be renewed without examination upon the payment of three dollars." 

Under the language of this section, the granting of an apprentice 
certificate requires only the filing of an application and payment of the 
statutory fee. Neither an examination nor educational qualifications are 
required. In view of the absence of educational requirements, it is 
possible that an apprentice certified under this section may have little or 
no knowledge of the mechanical operation and/or the installation of oil 
burner equipment. To cope with the possibility of harmful consequences 



P.D. 12 335 

flowing from such a lack of knowledge, § lOE requires that such an 
apprentice merely "assist and work under the supervision of a person 
holding a certificate as an oil burner technician. . . ." The question you 
raise is whether the provision for supervision in § lOE means constant 
supervision. 

It is my opinion that the phrase, "under the supervision," does not 
require constant supervision of the apprentice by the certified oil burner 
technician. A requirement that the certified oil burner technician remain 
in one location as supervisor would preclude any freedom to attend to 
other aspects of the same job or even other jobs. As a result, the 
advantage of having an apprentice to assist would not be fully realized. 

This is not to say, however, that an apprentice is free to work wholly 
unsupervised. Clearly, § lOE does not contemplate such a degree of 
freedom. Rather, in view of the absence of educational requirements for 
the apprentice certificate, supervision must be exercised. 

The amount of supervision must — in the first instance — be determined 
by the certified oil burner technician, who will ordinarily best be able to 
evaluate the ability of that apprentice to work with minimal supervision. 
The amount of supervision required will of course depend upon the facts 
of each case, as well as upon the personalities and relative skills 
involved. Nevertheless, since the responsibility for the apprentice and his 
work rests with the certified technician, it would appear that the 
performance of those tasks which involve some danger or complexity 
should be accomplished either personally by the certified technician or 
under his close personal supervision. 

Very truly yours, 

Edwaed W. Brooke, Attorney General. 



The power to lease public property is of such a nature that it requires 
specific statutory authority as a condition to its exercise. 

Accepted principles of administrative law require that an agency should 
evaluate the situations presented it on the basis of its own expertise, 
and that it make appropriate decisions in conformity to the 
legislative policy and purpose. 

The decision of the Department of Natural Resources to authorize a ski 
development should be implemented by means of a permit rather 
than by means of a lease. 

May 6, 1966. 
Hon. Charles H. W. Foster, Commissioner of Natural Resources. 

Dear Sir: — Your recent letter indicates that you have received a large 
number of requests for permission to use the lands and waters under the 
control and supervision of your Department. You have drawn to my 
attention a number of situations where permission to use these lands is 
sought. 

The General Court has charged your Department with the care and 
control of the Commonwealth's natural resources. Those resources, as 



336 PD. 12 

they relate to your request, include wild mammals, game, wild birds, 
forests and uncultivated flora, land, soil and soil resources, lakes, ponds, 
streams, and surface waters. See G. L. c. 21, § 1. The protection and 
conservation of these resources are among your Department's chief 
duties. However, the use of these resources for certain purposes is not 
precluded. 

"It shall be the duty of [the] department to exercise general care and 
oversight of the natural resources of the commonwealth and of its 
adjacent waters; . . . and to propose and carry out measures for the 
protection, conservation, control, use, increase, and development thereof." 
G.L.c.21,%1. 

Specific provision has been made for the recreational use of such 
resources. 

"The department shall also be concerned with the development of 
public recreation as related to such natural resources; and shall have 
control and supervision of such parks, forests, and areas of recreational, 
scenic, or historic significance as may be from time to time committed to 
it:' G.L.c.21,%1. 

Thus, your responsibility is to protect, to conserve and to increase our 
natural resources while at the same time being concerned with the 
development of public recreation. No use of the lands under your control 
other than for conservation or recreational purposes is provided for in 
the General Laws with the exception that towers necessary for the 
transmission of electricity may be built. See G. L. c. 132A, § 3. 

Any conflicts between these dual responsibilities have been resolved by 
the legislative emphasis on the conservation aspect of your duties. Such 
emphasis appears in G. L. c. 21, § 1. Moreover, in G. L. c. 132A, which 
specifically deals with the establishment of State Recreation Areas, there 
are express provisions to effectuate the Commonwealth's interest in the 
conservation of natural resources. Thus the Commissioner of Natural 
Resources may accept gifts and bequests "to be used for the purpose of 
advancing the recreational and conservation interests and policies of the 
commonwealth.'" [Emphasis supplied.] G. L. c. 132A, § 1. And the policy 
of the Commonwealth is one of preserving the natural state of Recrea- 
tion Areas. 

"It is hereby declared to be the policy of the commonwealth that all 
such sites acquired or developed by the commissioner [of natural 
resources] shall in so far as practicable be preserved in their natural 
state" G.L.c. 132A, § 2B. 

There can be no doubt that the recreational value of our natural 
resources is dependent upon their preservation, conservation and in- 
crease. Uses which would endanger these resources would undoubtedly 
not be legal. Each case must of course be decided upon its own facts; but 
the following may provide some helpful guidelines. 

When it is consistent with the policies discussed above, provision may 
be made for certain of the activities enumerated in your letter. G. L. c. 
132A, § 2D provides as follows: 



P.D. 12 



337 



"In the development and improvement of state parks, state forest 
recreation areas and state reservations, the commissioner is hereby 
authorized and empowered; (1) To acquire, plan, construct, maintain 
and operate public recreational facilities, including roads, areas for 
parking, picnicking and camping, provisions for swimming, wading, 
boating, outdoor games, winter sports, horseback riding, bicycling and 
hiking trails, nature study, rest areas, outlooks, comfort stations, food 
accommodations and such other facilities as the commissioner deems 
necessary and desirable and consistent with the policy of the common- 
wealth, as set forth in section two B. 

(2) To impose and collect such charges and fees for the use of the 
lands, buildings, facilities and equipment enumerated in subdivision (1) 
as may be necessary to defray in so far as practicable the cost of such 
developments and improvements, including costs of maintenance and 
operation and bond amortization and interest and to revise said fees and 
charges from time to time." 

The use of a plot of forest for a weekend of camping and hiking by 
the Boy Scouts — to refer to one example contained in your request — 
would clearly be for recreational purposes. Section 2D has authorized 
you to acquire land for such a purpose. And land that you have acquired 
and designated for this use may be used for this purpose, provided, 
however, that such use is consistent with the policy of preserving our 
natural resources. Were great damage to the forests and ponds to result 
from this activity, then such an activity would not conform to the 
overall public policy. With that qualification, therefore, it is mj' opinion 
that the use of the land proposed by the Boy Scouts is of the type that is 
permissible. Appropriate fees mav be charged for such a use pursuant to 
G. L. c. 132A, § 2D. 

The example cited above is perhaps an obvious case. But accepted 
principles of administrative law require that an agency should evaluate 
the situations presented it on the basis of its owti expertise, and that it 
make appropriate decisions in conformity to the legislative policy and 
purpose. Within the guidelines of permissible and non-permissible uses as 
developed above and applied to an illustrative situation, there must be 
administrative determinations made by your Department. With the 
partial exception of that part of your request pertaining to the develop- 
ment of a ski area, a proper decision depends on a knowledge of 
conservation techniques and problems and how they can be accom- 
modated to a recreational interest. It is the Department of Natural 
Resources which must — in the first instance — make a factual determina- 
tion whether the farming of land, the extension of a drainage pipe, the 
activities of a youth association, etc., may be carried on consistently 
with the Commonwealth's policy of conservation and recreation. The 
standards discussed in this opinion may serve as guidelines for the 
Department; but the Department itself must — on the basis of its own 
expertise — find and evaluate the relevant facts of each case. 

In reaching a judgment as to the use of a mountainside for a ski area 
there will, of course, have to be a determination on your part regarding 
the injurious effects, if any, to a natural resource. That a private investor 



338 P.D. 12 

might incidentally profit from building and operating such an area 
would not necessarily preclude your granting a permit for such a 
development. See Massachusetts Bay Transportation Authority v. 
Boston Safe Deposit and Trust Co., 348 Mass. 538. 

The Legislature may lawfully determine that it is in the public 
interest to enlist private capital for the construction and operation of 
facilities which will benefit the public interest. Court Street Parking Co. 
V. Boston, 336 Mass. 224, 230; Lowell v. Boston, 322 Mass. 709, 736. 
And within the broad powers conferred upon you by the General Court 
is the implied power to use private enterprise in order to carry on your 
duties. The development of a ski resort on land owned by the Depart- 
ment of Natural Resources might well represent the use of public 
property primarily for private profit. On the other hand, the Department 
could find that private profit was secondary and incidental to a public 
purpose. Once again, the initial factual determinations must be made by 
the Department in accordance with the statutory policy with regard to 
conservation and recreation. 

Should the Department find that the Commonwealth's conservation 
and recreation policies will be furthered by the development of a ski 
resort in a given area, the question may well arise whether the 
Department may lease the property in question to the developer. It is 
my opinion that such a lease is not contemplated by the statutes 
governing the functioning of the Department of Natural Resources. 
Ordinarily, there must be specific legislative authorization for the leasing 
of publicly controlled property. See, for example, c. 474 of the Acts of 
1946; c. 612 of the Acts of 1948. The Department does not have express 
authority to grant a lease in this situation. Although it might be argued 
that the right of the Department to permit the use of its land for certain 
purposes creates an implied power to lease, I am more inclined to believe 
that the power to lease public property is of such a nature that it 
requires specific statutory authority as a condition to its exercise. 
Accordingly, a decision by your Department to authorize a ski develop- 
ment should be implemented by means of a permit rather than by means 
of a lease. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Nothing^ contained in Chapter 362, Acts of 1952, appears to require the 
registration of state-owned barber shops. The scope of that enact- 
ment is clearly limited to the personal registration of the barbers or 
owners of barber shops who are employed by the Commonwealth. 

May 9, 1966. 

Hon. John P. Harrington, Superintendent, Holyoke Soldiers' Home. 

Dear Superintendent Harrington: — You have requested my opinion 
with respect to the registration of a barber shop located in the Holyoke 
Soldiers' Home. 



P.D. 12 ■ \ 339 

You state the following as facts : 

"1. This agency was opened to accept domiciliary members and/or 
hospital patients in May, 1952. In the construction of the building, a 
barber shop was provided and furnished by the Commonwealth for the 
convenience of members and patients. Employees, visitors, and/or the 
general public are not allowed to avail themselves of the services of the 
barber. 

"2. The barber here now is — and all of the barbers who have been 
here were — [a] licensed journeyman barber. The barber works on the 
wards and cares for the patients who cannot go to the barber shop. 
Ambulatory patients are encouraged to go to the barber shop for thera- 
peutic benefits and convalescence. 

"3. The barber shop is owned by the Commonwealth of Massachu- 
setts and not by the barber. The barber receives his income from the 
patients whom he serves and does not pay any rental to the Common- 
wealth and is not an employee of the Commonwealth." 

On these facts, you have specifically asked "whether this agency (the 
Hotyoke Soldiers' Home) is still exempt from the provisions of c. 112, § 
87S, of the General Laws, as amended in 1952." 

The law of this Commonwealth regulating the operation of barber 
shops is contained in G. L. c. 112, §§ 87F-87S. With specific regard to 
the registration of barber shops, the law is set out in § 87H: 

". . . Before any registered barber opens a barber shop, or moves his 
barber shop to a new location, or operates a barber shop previously 
approved for a prior owner, he shall apply to the board for an inspection 
and approval thereof, and the board shall receive a fee of twenty-five 
dollars for each inspection, and, upon the approval of such barber shop, 
the board shall issue a certificate of registration for such barber shop, 
which shall without further fee be in force, unless sooner cancelled, 
suspended or revoked, until June thirtieth next following the date of its 
issuance. All certificates of registration for barber shops shall be renewed 
annually by filing applications therefor on forms supplied by the board 
and the payment of a fee of five dollars and such renewal shall, unless 
cancelled, suspended or revoked, be in full force and effect until June 
thirtieth of the year following its issuance. The board may suspend, 
revoke or refuse to renew a certificate of registration issued by it for a 
barber shop if it finds, after a hearing, notice of which shall be given to 
the owner or operator of such shop, that any of its rules and regulations 
have been violated in said shop, that persons not authorized to practice 
the occupation of barbering have been employed therein as barbers or 
apprentices, or that there has been a violation in said shop of any 
provision of sections eighty-seven F to eighty-seven R, inclusive." 

Section 87S, which regulates the scope of the application of §§ 87F to 
87R, provides in part as follows: 

"Sections eighty-seven F to eight-seven R, inclusive, shall apply to 
barbers and owners of barber shops icho are employed by the common- 
wealth." [Emphasis supplied.] (As amended by St. 195i2, c. 362.) 



340 P.D. 12 

Prior to the enactment of St. 1952, c. 362, it was the opinion of a former 
Attorney General that §§ 87F to 87S of c. 112 were not applicable to 
persons rendering barbering services to inmates and employees in state, 
county and municipal institutions located within the Commonwealth. 
(Op. Atty. Gen., February 20, 1941.) Consequently, neither the person 
rendering the services nor the shop itself had to be registered in 
accordance with the requirements of § 87H. 

In 1952, the passage of c. 362 of the Acts of that year extended the 
scope of the apphcation of §§ 87F to 87R to include barbers and o-WTiers 
of barber shops who are employed by the Commonwealth. Clearly, the 
intent of the Legislature was to bring all persons engaged in the barbers' 
profession within the control of the Board of Registration of Barbers. To 
that extent, St. 1952, c. 362 made obsolete the 1941 opinion of the 
Attorney General referred to above; after 1952, it was clear that persons 
employed by the Commonwealth who rendered barbering services to 
employees and inmates in state, county and municipal institutions would 
be required to comply with the registration procedures of §§ 87F to 
87R. 

The question which you have posed is whether the passage of c. 362 of 
the Acts of 1952 imposed upon the Commonwealth a requirement to 
register its barber shops in compliance with the provisions of c. 112, § 
87H, apart from the registration of the barbers themselves. It is my 
opinion that the answer to this question is in the negative. Nothing 
contained in c. 362 would appear to require the registration of state- 
owned barber shops. The scope of that enactment is clearly limited to the 
personal registration of the barbers or owners of barber shops who are 
employed by the Commonwealth. There is no requirement that state- 
owned barber shops be registered. The Commonwealth should not be 
included by implication when there is absent a clear legislative mandate 
that one agency of the Commonwealth is to regulate another agency of 
the Commonwealth. 

Consequently, it is my opinion that, while the passage of c. 362 of the 
Acts of 1952 imposed responsibility for personal registration upon 
barbers and owners of barber shops employed by the Commonwealth, 
that amendment does not require the registration of state-owned shops. 
Accordingly, the barber shop in the Holyoke Soldiers' Home, as it is 
owned by the Commonwealth, need not be registered pursuant to the 
requirements of c. 112, § 87H. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 341 

G. L. c. 112, § 81A, does not establish the Board of Registration in 
Nursing as the appointing authority for the position of Supervisor of 
Nursing and Practical Nursing. 

May 12, 1966. 

Hon. Eleanor A. Gaffney, Chairman, Board of Registration in 
Nursing. 

Dear Miss Gaffney: — ^You have asked for my opinion concerning the 
position of Supervisor of Schools of Nursing and Practical Nursing 
within your agency. You ask whether that position is subject to the civil 
service provisions of c. 31 of the General Laws, and whether the Board of 
Registration in Nursing is the appointing authority. 

It is my opinion that the position of Supervisor of Schools of Nursing 
and Practical Nursing must be filled in accordance with c. 31. This 
matter has been carefully considered in an opinion rendered by former 
Attorney General Clarence A. Barnes in 1945. (Attorney General's 
Report, 1945, p. 54.) That opinion states in part: 

"Unless a place in the public service has been specifically or impliedly 
excluded by the Legislature from the control of the Civil Service Law 
and Rules, or is within some group of places w^hich has been so 
specifically or impliedly excluded, it is within the sweep of these 
measures and is governed by them when, like the place under considera- 
tion, it falls within a classification established by the Civil Service 
Commission." 

Wells V. Commissioner of Public Works, 253 Mass. 416, 419 

Since the position at issue here does not fall within one of the excluded 
categories enumerated by § 5 of c. 31, and since there is no implied 
exclusion either in that section or in the remainder of the chapter, the 
Supervisor of Schools of Nursing and Practical Nursing must be selected 
in accordance with civil service provisions. 

You inform me that, according to the job description issued by the 
Division of Personnel, one of the principal duties of the Supervisor of 
Schools of Nursing and Practical Nursing is to inspect such schools of 
nursing and practical nursing. In this connection, you have directed my 
attention to c. 112, § 81 A, which requires the Board of Registration in 
Nursing to inspect nursing schools, and which provides further that: 

"Said board may make inspections by any of its members or by an 
agent or agents designated by it for the purpose. . . ." 

It is my opinion that the portion of c. 112, § 81 A quoted above is not 
sufficient to authorize the Board of Registration in Nursing to appoint 
the Supervisor of Schools of Nursing and Practical Nursing. The Board 
is established by c. 13, § 13 and is authorized by § 14 of that chapter to 
appoint an executive secretary. In no other section of the General Laws 
is the Board authorized to appoint any other employee. The only 
appointing authority for any such emplovees is the Director of Registra- 
tion. See Op. Atty. Gen., March 9, 1956, p. 75. See also § 8 of c. 13, 
which states that : 



342 



P.D. 12 



"The division of registration shall be under the supervision of a 
director. . . ." 

In addition, § 9 of that chapter states further that: 

"The various boards of registration and examination hereafter men- 
tioned in this chapter shall serve in the division of registration. . . ." 

And § 1 of c. 112 states that: 

"The director of registration shall supervise the work of the several 
boards of registration and examination included in the division of 
registration of the department of civil service and registration." 

In other sections of the General Laws where a board of registration or 
examination is authorized to appoint employees, the General Court has 
always used such words as "appoint" or "employ," never such an 
imprecise term as "designate." It is therefore my opinion that § 81A of c. 
112 does not establish the Board of Registration in Nursing as the 
appointing authority for the position of Supervisor of Nursing and 
Practical Nursing. The grant of the power to designate the agent or 
agents who will make inspections merely authorizes the Board to select 
for that duty some person or persons from among its employees and 
agents. The statute does not vest in the Board the authority to appoint 
an employee solely for that purpose. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The Department of Public Works may exercise discretion to determine 
that information concerning the number of bidders on any partic- 
ular project be kept secret until all bids are official. 

May 12, 1966. 

Hon. Francis W. Sargent, Commissioner of Public Works. 

Dear Commissioner Sargent: — In a recent request for an opinion you 
ask in essence whether the Department of Public Works may withhold 
information concerning the number of bidders on any particular project 
until all the bids on such project are formally opened. You state that 
"engineers (presumably connected with the Department) thought that 
giving out such information might be injurious to the Department." You 
attach to your request a memorandum from the Deputy Chief Engineer 
for Highway Construction, who states: 

"The opportunities that exist imder these circumstances for possible 
collusion or bidding to the detriment of the public interest is quite 
obvious. 

"Let us assume that the same two identical contractors find out that 
they are bidding on two separate projects. Unscrupulous contractors 
would have no hesitance in making an 'arrangement' whereby each of 
them would be the successful bidder on one of the two projects at prices 
based on a scheme whereby competition was eliminated between them. 



P.D. 12 343 

Again let us assume that a contractor finds out ten minutes before bid 
opening time that he has no competition for a certain project. Based on 
this knowledge and succumbing to the frailty of human nature, the 
probability is that he will submit a proposal with inflated prices." 

I assume that the "projects" to which the question relates are highway 
construction projects. Bids for such projects are governed by G. L. c. 81, 
§ 8. 1 quote the relevant language of this section: 

"The department, when about to construct a state highway, shall 
advertise in two or more newspapers published in each county in which 
the highway lies, and in three or more daily newspapers published in 
Boston, for sealed proposals for the construction of such highway, stating 
the time and place for opening such proposals, and reserving the right to 
reject any and all proposals. If a proposal is satisfactory, the depart- 
ment, with the approval of the governor and council, shall make a 
contract in writing on behalf of the commonwealth for such construction. 
After the proposals have been accepted or rejected they shall be kept by 
the department, and shall be open to public inspection for three years, 
and may then be destroyed by the department. . . ." 

Obviously nothing in this statute requires the Department to release 
information on the number of bidders on any project. I do not know 
whether it is customary for the Department to keep a running tabulation 
of bidders on each highway project. In any event, such tabulations, if 
kept, are not public records within the meaning of G. L. c. 4, § 7, para. 
26, since there is no law requiring the keeping of such records. Allen v. 
Kidd, 197 Mass. 256, 259. Butchers Slaughtering and Melting Associa- 
tion V. Boston, 214 Mass. 254, 258-259. Fondi v. Boston Mut. Life Ins. 
Co., 224 Mass. 6, 8. Canney v. Carrier, 333 Mass. 382, 383. See Lord v. 
Registrar of Motor Vehicles, 347 Mass. 608, 611. In view of the injury to 
the Commonwealth which may result from the release of information on 
the number of bidders on a project, I see no reason why your 
Department may not exercise discretion to determine that such informa- 
tion is to be kept secret until all bids are official. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

The grant of authority of c. 75B, § 1, M.G.L., as amended by c. 572 of 
the Acts of 1965, to the Trustees of Southeastern Massachusetts 
Technological Institute, of all powers customanly and traditionally 
exercised by governing bodies of higher educational institutions does 
not encompass the authority to take testimony under oath. 

May 12, 1966. 

Hon. Joseph M. Souza, Chairman, Board of Trustees, Southeastern 
Massachusetts Technological Institute. 

Dear Mr. Souza: — You have requested my opinion with regard to the 
authority of state college trustees to take testimony under oath. Specifi- 
cally, you have asked "whether the Board of Trustees of Southeastern 



344 PD. 12 

Massachusetts Technological Institute, or any subcommittee thereof, has 
the authority and jurisdiction to take testimony under oath from 
members and/or subordinates." 

The powers of the Trustees of Southeastern Massachusetts Techno- 
logical Institute are set out generally in G. L. c. 75B, § 1, as amended by 
c. 572 of the Acts of 1965, which provides in part as follows: 

'Tn 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 exercised by governing bodies of institu- 
tions of higher learning." 

The above-quoted section, providing for the authority, responsibility, 
powers and duties of the Board of Trustees, sets out two distinct 
categories of powers; first, those powers which have been specifically 
conferred by statute; and second, those powers which are customarily 
exercised by such a board. Accordingly, it must be determined whether 
the authority to take testimony under oath falls within either of these 
two categories of powers. 

Regarding the first category of "specifically conferred" powers, the 
various sections of c. 75B contain no such grant with respect to the 
taking of testimony under oath. Consequently, in the absence of specific 
statutory authority, the existence of such a power must depend upon its 
being one "customarily and traditionally exercised" by such a board. 

A review of similar boards in other educational institutions indicates 
that the power to take testimony under oath is not one customarily or 
traditionally exercised by such bodies. The disposition and management 
of the affairs entrusted to such boards of trustees are not generally of 
such a nature as to warrant the exercise of such authority. The 
management of an educational institution has not generally required the 
authority to take sworn testimony, and consequently it cannot reason- 
ably be implied on the basis of its being either customary or traditional. 
On the contrary, the power to take testimony under oath is of such 
consequence that its existence in any governmental agency ordinarily 
requires specific statutory confirmation. 

_ Accordingly, there being no basis upon which to distinguish the 
situation of the Board of Trustees of Southeastern Massachusetts 
Technological Institute, or any subcommittee thereof, from that of 
similar boards at other educational institutions, it is my opinion that the 
grant of authority of c. 75B, § 1 of all powers customarily and 
traditionally exercised by governing bodies of higher educational institu- 
tions does not encompass the authority to take testimony under oath. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 



345 



The receipt of federal grants for educational purposes may be approved 
by a given school committee; but nothing in c. 44, § 33A indicates 
that such grants may be applied for or used on a cooperative basis 
by two or more school committees. 

May 12, 1966. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — You have requested an opinion re- 
garding the proposed joining of two or more school committees for the 
purpose of application for and enjoyment of the benefits of Public Law 
89-10, the so-called Elementary and Secondary Education Act of 1965. 
Your. specific questions follow: 

"(1) May two or more school committees join together under Massa- 
chusetts law and submit a joint program for participating in Title I or 
Title III of the Federal act with the committees specifying which town 
or towns are to hold title to the property and how the program is to be 
administered? 

"(2) May two or more school committees join under Massachusetts 
law in order to participate in Title I and Title III of the Federal act by 
one school committee making application for Federal funds in its own 
name and entering into an agreement with the other school committees to 
participate in the benefits of said program?" 

You have indicated that it may well be desirable for school committees 
to cooperate to facilitate effective programs under the Federal statute. 
You further state that if any legal impediment to such cooperation 
exists, legislation designed to remedy the problem should be proposed. 

The public school system in Massachusetts is operated on a local basis 
by individual school committees. With certain exceptions (see, for 
example, G. L. c. 71, § 16A), the Legislature has determined that there 
shall be a committee in charge of the public schools for each of the 
Commonwealth's cities and towns. These committees have specific statu- 
tory powers and duties. See G. L. c. 71, § 37. 

Statutory authority clearly exists for the acceptance of federal grants 
for educational purposes. General Laws c. 44, § 53A provides in part as 
follows: 

"An officer or department of any city or town . . . may accept grants 
or gifts of funds from the federal government . . . , and in the case of 
any grant or gift given for educational purposes may expend said funds 
for the purposes of such grant or gift with the approval of the school 
committee . . . ." 

Thus, the receipt of federal grants for educational purposes may be 
approved by a given school committee; but nothing in c. 44, § 53A 
indicates that such grants may be applied for or used on a cooperative 
basis. 

Ordinarily, where school committees have been empowered to act 
jointly, the General Court has made specific provision to such effect. You 
cite a number of examples of such authorization in your request, 
including G. L. c. 71, § 38D (joinder for the purpose of employment of a 



346 P.D. 12 

Director of Occupational Guidance and Placement) ; G. L. c. 71, § 46 
(joinder in the instruction of mentally retarded children) ; and G. L. c. 
71, § 46G (joinder for the purpose of appointment of a school adjust- 
ment counsellor) . No statutory provision exists which authorizes the type 
of joint action by school committees referred to in your letter. Consider- 
ing the careful provisions enacted by the Legislature with regard to other 
cooperative efforts by local school committees, I can only conclude that 
the lack of specific statutory authorization indicates that the General 
Court has not — to this time — contemplated the kind of joint action in 
question. 

Accordingly, I answer both your questions in the negative. This 
would — as you suggest — appear to be an area which is especially 
appropriate for remedial legislation. 

Very truly yours, 

Edwakd W. Brooke, Attorney General. 



The Board of Library Commissioners continues to exist 'pursuant to G. 
L. c. 15, § 9, and to perform all the various functions and duties 
assigned to it by G. L. c. 78, § 14, et. seq. 

May 13, 1966. 
Hon. Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — Your recent request for an opinion 
contains the following paragraph: 

"In your opinion of March 9, 1966 it was held by you that '. . . despite 
the failure of the Legislature to repeal G. L. c. 15, §§ 9, 13 and 15A, the 
divisions to which these sections refer must go out of existence with the 
reorganization of the Department of Education pursuant to St. 1965, c. 
572.' Since the Division of Library Extension has gone out of existence, 
if the Board of Education under Chapter 572 of the Acts of 1965 
establishes what was formerly known as the Division of Library 
Extension as a 'bureau', will the Board of Library Commissioners as 
named in Chapter 15, Section 9 of the General Laws continue to operate 
the Bureau under the over-all direction of the Board of Education?" 

In my opinion of March 9, 1966, I said that the Division of Library 
Extension (see G. L. c. 15, § 9, as amended by St. 1960, c. 429, § 2) 
ceased to exist upon reorganization of the Department of Education by 
virtue of the provisions of G. L. c. 15, § IF (as added by St. 1965, c. 
572, § 2). However, I did not say, nor did I mean to imply, that the 
Board of Library Commissioners went out of existence with the Division. 
Section 9 of G. L. c. 15, states (in part) : 

"The division of library extension shall operate under the direction of 
the board of library commissioners and subject to the supervision and 
control of the board of education. The board of library commissioners 



P.D. 12 347 

shall consist of five persons, residents of the commonwealth, one of whom 
shall be annually appointed by the governor. ..." 

This language does not make the Division of Library Extension 
synonymous with the Board of Library Commissioners. The latter board 
continues to exist pursuant to G. L. c. 15, § 9, and to perform all the 
various functions and duties assigned to it by G, L. c. 78, § 14, et seq. In 
view of the continuing existence and authority of this board, it becomes 
unnecessary to consider whether the Commissioners may also be ap- 
pointed as a "bureau" within the Department. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



A swimming pool falls within the statutory definition of "structure", {G. 
L. c. 143, § 1) and accordingly the right of the Board of Standards 
to regulate the same must be determined in accordance with the 
provisions of §§ 3 and SJ of c. 143. Such authority to regulate the 
construction and safety of such pools is presently limited to 
providing regulations at the request of certain cities, towns or 
districts under said section. 

May 13, 1966. 

Hon. George W. Waters, Chairman, Board of Standards, Department 
of Public Safety. 

Dear Mr. Waters: — You have requested my opinion on the question 
"whether the Board [of Standards] has jurisdiction to promulgate 
regulations as to the construction and safety [of] swimming pools, 
inasmuch as Chapter 143, G. L. does not specifically make reference to 
swimming pools." 

The authority of the Board of Standards with regard to the regulation 
of buildings and structures is contained in G. L. c. 143, §§ 3 and 3J. As a 
prerequisite, however, to the application of either or both of those 
sections to the question raised, it must first be determined whether a 
swimming pool is a "structure." 

Chapter 143, § 1 defines "structure" as follows: 

" 'Structure', a combination of materials assembled at a fixed location 
to give support or shelter, such as a building, framework, retaining wall, 
tent, reviewing stand, platform, bin, fence, sign, flagpole, mast for radio 
antenna or the like. The word 'structure' shall be construed, where the 
context allows, as though followed by the words 'or part or parts 
thereof." 

It is clear from the above language that the Legislature has in fact 
intended that the word "structure" be given a liberal construction. The 
choice of a flagpole, a fence, or a sign as examples of a "structure" 
confirms the necessity for construing the term "structure" as broadly as 
possible. Consequently, in view of such intent and considering the 
examples given, it appears that a swimming pool does fall within the 



348 P.D. 12 

statutory definition of "structure," and that accordingly the right of the 
Board to regulate the same must be determined in accordance with the 
provisions of §§ 3 and 3 J of c. 143. 

General Laws c. 143, § 3 provides in part as follows: 

"Any city, town or district subject to this section may petition the 
board of standards to propose regulations relative to the construction, 
alteration and maintenance of buildings and other structures in such 
city, town or district, as the case may be; provided, that such petition 
shall have been authorized, in such a cit}'' by vote of its city council, or 
in such a town by vote of the town, or in such a district by vote of its 
district committee." [Emphasis supplied.] 

Under the language of this section, it is clear that the Board may, upon 
petition of the cities, towns or districts subject thereto, propose regula- 
tions. As such, the authority of the Board to regulate structures under 
this section is quite limited. The Board does not have the authority to 
promulgate regulations on its own motion ; it must be requested to do so 
by an appropriate municipality or district. In addition, such regulations 
may be rejected by the community which requested them. It is my 
opinion, therefore, that the authority of the Board to regulate the 
construction and safety of swimming pools under c. 143, § 3 is quite 
narrowly limited — as described above — by the express language of that 
section. 

General Laws c. 143, § 3J is also relevant to the regulatory authority 
of the Board. That section provides in part as follows: 

"The board of standards shall make and, from time to time, may 
amend, alter or repeal, regulations setting forth alternatives to the 
materials and to the type or method of construction, specified in the 
requirements contained or to be contained in any ordinance, by-law, rule 
or regulation, or in any special law applicable to a particular city or 
town, relating to the construction, reconstruction, alteration, repair, 
demolition, removal, use or occupancy, and to the standards of materials 
to be used in such construction, reconstruction, alteration, repair, demoli- 
tion, removal, use or occupancy, of buildings or other structures used for 
dwelling purposes in any city or town, or in a district referred to in 
section three. . . ." [Emphasis supplied.] 

While the language of this section does grant the Board authority to 
regulate certain buildings and other structures, that grant of authority is 
also somewhat limited. The language of § 3J limits the Board's 
regulatory power to "buildings or other structures used for dwelling 
purposes. . . ." Clearly, a swimming pool does not conform to the 
definition of "building" provided by c. 143, § 1. And giving the words 
"dwelling purposes" their normal meaning, it cannot reasonably be 
argued that a swimming pool is a "structure used for dwelling purposes." 
Consequently, it is my opinion that § 3 J, which gives to the Board the 
right to regulate "buildings or other structures used for dwelling pur- 
poses," cannot be construed to authorize the regulation of swimming 
pools. 

In light of the above, I conclude that the authority of the Board of 



P.D. 12 349 

Standards to regulate the construction and safety of swimming pools is 
presently limited to providing proposed regulations at the request of 
certain cities, towns or districts under c. 143, § 3. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Chapter 846 of the Acts of 1963 cannot he read so as to include any 
conditions upon a widow's right to receive an annuity other than 
those expressed in the plain ivords of that section. The remarriage of 
a widow icho is receiving an annuity pursuant to St. 1963 c. 846 
does not terminate her right to receive benefits thereunder. 

May 13, 1966. 

Hon. Robert Q. Crane, Chairman, State Board of Retirement. 

Dear Sir: — In a recent request for an opinion, you asked whether the 
widow of a deceased former member of the uniformed branch of the 
Massachusetts State Police is entitled, after remarriage, to continue to 
receive an annuity awarded under c. 846 of the Acts of 1963. 

Chapter 846 of the Acts of 1963 provides in part as follows: 

"For the purpose of promoting the public good, and in consideration of 
long and meritorious service of any member of the uniformed branch of 
the state police who has been retired for reasons of superannuation or for 
reasons of disability after having completed at least twenty years of 
service, and who at the time of his retirement did not have the right to 
elect to receive a lesser retirement allowance so as to provide a survivor 
allowance for his widow, the state board of retirement shall pay to the 
surviving widow of such member an annuity amounting to fifteen 
hundred dollars; provided that such widow is not receiving a retirement 
allowance or pension under the provisions of any general or special 
law." 

Analysis of this section reveals that it contains two sets of conditions 
which operate at two different times. The first group refers to the State 
Police member while still alive; the second set qualifies the right of the 
widow to receive the annuity. For purposes of this opinion, it is assumed 
that all of the conditions expressed in c. 846 have been met. Therefore, 
the State Board of Retirement is compelled to pay a $1,500 annuity to 
the widow. 

The question which you have presented is one of statutory construc- 
tion. Since there is no expressed indication that remarriage of a widow 
terminates the annuity, it must be determined whether such an alterna- 
tive can be implied from the phraseology of St. 1963, c. 846. 

It is my opinion that it cannot. Massachusetts statutes contain many 
instances of termination of a survivorship allowance upon the remarriage 
of a widow. See G. L. c. 32, §§ 9(2) (a), 12B, 85J (Option B), 88, 89, 
89A, 89B, 89C, 95 and 95A. However, merely because statutes in an area 
similar to that of c. 846 of the Acts of 1963 provide for a contingency 
which is omitted in c. 846, it cannot be concluded that such provisions 



350 P.D. 12 

are implicit in c. 846 itself. Basic principles of statutory construction 
govern this case. 

". . . no intent can be read into a statute which is not there either in 
plain words or by fair implication. There are no means of ascertaining 
the purpose and effect of a statute except from the words used when 
given their common and approved meaning. They are to be read in the 
light of attendant conditions and the state of the law existent at the time 
of their enactment. But they cannot be stretched beyond their reasonable 
import to accomplish a result not expressed." 

Emile F. Bergeron, Petitioner, 220 Mass. 472, 475. 

In Mitchell v. Mitchell, 312 Mass. 154, the Court, in reviewing 
principles of statutory construction said, (p. 161) : 

'Tf the omission was intentional, no court can supply it. If the 
omission was due to inadvertence, an attempt to supply it by including 
the omitted case would be tantamount to adding to a statute a meaning 
not intended by the Legislature. . . ." 

It is my opinion that c. 846 of the Acts of 1963 cannot be read so as to 
include any conditions upon the widow's right to receive the annuity 
other than those expressed in the plain words of that section. Accord- 
^iigly, it is my opinion that the remarriage of a widow who is receiving 
an annuity pursuant to St. 1963, c. 846 does not terminate her right to 
receive benefits thereunder. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Cable Antenna Television services {CATV) is an extension of the 
interstate television broadcast whose signals CATV carries. Since 
Congress intended to occupy the field of television regulation in its 
entirety, and since community antennas are an adjunct in aid of 
television reception within the television broadcasting field, general 
state regulation of community antennas has been precluded by the 
Federal Communications Act. The general type of regulation and 
supervision contemplated by House Bill 238 is not ivithin the 
authority of the Commonwealth. 

May 25, 1966. 

Hon. William C. Maiers, Clerk of the House. 

Dear Mr. Maiers: — You have transmitted to me a copy of an order 
adopted by the House of Representatives on May 5, 1966, which relates 
to a proposed measure which would place cable antenna television 
services (commonly known as CATV) under the jurisdiction of the 
Department of Public Utilities. This order contains a request for the 
opinion of the Attorney General on the following question: 

"Would House Bill 238, entitled 'An Act placing cable antenna 
television services under the jurisdiction of the department of public 



P.D. 12 



351 



utilities,' if passed, violate any provision of the Constitution of the 
Commonwealth or of the United States?" 

The Act in question provides as follows: 

"Chapter 159 of the General Laws is hereby amended by inserting 
after section 12 the following section: — 

"Section 12 A. The department shall have general supervision and 
regulation of, and jurisdiction over cable antenna television services, and 
shall after a hearing upon its own motion or upon complaint determine 
just and reasonable rates and charges to be charged for the service to be 
rendered." 

I believe that a brief description of the nature of the cable antenna 
television services operation will be helpful. 

By placing a master antenna at a selected point, usually one of great 
height, a CATV operator can capture the signals of regular television 
stations in nearby communities. The system amplifies the signals and, by 
means of cable, relays them to the homes of paying subscribers who 
ordinarily could not receive them from the originating stations. Thus it is 
apparent that CATV has both interstate and intrastate characteristics. 
Admittedly, the equipment used by any given CATV organization will 
be found entirely within the confines of a particular state, and that 
organization services subscribers within that state alone. A decision as to 
whether CATV does or does not operate within the channels of interstate 
commerce is not simple to arrive at, and — considering the fact that the 
concept of CATV is a recent one — there are few guidelines. 

However, it is my opinion that CATV is an extension of the interstate 
television broadcast whose signals CATV carries. In Lilly v. United 
States, S34F£d 584, 587 {1956) the Court stated that a CATV system 
was "a mere adjunct of the television receiving sets with which it was 
connected." See also Community Television Systems of Wyoming, 17 
Pike & Fischer, RR 2135, Wyoming District Court. 

In exercising its power to regulate commerce among the states (see U. 
S. Const. Art. I, § 8), Congress assumed control of television regulation 
through the Federal Communications Act of 1934 (FCA). The Com- 
munications Act, taken as a whole, constitutes a broad grant of power to 
the Federal Communications Commission. The goal of the act is the 
regulation of interstate commerce in communications by wire and radio 
"to make available ... to all the peop