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

Public Document No. 12 

REPORT ^- ^ 

OF THE 

ATTORNEY GENERAL 

FOR THE 

Year ending June 30, 1967 



^ 







Publication of this Document Approved by Alfred C. Holland, State Purchasing AcENt 
lM-5-68-947301 * Estimated Cost Per Copy: $3,975 



S'l>^i'^ 









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Boston, December 6, 1967. 

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, 1967. 

Respectfully submitted, 

Elliot L. Richardson, 

Attorney General. 



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DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
ELLIOT L. RICHARDSON 



First Assistant and Deputy Attorney General 

Edward T. Martin' 
Levin H. Campbell* 



Assistant Attorneys General 



Christopher J. Armstrong^' 
Richard E. Bachman 

AlLEEN H. BeLFORD 

Oscar S. Burrows 
Levin H. Campbell 
Donald L. Conn^ 
Nelson I. Crowther, Jr.'' 
Alan J. Dimond 
Samuel W. Gaffer 
Paul N. Gollub 
Frederic E. Greenman 
Henry S. Healy" 
Robert L. Hermann 
William Kendrick, Jr/ 



Carter Lee 
Martin A. Linsky 
Robert L. Meade 
Howard M. Miller 
Paul F. X. Powers 
Glendora M. Putnam 
Theodore Regnante, Sr. 
John J. Roche^ 
Charles H. Rogovin* 
George R. Sprague 
David A. Thomas 
Herbert F. Travers, Jr. 
Herbert E. Tucker, Jr. 
Henry Weaver 



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



Assistant Attorneys General assigned to Department of Public Works 



Burton F. Berg 
Coleman G. Coyne 
Frank H. Freedman 
James N. Gabriel 
Edward D. Hicks 
Richard A. Hunt" 
Daniel J. Leonard 



Harold Putnam 
Rudolph A. Sacco 
Richard L. Seegel 
John E. Sheehy 
F. Dale Vincent, Jr. 
James G. Walsh, Jr. 
John W. Wright 



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

Assistant Attorneys General assigned to the 
Division of Employment Security 

Joseph S. Ayoub James Twohig 

Assistant Attorney General assigned to Veterans' Division 
Richard E. Mastrangelo 



Chief Clerk 
Russell F. Landrigan 



Head Administrative Assistant 
Edward J. White 



^Appointed, February 6, 1967 "Appointed, May 1, 1967 

'Resigned, February 28, 1967 'Resigned, May 2, 1967 

"Resigned, March 3, 1967 "Appointed, May 3, 1967 

'Appointed, March 6, 1967 "Appointed, May 15, 1967 

'Appointed, April 17, 1967 ^"Resigned, May 31, 1967 



P.D. 12 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period July 1, 1966 — June 30, 1967 

Appropriations 

Attorney General's Salary $ 25,000.00 

Administration, Personal Services and Expenses 971,395.00 

Veterans' Legal Assistance 18,160.00 

Claims, Damages by State Owned Cars 100,000.00 

Moral Claims 8,000.00 

Capital Outlay Program, Equipment 1,481.02 

Total $1,124,036.02 

Expenditures 

Attorney General's Salary $ 24,905.29 

Administration, Personal Services and Expenses 971,333.67 

Veterans' Legal Assistance 18,142.58 

Claims, Damages by State Owned Cars 100,000.00 

Moral Claims 8,000.00 

Capital Outlay Program, Elquipment 664.30 

Total $1,123,045.84 



Incom-e 

Fees — Filing Reports — Charitable Organizations .... $ 13,692.00 

Fees — Registration — Charitable Organizations 2,676.00 

Fees — Professional Fund Raising Council or Solicitor .... 70.00 

Miscellaneous 705.00 

Total $ 17,143.00 



Financial statement verified (under requirements of C. 7, S. 19, G. L.), January 29, 
1968. 

By JOSEPH T. O'SHEA, 

For the Comptroller 



Approved for publishing. 



M. JOSEPH STACEY, 

Comptroller 



P.D. 12 

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Department of the Attorney General 
Boston, December 6, 1967 

To the Honorable Senate and House of Representatives: 

Pursuant to the provisions of section 11 of chapter 12 of the General 
Laws, as amended, I herewith submit my report. 

The cases requiring the attention of this department during the fiscal 
year ending June 30, 1967, totaling 26,068, are tabulated as follows: 

Extradition and interstate rendition 114 

Land Court petitions 140 

Land Damage cases arising from the taking of land: 

Department of Public Works 1,572 

Metropolitan District Commission 90 

Civil Defense 1 

Department of Natural Resources 21 

Department of Public Safety 2 

Department of Public Utilities 1 

Government Center Commission 6 

Southeastern Massachusetts Technological Institute .... 8 

Town of Tewksbury Water Commissioners Board .... 1 

Town of Wilmington 1 

University of Massachusetts 4 

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

Commonwealth 12,475 

Estates involving application of fuiads given to public charities . . 2,471 

Settlement cases for support of persons in State institutions . . . 1,317 

Small Claims against the Commonwealth 116 

Workmen's compensation cases, first reports 6,316 

Cases in behalf of Employment Security 623 

Cases in behalf of Veterans' Division 789 



Introduction 

My first Annual Report as Attorney General of the. Common wealth of 
Massachusetts, as required by G. L. c. 30, § 32, encompasses the fiscal 
year from July 1, 1966, through June 30, 1967. During the first half 
of this period the Department was under the direction of Attorney Gen- 
eral Edward W. Brooke and Attorney General Edward T. Martin. 

During my first six months as Attorney General I have devoted a great 
deal of time to a careful analysis of the Department, assessing its strengths 
and weaknesses. I have instituted changes where, in my judgment, change 
was necessary, and have endeavored to preserve the l>est of existing prac- 
tice. My goal has been to provide to the Commonwealth and its citizens 
the highest quality of legal services in an efficient and capable manner. 



P.D. 12 . 9 

In this task, I have been most fortunate in being able to build on the ex- 
cellent work of my predecessor, Attorney General Brooke. 

The primary responsibility of the Department of the Attorney General 
is to advise and represent the government of the Commonwealth. As 
new laws are passed, and as the government of the Commonwealth as- 
sumes new functions, lawyers in the Department must handle a work 
load which constantly grows in volume, and which presents novel ques- 
tions requiring extensive research. In view of this fact I have given the 
highest priority to ensuring that the Department will have the services of 
the best legal talent available. Since January, over 200 interviews have 
been held, and the quality of prospective attorneys has been high. A 
number of excellent attorneys have joined the Department including — 
to mention only two — Assistant Attorney General Alan J. Dimond. a 
leading member of the Massachusetts bar, who is now serving as Chief 
of the Administrative Division, and Assistant Attorney General Charles H. 
Rogovin, former chief prosecutor in the Philadelphia District Attorney's 
office and the Assistant Director for organized crime of the President's 
Commission on Law Enforcement and Administration of Justice. Mr. 
Rogovin is directing our activities in the organized crime field. I am 
confident that through an active recruiting effort, operated on a strictly 
non-partisan basis, we will continue to obtain the highly qualified lawyers 
needed for the work of the Department, even though our salary levels 
fall far short of what I would like to see. 

My task has been made easier by the fact that over 50% of the able 
staff assembled by Attorney General Brooke, including nine of its twelve 
Division Chiefs, have remained with the Department. During much of 
my first six months in office, I have had the valuable assistance of First 
Assistant Attorney General Edward T. Martin who served my predeces- 
sor in the same capacity. It is with deep regret that I accepted Mr. 
Martin's resignation in May, upon his leaving to serve as the Governor's 
executive secretary. His successor as First Assistant is Levin H. Camp- 
bell, an attorney who has served ably under both my predecessor and 
myself. 

Since taking office I have substantially increased the Department's 
activities in the field of criminal law by creating an Organized Crime 
Section. If the Commonwealth is to mount a successful attack on the 
activities of organized crime there must be a centralized statewide effort, 
operating on a continuing basis. The Department of the Attorney General 
is the agency most capable of performing the task of coordinating such 
a statewide effort. We are thus in the process of assembling a small but 
highly skilled team of investigators and attorneys, and laying the ground- 
work for a concerted attack on organized crime. Massachusetts is the 
first state in the nation to form a unit of this nature. An organized 
crime unit in the Department of the Attorney General cannot, of course, 
do the job alone. It will not supersede other law enforcement agencies 
of the Commonwealth. Most of the investigative, police and prosecutorial 
work will continue to be done by these agencies, whose personnel far 



10 . P.D. 12 

outnumber the manpower that is now, or in the future can be, available 
to the Department of the Attorney General. But this Department can 
give essential leadership to an overall effort, replacing the fragmented 
approach which has proved unsuccessful in the past. 

The Attorney General is not only the Commonwealth's lawyer and its 
chief law enforcement officer. He is also, in many respects, the people's 
lawyer, charged with protecting the public interest. As Attorney General 
I intend to emphasize this aspect of the office and to develop it more 
extensively. I have already established a Consumer Protection Division. 
This Division will assist the buying public by investigating complaints 
brought by individual citizens, and by developing protective legislation. 
It will continue to carry out the Attorney General's responsibility for 
bringing anti-trust actions on behalf of the Commonwealth and the cities 
and towns. 

Plans are also underway for the creation of a Citizen's Aid Bureau 
within the Department. This Bureau will assist citizens who have com- 
plaints and questions about government. It will be in operation shortly, 
and is one more example of the way in which the Attorney General can 
function as Attorney for the people. 

Because the Department of the Attorney General is in close touch with 
the operations of state government as well as with the administration 
of justice in the Commonwealth, this Department is in an excellent posi- 
tion to draft and sponsor legislation dealing with these vital matters. 
I intend to devote a substantial portion of my efforts to the constant 
review of our laws, and will recommend changes in existing statutes 
and the enactment of new ones whenever doing so will benefit the citizens 
of the Commonwealth. This year I proposed 33 new measures for con- 
sideration by the Legislature. A list of these proposed acts appears as 
Exhibit "A." 



Administratiye Division 

The work of the Administrative Division covers a broad spectrum of 
state government, and its members frequently deal with matters of major 
public significance. Its primary areas of responsibility are constitutional 
law and administrative law. It answers requests for legal opinions from 
constitutional officers and from state departments, agencies and com- 
missions. Attorneys from the Division appear in court for the Common- 
wealth in civil cases, advise the Governor as to the constitutionality of 
pending legislation, and review town by-laws. 

An important part of the work of this Division is the drafting of the 
opinions of the Attorney General. The Attorney General issues formal 
opinions in response to written requests by state officials for legal advice 
on matters pending before them. During the past fiscal year, 123 such 
opinions were issued, and they are included in this report. In addition, 
attorneys in the Division responded informally to many other requests 



P.D. 12 11 

for legal advice. Most of the questions dealt with in formal opinions are 
novel and difficult, and they are often important. In one opinion, the 
Department of Public Works was advised that an employee suspended 
under the "Perry Law" upon the employee's being indicted in connec- 
tion with the duties of his office was entitled to immediate reinstatement 
to his office whenever the criminal charges terminate without a guilty 
verdict. In another opinion the Attorney General advised the Commis- 
sioner of Education as to the proper method of calculating the respective 
share of sales tax revenues for school aid due the cities and towns of the 
Commonwealth. 

The Administrative Division is also responsible for drafting opinions 
interpreting the Conflict of Interest Law (G. L. c. 268A). The Division 
is engaged in continuous study and interpretation of that statute, and 
this work has unquestionably added to the effectiveness of this essential 
law. During the last fiscal year, 68 conflict of interest opinions were 
issued to state employees. The Division also continued its practice of in- 
fomial consultation with state agencies, city solicitors, town counsels, 
and other local officials in connection with the Conflict of Interest Law. 

The litigation handled by the Administrative Division includes some of 
the most complex and significant cases which come before the courts. 
The Division is responsible for all civil litigation affecting constitutional 
officers, and much litigation involving state agencies and departments. 

During the period covered by this report the case of School Committee 
of Boston V. Board of Education was argued before the Supreme Judicial 
Court, and the Court handed down a decision favorable to the Common- 
wealth. The School Committee challenged the constitutionality of the 
Racial Imbalance Act (G. L. c. 76, § 12A) enacted in 1965. In view 
of my great interest in this legislation and the issues involved I argued 
the case personally. The decision upholding the statute has been appealed 
by the School Committee to the Supreme Court of the United States. 

Another case of major significance was argued before the Supreme 
Judicial Court during the last fiscal year : First Agricultural National 
Bank of Berkshire County v. State Tax Commission. The Bank has 
sought a binding declaration that it is exempt from the Sales and Use 
Tax which the Commonwealth recently enacted. The matter was reserved 
and reported without opinion by a single justice, and the Court's decision 
can be expected in the near future. The case has important implications 
for the administration of the tax, and raises the question whether national 
banks should continue to be immune under McCulloch v. Maryland from 
non-discriminatory state taxation. 

Other major cases which the Administrative Division has handled dur- 
ing the last fiscal year include the litigation involving the apportionment 
of the Massachusetts Congressional Delegation and that of the General 
Court (Dinis v. Volpe), and the litigation relative to the merger of the 
Pennsylvania and the New York Central Railroad (B & O Railroad v. 
United States). 



12 P.D. 12 

These cases are examples of the extraordinary matters which come 
before the Administrative Division. The great bulk of its day-to-day 
work consists of advising and representing in court the numerous boards, 
commissions, and agencies of the Commonwealth. During the last fiscal 
year, proceedings before the Alcoholic Beverages Control Commission, 
the Civil Service Commission, and the Outdoor Advertising Board have 
required a great deal of attention. 

Members of the Division have been called upon to perform numerous 
other tasks. For example, they represented the Commonwealth's interests 
in hearings before the Interstate Commerce Commission involving the 
New Haven Railroad, and they made frequent appearances before legis- 
lative committees in connection with the Attorney General's legislative 
program and other proposed legislation. In addition, attorneys from this 
Division were resix)nsible for reviewing and preparing simimaries of the 
four constitutional amendments submitted to the voters at the November 
election. After the passage of the so-called Home Rule Amendment, 
members of the Administrative Division have held numerous conferences 
with local officials to determine the impact of this important amendment. 

Finally, it must be mentioned that the Administrative Division con- 
tinues to receive a constant stream of inquiries and requests for advice 
both from officials and from the public at large. 



Division of Civil Rights and Civil Liberties 

This Division is responsible for ensuring that the constitutional and 
statutory provisions guaranteeing the civil rights and civil liberties of 
citizens are vigorously enfoixed and are respected by all. Thus, the mem- 
bers of the Division are frequently called on to deal with exceedingly 
difficult and sensitive matters. I consider this Division's work to be of 
the utmost importance. To advise and assist it I have reinstituted the 
Attorney General's Advisory Committee on Civil Rights and Civil Liber- 
ties. This Committee is composed of members of church, social and civic 
organizations, and lawyers and law teachers concerned with these prob- 
lems. 

The major portion of this Division's work consists of advising the 
Massachusetts Commission Against Discrimination (MCAD) and repre- 
senting it in court. This Commission administers the laws relating to dis- 
crimination in housing, education, employment, union membership and 
places of public accommodations, when such discrimination is based on 
race, color, religion, national origin and national ancestry and, in the areas 
of employment and union membership, sex and age. 

The work of the MCAD led to several important cases during the last 
fiscal year. Local Finance Co. of Rockland v. MCAD involves the ques- 
tion of whether a finance company is a place of public accommodation. 
The Commission's order was reported by the Superior Court without 
opinion to the Supreme Judicial Court. LaPierre v. MCAD involves a 



P.D. 12 13 

Commission finding of discrimination in housing. The respondent ap- 
pealed from the Commission to the Superior Court, which, after hearing, 
ordered the case dismissed for lack of substantial evidence. The Com- 
mission had found discrimination on account of national origin, but the 
Superior Court determined that there was no evidence that the com- 
plainant, a Puerto Rican, was born outside the U. S. The Commission, 
being of the opinion that the terms "national origin" and "national an- 
cestry" are used interchangeably in the context of anti-discrimination 
statutes, has appealed to the Supreme Judicial Court. The case of Strong 
V. MCAD, involving alleged discrimination in employment on account of 
color, was dismissed by the Commission after public hearing. The order 
was affirmed both by the Superior Court and by the Supreme Judicial 
Court. Chicopee School Committee v. MCAD, an appeal now pending in 
the Supreme Judicial Court from a finding of the Superior Court uphold- 
ing the Commission's order, is the first case dealing with discrimination 
based on age in employment. The case of Katzman v. MCAD, involving 
discrimination in rental housing, was remanded to the Commission by the 
Superior Court on the Commission's motion. While judicial review was 
pending, the attorneys for the parties were able to effect a settlement which 
was embodied in an agreement by the Commission, and the case was 
closed. Besides representing the MCAD in proceedings brought to review 
its orders, attorneys from this Division frequently appear in court to en- 
join persons against whom a complaint alleging discrimination in hous- 
ing is pending from disposing of the property before the complaint is de- 
cided. 

In addition to working with the MCAD, the Division of Civil Rights 
and Civil Liberties directed a major overhaul of the Commission's publi- 
cation "Compilation of Laws Against Discrimination," to include all of 
the recent changes and additions to the anti-discrimination laws. The 
Division also assisted the Commission in revising its Rules of Practice 
and Procedure, bringing them up to date with the "Uniform Rules for 
Adjudicatory Proceedings before Administrative Agencies," issued by the 
Department of the Attorney General. 

After studying the serious problem of visitation rights for migrant 
workers living on the property of their employers, the Division recom- 
mended and subsequently drafted legislation to extend and safeguard 
those rights. 

In addition, the Division is called upon to deal with numerous inquiries 
from the public at large. These sometimes involve complaints by citizens 
about activities by officials of local and state government. In all such cases 
the members of the Division conduct an investigation and endeavor to see 
that the citizen's rights are protected. 

Consumer Protection Division 

The Division of Consumer Protection was created on January 18, 1967. 
It will seek to eliminate consistently fraudulent practices through enforc- 



14 P.D. 12 

ing legislation designed to aid the consumer (e.g. the Retail Installment 
Sales Act of 1966), recommending and drafting new legislation where 
necessary, and increasing the availability of educational material for the 
consumer. The Division is also involved in cooperating with the Better 
Business Bureaus, the Consumers' Council, the Retail Trade Board, In- 
dustry Associations, and legal aid societies for the benefit of the consumer. 

Since its creation, this Division has handled approximately 450 written 
complaints and received approximately 4,500 complaints and inquiries by 
phone. Each complaint is processed, and in most cases a satisfactory solu- 
tion is reached. Though some complaints are readily disposed of, others 
require extensive investigation, often leading to the uncovering of other 
defrauded consumers. Of the 35 investigations undertaken since January, 
the following were of particular significance : the fishing industry in 
Southeastern Massachusetts, to determine the possibility of price fixing 
among the wholesalers ; the finance industry of Massachusetts, to deter- 
mine the extent to which finance companies were using kickbacks to auto- 
mobile dealers to gain business ; the Diversified Products Company, to 
determine if they were defrauding their franchise dealers by failing to 
discharge all its obligations to them; several dairy companies, to deter- 
mine if the pricing of their products constituted an unfair trade practice; 
and, the Juliet Gibson Career & Finishing School, to determine if they 
were defrauding the students by taking their tuition and failing to pro- 
vide them with a sufficient number of teachers. In each of these cases 
satisfactory conclusions were obtained by the Division after prolonged 
discussions between the parties. 

Two of the investigations resulted in injunctions. One Franklin Clif- 
ford was temporarily restrained from improperly using the name AFL- 
CIO and representing himself as having ties with the union for his own 
benefit. In the Crescent Pool Company case, the company was enjoined 
from engaging in "bait and switch" and other types of misleading adver- 
tising practices. After this case, I met with the Swimming Pool Associa- 
tion of New England and outlined to its members what we considered to 
be fair advertising guidelines for that industry. 

An additional phase of consumer protection in which the Division is 
actively engaged is the prosecution of anti-trust violations. Two such cases 
are presently being prosecuted, and two are in the preparatory stage. In 
Commomvcalth v. Morton Rock Salt Company, et al., the Division has 
commenced discovery procedures and looks to substantial recovery when 
the litigation is concluded. Another investigation by this Division deter- 
mined that certain publishing companies have been engaged in a price 
fixing conspiracy with regard to library editions of school books, and the 
Division plans to initiate suit in the near future. 

The activities of the Division have included attending conferences and 
meeting with members of various agencies and departments of both the 
Commonwealth and the federal government to review areas of common 
interest and concern ; filling numerous requests for copies of Massachu- 
setts consumer protection laws from both private individuals and con- 



P.D. 12 15 

sumer fraud agencies throughout the country ; preparing for pubHcation 
of a Consumers Handbook to provide the consumer with information 
and facts which will enable him to better protect himself from fraud and 
deception; and addressing groups such as the Associated Bedding Manu- 
facturers of New England and the Massachusetts Weights and Measures 
Conference regarding the work of the Division. 

The attendance at legislative hearings in support of new consumer legis- 
lation is an important aspect of this Division's work. In particular, the 
Division supported a bill to regulate credit life insurance and a bill en- 
larging the jurisdiction of the small claims court from $150 to $200. In 
addition, members of the Division have met with state representatives 
and senators and interested private parties in order to explain and to seek 
their counsel on pending legislation. The Division is also actively work- 
ing against strong opposition to get the Deceptive Practices Act approved. 
This bill would generally outlaw all unfair deceptive trade practices in 
Massachusetts which are similar to those outlawed by the Federal Trade 
Commission Act. It would give the Attorney General certain subpoena 
powers in the deceptive practices area, allow speedy injunction against 
such acts without the necessity of showing "scienter," allow for assurances 
of discontinuance, and in certain situations provide for corporate dissolu- 
tion. The Act would also give this Division the benefit of 50 years of 
FTC experience in the field and enable it to act swiftly and strongly in 
civil litigation against unfair trade practices. 

The success of this Division's initial eflforts, and the large volume of 
complaints it has received from the public are strong indications of the 
need for vigorous state action to protect the consumer. The work of this 
Division will make Massachusetts one of the leaders in this vital field. 

Contracts Division 

The activities of the Contracts Division include the trial of highway 
and building construction cases ; appearances on motions incident to these 
cases ; the arguing and briefing of appeals ; the approval of public con- 
tracts, bonds, and leases ; and conferences with officials from over 80 state 
agencies concerning their questions arising out of state contracts. 

The general classes of litigation regularly handled by this Division are 
as follows: (1) Claims against the Commonwealth under G. L. c. 258, 
§ 1. These claims are generally for "Alterations" or "Extra Work" under 
Articles 22 and 23 of the Standard Specifications for Higlnmys and 
Bridges. (2) Cases brought by sub-contractors under G. L. c. 149, § 29, 
wherein the Commonwealth is improperly joined with the general con- 
tractor's surety. The procedure in this Division has been to file a de- 
murrer to these petitions. This demurrer has been routinely sustained 
since the Petitioner (the sub-contractor) is entitled to relief only against 
the surety in a proceeding under G. L. c. 149, § 29. (3) Claims by sub- 
contractors against the retainage held by the Commonwealth under the 
provisions of G. L. c. 30, § 39F. The Commonwealth answers to these 



16 P.D. 12 

claims on the merits and defends them at trial. (4) Cases wherein the 
Commonwealth is the Petitioner. These are generally against bonding 
companies where the contractor has been defaulted on the job, or are in- 
stances where the contractor has otherwise breached a contract with the 
Commonwealth. (5) Cases wherein the Division appears on behalf of an 
awarding authority to oppose the issuance of an injunction that would 
prohibit the award of a contract, or restrain the prosecution of work under 
an awarded contract. 

A total of 150 cases were disposed of during the last fiscal year. 

One of the more significant cases was Construction Service v. Common- 
tvealth. The contractor originally sought approximately two million dol- 
lars in damages. The case was tried before an Auditor who awarded 
approximately $550,000, including $355,048.67 for twenty-two so-called 
sewer claims. In the Superior Court, the contractor was awarded $222,- 
801.66. of which $97,046.10 was retainage, $20,000 was a return of liqui- 
dated damages, and $34,141.64 represented interest on certain amounts due 
prior to the commencement of the action. The balance of the judgment, 
about $70,000, was awarded for claims for damages. A settlement was 
finally efi'ected whereby the contractor terminated his appeal upon receipt 
of $25,000 in addition to the Superior Court award. 

Two cases were prepared and argued before the Supreme Judicial 
Court. In Town of Fahnouth v. Division of Fisheries and Game, the 
Court dismissed a bill seeking to enjoin the Division from making use 
of land that it had acquired in Falmouth. In Wes- Julian Construction Co. 
V. Contmonzi'ealth, the Court sustained the Commonwealth's exceptions 
relating to delay and changes in the excavation requirements, totaling 
$102,915.35. The Court ruled that in view of the specific provisions in 
the contract relating to delay, the contractor was not entitled to damages 
for delay. 

In addition to its involvement in litigation, the Division has been called 
upon to attend conferences with various department heads and officials, 
investigate factual background of contract disputes, research statute and 
case law, and prepare legal memoranda and opinions on matters pertaining 
to bidding, execution of contracts, defaulting contractors and the prose- 
cution and defense of pending cases. 

The Division continues its assignment of reviewing and approving the 
form of contracts, bonds and leases between various state agencies and 
contractors, suppliers and manufacturers. Approximately 75-100 such 
contracts are submitted to this Division each week. Also, the form of all 
documents prepared in connection with note issues and notice of sale of 
bonds under financial assistance housing programs for the elderly and 
veterans of low income is reviewed and approved by this Division. 

Criminal Division 

The Organized Crime Section mentioned in the Introduction has been 
created and is in the initial phases of operation. The first priority is to 



P.D. 12 17 

assemble a staff and develop a comprehensive picture of the nature and 
scope of organized crime in Massachusetts. Much attention has been 
given to developing close cooperation with other law enforcement agencies. 

The regular work of the Criminal Division has, of course, continued 
during the last fiscal year without let up. Most of this work can be 
divided into two major categories : the investigation and prosecution of 
offenses affecting the integrity of the state service, and representation 
of the Commonwealth in proceedings brought by prisoners and others 
held in state institutions. 

In three cases falling into the first category, the Supreme Judicial Court 
affirmed convictions obtained in the Superior Court. In Commonwealth 
V. Faviilli and Sullivan the Court upheld convictions of two members of 
the Executive Council for soliciting a bribe and for conspiracy to solicit 
a bribe. In Commonwealth v. Leonard a conviction for larceny from the 
Massachusetts Turnpike Authority was affirmed. And in Commonwealth 
V. Abbott Engineering and Mogavero convictions for larceny were upheld. 

In three other cases in the same category, members of the Criminal 
Division obtained convictions in the Superior Court. The first Small Loans 
Case was finally brought to trial after a lengthy period of pre-trial mane- 
uvering during which the defendants filed hundreds of special pleadings. 
The defendants were convicted and have appealed. Convictions were also 
obtained in the so-called "Turnpike" cases: Commonzvealth v. Kelly and 
Commomvealth v. Schnackenbcrg. In both cases the defendants have ap- 
pealed to the Supreme Judicial Court. 

The second Small Loans Case is currently at the pre-trial stage. It 
promises to be even more lengthy and complex than the first Small Loans 
Case. 

Another major case handled by the Criminal Division during the last 
fiscal year was Commomvealth v. Spindel. The defendant was convicted 
of violating the Eavesdropping Statute, G. L. c. 272, §§ 99-101. The case 
involved both the construction of the statute and its constitutionality. The 
Supreme Judicial Court affirmed the conviction. 

In the second category, members of the Division have been called upon 
to handle a large volume of extraordinary writs, primarily writs of error 
and petitions for habeas corpus, in both the state and federal courts. The 
number of such writs brought on behalf of prisoners is increasing, and 
can be expected to increase further as the United States Supreme Court 
hands down more decisions extending the constitutional rights of criminal 
defendants. The Division also represents the Governor in matters involv- 
ing the rendition and extradition of fugitives. 

Members of the public and public officials frequently come to the Divi- 
sion with complaints and information about suspected criminal activity. 
Complaints are carefully processed, and many of them are forwarded to 
the district attorneys and to state and local police for appropriate action. 
Complaints about matters within the primary jurisdiction of this Depart- 



18 P.D. 12 

ment, such as alleged misfeasance by state officials, are investigated by 
investigators assigned to the Department, and action is thereafter taken 
if warranted. We are in frequent touch with other law enforcement offi- 
cials throughout the Commonwealth, with whom we endeavor at all times 
to cooperate. 

Eminent Domain Division 

The Eminent Domain Division is concerned with litigation and prob- 
lems arising from the taking of private property by the Commonwealth 
for a public purpose. When the property owner is not satisfied with the 
price offered by the Commonwealth for his property, he petitions the 
Superior Court to assess damages under G. L. c. 79 and attorneys from 
this Division represent the Commonwealth in court. 

Great effort has been directed by this Division toward assuring that all 
people whose property has been taken are fairly, justly and promptly 
compensated. Procedures have been established to assure that every pend- 
ing case will be prepared and ready for trial at the earliest possible date. 
Indeed, in many instances the Commonwealth has moved for speedy trials. 
We recognize the unfairness and hardship that may result if cases are 
prolonged unduly. Summer court sessions, in cooperation with the Chief 
Justice of the Superior Court, have been held in those counties where the 
case load is particularly heavy. The savings in money to the Common- 
wealth and in irritation and aggravation to the individual property owner 
are substantial. 

The fiscal year started with 711 pending court cases. An additional 318 
cases were filed during the year. Three hundred ninety-three cases were 
disposed of, leaving 636 cases pending at the end of the fiscal year. 

The work of this Division, though mainly consisting of settlement or 
defense of land damage cases, is quite varied. The Division assists all 
agencies with their general real estate problems, and represents the Com- 
monwealth in all Land Court matters in which the Commonwealth has 
an interest. This general work involves over 300 cases a year. In addi- 
tion, the Division reviews the accuracy and form of all title abstracts and 
related documents made by the various state agencies covering land acqui- 
sition. 

Among the special problems handled by this Division were : a legisla- 
tive request to aid the Massachusetts Port Authority in their search for 
lost acreage at Logan Airport belonging to the Commonwealth ; legal 
problems relating to acquisition of the Governor's Mansion ; acquisition 
and lease of the Shirley Eustis House on behalf of the Massachusetts 
Historical Society ; and defending the Department of Public Works in 
equity proceedings for injunctions. 

A major problem during the year concerning the so-called Southwest 
Transportation Corridor has been whether the Commonwealth can take 
lands of the bankrupt New Haven Railroad. It is contended that Federal 



P.D. 12 19 

jurisdiction under the bankruptcy laws supersedes the powers of the 
Commonwealth to take property within its borders. A Petition for De- 
claratory Judgment has been argued in the Federal District Court. That 
Court found against the Commonwealth, and an appeal has been filed in 
the U. S. Circuit Court of Appeals and is awaiting argument. The result 
of this litigation may well affect the entire Southwest Corridor plans and 
the plans of the Massachusetts Bay Transportation Authority to expand 
its facilities to the South Shore over the median of the proposed roadway. 

In representing the state Department of Public Works, whose major 
function over the past several years has been the implementation of the 
Interstate Highway System, the Division has worked closely with the 
Federal Bureau of Public Roads and has earned high praise for its co- 
operation and work from the office of the General Counsel of that Bureau. 
In addition, the Federal Bureau has recommended to other states the use 
of forms designed by this Division for the implementation of Federal 
rules and regulations. 

This Division, as noted in the 1966 Annual Report, prepared a Manual 
of Eminent Domain Appraisal Law. During the current fiscal year the 
demand for this Manual by appraisers, lawyers, and state agencies has been 
so great that the original printing is almost exhausted. 

Four years of continuous work by the Division culminated in a pro- 
posed new Highway Code which was submitted to the 1966 Legislature 
(S. 885). During the last two years the Division has cooperated closely 
with the Highway Laws Study Commission, and with the members of its 
eleven working committees. 

The Division continues to participate in the drafting of formal opinions 
relating to land problems and handles numerous inquiries for informal 
opinions and legal advice from all state agencies. 

Employment Security Division 

The Employment Security Division works closely with the Massachu- 
setts Division of Employment Security. It prosecutes employers who are 
delinquent in paying the employment security tax and employees who file 
fraudulent claims for unemployment benefits. Its work has resulted in the 
recovery of substantial sums of money. 

During the fiscal year, 623 cases were handled by this Division. Of 
these, 371 cases were on hand at the outset of the year, and 252 new cases 
were thereafter received. Of the new cases, 147 were employer tax cases, 
103 were fraudulent claims cases, and 2 were appeals to the Supreme 
Judicial Court. 

Cases closed during the fiscal year totaled 146, of which 75 were em- 
ployer tax cases, 68 were fraudulent claims cases, and 3 were Supreme 
Judicial Court cases, leaving a balance of 477 cases. $82,625.77 was col- 
lected from employers and $41,161.40 collected as the result of fraudulent 
claims cases, making a total recovery for the Commonwealth of $123,- 



20 P.D. 12 

787.17. Steps were taken during the year to urge more prompt referral 
of cases to the Attorney General, so as to avoid expiration of the statute 
of limitations prior to the time that legal action can be commenced. 

Of the three cases argued before the Supreme Judicial Court during 
the year, two were James E. Brackbill, Jr. v. Director of the Diinsion of 
Employment Security and a companion case. In both cases the employing 
unit had only one employee. The petitioners contended that ( 1 ) The Em- 
ployment Security Act "exceeds constitutional limitations"; (2) "The 
changes made in the act since its original enactment exceed constitutional 
limitations"; (3) "The terms of the act are so vague as to deny due pro- 
cess of the Law." The Court upheld the validity of the act and sustained 
the position of the Director of the Division of Employment Security. 
The third case, Survey & Research Service, Inc., v. Director of the Divi- 
sion of Employment Security, was a petition for review of a decision of 
the Board of Review. The major issue presented was whether a notice 
complied with the provisions of G. L. c. 151A, § 42 as amended, after 
hearing. It was held that the deposit of a notice in the post office, within 
the time limited, was equally effectual with personal service thereof within 
the same time on the adverse party. The district court's order dismissing 
the petition was reversed. 

During this fiscal year, many conferences were held with the Regional 
Counsel of the Internal Revenue Service as to the priorities of claims of 
the Commonwealth between the Division of Employment Security and In- 
ternal Revenue Service. In one particular case the Division was able to 
expedite the collection of claims in the amount of $20,000.' 



Finance Division 

The Finance Division acts as counsel to the Commissioner of Banking, 
the Commissioner of Insurance, the Department of Corporations and Tax- 
ation, the Treasurer of the Commonwealth, the State Retirement Board, 
the Teachers' Retirement Board, and the Contributory Retirement Appeal 
Board. 

During the last fiscal year members of the Division argued three cases 
of considerable importance before the Supreme Judicial Court. Commis- 
sioner of Insurance v. First National Bank of Boston involved the power 
of the Commissioner to compel the appearance of witnesses at a hearing 
to investigate the aflfairs of a company in receivership. The Commissioner 
had been appointed receiver of the Suffolk Insurance Company. He called 
a hearing and subpoenaed the Bank. The Bank at first complied, but then 
refused to appear on the ground that the Commissioner had no power to 
hold the hearing. The Commissioner filed an application before a single 
justice to compel the Bank to appear. The Justice reported the case with- 
out decision to the full Supreme Judicial Court, and the Court upheld the 
Commissioner. The Court held that he had the power to investigate com- 
panies in receivership as well as going companies, and that there was no 
conflict between his role as Commissioner and his role as receiver. 



P.D. 12 21 

Massachusetts Port Authority v. Treasurer and Receiver General was 
a petition for declaratory judgment to determine the extent to which the 
Port Authority was responsible for the retirement allowances of certain 
of its former employees. The Superior Court reported the case without 
decision. The Supreme Judicial Court held that the Authority must reim- 
burse the Commonwealth for amounts allowed to former employees of the 
Authority on account of superannuation, ordinary disability and failure 
of re-appointment in the proportion as contended by the Commonwealth, 
and that it must reimburse the full amount paid by the Commonwealth as 
the result of accidental disability. The Commonwealth was ordered to 
reimburse the Authority for amounts it had expended for retirement al- 
lowances for veterans in the proportion that the employee's service with 
the Commonwealth, exclusive of service with the Mystic River Bridge, 
bears to the total period of his service. This case resolves many of the 
long standing questions as to just what obligations the Port Authority 
assumed when it was created in 1959. 

Harding v. Commissioner of Insurance involved a petition for writ of 
mandamus to compel the Commissioner to approve the calculation and 
amount of accidental death benefits awarded by the Worcester Retirement 
Board. The award had been made by the local board without a finding 
having been made that the death was the natural and proximate result of 
the injury for which the deceased had been retired. The petitioner argued 
that the Commissioner was limited to calculating the amount of the award. 
The Supreme Judicial Court held that this argument would place local 
retirement boards above the law, and affirmed the decision of the Superior 
Court dismissing the petition. 

A member of this Division sits as Chairman on the Contributory Re- 
tirement Appeal Board and acts as counsel for the Board. During the 
fiscal year 150 appeals from decisions of local boards were heard, and 17 
petitions for review of decisions of the Contributory Retirement Appeal 
Board were filed in the superior court. The Board continues to hear all 
appeals promptly, and each claimant's case is decided shortly after the 
filing of an appeal. 

The Division's work with the Treasurer and Receiver General of the 
Commonwealth involves such matters as the approval of state and county 
bonds and the determination of claims for the proceeds of insurance which 
have escheated to the Commonwealth. Many people fail to collect the pro- 
ceeds of insurance policies, through simple neglect, because the policy has 
been lost, or because the beneficiary does not know about the policy. When 
no claim is made to the insurance company within a reasonable period of 
time, the law requires it to turn the proceeds over to the office of the 
Treasurer. This Division advises the Treasurer whether he should make 
payment to the claimant and, if not, advises him as to the steps to be taken 
so that proper payment can be made. During the last fiscal year, approxi- 
mately 75 such claims passed through this Division. 

In addition, members of this Division are called upon by state officers 
and the public to give legal advice on questions pertaining to the sales tax. 



22 P.D. 12 

real estate tax exemptions, income tax refunds, retirement, insurance and 
other related matters. 

Division of Health, Education, and Welfare 

Increased governmental involvement in the fields of health, education, 
and welfare, together with growing public interest, have been accompanied 
by increase in the activity of the Health, Education, and Welfare Division 
during the last fiscal year. The Medicaid program, for example, and such 
state legislation as the Clean Waters Act, have generated whole new fields 
of responsibility for the Division. 

Moreover, besides furnishing a broad range of legal services to the de- 
partments of Public Health, Mental Health, Education, and Public Wel- 
fare, the Division began during the year to service the needs of several 
newly established agencies including the Medical Assistance Advisory 
Council, Board of Higher Education, Council of the Arts and Humani- 
ties, and Division of Water Pollution Control. 

The work has been extremely varied. Litigation included such matters 
as enforcement of agency orders relative to licensing of nursing homes, 
abatement of contamination of a source of public water supply, defense 
of appeals from administrative decisions of the Department of Public Wel- 
fare relative to Welfare claims, and defense of petitions challenging rates 
established by the Commissioner of Administration for reimbursement to 
hospitals for care of welfare patients. Although the total number of cases 
pending in the Division exceeded 225 during the year, the Division was 
successful in reducing the number to 154 cases as of the close of the 
period. 

An important part of the work of this Division consists of rendering 
assistance to state agencies which wish to participate in federally financed 
programs. The Division works closely with agencies in preparing federal 
grant applications, and prepares a letter verifying that the particular 
agency is authorized under state law to administer the federal program. 
Such an assurance is a prerequisite to obtaining federal funds. 

Air and water pollution have recently become matters of primary con- 
cern not only to the citizens of the Commonwealth, but also to this Divi- 
sion. With the establishment this year of the Division of Water Pollution 
Control of the Department of Natural Resources, the Division of Health, 
Education, and Welfare has played an active role in preparing for that 
agency's vigorous enforcement program through advice on such matters 
as the procedures required for promulgating regulations and issuing 
Orders. Members of this Division also consulted with the Division of 
Air Pollution Control to the end that the most effective, practicable pro- 
gram possible will be generated to combat the increasingly serious menace 
of air pollution. 

Another specialized endeavor of this. Division involves G. L. c. 71, § 34, 
which authorizes the Attorney General, upon request by a school commit- 



P.D. 12 23 

tee, to act to assure that each city and town budget is sufficient to support 
the public schools. This year, there were 6 requests from school commit- 
tees for action by the Attorney General, each of which was resolved to the 
satisfaction of the school committees. 

A proposed recodification of the laws governing commitment of men- 
tally ill persons (S. 1129), a bill to reorganize the structure of welfare 
administration (S. 804), a proix)sal to establish a rate setting commission 
(H. 4431), and a bill to provide hearings to determine whether or not 
certain inmates and patients in state mental institutions are illegally de- 
tained (H. 4918), are among the most significant pieces of legislation 
prepared or reviewed by the Division, and supported by the Department, 
during the year. 

Participation in the Mental Retardation Planning Project, commence- 
ment of a program to develop effective methods of instructing public 
school students on the harmful effects of drug abuse (in conjunction with 
the Department of Education), and publication of a manual entitled 
"Management of Administrative Records" (in conjunction with the Archi- 
vist and the Records Conservation Board), are other matters of particular 
interest to which the energies of the Division were devoted. 

One of the endeavors in which the Division has taken most pride has 
been its special effort to encourage agencies to call upon it for legal advice 
in the earliest stages of potentially troublesome situations. The result has 
been to avoid unnecessary litigation and to encourage closer cooperation 
between the Division and the agencies it services. 



Industrial Accidents Division 

This Division handles Workmen's Compensation cases involving State 
employees. The Commonwealth is a self-insurer and under the provisions 
of G. L. c. 152, § 69A, the Attorney General must approve all payments 
of compensation benefits and disbursements for related medical and hospi- 
tal expenses in compensable cases. Whenever the claim is contested, this 
Division represents the Commonwealth l)efore the Industrial Accident 
Board and, if an appeal is taken, in the Superior Court and the Supreme 
Judicial Court. 

During the last fiscal year the Supreme Judicial Court decided three 
cases argued by members of this Division : Sherman s Case, Kilcoyne's 
Case, and Da Lomha's Case. The last two cases presented questions of 
considerable interest and importance in the field of workmen's compensa- 
tion. In Kilcoyne's Case an attendant nurse who lived on the grounds of 
a state school fell and suffered injuries while carrying groceries into his 
quarters on his day off. The Court held that the employee's occupancy of 
quarters at the school at a low rent of $1.54 a week had "elements of 
convenience and advantage on both sides," since the employer could call 
him to fill in for absent employees. Thus, the injury arose out of and in 
the course of his employment and an award of compensation was sus- 



24 P.D. 12 

tained. In Da Lomba's Case the Supreme Judicial Court held that the In- 
dustrial Accident Board or any of its memhers must adhere to the Board's 
Rules in all proceedings. The Court reasoned that the Board might re- 
voke or amend its Rules, but that it was not free to disregard them in 
particular cases. 

During the year, a total of 6316 accident reports were filed on State 
employees' industrial injuries, a decrease of 139 over the prior year. Of 
the lost-time disability cases, the Division approved 1091 cases, an increase 
of 49 over the prior year. 

The Division handled 467 assigned appearances at the Industrial Acci- 
dent Board during this period, including hearings and pre-trial and other 
conferences. Not included in this total of Board assignments are an in- 
determinate number of informal conferences and sessions in which this 
Division participates at the Industrial Accident Board, especially those re- 
quired in the weekly review of new claims pending evaluation and approval 
by the Attorney General. 

Total payments made by the Commonwealth on State employees' claims 
under Chapter 152, including those on accepted cases, Board and court 
decisions and lump sum settlements, approved by the Industrial Accident 
Board, for the period July 1, 1966 through June 30, 1967 were as follows : 



Industrial Accident Board (General Appropriation)* 

Incapacity compensation $1,237,716.42 

Hospital costs, drugs, et al 215,008.20 

Doctors, Nurses, et al 180,027.75 



$1,632,752.37 



Metropolitan District Commission** 

Incapacity compensation $ 141,096.24 

Hospital and other Medical costs 44,763.45 

$ 185,859.69 

Total — All Disbursements 

Incapacity compensation $1,378,812.66 

Hospital and Medical costs 439,799.40 

$1,818,612.06 

These totals represent an increase in compensation payments of $139,- 
519.39 over the prior fiscal year. This increase is attributed to a number 

♦Appropriated to the Industrial Accident Board and administered through its Public Employees 
Section. 
**These disbursements are from MDC appropriated funds for payment of claims involving MDC 
employees. 



P.D. 12 25 

of factors, including a 10% statutory increase in the maximum weekly 
compensation payment to $58.00, effective November 15, 1965. The in- 
creased rate was in effect during the last fiscal year. 

In addition to its responsibilities in matters concerning state employees, 
the Division represents the Commonwealth in its capacity as custodian of 
the second-injury funds, under §§ 65 and 65N of c. 152. Members of 
the Division appear before the Board when insurers and self-insurers 
file petitions under §§ Z7 and 37A of c. 152. Payments of $500 are made 
by insurers and self-insurers into the General Industrial Accident Fund 
(§65) only in fatal industrial accident cases in which no dependents sur- 
vive, while payments of $500 are made into the Veterans' Industrial Acci- 
dent Fund (§ 65N) in all fatal cases without regard to dependency sur- 
vivorship. 

Because of the extremely limited funding process for the § 65 fund, 
special emergency legislation had to be enacted twice, in 1963 and 1965, 
in order to make it possible to make payments on proper claims against 
this Fund. Under this temporary legislation all payments were credited 
to a special fund under § 65. Thus all claims could be met. 

At the close of the last fiscal year, the General Fund held an unencum- 
bered balance of $139,479.33. Payments totalled $22,849.55 and receipts 
totalled $8,100. The amount of receipts should be contrasted with fiscal 
1966 when a total of $114,400.00 was received into the special fund, sub- 
stantially due to the temporary legislative act. 

Receipts in the Veterans' Fund (§ 65N) during the fiscal year were 
$60,750 with payments of $38,937.28 during the same period. As of June 
30, 1967 there remained an unencumbered balance of $244,680.06 in this 
fund. 



Public Charities Division 

The greatest volume of this Division's work relates to accounts of trus- 
tees, executors and other fiduciaries, petitions for probate of wills, appoint- 
ment of executors and trustees, licenses to sell real estate, and annual 
financial reports of charitable organizations filed in compliance with the 
requirements of G. L. c. 12. § 8F. During the last fiscal year several thou- 
sand such matters were handled by the Division. 

Attorneys for the Division handled a number of significant cases, in- 
cluding three before the Supreme Judicial Court. In Old Colony Trust 
Company v. Silliman, the Division supported the contention of the trustee 
that provisions in a will permitting the trustee to determine "whether ac- 
cretions to the trust property shall be treated as principal or income" did 
not make the amount of principal passing to charity on the death of the 
life tenants "not presently ascertainable." The Internal Revenue Service 
had disallowed charitable deductions from the Federal Estate Tax on the 
ground that the value of the charitable remainder could not be ascertained. 



26 P.D. 12 

The trustee and the executors petitioned for instructions. The Supreme 
Judicial Court accepted the position taken by the Division and the trustee. 
The Court held that the provision in the instrument did not substitute the 
discretion of the trustee for "the usual and understood rules applicable to 
fiduciaries." The Court said that the value of the remainder was, there- 
fore, reasonably ascertainable. The case was returned to the Probate 
Court for instruction. 

In Sleeper, Executor v. Camp Menotomy, Inc. the Division filed a brief 
in the Supreme Judicial Court in support of a decision by the Middlesex 
Probate Court that a $150,000 bequest to the Arlington Girl Scouts of 
Arlington, Massachusetts under the will of Edith M. Fox should go to 
the Mistick Side Girl Scout Council, Inc. rather than to Camp Menotomy, 
Inc. The latter was originally named Arlington Girl Scouts, Inc., but dis- 
associated itself from the Girl Scouts of America, in protest against the 
parent group's policy of organizing by areas rather than by particular 
cities and towns. The Supreme Judicial Court sustained the Probate 
Court's decision. 

The Division also appeared before the Supreme Judicial Court in the 
case of Essex County Bank and Trust Company v. Attorney General, in- 
volving the Bartholomeiv Donnelly estate. The Essex County Probate 
Court had rendered a decree in favor of a Catholic Home for the Blind 
in Jersey City, New Jersey. This decree was affirmed. 

During the last fiscal year the Division handled a number of important 
cy pres matters, i.e. cases in which it is not possible to use charitable funds 
for the particular purpose which the person establishing the trust intended. 
In these cases the court assists the trustees in determining the charitable 
use which will most nearly satisfy the original intent. In the Susanna K. 
Tobey estate, funds which had reached a total of $1,500,000 had been left 
to establish a home for aged women in Wareham. The probate court 
entered a decree permitting the funds to be used to assist the Tobey Hos- 
pital in Wareham. In the Ruth Holmes estate, funds which reached a total 
of $280,000 had been left for the purpose of founding an orphanage. The 
court permitted the trustees to use $125,000 of the fund to erect a chil- 
dren's wing at St. Luke's Hospital in Middleboro. The income from the 
balance of the fund is to be used for scholarships for children from Car- 
ver, Middleboro and Lakeville. In the George Phelan estate, funds had 
been left to build a home for destitute children, or a hospital, in Cam- 
bridge. The fund had reached a total of $358,000, and the court permitted 
the trustees to use this money to construct and equip an out-patient clinic 
in a new building at the Cambridge City Hospital. 

The Division participated in court proceedings relating to the disposition 
of the remainder of a trust under the will of Robert C. IVitten, and co- 
operated with the trustees in the John Brezvster and Hannah Griffith Shaw 
trusts to obtain decrees permitting deviations from provisions restricting 
investment. The decrees allowed the trustees to follow the "prudent man" 
rule. 



P.D. 12 27 

In the Catherine Connolly estate, referred to in the 1966 Report, the 
Division brought proceedings to set aside a decree entered without any 
notice to the Attorney General but assented to by counsel for all the par- 
ties participating. The decree declared that the gift failed but that half 
the residue should be used for the purpose designated by the testatrix and 
the other half be distributed to her heirs. At the hearing of the Division's 
petition, it appeared that counsel opposing the gift would claim appeals 
from an adverse decision against them and would seek counsel fees in any 
event. A settlement was negotiated under which 22/32nds of the residue 
would go for the charity in Carraroe, Ireland, rather than the 50% (i.e. 
16/32nds) provided for in the original decree, and counsel fees were 
charged only to the amounts going to the next of kin. 

In addition, the Division participated in several court proceedings in- 
volving contests of wills containing provisions for the benefit of charities 
and approved several compromises of such contests. 

Objections made by the Division to the proposed sale of the George 
Robert White Fund building on Washington Street in Boston, at the price 
of $265,000, led to a public auction at which a price of $335,000 was bb- 
tained resulting in an increased benefit to the charity of $70,000. In the 
Hyde estate, the Division assented to a petition for the sale of first mort- 
gage bonds on the Hotel Touraine held by the trustees to the lessees for 
about $900,000. The buyers were not able to complete the necessary financ- 
ing. The mortgage was later foreclosed and the hotel property was 
brought in by the trustees. The highest bid price was about $225,000. 
Subsequently, the trustees sold their shares to the Maurice Gordon inter- 
ests for about $40,000, cash; a purchase money mortgage of $400,000, 
payable in three years ; and a commitment to discharge, or settle, the cur- 
rent overdue taxes estimated at $280,000. 

Proceedings of interest relating to the dissolution of charitable corpora- 
tions included those concerning the Horace Moses Foundation, Inc. As 
a result of the Division's objections, and with the cooperation of the 
Attorney General of Ohio, a consent decree was entered under which about 
$4,000,000 of assets of the Foundation, which had been transferred to a 
National Bank in Ohio, as trustee under an inter-vivos trust for charit- 
able purposes, were returned to the Foundation. The inter-vivos trust was 
terminated and the proceedings for the dissolution of the Foundation dis- 
missed. Other dissolution proceedings related to the Boston Lakeshore 
Home, the Grove Hall Universalist Church, the Massachusetts Association 
of Universalist Women, the Parents Kindergarten, Inc., and the South 
End Diet Kitchen. 

During the fiscal year, the Division handled a great many matters re- 
lating to estates administered by public administrators. A total of $117,- 
395.50 was paid into the Treasury of the Commonwealth on account of 
property of such estates escheating to the Commonwealth because of a 
lack of known heirs of the descendants. 



28 PD- 12 



Torts, Claims and Collection Division 

The Torts, Claims and Collection Division represents employees of the 
Commonwealth where claims are made against them for occurrences aris- 
ing in the scope of their employment. After an investigation and a deter- 
mination as to liability, the claim is settled, if warranted, upon a reason- 
able basis. If settlement is not warranted, this Division represents the 
employee in subsequent litigation. 

Motor vehicle tort claims are paid from a fund established by the Legis- 
lature — pegged for the past several years at $100,000 annually. Not- 
withstanding the increase of indemnification for motor tort claims from 
$10,000 personal injury and $.5,000 for property damage to $25,000 for 
personal injury and $10,000 for property damage claims, we have not yet 
had to seek a supplementary appropriation from the Legislature for pay- 
ment of automobile claims. Indeed, the average motor vehicle tort settle- 
ment for this fiscal year, including verdicts and findings as the result of 
trial, was $333.12, which compares most favorably with that for the 
previous year of $372.33. In this day of spiraling claim costs, I take con- 
siderable pride in the excellent performance of the attorneys in this Divi- 
sion. Nonetheless, the time is fast approaching when even their efiforts 
will not suffice to keep total recoveries within the $100,000 figure. 

Under G. L. c. 12, § 3A, this Division is responsible for processing 
claims for damage occurring under circumstances which impose a moral 
but not a legal liability upon the Commonwealth. During the past year 146 
such claims have been processed for payment at an average settlement of 
$53.21 per claim. 

In addition, this Division represents the Department of Public Works 
and the Metropolitan District Commission upon claims for personal injury 
and property damage arising out of defects in state highways and MDC 
boulevards where statutory liability is imposed under G. L. c. 81, § 18 
and chapter 92, § 36. Many claimants are unsuccessful because they fail 
to comply with statutory requirements for claims of this nature. During 
the past fiscal year, two claims for highway defects were settled in the 
amount of $93.45 and paid from the DPW appropriation, and six claims 
each were settled in the amount of $5,182.30 and paid from the MDC 
appropriation. 

All claims for damage to state property, care of patients in state insti- 
tutions, and for other obligations owed to various departments are referred 
to this Division for collection. The following is a summary of collections 
made by this Division on behalf of the Commonwealth during this fiscal 
year. 

The following collections have been made in 564 cases during the period 
covered by this report : 



P.D. 12 



29 



Department 


Number of Cases 


Amount Collected 


Mental Health 


58 


$132,006.00 


Public Health 


115 


63,458.40 


Public Works 


278 


39,230.43 


Metropolitan District Commission 


78 


21,061.14 


Corporations and Taxation 





26,000.00 


Education 


10 


1,757.01 


Public Safety 


10 


2,065.78 


Parole Board 


1 


95.00 


Treasury 





80.00 


Youth Services 


2 


140.00 


Division of Employment Security 


1 


75.00 


Natural Resources 


3 


580.95 


State Colleges 


2 


267.00 


Correction 


2 


156.64 


Public Utilities 


2 


496.40 


Division of Waterways 


1 


1,376.50 


Registry of Motor Vehicles 


1 

564 


150.00 




$287,196.25 



Finally, members of this Division represent the Attorney General 
the Motor Vehicle Appeal Board. 



Veterans' Division 

During this fiscal year, the Veterans' Division has continued its policy 
of giving assistance to Massachusetts veterans and members of their 
families. The Division is available at all times to assist veterans in identi- 
fying and securing the many special services — local, state, and federal — 
available to them. 

In fiscal 1967, there has been a sizeable increase in the number of in- 
quiries, in large part due to federal and state laws granting increased 
benefits to Vietnam veterans. 

The Division has participated in the drafting of a number of formal 
opinions of the Attorney General dealing with veterans' aflfairs. It has 
also held frequent conferences with federal and state agencies and with 
local tax authorities. The continued cooperation of these public agencies, 
especially the Commissioner of Veterans Service and his entire staff, is 
gratefully acknowledged. 



Exhibit "A" 

1967 Legislation Proposed by the Attorney General 

1. An act to increase the jurisdictional amount of the Small Claims 
Court. (Chapter 21, Acts of 1967) 

2. An act to increase the penalties for second offenders who violate 
the gambling laws. (Chapter 189, Acts of 1967) 



30 P.D. 12 

3. An act to make assault and battery to collect a debt a separate 
crime with severe penalties. (Chapter 226, Acts of 1967) 

4. An act to authorize arrest without a warrant of violators of cer- 
tain gaming and gambling laws. (Chapter 372, Acts of 1967) 

5. An act to permit police officers to seize liquor illegally possessed 
by minors. (Chapter 377, Acts of 1967) 

6. An act allowing Massachusetts to join the New England State 
Police Compact. (Chapter 498, Acts of 1967) 

7. An act relating to reporting procedures by taking authorities in 
eminent domain proceedings. (Chapter 526, Acts of 1967) 

8. An act extending the application of certain provisions pertaining 
to public contracts to public authorities. (Chapter 535, Acts of 1967) 

9. An act to extend to public authorities the Competitive Bidding 
Statutes. (S. 185) 

10. An act requiring suspension of the license of any driver who, after 
arrest, refuses to submit to a breath test. (Chapter 77Z, Acts of 1967) 

11. An act establishing the Governor's Committee on Law Enforce- 
ment and the Administration of Justice. (Chapter 798, Acts of 1967) 

12. An act relating to the Eavesdropping Laws. (Chapter 102, Re- 
solves of 1967) 

13. An act clarifying the exemption of public utilities from the Eaves- 
dropping Laws. (Chapter 102, Resolves of 1967) 

14. An act further clarifying the Competitive Bidding Laws. (Chap- 
ter 535, Acts of 1967) 

15. An act increasing the compensation for special grand juries. (S. 
138) 

16. An act exempting assistant attorneys general from the Conflict of 
Interest Law in certain cases. (S. 140) 

17. An act regulating the transmission of racing information. (S. 
151) 

18. An act relating to the removal of public officials. (S. 170) 

19. An act allowing the Attorney General to inspect income tax re- 
turns in certain criminal investigations. (S. 190) 

20. An act establishing a special commission to study bail reform. (H. 
1672) 

21. An act clarifying the Conflict of Interest Law. (H. 2393) 

22. An act relating to the prevention of "bait-advertising." (H. 2429) 

23. An act making it unlawful to receive money derived from gam- 
bling profits. (S. 150) 



P.D. 12 31 

24. An act requiring public authorities to maintain open records. (S. 
182) 

25. An act extending the law relating to pubHc contracts to public 
authorities. (Chapter 102, Resolves of 1967) 

26. An act to establish Juvenile Courts in Worcester and Springfield. 
(H. 1652) 

27. An act extending the School Adjustment Counseling Program to 
secondary schools. (H. 510) 

28. An act authorizing the Attorney General and District Attorneys 
to subpoena certain books and records. (S. 144) 

29. An act extending the powers of the Massachusetts Defenders 
Committee. (H. 1673) 

30. An act authorizing the granting of immunity to witnesses in cer- 
tain cases. (S. 139) 

31. An act authorizing appeals by the Commonwealth on questions 
of law under certain conditions in criminal prosecutions. (Chapter 898, 
Acts of 1967) 

32. An act relating to the position of Chairman of the Massachusetts 
Commission Against Discrimination. (H. 2659) 

33. An act further clarifying the Campaign Spending and Disclosure 
Law. (H. 1627) 

Conclusion 

The foregoing gives some indication of the tremendous scope, volume, 
and variety of our work. The members of the various Divisions handle 
literally thousands of cases, large and small, and a substantially greater 
number of requests for advice, questions, complaints, and inquiries of all 
types. I believe that all of these tasks are being performed exceptionally 
well by a capable and dedicated staff. I shall do all within my power to 
maintain and enhance this high level of performance. I view the Depart- 
ment of the Attorney General as a professional office — the state's law 
firm — which should provide the Commonwealth, its agencies, and em- 
ployees, and the people generally, with the finest services possible. 

Respectfully submitted, 

Elliot L. Richardson, 

Attorney General. 



32 P.D. 12 

1. July 8, 1966. 

Honorable James M. Shepard, Director, Division of Fisheries and Game. 

Dear Mr. Shepard: — In a recent request for an opinion you ask 
whether students from states other than Massachusetts who attend school 
in this Commonwealth for nine or more months out of the year are en- 
titled to resident licenses under G. L. c. 131, § 8, which I quote in part: 

"Sporting, hunting, fishing and trapping licenses shall be issued to the 
following classes of persons upon payment of fees as hereinafter pro- 
vided : — 

"(1) A citizen of the United States, resident in this commonwealth for 
at least six consecutive months immediately prior to his application for 
such license, or a non-resident citizen coming within one of the two follow- 
ing classes : — 

''Class A. Owner of real estate in the commonwealth assessed for taxa- 
tion at not less than one thousand dollars, or person commissioned or 
enlisted in the military or naval service of the United States and stationed 
within the commonwealth. 

"Class B. Member of any club or association incorporated for the pur- 
pose of hunting, fishing or trapping, or for any combination of such pur- 
poses ; provided, that said corporation owns land in the commonwealth 
assessed for taxation in a total amount which is at least equal to one 
thousand dollars for each member, and that the membership list of the 
corporation shall be filed from time to time upon request, and at least 
annually, with the clerks of the several cities and towns within which such 
land, or any portion thereof, is located and with the director ..." 

Under other parts of this statute, license fees for non-residents are 
higher than they are for residents. For purposes of answering this ques- 
tion, I shall assume that the students about whom it is asked have at- 
tended school here for at least six consecutive months and that they have 
some regular living quarters here and do not commute to other states. 

"In laws relating to taxation, voting and settlements the word 'residence,' 
in the absence of an expressed, contrary, legislative intent, has always 
been interpreted as equivalent to the word 'domicil.' " Plymouth v. 
Kingston, 289 Mass. 57, 60 and cases cited. However, the license fees es- 
tablished by G. L. c. 131, § 8 are clearly not taxes. Commonwealth v. Boyd, 
188 Mass. 79, 80. And since domicil has been defined as "the place of one's 
actual residence with intention to remain permanently or for an indefinite 
time and without any certain purpose to return to a former place of abode" 
(Tnello V. Flint, 283 Mass. 106, 109; Riimmel v. Peters, 314 Mass. 504, 
512 and cases cited), it would be anomalous, if not inconsistent, to interpret 
G. L. c. 131, § 8 as requiring six months' domicil for issuance of licenses 
at the lower rate. Furthermore, while there is no doubt as to the right of 
a state to impose discriminatory restrictions upon the issuance of sporting 
licenses to non-residents (Commonivealth v. Hilton, 174 Mass. 29, 32; 61 
A.L.R. 338), there is considerable doubt as to whether the equal protection 
clause of the Fourteenth Amendment to the United States Constitution 
permits a state to discriminate against a certain class of domiciliaries in the 



P.D. 12 33 

issuance of such licenses. Harper v. Gallozcay, 58 Fla. 255, 263-265. 
State V. Mallory, 72> Ark. 236, 250. Cf. State v. Ko fines, 33 R. I. 211, 240. 
But see also Opinion to the Senate, 87 R. I. 37, 39. It is a canon of statu- 
tory construction that where a statute is capable of several interpretations, 
an interpretation which would cast doubt on the constitutionality of the 
statute will, if possible, be discarded in favor of one whose constitutional- 
ity is unquestioned. W . & J. Sloane v. Commonwealth, 253 Mass. 529, 
534 and cases cited. See Ferguson v. Commissioner of Corporations & 
Taxation, 316 Mass. 318, 323. I conclude that G. L. c. 131, § 8 does not 
require six months' domicil for issuance of a resident license. 

It is thus immaterial that most students who come here from other states 
to attend school probably do not acquire domicil in Alassachusetts. See 
Opinion of the Justices, 5 Met. 587, 589. The question is whether for pur- 
poses of G. L. c. 131. § 8, they acquire residence. "Residence is a term of 
flexible meaning." Krakow v. Department of Public Welfare, 326 Mass. 
452, 454. See Rianinel v. Peters, supra, 511. Perhaps because of this flexi- 
bility, courts have not been consistent in determining whether students were 
residents of the states in which they attend school. See Putnam v. Johnson, 
10 Mass. 488. 500; Pediqo v. Grimes, 113 Ind. 148, 153; Berry v. Wilcox, 
44 Neb. 82; Hicks v. Skinner, 72 N. C. 15, 16-17. all holding that students 
were legal residents of the states in which they attended school. But cf. 
Pummel v. Peters, supra, 515-516; Sanders v. Getchell, 76 Me. 158, 166; 
Kelly V. Garrett, 67 Ala. 304, 309 ; and cases cited in Beale, A Treatise on 
the Conflict of Laws, p. 176, fn. 1, holding that students were not residents 
of such states. 

Obviously, therefore, the interpretation of the term "resident" which 
appears in c. 131, § 8 cannot be determined by resort to the ordinary 
authorities. In view of the conflicts and ambiguities in the cases, I am in- 
clined to resolve the controversy by giving the statutory language the most 
straightforward reading which is possible. A "resident" of a particular 
state is a person who lives in that state. The term in ordinary usage does 
not necessarily imply an intent to remain indefinitely in a given location ; 
nor would the purpose for which a person has taken up residence be rele- 
vant. (Compare the precise characteristics of "domicile," Tuello v. Flint, 
supra. ) 

The Legislature has referred to "residents," and has included an addi- 
tional requirement that such residency be of at least six months' duration. 
I have indicated above that there is no basis for assuming that the General 
Court intended "residence" to be construed to mean "domicile." Likewise, 
there is no reason to believe that the Legislature wished students to be 
treated differently from non-students. Had such been its desire, provision 
could easily have been made by appropriate language. 

Nothing in the statute indicates that students should be deprived of 
rights enjoyed by others who have been residents of the Commonwealth 
for a period of six months. Accordingly, it is my opinion that the question 
posed on the first page of this opinion should be answered in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



34 P.D. 12 

2. July 8, 1966. 

Honorable William C. Maiers, Clerk of the House of Representatives. 

Dear Sir: — You have recently transmitted to me the following Order 
adopted by the House of Representatives on June 20, 1966: 

"That the Attorney General of the Commonwealth be forthwith re- 
quested by the House of Representatives to render an opinion to be de- 
livered to the Speaker and the Clerk of the House of Representatives at the 
earliest possible date on the following questions : — 

"1. Can the commissioner of corporations and taxation, acting under 
authority of chapter sixty-four G of the General Laws, require the pay- 
ment of a room occupancy excise tax on consideration charged for personal 
occupancy of any room or building in a city or town, when such city or town 
does not require a license in accordance with sections six, twenty-three or 
thirty-two B of chapter one hundred and forty of the General Laws for 
the purpose of such use? 

"2. Can said commissioner, acting under authority of said chapter sixty- 
four G, make a determination whether or not a city or town should re- 
quire a license for such use as described in question 1 ?" 

I consider the questions individually. I quote the relevant portions of St. 
1966, c. 14, § 25, which inserts G. L. c. 64 G, § 1 : 

"When used in this chapter the following words shall, unless the context 
otherwise requires, have the following meaning : — 

"(a) 'Hotel,' any building used for the feeding and lodging of guests 
which is conducted, controlled, managed or operated, directly or in- 
directly, pursuant to an inn-holder's license issued under the provisions of 
section six of chapter one hundred and forty. 

"(b) 'Lodging House,' a house where lodgings are let to five or more 
persons not within the second degree of kindred to the person conducting 
it and which is licensed under section twenty-three of chapter one hundred 
and forty. 

"(c) 'Motel,' any building or a portion of a building, other than a hotel 
or lodging house, in which persons are lodged for hire with or without 
meals and which is conducted, controlled, managed or operated, directly 
or indirectly, pursuant to a license issued under the provisions of section 
thirty-two B of chapter one hundred and forty." 

Since the room occupancy excise imposed by G. L. c. 64 G, § 3 is "upon 
the transfer of occupancy of any room or rooms in a hotel, lodging house, 
or motel," the above-quoted definitions determine when the transfer of oc- 
cupancy becomes subject to taxation. It is obvious from the plain language 
of these definitions that the "hotels," "lodging houses" and "motels" upon 
whose rooms the excise may be levied are those licensed under G. L. c. 140, 
§§ 6, 2Z and 32B, respectively. An unlicensed hotel or motel cannot be 
said to be "operated, directly or indirectly, pursuant to a license." Nor can 
an unlicensed lodging house be regarded as one "which is licensed under 
section twenty-three of chapter one himdred and forty." Even if I were 
to assume that the Legislature did not intend to distinguish between li- 



P.D. 12 35 

censed and unlicensed establishments in imposing the tax, I am bound by 
the rule that tax statutes must be strictly construed in favor of the taxpayer. 
Osgood V. Tax Coinmissioucr, 235 Mass. 88. 90. "The right to tax must 
be found within the letter of the law and is not to be extended by implica- 
tion." State Tax Commission v. Gray, 340 Mass. 535, 540. 

In answer to the second question, I am of opinion that the Commissioner 
has no authority under G. L. c. 64G to determine whether a city or town 
should require a license for a hotel, lodging house or motel. The provi- 
sions of G. L. c. 140, §§ 6, 23 and 32B, empowering municipalities to license 
hotels, lodging houses and motels appear to be permissive rather than man- 
datory in nature. In any event, I find no provision in c. 64G that even 
remotely confers upon the Commissioner authority to determine whether 
cities and towns are performing their licensing duties under c. 140. 

Accordingly, I answer each of your questions in the negative. 
Very truly yours, 
Edward W. Brooke, Attorney General. 



3. July 8, 1966. 

Honorable Michael J. McGonagle, Secretary, Commissioners on Fire- 
men's Relief. 

Dear Mr. McGonagle : — You have requested my opinion as to whether 
the board known as the Commissioners on Firemen's Relief, established by 
G. L. c. 10, § 21, is governed by c. 30A of the General Laws, the so-called 
Administrative Procedure Act. Pursuant to c. 10, § 21, your board con- 
sists of the State Treasurer, ex officio, two members appointed by the Gov- 
ernor and two members appointed by the Massachusetts State Firemen's 
Association. The duties of the board are set forth in c. 48, § 81, which 
provides as follows : 

"The sum of eighteen thousand dollars may be paid annually from the 
state treasury to furnish relief to firemen injured in the performance of 
their duty at a fire or in going thereto or returning therefrom, or while en- 
gaged in company drills, when such drills are ordered by the chief, acting 
chief or board of engineers of the fire department, or required by city 
ordinance or town by-law, and to widows and children of firemen killed in 
the performance of such duty. Payments on account of said relief shall he 
determined in manner and amount, on properly approved vouchers, by the 
commissioners on firemen's relief, in the same manner as other claims 
against the commomvcalth ... . " (Emphasis supplied.) 

The State Administrative Procedure Act applies to "agencies" of the 
state government as that term is defined by the Act. General Laws c. 30A, 
§ 1 (2) defines "Agency" as "Any department, board, commission, division 
or authority of the state government, or subdivision of any of the fore- 
going, or official of the state government, authorised by lazv to make regu- 
lations or to conduct adjudicatory proceedings . . . . " (Emphasis sup- 
plied.) Certain exemptions from the definition are not relevant. Accord- 
ingly, the answer to your question depends upon whether your board is 
authorized either to promulgate regulations or to conduct "adjudicatory 
proceedings" as that term is defined in c. 30A. 



36 P.D. 12 

I find no statutory provisions which authorize the Commissioners on 
Firemen's Relief to promulgate regulations. Likewise, the actions taken 
by the Commissioners under c. 48, § 81 are not judicatory proceedings. 
"Adjudicatory proceeding" is defined as "A proceeding before an agency 
in which the legal rights, duties or privileges of specifically named persons 
are required by constitutional right or by any provision of the General 
Laws to be determined after opportunity for an agency hearing . . . . " 
[G. L. c. 30A, § 1(1).] No hearing is required by statute prior to the 
making of the Commissioners of a decision with respect to the granting of 
firemen's relief. Furthermore, the nature of such relief being what it is, 
and considering the fact that the General Court could lawfully withhold the 
granting of such relief altogether, it is clear that there would be no consti- 
tutional right to a hearing in connection with actions taken under c. 48, 
§ 81. Cf. Milligan v. Board of Registration in Pharmacy, 1965 Mass. Adv. 
Sh. 237, 245. 

It is therefore my opinion that the Commissioners on Firemen's Relief 
are not authorized by law to make regulations or to conduct adjudicatory 
])roceedings, and accordingly such board is not an "agency" which is subject 
to the State Administrative Procedure Act. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



4. July 8. 1966. 

Honorable Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Doctor Solomon : — You have requested an opinion with respect 
to the service of warrants for the arrest of patients in mental institutions 
who have been charged with criminal ofi^enses. Specifically, you have 
asked the following five questions : 

"1. Is a Superintendent of an institution for the mentally ill required 
to turn over to the State Police a patient for whose arrest they have a 
warrant, who has been committed under the provisions of Section 51, 
Chapter 123 of the General Laws, as amended? 

"2. Is a Superintendent of an institution for the mentally ill required 
to turn over to the State Police a patient for whose arrest they have a 
warrant, who has been temporarily committed under the provisions of 
Section 77, Chapter 123 of the General Laws, as amended? 

"3. Is a Superintendent of an institution for the mentally ill required 
to turn over to the State Police a patient for whose arrest they have a 
warrant, who has been received by the Superintendent for temporary care, 
under the provisions of Section 79, Chapter 123 of the General Laws, as 
amended ? 

"4. Is a Superintendent of an institution for the mentally ill required 
to turn over to the State Police a patient for whose arrest they have a 
warrant, who has been received as a voluntary patient under the provisions 
of Section 86, Chapter 123 of the General Laws, as amended? 

"5. Is a Superintendent of an institution for the mentally ill required 



P.D. 12 37 

to turn over to the State Police a patient for whose arrest they have a 
warrant, who has been admitted to the institution on a non-statutory 
status, that is, a patient who has submitted himself voluntarily for treat- 
ment without any written application therefor?" 

In the absence of a constitutional or statutory provision to the contrary, 
every person, except a diplomatic representative of a foreign government 
(see United States v. Kirby, 7 Wall (U.S.) 482; IViUiamson v. United 
States, 207 U.S. 425), is subject to arrest on a criminal charge. See 5 Am. 
Jur. 2, "Arrest," § 95, p. 781. It is my opinion that it is immaterial that 
the warrant for arrest is for a patient in an institution for the mentally ill 
in view of the absence of any provisions exempting such persons from 
arrest. 

Furthermore, the categorization of the admission procedure as voluntary 
or involuntary with regard to the institutionalized patient has no significance 
with respect to the service of arrest warrants. Institutionalized' mentally 
ill persons are clearly subject to arrest although their competency may be 
such that they are not punishable for the charged offense. See G. L. c. 123, 
§§ 102-105; G. L. c. 278, § 13; G. L. c. 277^ § 16. Therefore the Super- 
intendent of an institution for the mentally ill is required to turn over to 
the State Police a patient for whose arrest a warrant has been issued. 

However, this is not to say that the enforcement of the law should be 
either inflexible or insensitive to the particular patient. It may well be im- 
portant to protect a given patient from possible harmful consequences 
brought about by arrest and confinement. In such case it would certainly be 
helpful to all parties involved if the Superintendent could inform the Court 
concerned of the patient's condition. This might be accomplished prior to 
the issuance of the warrant, if the opportunity exists, or after its issuance 
by the filing of an affidavit. If. in the opinion of the Superintendent, the 
gravity of the illness is such as to negate the advisability of arresting the 
patient, this should be reported to the Court. The Court — thus armed 
with relevant information with regard to the patient's condition — can 
then make the final decision upon issuance or enforcement of the war- 
rant in question. 

Very truly yours, 
Edward W. Brooke, Attorney General. 

5. July 11, 1966. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan : — I quote a portion of your recent re- 
quest for an opinion : — 

"Just recently two more situations have arisen in connection with Public 
Law 89-10, which involve participation in programs by non-public school 
children and concerning which we would greatly appreciate your opinion. 
The following questions are in addition to those requested in our letter of 
July 29, 1965. 

"(1) In one city the school committee proposed to conduct a summer 
school project financed by monies under Title I of Public Law 89-10. The 



38 P.D. 12 

building and program will be under the control of the school committee 
and there will be no differentiation in enrollment between public and non- 
public school yoimgsters. The teachers will be hired by the school com- 
mittee on the basis of a job notice describing the position. Amongst the 
applications already received are those of ten religious sisters. 

(a) Under the law and Constitution of Massachusetts, can the Spring- 
field School Committee engage and pay wages to religious sisters in a pro- 
gram conducted under the auspices of the school committee but wherein 
no religion will be taught ? 

(b) Would there be any difference in your answer if the sisters are to 
wear their regular religious garb during the classes? 

"(2) In another city a school committee proposes to contract with five 
non-public schools, one of which is a sectarian school, one in which relig- 
ious doctrine is taught. The purpose of the contract is toi engage these 
schools to provide programs on their own premises for the educationally 
disadvantaged under Title I of Public Law 89-10 and the services to be 
paid from said title. No differentiation is made between public and non- 
public students as far as enrollment in the schools is concerned . . . 

"May this school committee enter into a contract under our law and 
constitution with the non-public schools including a school conducted by a 
religious society? Of course, no religion is to be taught to this combination 
of public and non-public students." 

The questions included in the above quotation refer entirely to actions 
of local school committees, to which this office does not give opinions di- 
rectly or indirectly. However, because of the widespread interest in the 
subject matter of this request, I shall treat with these questions for the 
benefit of your Department. 

I know of no provision in the Constitution that bars any person from 
public employment because of his religious affiliation or his membership in 
a religious order. (Indeed, it would be contrary to the laws of this Com- 
monwealth to deny public employment as a teacher to any person solely 
because of his religion, his religious beliefs or his clerical status. See G. L. 
c. 151B, §§ 1 and 4.) It has also been held that there is no violation of the 
Federal Constitution when a teacher employed by a public school system 
appears regularly in habit or garb which generally identifies him (or her) 
as having a particular religious status. Hysong v. GaUifcin Borough School 
Dist., 164 Pa. 629, 657-658. Gerhardt v. Heid, 66 N.D. 444, 459. State ex 
rel. Johnson v. Boyd, 217 Ind. 348, 370-371. Razvlings v. Butler, 290 S.W. 
2d 801, 805-806 (Ky.). Moore v. Board of Education of Southwest 
Local School Dist. No. 15588, 212 N. E. 2d 833, 841 (Ohio CP). I agree 
with the holdings of these cases that specially garbed members of religious 
orders may be hired as teachers in public schools. However, pursuant to 
G. L. c. 71, § 38, a school committee need not hire specially garbed mem- 
bers of religious orders if it feels that "the effect of [their attire] worn 
... at all times in the presence of their pupils would be to inspire . . . 
sympathy for the religious denomination to which they . . . belong." 
O'Connor v. Hendrick, 184 N.Y. 421. 428. Zellers v. Heff, 55 N.M. 501, 
525. See Bcrghorn v. Reorganized School Dist. No. 8, 364 Mo. 121 ; con- 
curring opinion of Mr. Justice Brennan in Schcmpp v. School Dist. of 
Abington Township, Pa. 374 U.S. 203, 262, fn. 28. 



P.D. 12 39 

Article 46 of the Articles of Amendment of the Constitution of Massa- 
chusetts prohibits the Commonwealth and its subdivisions from granting 
to non-pubhc schools funds raised by taxation and has no applicability to 
grants of federal funds. 

Subject to the above explanations and qualifications, my answer to 
question 1(a) is "Yes," and my answer to question 1(b) is "No."' 

Nothing in the General Laws specifically authorizes school committees 
to enter into the types of contracts with private institutions which are re- 
ferred to in your second question. Such is the case even when the education 
of underprivileged children is at issue, and whether the private institutions 
in question are sectarian or non-sectarian. Ordinarily, a school committee 
may exercise only those powers which have been specifically granted by 
the General Court. Brine v. Cambridge, 265 Mass. 452, 454-456. Wright 
& Ditson V. Boston, 270 Mass. 338, 339. See also my recent opinion to you 
dated June 13, 1966. 

Nevertheless, I do not believe that the lack of specific statutory author- 
ity need be conclusive in the present case. Your letter indicates that the 
"purpose of the contract is to engage these schools to provide programs 
on their own premises for the educationally disadvantaged under Title I of 
Public Law 89-10 and the services to be paid from said title." (Emphasis 
supplied.) Consequently, it is apparent that the proposed programs are to 
be supported entirely by funds contributed by the federal government. 

The Legislature has provided that certain municipal officers and depart- 
ments shall have the authority to accept and to use certain forms of grants 
and other gifts. General Laws c. 71, § 37A applies specifically to school 
committees, but is limited to "grants or gifts for educational purposes 
from charitable foundations and private corporations . . . . " Thus, this 
particular status would not be applicable. However, it is my opinion that 
the proposed grant may be accepted and used pursuant to G. L. c. 44, § 
53 A, a portion of which I quote : 

"An officer or department of any city or town, or of any fire, water, 
sewer, light, improvement, regional school or other district, may accept 
grants or gifts of funds from the federal government and from a chari- 
table foundation, a private corporation, or an individual, 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 witJi the approval of the school 
committee . . . . " (Emphasis supplied.) 

I recognize that a strict reading of c. 44, § 53A might prohibit the ac- 
ceptance of the grant in question by a school committee. Members of 
school committees are not considered officers of a given city or town. 
Morse v. Ashley, 193 Mass. 294, 296. Likewise, a school committee is gen- 
erally not — in and of itself — considered a department of a municipality. 
Some municipalities do refer to their educational systems as "school de- 
partments," but there is some question whether such systems do have 
departmental status from a legal point of view. [But compare Eastern 
Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232, 233, in which there 
is some indication that a school committee may be considered a municipal 
"department."] In any event, it is my opinion that the Legislature did not 
intend the effect of this statute to be restricted. I believe that the General 
Court has sought — by a general provision — to authorize the acceptance 



40 P.D. 12 

and use of federal funds whenever such funds are available. A restrictive 
interpretation of the language of c. 44, § 53A based upon a technical con- 
struction of the words "officer" and "department" would be a disservice to 
the apparent legislative intention. [It would also appear anomalous for the 
Legislature to grant to a school committee the power to approve such con- 
tracts if made by other municipal representatives and deny it the right to 
make such contracts on its own behalf.] 

General Laws c. 44, § 53A provides specifically that funds received pur- 
suant to its provisions may be expended "for the purposes of such grant 
or gift . . . . " It is my opinion that this language authorizes the municipal 
ofificers who receive a grant to take the action which is required as a condi- 
tion to the grant's being awarded. In the present case, I gather that use of 
funds under the grant necessitates the type of contractual relationships 
described in your request. If such is the case, the statute authorizes such 
agreements. Since the proposed programs are authorized by federal stat- 
utes, and since they are to be supported wholly by federal funds, I do not 
consider it necessary or appropriate for me to explore the constitutionality 
of the enabling legislation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



7. July 25, 1966. 

Honorable Quintin J. Cristy, Chairman, Alcoholic Beverages Control 
Commission. 

Dear Mr. Cristy : — You have requested my opinion with respect to the 
granting of a "package store license" under G. L. c. 138, § 15 to a married 
woman. You have posed your questions in the following context : 

" . . . [I]t would be important to have a ruling from your ofifice as to 
whether or not the wife of a husband now holding his quota of licenses 
under the statute may, if she has filed a Married Woman's Certificate, 
hold an equal number of licenses under section 15, giving the husband and 
wife a collective total of six such licenses. 

"We would also appreciate your advising whether or not the wife would 
be entitled to three such licenses regardless of whether or not she has filed 
a Married Woman's Certificate, if she does not hold any stock in the hus- 
band's corporation which possesses three licenses. 

"If you rule that the wife would be entitled to the three licenses under 
the Married Woman's Agreement, what documents should the Commission 
require to have in hand to prove her status ?" 

The relevant portion of the so-called "Married Woman's Certificate" 
statute provides as follows : 

"If a married woman does or proposes to do business on her separate 
account, she shall cause to be recorded in the clerk's office of the city or 
town where she does or proposes to do such business a certificate stating 
her name and that of her husband, the nature of the business and the place 
where it is or is proposed to be carried on, giving, if practicable, the street 



P.D. 12 41 

and number, and the name, which shall not be her husband's, under which 
she proposes to carry on business, and pay to said clerk the fee provided by 
clause (46) of section thirty-four of chapter two hundred and sixty-two. 
If the nature of the business or the place where or the name under which 
it is carried on is changed, a new certificate shall be recorded accordingly. 
If she fails to cause such certificates to be recorded her husband may do 
so. If such certificates are not so recorded by either husband or wife, the 
personal property employed in such business shall be liable to be attached 
as the property of the husband and to be taken on execution against him, 
and the husband shall be liable upon all contracts lawfully made in the 
jirosecution of such business in the same manner and to the same extent as 
if such contracts had been made by him." 
Mass. G. L. c. 209, § 10 

It was the purpose of this statute to allow a married woman to do busi- 
ness in her own name without the risk of having her property taken for 
her husband's debts, and without his being liable upon contracts made by 
her in the prosecution of her personal business. O'Ncil v. WolfsoJin, 137 
Mass. 134, 135. Often husband and wife appear to be in joint possession 
of a business and property. Thus, in addition to the foregoing purpose, 
the statute was intended to allow creditors to gain information as to title 
so that they could regulate their mercantile transactions accordingly. Par- 
sons V. Henry, 197 Mass. 504, 509. With these two purposes in mind, it 
is clear that the statute was intended solely to regulate the afifairs of a 
husband and wife with respect to their creditors. 

The significant portion of G. L. c. 138, § 15 provides: 

"No person, firm, corporation, association, or other combination of per- 
sons, directly or indirectly, or through any agent, employee, stockholder, 
officer or other person or any subsidiary whatsoever, shall be granted, in 
the aggregate, more than three such licenses in the commonwealth, or be 
granted more than one such license in a town or two in a city." 

In making your inquiry under § 15 you must consider whether the wife 
is an agenf or otherwise controlled by her husband. Cleary v. Cardullo's, 
Inc., 347 Mass. 337, 346-350. While the Supreme Judicial Court has 
recognized in other family situations the possibility of two members of a 
family being independent for the purpose of holding a liquor license, it 
has also indicated that such transactions should be carefully scrutinized 
to determine whether they may be a disguise for the purpose of avoiding 
the law. Cleary v. Cardullo's. Inc. supra. The filing by a married woman 
of a certificate under the provisions of c. 209, § 10 does not establish con- 
clusively that her business affairs are not under control of her husband. 
As I have indicated above, c. 209, § 10 relates solely to the business afifairs 
of a husband and wife with respect to their creditors. The significance of 
a statute should not be stretched beyond the original purpose for which it 
was intended. Commonzvealth v. Wclosky, 276 Mass. 398, 401-402. 

I would suggest that the filing of a certificate is at most some evidence 
that a wife is in, or intends to carry on, a business separate and apart from 
her husband. It should not be given substantial weight because of the 
context in which it is filed. The filer need not make oath to the facts 

^ It is weMsettled that a husband or wife may be the agent for the other spouse. Colbuszi v. 
Parks, 313 Mass. 199, 202. The existence of an agency between the husband and wife presents 
a question of fact and depends on the various circumstances. Sztiamski v. Spinale, 332 Mass. 
500, 503. 



42 P.D. 12 

therein nor is there any penalty for filing a false statement. There is no 
provision for any independent verification by any governmental authority 
that the wife is in reality doing business on her separate account. In fact, 
the contrary is true. The town clerk has no discretion to question the con- 
tents of the certificate, but is required to record the same upon receipt of 
the stated fee. G. L. c. 209, § 11. 

I would further direct your attention to G. L. c. 138, § 23, which pro- 
vides in part as follows : 

"No license shall be issued, renewed or transferred under section . . . 
fifteen . . . unless there is filed with the application for such license a 
S7vorn statement by the applicant . . . giving the names and addresses of 
all persons who have a direct or indirect beneficial interest in said license 
. . . . " (Emphasis supplied.) 

Implicit in your question is the assumption that the required sworn state- 
ments have been filed in connection with issuance and renewals of the 
licenses in question. It must therefore also be considered whether false 
statements have been filed by the applicants under said § 23. Resolution 
of such a question is a factual rather than a legal matter, to be determined 
by such inquiry and evaluation as the Commission shall consider warranted. 
As I have indicated above, the filing of a so-called "Married Woman's Cer- 
tificate" is just one facet of the factual situation which determines whether 
there has been a violation of § 15. 

Accordingly, therefore, in response to your first inquiry, it is clear that 
a wife may hold three licenses under § 15 despite the fact that an additional 
three licenses are held by her husband. Whether her ownership is or is not 
a veil for real ownership of all six establishments by her husband depends 
upon factual determinations which must be made by your Commission. 
The making of such determinations should not be greatly influenced by the 
filing of a Married Woman's Certificate. The answer to your second ques- 
tion is in the negative. The fact that a married woman does not hold any 
of the stock in the husband's corporation which possesses three licenses 
would not in and of itself entitle her to a license. Such a determination 
is much too narrow and would not satisfy the relevant portion of G. L. c. 
138, § 15, which is set forth in this opinion. In view of my answers to 
your first two questions, there is no need for me to consider your third 
inquiry. 

I have rendered my opinion on the assumption implicit in your request, 
vis., that the wife has no interest in a liquor license issued under any other 
section of the liquor control act. However, I caution and remind you of the 
terms of G. L. c. 138, § 17 which provides in part: 

"Unless expressly authorized by this chapter, local licensing authorities 
shall not grant licenses to any person, firm or corporation under more than 
one section of this chapter/' (Emphasis supplied.) 

Your investigation, therefore, must, in addition, consider her interest and 
association with persons holding licenses tmder any other sections in order 
to insure that § 17 has not been violated. Cleary v. Cardullo's Inc., 347 
Mass. 337, 347. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 43 

8. July 27, 1966. 

Honorable John J. Droney, District Attorney for Middlesex County. 

Dear Mr. Droney : — In a recent request for an opinion you state : 

"An election inquest was held in the First District Court of Eastern 
Middlesex in January, 1966. The inquest was commenced by a petition 
and a complaint filed by your office. The petition alleged certain irregu- 
larities in the election in the City of Everett held on November 2, 1965. 

"Witnesses were subpoenaed by the Commonwealth. The witnesses so 
subpoenaed testified under oath and their testimony was taken down and 
transcribed. 

"Only one witness claimed the constitutional privilege against self in- 
crimination. The district court judge thereupon granted immunity to that 
witness. . . . 

"None of the witnesses except one asserted the privilege against self 
incrimination. The witnesses testified under oath that they had been sub- 
poenaed. There is no evidence that they objected to being subpoenaed or 
to being called as witnesses. Witnesses answered every question asked 
them and did not refuse to answer any question." 

In view of these facts you ask : 

"Does the immunity provision of General Laws (Ter. Ed.) chapter 55, 
section 36 bar prosecution of the witnesses subpoenaed and called to testi- 
fy by the Commonwealth?" 

I quote G. L. c. 55, § 36: 

"No person shall be excused from testifying or producing any papers in 
any inquest proceedings under sections thirty to thirty-five, inclusive, on 
the ground that his testimony may tend to criminate him or subject him 
to a penalty or forfeiture, but he shall not be prosecuted or be subjected 
to a penalty or forfeiture for or on account of any action, matter or thing 
concerning which he may be required so to testify, except for perjury 
committed in such testimony." 

I assume, for purposes of this opinion, that the witnesses mentioned in 
your question face prosecution "for or on account of any action, matter 
or thing concerning which . . . [they were] required so to testify" at the 
inquest in the District Court. 

There is considerable authority to the effect that where a statute by its 
own terms provides immunity to a person who is subpoenaed to testify 
at a hearing or investigation, a witness so testifying need neither claim 
his privilege against self-incrimination nor be granted immunity by an 
appropriate officer in order to receive the benefit of the statute. United 
States V. Mania, 317 U.S. 424, 430. People v. Buslin, 306 N.Y. 294, 297. 
State V. Hennessey, 195 Or. 355, 366. See collected cases at 145 A.L.R. 
1417-1418. Although there does not appear to be any Massachusetts hold- 
ing squarely in point, the Court in a dictum has said, "In the ordinary case, 
where there is no reliance upon a statute granting immunity , a claim of 
privilege is clearly essential." (Emphasis supplied). Corcoran v. Com- 
monwealth, 335 Mass. 29, Z7. Cf. Ross v. Crane, 291 Mass. 28, 33-34 (no 



44 P.D. 12 

immunity where mayor testified voluntarily and failed to claim privilege; 
holding based partly on proposition that loss of eligibility to vote or hold 
ofifice is neither penalty nor forfeiture). The Court went further in the 
Crane case, however, and stated that "the defendant does fall within the 
terms of paragraph (h) for the reason that he was not 'called to testify 
upon an election petition' " ; this raises a strong implication that, on facts 
similar to those in the instant circumstances, where the witnesses were 
subpoenaed to testify, the Court would have reached a different conclusion. 

In the recent case of Commonwealth v. Benoif, 347 Mass. 1, 5-6, the 
Supreme Judicial Court, while holding that the Massachusetts Crime Com- 
mission (see c. 146 of the Resolves of 1962) "is not a court," also impHed 
that a witness who testified pursuant to G. L. c. 271, § 39 "before any 
court or in obedience to the subpoena of any court" automatically would 
enjoy the immunity from prosecution conferred by § 39. 

Clearly, then, the Supreme Judicial Court has given every indication 
that it would follow United States v. Monia, supra, and other cases hold- 
ing that one who testifies under subpoena pursuant to an immunity statute 
receives the statutory immunity, even though he does not specifically claim 
his privilege. Although other courts have reached a contrary conclusion 
(see, e.g., State v. Davidson, 242 Wis. 496; 145 A.L.R. 1419-1420), it 
would appear that the dicta contained in the Ross, Corcoran and Benoit 
cases indicate that the Supreme Judicial Court would not be guided by 
such a result. Accordingly, I answer your question in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



9. August 3, 1966. 

Honorable Robert Q. Crane, Treasurer and Receiver-General. 

Dear Treasurer Crane: — You have requested my opinion relative to 
the distribution of funds under section 30(3) of Chapter 14 of the Acts 
of 1966 (G. L. c. 58, § 18A(a)(3) ). You have stated that the Local 
Aid Fund currently has a balance of $55,000,000 and have asked: 1) 
whether the State Treasurer can now make a distribution of funds to the 
cities and towns under the said Chapter 14, Section 30(3) ; 2) what pro- 
portion of the total balance may be distributed; and 3) at what time may 
such distribution be made. Certain facts which are essential to a complete 
analysis of these problems have been omitted from your request. How- 
ever, I am able — upon the facts presented — to provide some guidelines 
with respect to the administration of this particular statute. 

Paragraph 3 of Section 30, to which you have referred, is a part of 
subsection (a) of that section. Subsection (a) provides for the distribu- 
tion of funds from the Local Aid Fund only to the extent of the amounts 
credited to the Fund under subsection (a) and (b) of St. 1966, c. 14, 
§ 29 (G. L. c. 58, § 18), and twenty per cent (20%) of the amounts 
credited to the Fund under subsection (c) of the said section 29. The re- 
maining eighty per cent (80%) of the amounts credited to the Local Aid 
Fund under subsection (c) above, and the amounts credited to the Fund 
under subsections (d) and (e) of Section 29 of Chapter 14 of the Acts 



P.D. 12 45 

of 1966 are not available for distribution under subsection (a), and there- 
fore cannot be distributed under the paragraph to which your questions 
relate (paragraph (3) ). These latter amounts may be distributed only 
under subsections (b) and (c) of St. 1966, c. 14, § 30. 

Therefore, the current balance of $55,000,000 in the Local Aid Fund 
must be divided in terms of its sources. Only that part of the balance 
which was credited to the Fund under subsections (a) and (b) of Section 
29 of Chapter 14 of the Acts of 1966 and twenty per cent (20%) of the 
amount credited under subsection (c) of St. 1966, c. 14, § 29 are avail- 
able for distribution under subsection (a) of section 30. 

Further, before any distribution may be made under paragraph (3) of 
said subsection (a), the amounts specified in paragraphs (1) and (2) of 
said subsection (a) must be distributed or at least set aside. The amounts 
so specified in paragraphs (1) and (2) total $9,006,291.88. It is not clear 
from your request whether this amount has as yet been distributed or set 
aside within the Local Aid Fund. 

Whatever remains from the amount available for distribution under sub- 
section (a) after the amounts specified in paragraphs (1) and (2) have 
been set aside may be distributed under paragraph (3) of said subsec- 
tion (a). 

Paragraph (3) provides in part: "Fifty per cent of the appropriations 
made by the general court for these purposes shall be charged against the 
revenues of the Local Aid Fund enumerated in this subsection on July 
first and the remainder shall be so charged on January first ..." Thus, 
on July first an amount equal to fifty per cent (50%) of the appropriations 
made by the general court for local reimbursement and assistance pro- 
grams should be charged against the funds still available in the Local Aid 
Fund for distribution under subsection (a). If the funds available are 
insufiicient to fill this quota of fifty per cent (50%), then only the amount 
available can be distributed and charged against the Fund. 

The language which appears in paragraph (3) with respect to the charg- 
ing of certain percentages against the revenues of the Local Aid Fund is 
admittedly ambiguous. However, I do not believe that this sentence was 
intended to prohibit distributions prior to the time at which the Local Aid 
Fund contains sums sufficient to meet all of the appropriations referred 
to in the paragraph. Such a construction totally ignores the statement 
which appears earlier in the section that amounts shall be distributed "to 
the extent that sufficient sums are available ..." If a part of the funds 
necessary to meet the appropriations referred to in paragraph (3) is avail- 
able, it is the clear intent of the section that such part be distributed. 
Money is of little use to the cities and towns if it simply resides in the 
State Treasury awaiting further growth of the Local Aid Fund. The 
final sentence of paragraph (3) represents only an instruction with respect 
to accounting, and does not in and of itself limit the right of the State 
Treasurer to make distributions at this time. 

The amount thus set aside on July first for distribution under paragraph 
(3) can be distributed "(f )rom time to time during the year ..." The 
statute does not specify the time when the actual distribution of funds 
under paragraph (3) is to be made. The times of distribution are there- 
fore within the discretion of the State Treasurer. 



46 P.D. 12 

On January first the remaining fifty per cent (50%) of the appropri- 
ations — or whatever smaller amount is available — should be charged 
against the funds then available for distribution under subsection (a). 
The amount so charged can then be distributed to the cities and towns 
"(i)Tom time to time during the year ..." 

Accordingly, it is my opinion that — given sufificient funds derived 
from appropriate sources — a distribution may be made from the State 
Treasury at this time in accordance with the standards and guidelines set 
forth above. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



10. August 4, 1966. 

Mr. Julian D. Steele, Deputy Commissioner, Department of Commerce 
and Development. 

Dear Mr. Steele: — You have requested my opinion as to whether the 
provisions of c. 30A of the General Laws are applicable to the rules and 
regulations of the Bureau of Relocation. 

G. L. c. 30A, §1(2) provides the following definition of an agency for 
purposes of that chapter : 

" 'Agency' includes any department, board, commission, division or 
authority of the state government, or subdivision of any of the foregoing, 
or official of the state government, authorized by law to make regulations 
or to conduct adjudicatory proceedings, but does not include the follow- 
ing: the legislative and judicial departments; the governor and council; 
military or naval boards, commissions or officials ; the department of cor- 
rection ; the youth service board and the division of youth service in the 
department of education ; the parole board ; the division of industrial ac- 
cidents of the department of labor and industries; the division of child 
guardianship of the department of public welfare; the division of civil 
service; and the director of civil service and the welfare compensation 
board." 

The Bureau of Relocation as defined by G. L. c. 79A, § 1 is a part of 
the Department of Commerce and Development. It is therefore a sub- 
division of a department of the state government as referred to in G. L. 
c. 30A, § 1(2). For apparent reasons, the Bureau does not fall within 
any of the enumerated exceptions to the definition of an agency. 

Your question therefore depends upon a determination as to whether 
the Bureau is authorized by law to make regulations or to conduct adjudi- 
catory proceedings. The term regulation is defined in c. 30A, § 1(5) as 
follows : 

" 'Regulation' includes the whole or any part of every rule, regulation, 
standard or other requirement of general application and future effect 
adopted by any agency to implement or interpret the law enforced or ad- 
ministered by it, but does not include (a) advisory rulings issued under 
section eight; or (b) regulations concerning only the internal management 



P.D. 12 47 

or discipline of the adopting agency or any other agency, and not directly 
affecting the rights of or the procedures available to the public or that 
portion of the public affected by the agency's activities; or (c) regulations 
concerning the operation and management of state penal, correctional, 
welfare, educational, public health and mental health institutions and sol- 
diers' homes, or the development and management of property of the com- 
monwealth or of the agency; or (d) regulations relating to the use of 
public works, including streets and highways, when the substance of such 
regulations is indicated to the public by means of signs or signals; or (e) 
decisions issued in adjudicatory proceedings." 

See Allied Theatres of New England v. Commissioner of Labor and 
Industries, 338 Mass. 609, 611 ; Kneeland Liquor Inc. v. Alcoholic Bever- 
ages Control Commission, 345 Mass. 228, 233. 

G. L. c. 79A, § 12, provides that "the bureau [of Relocation] may pro- 
mulgate regulations to carry out the purposes of this chapter. . . . " ; and 
the Bureau's administrative rules and regulations state that: 

"The Administrative Rules and Regulations of the Bureau of Reloca- 
tion outline the policies and procedures to be followed in complying with 
the intent of the law." 

The regulations of the Bureau are clearly designed to implement the law 
administered by it. In addition, it does not appear that any of the excep- 
tions contained in c. 30 A, § 1(5) apply to the regulations in question. 

Accordingly, since the Bureau of Relocation is a subdivision of a state 
department authorized to make regulations as defined by G. L. c. 30A, 
§ 1, and since no exemptions are applicable either to the Bureau or to its 
regulations, it is my opinion that the rules and regulations in question do 
fall within the scope of c. 30A of the General Laws, and that the pro- 
visions of that chapter are applicable to them. 

Very truly yours, 

Edward W, Brooke^ Attorney General. 



11. August 5, 1966. 

Honorable Harry Solomon, Commissioner, Department of Mental 
Health. 

Dear Commissioner Solomon: — In a letter dated April 29, 1966, you 
have requested my opinion regarding the effective date of the per diem 
rate to be charged elderly persons who are patients in Gushing Hospital, 
such rate having been established under Section 2 of Chapter 481 of the 
Acts of 1964. 

Your letter indicates that, in accordance with Section 1 of said Chapter 
481 of the Acts of 1964, the per diem cost of maintaining elderly persons 
as patients in Gushing Hospital was established and filed with the Secre- 
tary of the Commonwealth on March 12, 1966. Your letter further states 
that subsequently the Commissioner of the Department of Mental Health 
established May 1, 1966, as the effective date of the "new per diem rate." 
It is assumed for the purposes of this opinion that the words "new per 



48 P.D. 12 

diem rate" in your letter refer to the per diem rate to be charged estab- 
lished under Section 2. 

It is my opinion that the effective date of the per diem rate to be charged 
must be March 12, 1966. 

Chapter 481 of the Acts of 1964 provides : 

"Section 1. The director of hospital costs and finances shall examine 
the books and accounts of the Gushing hospital and, after a hearing, estab- 
lish the per diem cost of maintaining elderly persons as patients in said 
hospital. The determination of the per diem cost shall be deemed a regu- 
lation as defined in paragraph (5) of section one of chapter thirty A of 
the General Laws. 

"Section 2. The department of mental health is hereby authorized 
and directed to establish as the per diem rate to be charged to elderly per- 
sons as patients in said hospital the per diem cost established by said 
director as provided in section one." 

Section 1 provides that the determination of the per diem cost shall be 
deemed a regulation as defined in G. L. c. 30A, § 1 (5). Therefore, the 
effective date of the per diem cost is determined by G. L. c. 30A, § 5, 
which provides in pertinent part : 

"Regulations made in accordance with the provisions of this chapter 
shall be filed with the state secretary under the requirements of section 
thirty-seven of chapter thirty. Regulations shall become effective upon 
filing, unless a later date is required by any law or is specified by the 
agency in the regulation. (Emphasis supplied.) 

There is no provision of law which prevents the per diem rate from 
taking effect on the date that it is filed. Nor was any later date specified 
by the Department in the regulation filed with the state secretary. The 
determination of the per diem cost, in my opinion, became effective, in 
accordance with the plain meaning of G. L. c. 30A, § 5, on March 12, 
1966, the day it was filed with the Secretary of the Commonwealth. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



12. August 5, 1966. 

HoNOiL^BLE Hugh Morton, Chairman, Civil Service Commission. 

Dear Mr. Morton: — In a recent request for an opinion you state: 

"The applicant for a civil service position took an examination on No- 
vember 13, 1965, and after being notified of his mark on the Practical 
Questions seasonably filed a request with the Director of Civil Service for 
a review of his marks on certain questions. After review, the Director of 
Civil Service informed him that one question should be increased in the 
marking but that the other markings were free from error and that the 
applicant's protest concerning the marking of those answers was without 
merit. The applicant did not appeal from this decision of the Director of 
Civil Service to the Civil Service Commission within the statutory period. 



P.D. 12 49 

"On June 3, 1966, the applicant requested the Director of Civil Service 
to re-examine the appeal which the applicant had filed with the Director, 
citing substantiation for his answers to the Questions (for) which (credit) 
had previously been denied. It also appears that credit had been given to 
other applicants who appealed to the Commission on answers to those 
questions substantially the same as those given by the applicant. The Di- 
rector, on June 9, 1966, advised the applicant 'There is no provision in the 
statute to permit the Director to accept this request.' (This request being 
the appeal to the Director dated June 3, 1966.)" 

In view of this information you ask, in essence, whether the Civil 
Service Commission may hear an appeal from the Director's decision of 
June 9, 1966. 

I quote a relevant part of G. L. c. 31, § 12A: 

"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, setting forth, in the form 
prescribed by the director, specifically in what particulars the markings of 
the examination are allegedly incorrect and the authority relied upon by 
the applicant to support his allegations. 

"(W)ithin six weeks after acceptance of a request for a review of 
markings on any examination paper, the director shall cause such paper 
and the markings thereon to be reviewed, and shall transmit a copy of his 
decision to the applicant. 

"Not later than fourteen days after receipt of notice of the decision of 
the director, the applicant may appeal to the commission by filing a peti- 
tion in a form approved by it and containing a brief statement of the facts 
upon which such appeal is based. 

The above language is clear. Pursuant thereto, a party who desires a 
review by the Director of the markings of his examination must seek such 
review within fourteen days after the results. And if he is dissatisfied 
with the Director's decision, within fourteen days thereof he must file his 
appeal to the Commission. If he does not appeal to the Commission with- 
in the time fixed by statute, the Commission does not have jurisdiction 
over the appeal. Greeley v. Zoning Bd. of Appeals of Framingham, 1966 
Mass. Adv. Sh. 587, 589-590. See Cheney v. Assessors of Dover, 205 
Mass. 501, 503; Lincoln v. Board of Appeals of Framingham, 346 Mass. 
418, 420; Brady v. Board of Appeals of Westport, 348 Mass. 515, 520, 
each illustrating the principle that judicial, as well as administrative, re- 
views must be seasonably pursued, or else the reviewing tribunal loses 
jurisdiction of the matter. 

In eflPect, the request filed on June 3, 1966, attempts to seek a redeter- 
mination of the Director's earlier decision. It is not necessary to consider 
upon the facts presented whether the Director may, in his discretion, ever 
grant such a redetermination after the time for filing an original request 
has gone by. The fact is that in this case he has refused to do so. I can- 
not say on the facts before me that this refusal constituted an error of 
law or abuse of discretion. See 2 Am. Jur. 2d 346, nn 9-11. Cf. Atchison, 
Topeka and Santa Fe RR Co. v. United States, 284 U. S. 248. The appli- 
cant now attempts to use his request for redetermination as a lever to 
obtain review of a decision which the Commission no longer has the auth- 



50 P.D. 12 

ority to review. Jurisdictional requirements may not be so easily circum- 
vented. Pearce Hospital Foundation v. Illinois Pub. Aid Comm., 15 111. 
2d 301, 307. Hennessy v. Bischojf, 240 S. W. 2d 71, 73 (Ky.). Koehn v. 
State Bd. of Equalisation, 166 Cal. App. 2d 109, 113. I am of the opinion 
that the Commission lacks jurisdiction to hear the appeal from the Direc- 
tor's decision of June 9, 1966. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

13. August 8, 1966. 

Honorable Edward J. Ribbs, Commissioner, Department of Public 
Works. 

Dear Commissioner Ribbs: — In a recent request for an opinion, your 
predecessor in the office of Commissioner asked, in essence, whether the 
Department of PubHc Works is entitled to substantial reimbursement (not 
the legal witness fee under G. L. c. 262, § 29) from persons who summons 
employees of the Department to testify as expert witnesses in litigation 
to which neither the Commonwealth nor its agencies are parties. It is 
stated that in such litigation "Department personnel are frequently called 
upon to testify as experts rather than as ordinary witnesses because of 
their special skill and knowledge." 

Whatever the rights of the Commonwealth or its agencies to reimburse- 
ment when their employees are summoned as expert witnesses in judicial 
proceedings may be, such rights derive from the rights of the employees 
themselves. See Essex Trust Co. v. Waimvright, 214 Mass. 507; Gregory 
V. Mihvaukce County, 186 Wis. 235; State v. Spencer, 81 Fla. 211 ; Solo- 
mons v. United States, 137 U. S. 342, each illustrating the general prin- 
ciples of agency involved. 

The rule in this Commonwealth appears to be that an expert witness is 
not entitled to compensation when testifying at a judicial proceeding pur- 
suant to subpoena. This is the answer that was given after lengthy dis- 
cussion of the question in VII Op. Atty. Gen. 326, 327-328. While the 
holdings of the Massachusetts cases cited in that opinion (Barrus v. 
Phancuf, 166 Mass. 123, and Stevens v. Worcester, 196 Mass. 45) do not 
directly support the opinion referred to, there are strong dicta in these 
cases indicating that the conclusions are correct. Similar dictum was ex- 
pressed in the recent case of Ramacorti v. Boston Redevelopment Auth- 
ority, 341 Mass. Z77, 379-380. Since a person employed by the Common- 
wealth and summoned into court by a private litigant may be required to 
testify as an expert without receiving compensation for his testimony, the 
Commonwealth itself is not entitled to compensation for the services of 
such a person. 

I render this opinion subject to three qualifications: 1.) As already 
pointed out, the opinion applies only to substantial witness fees and not 
to the nominal fees which are provided for by G. L. c. 262, § 29. 2.) 
Nothing in this opinion should be read to require an unreimbursed witness 
summoned as an expert by a private litigant to acquaint himself with the 
facts relevant to a case or issue in order to give an opinion thereon. As 



P.D. 12 51 

a matter of law, a person so summoned is under no such requirement. 
Barrus v. Phaneuf, supra, 124-125 and cases cited. VII Op. Atty. Gen., 
supra, 329-330. Such a witness is required only to express opinions that 
he already holds, not to form opinions for the sake of the summonsing 
party. Stevens v. Worcester, supra, 56. United States v. 284,392 Square 
Feet of Floor Space, 203 F. Supp. 75, 77 and cases and authorities cited. 
3.) This opinion has no appHcation to circumstances in which an employee 
of the Commonwealth enters into an agreement, express or implied, to 
testify as an expert in return for compensation. See Barrus v. Phaneuf, 
supra; Hartley v. Alabama National Bank, 247 Ala. 651. Since specific 
facts are not before me, I do not consider the question whether, should 
an employee enter into such an agreement, the Commonwealth or its agen- 
cies would be entitled to the compensation agreed upon or to fair compen- 
sation for the witness' time and service. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

14. August 8, 1966. 

Honorable Edward J. Ribbs, Commissioner, Department of Public 
Works. 

Dear Sir: — Your predecessor in the office of Comfnissioner requested 
my opinion with respect to several questions regarding the proposed devel- 
opment by your Department and the Massachusetts Bay Transportation 
Authority of a joint transportation corridor along the Southwest Express- 
way. 

The General Court has expressly granted to the Commonwealth auth- 
ority to take railroad property by eminent domain. 

The Commonwealth may, at any time after one year's written notice to 
a railroad corporation, take its railroad, franchise and other property by 
eminent domain under chapter seventy-nine. G. L. c. 160, § 7. 

This statutory authority is consistent with the traditionally broad power 
of the Commonwealth relative to the operations of railroads. See Palmer 
v. Massachusetts, 308 U.S. 79. And the power of the Commonwealth to 
take property by eminent domain for public use is not only one of the 
most fundamental powers, but is also a basic attribute of sovereignty. 
Kohl V. U.S., 91 U.S. 367; U.S. v. Jones, 109 U.S. 513; Nichols, On 
Eminent Domain, Vol. 1, § 1-14. This power is generally subject to cer- 
tain restrictions which include statutory and constitutional safeguards. 
However, when a railroad has been under the jurisdiction of a federal 
bankruptcy court, there is conflicting authority on the efifect such proceed- 
ings have on the power of eminent domain. The provision of the Gen- 
eral Laws authorizing the taking of railroad property, namely G. L. c. 
160, § 7, contains no restrictions as to what kinds of railroad property 
may be taken. 

It is evident that the history of the property which is the subject of your 
request has been a long one resulting in various property interests such 
as ownership and leaseholds ; and it is also apparent that distinctions have 



52 P.D. 12 

been made between franchises, main line tracts other railroads' property, 
and operative and non-operative property. However, G. L. c. 160, § 7 
makes no such distinctions and imposes only the restrictions of notice and 
other safeguards incorporated by reference to G. L. c. 79. Consequently, 
G. L. c. 160, § 7 is applicable to all railroad property. Therefore, it is my 
opinion that under normal circumstances the Department of Public Works 
may take by eminent domain all of the various property interests or por- 
tions thereof mentioned in your first three questions. [It could well be 
that the taking of certain property of an operating railroad might impose 
the type of burden upon interstate commerce which could be offensive to 
Section 8 of Article I of the Constitution of the United States, the so- 
called Commerce clause. However, I do not have before me the facts 
which would be necessary in order to make such a determination.] 

The railroad companies which own or use the properties in question are 
being operated under and pursuant to the provisions of the Federal Bank- 
ruptcy Act (Title 11 of the U. S. Code). You have asked what the effect 
of this might be on the exercise by your Department of the power of 
eminent domain. 

That the Coinmonwealth has extensive regulatory power over a railroad 
which is under the control of the federal bankruptcy courts has long been 
settled. Palmer v. Massachusetts, 308 U. S. 79 (1939). In the past, it 
has been my opinion that such power extends to the taking of railroad 
property by eminent domain for the purpose of constructing highways or 
other means of transportation. Opinion of the Attorney General, Decem- 
ber 10, 1963. This remains my view of the applicable law. However, a 
careful review of past authority in the light of a case recently decided in 
the United States Court of Appeals for the First Circuit leads me to con- 
clude that — under the circumstances — caution should be followed in 
exercising the right of eminent domain. 

The Federal Bankruptcy Act contains many provisions for the protec- 
tion of the debtor and his creditors in reorganization. Should such a 
debtor's property be taken by the exercise of eminent domain, sums of 
money would be substituted for that property. Such a substitution of 
money for property is attended by all of the procedural safeguards of 
General Laws, Chapter 79; and as I have said earlier, it is my opinion 
that there is thus no frustration of the purposes and safeguards of the 
Federal Bankruptcy Act. 

Opinion of the Attorney General, December 10, 1963, p. 2. 

Nevertheless, the bankruptcy court retains some degree of control by 
virtue of its power to pass upon the sufficiency of the damages awarded 
for such a taking. Title 11, U. S. Code, § 205 et seq. Furthermore, it 
has been held by some courts that the permission of the federal bankruptcy 
court is a prerequisite to the exercising of the power of eminent domain 
where the condemnee is a railroad undergoing reorganization in such 
court. 

The case of Chicago, Rock Island and Pacific Ry. Co. v. City of Owa- 
tonna, 120 F. 2d 226 (8th Cir. 1941) concerned a taking of property by 
a municipality pursuant to its charter. The railroad which owned the prop- 
erty was at that time undergoing reorganization under the supervision of 
the federal bankruptcy court. It was held that where there is possession 



P.D. 12 53 

of property in a court of bankruptcy, such court has exclusive control 
over the determination of all questions respecting title, possession and 
control of such property; therefore, the consent of the bankruptcy court 
was considered a jurisdictional prerequisite to the initiation and successful 
completion of the proceeding by the city to condemn the railroad property 
in question. The court enjoined the taking since the requisite consent had 
not been given. 

This problem has not been presented to the United States Supreme 
Court for a ruling and the decision in the Eighth Circuit, although influ- 
ential, would not bind our First Circuit Court of Appeals. In 1965, the 
United States Court of Appeals for the First Circuit held in United States 
v. New York, New Haven and Hartford Ry. Co., 348 F. 2d 151 (1st Cir. 
1965) that the United States could take property by eminent domain from 
a bankrupt railroad. Although the District Court denied the request of 
the federal government and relied upon the Chicago, Rock Island case, 
supra, the Court of Appeals, in reversing the lower court, stated that a 
bankruptcy court's control extends only to the purposes for which the 
proceeding was originally brought — i.e., protection of the debtor from 
harassment during reorganization and determination of the application of 
the debtor's assets. But the Court of Appeals did not mention the Chicago, 
Rock Island case. It treated the issue simply as one of reconciling two 
conflicting federal statutes: (1) 28 U.S.C. § 1403 (relating to judicial 
condemnation proceedings) ; and (2) Section 77 of the Bankruptcy Act, 
11 U.S.C. § 205. 

The court concluded that both statutes could be given effect and that 
the bankruptcy court "is limited to determining the application of the pro- 
ceeds" and could not impede the exercise of the power of eminent domain 
or otherwise give the debtor or its creditors priority over the federal right. 

Thus, there is an apparent conflict of authority among the federal courts. 
Although my basic opinion remains unchanged from that of December 10, 
1963, it is my further opinion that one of two alternative actions might 
be followed by you : 

1. Petition the United States District Court for the District of Massa- 
chusetts for a declaratory judgment as to your right to take by eminent 
domain; or 

2. Request the permission of the bankruptcy court to take the property 
of the bankrupt railroad. 

Should you proceed to take by eminent domain the properties to which 
you have referred, your Department is not required to depart from the 
ordinary statutory requirements and procedures so far as notice is con- 
cerned. It would, however, appear to be necessary to include the trustees 
in bankruptcy in that class of persons' to whom notice of the taking must 
be given. 

In your letter you have further noted that the New York, New Haven 
and Hartford Railroad has petitioned the Interstate Commerce Commis- 
sion for authority to discontinue passenger service over the line in ques- 
tion. At the time of your letter the petition was pending before the Inter- 
state Commerce Commission, and you asked whether this situation affected 
your Department's power with regard to a taking by eminent domain. In 



54 P.D. 12 

an opinion dated April 6, 1966, the Interstate Commerce Commission dis- 
posed of the petition in question. It is, therefore, no longer pending before 
the Commission and cannot be considered — in and of itself — as affect- 
ing your Department's eminent domain powers. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

15. August 8, 1966. 

Honorable Harry C. Solomon, M.D., Commissioner, Department of 
Mental Health. 

Dear Commissioner Solomon: — In a recent letter, you have requested 
my opinion as to whether the per diem rate to be charged to elderly per- 
sons as patients in Cushing Hospital under section 2 of Chapter 481 of 
the Acts of 1964 must be exactly the same as the per diem cost of main- 
taining said patients established under section 1 of that statute. Speci- 
fically, your letter states that, in accordance with section 1, the per diem 
cost of maintaining elderly persons as patients at Cushing Hospital was 
established at $14.76. Your letter further indicates that, in accordance 
with section two, "for administrative purposes" the per diem rate to be 
charged to elderly persons as patients in said hospital was established at 
$14.76. 

It is my opinion that the per diem rate to be charged pursuant to sec- 
tion 2 must be identical to the per diem cost of maintenance established 
under section 1. 

Section 2 provides, inter alia: 

The department of mental health is hereby authorized and directed to 
establish as the per diem rate to be charged to elderly persons as patients 
in said hospital the per diem cost established by said director as provided 
in section one. (Emphasis supplied.) 

The language of the statute is clear and free from doubt. The use of 
the word "directed" in the statute constitutes a positive command by the 
Legislature. Nothing in the statute reveals a legislative intent to permit 
any variance, however slight, from the per diem cost in establishing the 
per diem rate to be charged. Nor is any circumstance apparent which 
makes strict compliance with the plain meaning of the statute impossible. 

The United States Supreme Court has construed the words "authorized 
and directed" as used in another statute similarly to the construction given 
those words herein. That statute, the Act of March 4, 1915 (38 Stat. 
962, 981), provided: 

"That the Secretary of the Treasury be, and he is hereby, authorized 
and directed to pay out of any money in the Treasury not otherwise appro- 
priated ... to Susan Sanders . . . $1200." 

Regarding that statute, the Supreme Court stated: 

"In the present case it is conceded, and properly conceded, that payment 
of the fund in question to . . . Sanders is a ministerial duty, the perfor- 



P.D. 12 55 

mance of which could be compelled by mandamus." Houston v. Ormes, 
252U. S. 469 (1920). 

Similarly, it is my opinion that section two of Chapter 481 of the Acts 
of 1964 imposes upon your Department a ministerial, nondiscretionary 
function. Therefore, in establishing the per diem rate to be charged, the 
Department has no discretion merely to approximate the per diem cost. 
Accordingly, the Department must establish $14.76 as the per diem rate to 
be charged. 

Very truly yours, 
Edward W. Brooke, Attorney General. 

16. August 9, 1966. 

Honorable Robert Q. Crane, Chairnmn, State Board of Retirement. 

Dear Mr. Crane : — You have requested my opinion as to whether 
Frank S. Giles, former member of the General Court, and recently Com- 
missioner of Public Safety, who "was suspended from his position as 
Commissioner of Public Safety on being indicted on charges" involving 
misconduct in his appointive public office is "entitled to receive a retire- 
ment allowance under the provisions of fG. L. c. 32, § 10]." 

I call your attention to G. L. c. 30, § 59, of which I quote the relevant 
portion : 

"An officer or employee of the commonwealth, or of any department, 
board, commission or agency thereof, or of any authority created by the 
general court, may, during any period such officer or employee is under 
indictment for misconduct in such office or employment or for misconduct 
in any elective or appointive public office, trust or 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 appoint- 
ment was subject to approval in any manner. . . . 

"Any person so suspended shall not receive any compensation or salary 
during the period of such suspension, nor shall the period of his suspen- 
sion be counted in computing his sick leave or vacation benefits or senior- 
ity rights, nor shall any person who retires from service while under such 
suspension be entitled to any pension or retirement benefits, notwithstand- 
ing any contrary provisions of law, but all contributions paid by him into 
a retirement fund, if any, shall be returned to him." (Emphasis supplied.) 

Records contained in the office of the Secretary of the Commonwealth 
indicate that Mr. Giles was suspended pursuant to G. L. c. 30, § 59. Mr. 
Giles has been tried upon one indictment and found guilty. See Common- 
wealth V. Giles, 1966 Mass. Adv. Sh. 61. He remains under indictment 
for several alleged ofifenses involving "misconduct in . . . office" within 
the purview of § 59. On September 27, 1965, while still under suspension, 
Mr. Giles submitted his resignation from the office of Commissioner of 
Public Safety. This resignation was accepted by the Governor of the 
Commonwealth on the following day. 



56 P.D. 12 

Pursuant to the provisions of c. 32 of the General Laws, a period of 
retirement is deemed to commence upon the date upon which application 
for such retirement was filed. Since Mr. Giles was required — under the 
terms of the relevant retirement statutes — to file his retirement applica- 
tion prior to the eflfective date of his resignation, any approval of such 
application would relate back to the period of the applicant's suspension. 
Thus, Mr. Giles would have retired "while under . . . suspension" in the 
sense used in G. L. c. 30, § 59. Accordingly, it is clear that his retirement 
from service entitles him to the return of all of his contributions to the 
pension fund, but not to any other retirement benefits. See Bessette v. 
The Commissioner of Public Works, 348 Mass. 605, 610. 

The answer given above applies both as to Mr. Giles' present rights 
under G. L. c. 32, § 10, pars. (1) and (2), and as to his future rights 
under par. (3). Under par. (3), the "retirement allowance of any mem- 
ber entitled thereto under the provisions" of pars. (1) or (2) may be de- 
ferred under certain circumstances. Since Mr. Giles is not entitled to 
benefits under pars. (1) or (2) because of his resignation while under 
suspension, he is not entitled to such benefits under par. (3). 

Very truly yours, 

Edward W. Brooke, Attorney General. 

17. August 9, 1966. 

Honorable John J. McCarthy, Commissioner of Administration, Exec- 
utive Office for Administration and Finance. 

Dear Commissioner McCarthy: — You have requested my opinion as 
to whether Mr. George A. Wells who is presently the Mayor of Worcester 
and on a leave of absence from a permanent position with the Department 
of Commerce and Development may be employed by the Commonwealth 
as an independent consultant under contract. I quote relevant portions of 
the contract: 

"In consideration of the payments hereinafter to be made to George A. 
Wells, by the Commonwealth of Massachusetts by and through the De- 
partment of Commerce and Development, said George A. Wells agrees to 
work for and perform services as Special Consultant on Public Relations 
and Promotion. The said George A. Wells will have the responsibility of 
preparing and narrating such radio programs as the Department of Com- 
merce may be involved with and, in addition, the said George A. Wells 
shall handle special projects for the Department of Commerce and Devel- 
opment in the field of promotion, shall research and prepare material for 
speeches for Department officials, shall assist in preparation of material 
for the Department publication, 'Commerce Digest,' and any other assign- 
ments that shall be given him by the Commissioner. 

"For the above-mentioned services, said George A. Wells shall be com- 
pensated by the Commonwealth of Massachusetts with payments made on 
the monthly basis of statements rendered at the rate of eight (8) dollars 
per hour, not to exceed however six hundred and fifty (650) dollars in 
any month, plus necessary travel and expenses ; said expenses shall be re- 
imbursable to the amount permitted by the laws of the Commonwealth for 



P.D. 12 57 

Civil Service employees. Expenses for out-of-state travel must receive 
prior approval of the Commissioner. The term of this agreement shall be 
for the period from March 15, 1966 through June 30, 1966." 

General Laws c. 31, § 46E provides the following: 

"Any person holding an elective state office, or the mayor of any city 
elected to said office by the people, who holds a permanent office or posi- 
tion in the classified civil service or the labor service or who is employed 
on a permanent basis by any public authority which is supported in whole 
or in part by public money shall, upon his written request made to the 
appointing authority, be granted a leave of absence without pay from such 
office, position or employment for all or such portion of the term for which 
he was elected as he may at any time, or from time to time, designate, and 
he shall not be suspended or discharged, and shall suffer no loss of civil 
service rights, as a result of such election." As amended St. 1965, c. 703, 
§1. 

Presumably, in accordance with the above provisions, Mr. Wells has 
taken a leave of absence without pay from his position with the Depart- 
ment of Commerce. 

It is stated in G. L. c. 30, § 21 : 

"A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth." 

Clearly, the terms of G. L. c. 30, § 21 have no application to the proposed 
contract with Mr. Wells, since (as I assume) he does not now receive any 
salary from the Commonwealth. Furthermore, I know of no other pro- 
vision of law that could even remotely be said to bar the proposed contract 
between Mr. Wells and the Commonwealth while Mr. Wells is on leave 
of absence from his position with the Department of Commerce and draw- 
ing no salary therefrom. I am, therefore, of the opinion that the proposed 
contract is permissible. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



18. August 10, 1966. 

Honorable Alfred L. Frechette, Commissioner of Public Health. 

Dear Commissioner Frechette: — You have requested an opinion 
with respect to the assignment of a parti of the grounds of the Medfield 
State Hospital as a site for the disposal of refuse from the operations of 
that hospital. You state that the Medfield State Hospital is under the 
jurisdiction of the Department of Mental Health and that the proposed 
site has been examined by the Department of Public Health. You have 
asked "whether this area must be . . . assigned as a dumping ground under 
the provisions of § 150A of Chapter 111 of the General Laws." 

As I understand your question, you are concerned with whether the site 
may be assigned as a dumping ground by the Department of Mental 
Health and/or the Department of Public Health without permission from 
the local board of health, or whether the assignment must be made by the 
Medfield Board of Health under the provisions of § 150A of c. 111. 



58 P.D. 12 

Section 150A of c. Ill provides that "no place in any city or town shall 
be established or maintained by any person, including any political sub- 
division of the cornmonzvealth, as a dumping ground for garbage . . . un- 
less such place has been assigned by the board of health of such city or 
town as a dumping ground. ..." (Emphasis supplied.) The answer to 
your question, therefore, depends on whether a department of the Com- 
monwealth is included within the phrase "any person, including any politi- 
cal subdivision of the commonwealth." 

A department of the Commonwealth does not fall within the term "poli- 
tical subdivision of the commonwealth." This term refers to local units 
of government or to certain bodies, such as the Massachusetts Bay Trans- 
portation Authority, which by statute are designated as political subdivi- 
sions of the Commonwealth. The Commonwealth itself and departments 
of the Commonwealth are not included within the scope of the expression. 

The remaining question, therefore, is whether a department of the Com- 
monwealth is covered by the term "any person" in § 150A of c. 111. 

Section 7 of c. 4 of the General Laws provides that " 'person' or 'who- 
ever' shall include corporations, societies, associations and partnerships." 
Departments of the Commonwealth are not covered by this definition. In 
Hansen v. Commonwealth, 344 Mass. 214, 219, the Court said that "... 
it is a widely accepted rule of statutory construction that general words 
in a statute such as 'persons' will not ordinarily be construed to include 
the state or political subdivision thereof." It is therefore clear that "any 
person" in § 150A of c. Ill does not include a department of the Com- 
monwealth. 

The above interpretation of the language of § 150A of c. Ill outweighs 
any possible contrary conclusions which might be drawn from the statute's 
apparent purpose of placing the assignment of dumping grounds in the 
hands of the local boards of health. Section 2 of § 150A of c. Ill (St. 
1955, c. 310, § 2) provided that "Any place in use as ... a dumping ground 
for garbage . . . shall be deemed to have been assigned under section one 
hundred and fifty A. . . . " (Emphasis supplied.) This general language 
in § 2, however, cannot broaden the restrictive language used in § 1 of 
§ 150A. The Legislature has clearly limited the application of § 150A of 
c. Ill so as to exclude refuse dumps established or maintained by depart- 
ments of the Commonwealth. 

This result is further supported by the general non-applicability of local 
ordinances and local control to activities of the Commonwealth or of agen- 
cies created by the Commonwealth. Cities and towns derive all of their 
powers from the general government and can exercise only such powers 
as are expressly or impliedly conferred upon them by the Legislature. In 
light of this fact, it would be unreasonable to place the activities of a de- 
partment of the Commonwealth under the control of a local board of 
health in the absence of a very clear statutory mandate requiring such a 
result. 

The Supreme Judicial Court has often held that municipalities can exer- 
cise no control over an officer whose duties have been defined by the Legis- 
lature. Breault v. Town of Auburn, 303 Mass. 424; Reitano v. City of 
Haverhill, 309 Mass. 118; Municipal Light Commission of Taunton v. 
City of Taunton, 323 Mass. 79. The Department of Public Utilities is 



P.D. 12 59 

given authority under § 10 of c. 40A of the General Laws to grant exemp- 
tions from local zoning ordinances to public service corporations. And in 
Village on the Hill, Inc. v. Massachusetts Turnpike Authority, 348 Mass. 
107, the Court held that "the Boston zoning statute . . . does not 'apply to 
buildings or land belonging to and occupied by the . . . commonwealth.' " 

In conclusion, the Department of Mental Health and/or the Department 
of Public Health may establish a refuse disposal site on the grounds of 
the Medfield State Hospital without requesting permission from the Med- 
field Board of Health under § 150A of c. 111. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



19. August 10, 1966. 

v/Honorable Robert Q. Crane, Treasurer and Receiver General, Chair- 
man, State Board of Retirement. 

Dear Mr. Crane: — You have requested my opinion with respect to an 
application for retirement filed on October 13, 1965, by former Commis- 
sioner of Administration Charles Gibbons. You have indicated that Mr. 
Gibbons, who has more recently served as Chainnan of the Government 
Center Commission, filed the said application for reasons of superannua- 
tion under the provisions of G. L. c. 32, § 10. In his application, the fol- 
lowing statement appears : ^'Failure of re-appointment because of suspen- 
sion on July 1964 for reason of indictment." 

In light of the above facts, you have posed the following questions : 

"1. Must the Board comply with the request contained in the applica- 
tion filed and pay to the applicant a retirement allowance? 

"2. May the Board make a finding to the effect that the applicant is 
not entitled to receive a retirement allowance and thereby refuses to pay 
any retirement allowance? 

"3. If the applicant is not entitled to receive a retirement allowance, is 
he entitled to a return of his accumulated total deductions credited in his 
account ?" 

The questions which you have presented may be resolved by the pro- 
visions of § 59 of c. 30 of the General Laws, the so-called Perry Law. 
Records contained in the Department of the Secretary of the Common- 
wealth reveal that Mr. Gibbons was suspended from performing the duties 
of Chairman of the Government Center Commission pursuant to c. 30, 
§ 59 on July 21, 1964. 

The relevant portion of c. 30, § 59 provides as follows: 

"Any person so suspended shall not receive any compensation or salary 
during thd period of such suspension, nor shall the period of his suspen- 
sion be counted in computing his sick leave or vacation benefits or senior- 
ity rights, nor shall any person who retires from service zvhile under such 
suspension be entitled to any pension or retirement benefits, notwithstoMd- 



60 P.D. 12 

ing any contrary provisions of law, but all contributions paid by him into 
a retirement fund, if any, shall be returned to him." (Emphasis supplied.) 

The provisions of the retirement statutes required that Mr. Gibbons 
file his retirement application prior to the expiration of his term of office. 
Were such application to be approved, the approval would relate back to 
a date prior to the termination of Mr. Gibbons' employment by the Com- 
monwealth. Since Mr. Gibbons' suspension remained in effect until the 
date of expiration of his term, it follows that his retirement would have 
occurred during the period of his suspension. See my opinion to you 
dated August 9, 1966 relative to the retirement application filed by Mr. 
Frank S. Giles. 

Thus, Mr. Gibbons would not "be entitled to any pension or retirement 
benefits . . . , but all contributions paid by him into a retirement fund . . . 
shall be returned to him." Since the provisions of c. 30, § 59 are dis- 
positive of this matter, it is not necessary to consider the effect of para- 
graphs (2) (a), (2)(b) and (2) (c) of § 10 of c. 32. Accordingly, I 
answer your first question in the negative and your second and third ques- 
tions in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



20. August 11, 1966. 

Honorable Donald L. Crooks, Chairman, Board of Agriculture. 

Dear Mr. Crooks : — You have requested my opinion upon the follow- 
ing question: "Can the Board of Agriculture assign the duties required of 
them in Chapter 128A, Section 3, to employees within the department?" 

General Laws c. 128A, § 3 provides in part as follows : 

"[0]n an application for a license to conduct a horse or dog racing 
meeting in connection with a state or county fair the applicant shall show 
a certificate from the commissioner of agriculture that ( 1 ) such fair is a 
state or county fair as defined in section one, (2) such fair has been oper- 
ating for each of the five consecutive years immediately preceding the date 
of filing such application and had received for each of said five consecutive 
years assistance from the agricultural purposes fund, (3) such fair is 
properly qualified as hereinafter in this paragraph provided, and (4) the 
location where such racing meeting is to be held is annually approved by 
him and by the board of agriculture." 

Chapter 128A, § 3 thus requires that the proposed site of the racing 
meeting be approved by the Board of Agriculture. This is the Board's 
only "duty" under this statute. Whether this approval is discretionary or 
ministerial has not been decided by our courts. 

It is my opinion that the approval of the Board required by c. 128A, 
§ 3 is discretionary in nature. See Springfield v.. Commonwealth, 1965 
Mass. Adv. Sh. 857, 861-862. The statute requires approval by the Board 
of "the location where such racing meeting is to be held." If, for some 
reason, the members of the Board believe that a proposed site is not well 



P.D. 12 61 

suited for a racing meeting, approval of that particular site may be with- 
held. It would be unreasonable to suppose that the statute requires the 
Board to go through the formalities of approval of the site selected by the 
applicant without exercising its independent judgment. In addition, when 
the Supreme Judicial Court has construed the word "approval" as it ap- 
pears in other statutes relating to the granting of licenses, it has usually 
held that the "approval" required was discretionary in nature. Leroy v. 
Worcester St. Ry. Co., 287 Mass. 1,7; Coyne v. Alcoholic Beverages Con- 
trol Commission, 312 Mass, 224, 228-229. 

Since the approval required by c. 128A, § 3 calls for a discretionary act 
of the Board of Agriculture, it can be granted only as a result of a formal 
vote of the Board taken at a regular meeting. In Moskow v. Boston Re- 
devlopment Authority, 1965 Mass. Adv. Sh. 1203, 1212, the Court said: 
"The members [of the Boston Redevelopment Authority] comprise a 
board of public officers, who must make official decisions . . . by at least 
a majority vote given at a duly constituted meeting of the board. They 
could not act separately or individually." See also Alphen v. Shadman, 
330 Mass. 608, 609 (Boston Housing Authority) ; Kenney v. McDonough, 
315 Mass. 689, 693-694 (city council). It is clear that your Board must 
approve or disapprove racing sites at a duly constituted meeting, and can- 
not lawfully delegate its power of approval. 

It is a general rule of law that discretionary powers of administrative 
officials cannot be delegated to subordinates in the absence of clear statu- 
tory provisions allowing for such delegation. 

"In the absence from the applicable . . . statutes of provisions relating 
to the power of boards or officials primarily charged with administering 
such statutes to delegate to others matters relating to [the administration 
of the statutes] . . . the existence of such authority is usually made to de- 
pend upon whether the particular act or duty sought to be delegated is . . . 
ministerial . . . or . . . discretionary ... in nature. Where this distinction 
is observed, it is generally if not universally held that ministerial acts may 
be delegated. ... If, however, the act sought to be delegated is discre- 
tionary ... in nature, the . . . official has no authority to deputize it." 

107 A.L.R. 1482, 1483. 

The general rule that discretionary powers may not be delegated is ob- 
served in this Commonwealth. Day v. Green, 4 Cush. 433, 438. Leroy v. 
Worcester St. Ry. Co., supra, 7 . There is no authority, either in c. 128A, 
§ 3 or in c. 20, for the delegation by the Board of Agriculture of its 
power to approve racing sites. In the absence of statutory provisions auth- 
orizing the delegation of this power, and in view of my conclusion that the 
approval power is discretionary in nature, it is my opinion that the Board 
of Agriculture cannot assign to employees within the Department its ap- 
proval powers under c. 128A, § 3. 

Your letter states that the Board of Agriculture has found it advisable 
to make on-site inspections of proposed locations for racing meetings. 
Such subsidiary duties, preliminary to the formal decision to approve or 
disapprove the proposed site, may be delegated. Members of the Board 
need not personally conduct such an investigation. See Maiden v. Metro- 
politan Transit Authority, 328 Mass. 491, 494-495; Clooney v. Civil Serv- 
ice Commission, 1965 Mass. Adv. Sh. 1243, 1244; 2 Am. Jur. 2d 54-55. 



62 P.D. 12 

Accordingly, it is my opinion that the Board of Agriculture may not 
delegate its approval powers under c. 128A, § 3, but may lawfully provide 
that site inspections shall be conducted by Department employees. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



21. August 12, 1966. 

Honorable George W. Waters, Chairman, Board of Standards. 

Dear Mr. Waters : — You have asked for my opinion with regard to 
the question whether Section 106.1 of the Board of Standards Building 
Code, STD-10, conflicts with c. 691 of the Acts of 1963. Specifically, you 
have inquired whether the Board may, in light of c. 691, authorize the 
continued use, without change, of buildings or structures existing on Jan- 
uary 13, 1966, provided such use is not detrimental to the general safety 
and welfare of the public, and provided the building is not enlarged and 
the exit facilities are adequate for a new building of the same use and 
occupancy load. 

Chapter 691 of the Acts of 1963 amended § 3B of c. 143 of the Massa- 
chusetts General Laws. The purpose of this amendment, as evidenced by 
the title to the Act, is to "PROVIDE [E] THAT MATERIALS USED 
IN BUILDINGS REQUIRED TO HAVE PROPER EGRESSES 
AND OTHER MEANS OF ESCAPE FROM FIRE SHALL COM- 
PLY WITH RULES AND REGULATIONS MADE BY THE 
BOARD OF STANDARDS." In determining whether § 106.1 of the 
Board of Standards Building Code is in conflict with St. 1963, c. 691, it 
is useful to consider both the language of § 106.1 of the Code and the 
pertinent provisions of § 3B of c. 143 of the General Laws, as amended 
by c. 691 of the Acts of 1963. 

Section 106.1, Board of Standards Building Code, STD-10. 

"Sec. 106.1 Existing Use Unchanged. The legal use and occupancy of 
any building or structure existing on January 13, 1966 or for which it 
had been heretofore approved may be continued without change when such 
use is not detrimental to the general safety and welfare of the public pro- 
vided the building is not enlarged in height or area and the exit facilities 
are adequate for a new building of the same use and occupancy load." 

G. L. c. 143, § 3B. 

"The board of standards in the department shall make rules and regu- 
lations relating to the construction, reconstruction, alteration, repair, demo- 
lition, removal, use or occupancy, and to the standards of materials, includ- 
ing materials used for finish and trim, to be used in such construction, re- 
construction, alteration, repair, demolition, removal, use or occupancy of 
any building, portion of a building or room which is a place of assembly 
or which is required to be provided zvith proper egresses or other means 
of escape ; and such rules and regulations shall be in accordance with the 
generally accepted standards of engineering practice and not inconsistent 
with law. Such rules and regulations may provide that no permit for use 



P.D. 12 63 

or occupancy of a place of assembly or of any portion of a building in 
which said proper egresses or other means of escape from fire are so re- 
quired shall be granted unless there is presented with the application for 
such permit a certificate of the inspector to the effect that the building of 
which such place of assembly is a part or that any portion of a building 
in which said proper egresses or other means of escape from fire are so 
required complies with the pertinent provisions of this chapter. ..." 
[Underlined portion was added by St. 1963, c. 691.] 

The first sentence of G. L. c. 143, § 3B, as amended by c. 691 of the 
Acts of 1963, instructs the Board of Standards to make rules and regula- 
tions with regard to a building or room which is a place of assembly or 
which is required to be provided with proper egresses or other means of 
escape. It is clear that the General Court intended to require the promul- 
gation of regulations relative to this subject matter ["The board of stand- 
ards in the department shall make rules and regulations. . . . "]. Thus, if 
the Board should fail to promulgate rules and regulations with respect to 
the buildings or parts thereof referred to in c. 143, § 3B, as amended, the 
Board would violate the mandate of that statute. 

However, the direction given the Board by G. L. c. 143, § 3B, as 
amended by c. 691 of the Acts of 1963, is a broad one. It does not specify 
with particularity what the rules and regulations promulgated by the Board 
are to be. Rather, it leaves to the expert judgment of the members of 
the Board the task of formulating rules and regulations so as to insure the 
public health and safety in so far as they are dependent upon the construc- 
tion, and the materials used therein, of buildings subject to G. L. c. 143, 
§3B. 

Section 106.1 of the Board of Standards Building Code is a regulation 
applicable to the legal use and occupancy of a building or structure exist- 
ing on January 13, 1966. This regulation allows continued use without 
change provided three conditions are met: (1) "such use is not detrimental 
to the general safety and welfare of the public"; (2) "the building is not 
enlarged in height or area"; and (3) "the exit facilities are adequate for 
a new building of the same use and occupany load." Thus, in order to 
have continued use without change — i.e., in order to have continued use 
without being required to meet the other provisions of the Code which, 
absent § 106.1, would be applicable — of a building or structure existing 
on January 13, 1966, such use must comply with the requirement (in effect 
a "regulation") that it not be detrimental to the general safety and welfare 
of the public. Further, any building or structure covered by § 106.1 must 
comply with the requirements (also "regulations") that there be no en- 
largement in height or area and that exit facilities are adequate for a new 
building of the same use and occupancy load. Consequently, it is clear 
that the Board has heeded the legislative direction to promulgate regu- 
lations with respect to buildings or parts of buildings in question. 

By formulating § 106.1, the Board has attempted to alleviate what other- 
wise might be a heavy burden imposed upon the owners and users of 
buildings in existence at the time of the Code's enactment. As is evident 
from a perusal of its contents, the Code sets forth detailed requirements 
for buildings covered by it. If buildings in existence at the time of the 
Code's enactment were required to conform to the detailed provisions 
governing new buildings, owners of the older buildings most likely would 



64 P.D. 12 

be compelled to engage in extensive and costly alterations. As a remedy, 
the Board has formulated § 106.1, a regulation which imposed require- 
ments of general safety and welfare and adequate exit facilities, but which 
does not impose the detailed requirements of the remainder of the Code. 

It is my conclusion that the Board has complied with its mandate to 
formulate rules relating to the buildings and structures dealt with in G. L. 
c. 143, § 3B, as amended. In accordance with the broad delegation of dis- 
cretion contained in that statute, the Board has promulgated rules and 
regulations in the form of a building code. Section 106.1 of the Code im- 
poses on buildings in existence at the time of the Code's enactment re- 
quirements in lieu of those set forth in other sections. As indicated above, 
there is a reasonable basis for regulating buildings constructed prior to 
the enactment of the Code in a manner somewhat different from other 
buildings. Accordingly, it is my opinion that § 106.1 of the Board of 
Standards Building Code does not conflict with G. L. c. 143, § 3B, as 
amended by c. 691 of the Acts of 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



22. August 12, 1966. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — To your letter of July 26, 1966, you 
attach a "circular letter" dated June 29, 1966 and sent to state directors 
of vocational education by the United States Assistant Commissioner of 
Vocational and Technical Education. Calling my attention to Section II 
of the circular letter, you ask me to rule "at an early date" on whether 
the Constitution of the Commonwealth permits the donation of state funds 
or other state property to private institutions to achieve the purposes of 
the federal Manpower and Development Training Act of 1962. Under 
this Act, state funds or property so donated would be matched by dona- 
tions of the Federal Government. 

The relevant portion of the circular letter states : 

'Tf any State has a constitutional provision that prohibits the expendi- 
ture of public funds for training in private schools, the Attorney General 
shall certify to the Commissioner of Education that the State cannot use 
public funds or in-kind contributions for such training." 

The Constitution of the Commonwealth contains the type of provision 
prohibiting the expenditure of public funds for training in private schools 
to which the federal authorities have referred [See Article 46 of the 
Amendments to the Massachusetts Constitution, discussed more fully in 
my opinion to you of June 13, 1966]. For your convenience, I have pre- 
pared a letter to the United States Commissioner of Education certifying 
that such a provision exists and enclose that letter herein, together with a 
copy for your files. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



P.D. 12 . 65 

22>. August 15, 1966. 

Honorable J. Peter Griffin, Director, Division of Dairying and Animal 
Husbandry. 

Dear Mr. Griffin : — You have requested my opinion with respect to 
the interpretation of the provisions of § 16F of c. 94 of the General Laws. 
Pursuant to that statute, all milk dealers within the Commonwealth are 
required — during the month of June — to register with your Division, 
and to supply certain information pertaining to their operations during 
the month of May. Chapter 94, § 16F further provides that the Director 
may require such dealers to submit similar information for any one calen- 
dar month. Accordingly, you have posed the following question : 

"Does this last sentence restrict me so that I am only entitled to the 
information for two calendar months, specifically May and any other one 
of my choice, or does it mean that I am entitled to the information for the 
twelve calendar months?" 

The relevant language of the statute provides as follows : 

"Each person, not a producer of milk, whose principal business is the 
sale at wholesale or retail of milk, shall, before commencing to transact 
such business, register as a dealer with the director, and shall thereafter 
annually so register during the month of June, and upon every such regis- 
tration shall state the address of each of his places of business, the names 
and addresses of producers, milk plants, receiving stations, or pasteuriza- 
tion plants supplying him the milk, with the number of quarts of milk 
supplied by each producer or from each such other source during the last 
calendar month preceding registration. . . . The director may require . . . 
such person . . . to prepare and submit to him, upon a form furnished by 
him therefor, a further statement of similar information for any one calen- 
dar month. ..." (Emphasis supplied.) 

The quoted language reveals a clear intent on the part of the General 
Court to restrict the amount of information which may be required by the 
Director. The Legislature has specifically referred to "a further statement 
of similar information for any one calendar month." (Emphasis sup- 
plied.) The conclusion is unavoidable that — by such language — the 
Legislature authorized the Director to require the submission of a state- 
ment for one calendar month only (other than the month of May.) This 
statutory provision does not support the contention that the Director may 
— at different times during the year — require information pertaining to 
various calendar months. Had such been the intention of the General 
Court, it presumably would not have included the type of restrictive lan- 
guage which now appears in c. 94, § 16F. 

The section in question was most recently amended by c. 687 of the Acts 
of 1960. Prior to the effective date of that amendment, the section pro- 
vided : 

"The director may require each such person to prepare and submit to 
him, upon a form furnished by him therefor, at such other times as he 
may require, a further statement of similar information relating to any 
one calendar month." (Emphasis supplied.) 

St. 1960, c. 687, deleted the words "at such other times as he may require." 



66 . P.D. 12 

It is not necessary to decide conclusively whether the provisions of c. 94, 
§ 16F, as they existed prior to the 1960 amendment, authorized the Direc- 
tor to require the filing of statements for any or all calendar months. 
However, the removal of the words "at such other times as he may re- 
quire" indicates even more strongly that the General Court intended to 
impose a limitation upon the number of times the Director could lawfully 
call for further information. 

Accordingly, it is my opinion that the statute in question does not per- 
mit you to require the submission of information for all twelve calendar 
months; rather, it authorizes you to ask only for information pertaining 
to the month of May and to any other single calendar month of your 
choosing. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



24. August 18, 1966. 

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

Dear Madam : — You have requested my opinion relative to the follow- 
ing questions : 

"Under Section 21, of Chapter 142 of the General Laws, does the Board 
of State Examiners of Plumbers have the authority to inspect plumbing 
installations in buildings constructed under the authority of Chapter 563 
of the Acts of 1964? 

"If the answer to the above question is in the negative, then would the 
inspection of plumbing in these buildings fall under the jurisdiction of a 
local city or town in which the building is located?" 

General Laws c. 142, § 21 provides as follows: 

"The examiners shall formulate rules relative to the construction, alter- 
ation, repair and inspection of all plumbing work in buildings oivned and 
used by the commonwealth, subject to the approval of the department of 
public health, and all plans for plumbing in such buildings shall be subject 
to the approval of the examiners." (Emphasis supplied.) 

A reading of the plain and ambiguous language of the above-quoted 
section makes it clear that the authority of the Board of State Examiners 
of Plumbers under said section is limited to "buildings owned and used 
by the commonwealth." The answer to your first question, therefore, de- 
pends upon whether buildings constructed by the Massachusetts Bay 
Transportation Authority under the provisions of § 18 of c. 563 of the 
Acts of 1964 (G. L. c. 161A) are "owned and used by the common- 
wealth." 

I am of the opinion that buildings constructed by the MBTA are owned 
by the AIBTA and are not owned by the Commonwealth. Section 2 of 
c. 161A establishes the MBTA as a political subdivision of the Common- 
wealth. Among the powers granted to the Authority by said § 2 are the 
"power to hold property, to sue and be sued in law and equity and to 



P.D. 12 67 

prosecute and defend all actions relating to its property and affairs." (Em- 
phasis supplied.) The Authority is further given the power "[t]o take 
real property by eminent domain . . . ," (§ 3(o)), and "to buy, sell, lease, 
pledge and otherwise deal with real and personal property. ..."(§ 3 
(q))- 

The above sections clearly provide that the MBTA has the power to 
hold property in its own name. Property so held is owned by the Auth- 
ority and not by the Commonwealth. Therefore, buildings constructed 
by the MBTA are not owned by the Commonwealth and do not come 
within the scope of c. 142, § 21. The same conclusion was reached by a 
previous Attorney General in reference to the applicability of G. L. c. 
142, § 21 to buildings constructed by the Massachusetts Turnpike Auth- 
ority (Attorney General's Report, April 17, 1958, p. 61), and by the 
Massachusetts Port Authority (Attorney General's Report, January 8, 
1959, p. 67). 

You have also asked whether the inspection of plumbing in buildings con- 
structed or owned by the MBTA would fall under the jurisdiction of the 
particular municipality in which the building is located. General Laws c. 
142, § 11 provides in part that the inspectors of plumbing of each city 
and town "shall inspect all plumbing in process of construction, alteration 
or repair for which permits are granted within their respective cities and 
towns. ..." 

In my opinion, however, the local plumbing inspectors do not have 
jurisdiction over buildings owned by the MBTA. As a matter of general 
policy, local ordinances and local control are not applicable to activities 
of the Commonwealth or of agencies created by the Commonwealth. 
Cities and towns derive all of their powers from the general government 
and can exercise only such powers as are expressly or impliedly conferred 
upon them by the Legislature. In light of this fact, it would be unreason- 
able to place the activities of a body such as the MBTA under the control 
of local plumbing inspectors in the absence of a very clear statutory man- 
date requiring such a result. The Legislature has granted the Authority 
power to operate in a large number of cities and towns and to perform a 
very important public function. See, Massachusetts Bay Transportation 
Authority v. Boston Safe Deposit and Trust Go., 348 Mass. 538. Control 
by each of the cities and towns over the facilities of the Authority located 
therein could disrupt the efficiency of this operation. 

The Supreme Judicial Court has often supported this immunity of gen- 
eral governmental agencies from local control. It has held that municipali- 
ties can exercise no control over an officer whose duties have been defined 
by the Legislature. Breault v. Toivn of Auburn, 303 Mass. 424; Reitano 
V. Gity of Haverhill, 309 Mass. 118; Municipal Light Gommission of 
Taunton v. Gity of Taunton, 323 Mass. 79. And in Village on the Hill, 
Inc. V. Massachusetts Turnpike Authority, 348 Mass. 107, 118, the Court 
held that "the Boston zoning statute . . . does not 'apply to buildings or 
land belonging to and occupied by the . . . commonwealth.' " While recog- 
nizing that property held by the Turnpike Authority was not owned by 
the Commonwealth, the Court went on to say that "the Legislature . . . 
made the authority sufficiently governmental in character so that the actual 
construction and operation of the turnpike . . . and action reasonably re- 
lated to that function, should not be prevented by a zoning statute appli- 



68 P.D. 12 

cable to one municipality or by a local zoning ordinance or by-law." The 
principle expressed in the above case applies with equal validity to the 
MBTA. 

Statutory support for this conclusion is provided by c. 882 of the Acts 
of 1965 which amended § 3 of c. 161A of the General Laws. Paragraph 
(i) of said § 3 now provides in part as follows: 

"[The Authority shall have the power] to provide mass transportation 
service . . . without being subject to the jurisdiction and control of the 
department of public utilities . . . and, zvifh respect only to operations of 
the authority with equipment owned and operated by the authority, with- 
out, except as otJierzvise provided in this chapter, being subject to the juris- 
diction and control of any city or town or other licensing authority. ..." 
(Emphasis supplied.) 

The italicized words quoted above were added by the 1965 amendment, 
which was entitled "An Act excluding operations of the Massachusetts 
Bay Transportation Authority with equipment owned and operated by 
said Authority from the jurisdiction and control of city, town and certain 
other licensing authorities." This amendment indicates a clear legislative 
intent to exclude the MBTA from local jurisdiction and control. The 
term "equipment" used in the amendment is defined broadly by § 1 of c. 
161A to include "all rolling stock . . . vehicles, rails . . . station equipment 
. . . incidental apparatus and other tangible personal property, whether or 
not affixed to realty, required or convenient for the mass movement of 
persons." Plumbing installations in buildings owned by the MBTA come 
within the above definition. They are therefore excluded from local inspec- 
tion and control. 

Accordingly, it is my opinion that plumbing installations in buildings 
constructed by the MBTA are not under the jurisdiction of either the 
Board of State Examiners of Plumbers or individual municipal plumbing 
inspectors. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



25. August 29, 1966. 

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

Dear Governor Volpe: — By letter dated August 17, 1966, you have 
requested my opinion with respect to the present status of Mr. Anthony 
N. DiNatale. You have indicated that on the seventh day of October, 
1964, a Suffolk County Grand Jury returned four indictments (Suffolk 
Criminal Court Nos. 14835, 14836, 14837 and 14838 of 1964) against the 
said Mr. DiNatale. On October 14, 1964, Mr. DiNatale was suspended 
from performing his duties as a member of the Massachusetts Turnpike 
Authority by then Governor Endicott Peabody pursuant to the provisions 
of G. L. c. 30, § 59, the so-called Perry Law. The trial of two of the 
indictments, commencing in Suffolk Superior Court on May 23, 1966, 
resulted — on June 6, 1966 — in jury verdicts of not guilty on each 
indictment. On July 29, 1966, nolle prosequi statements were filed by the 



P.D. 12 69 

Department of the Attorney General indicating that the two remaining 
indictments would not be prosecuted, since the evidence available with re- 
spect to trial of the charges contained therein was substantially the same 
as that introduced at the earlier trial. 

In light of the above, you have posed the following questions : 

"1. Have the criminal proceedings against Mr. DiNatale been suffi- 
ciently 'terminated without a finding or verdict of guilty on any of the 
charges on which he was indicted,' so as to require removal of his suspen- 
sion under the provisions of Chapter 30, Section 59 of the General Laws? 

"2, If the answer to the first question is in the affirmative, who is the 
appropriate person to remove the suspension, and what is the appropriate 
form and procedure to be followed in effecting such removal?" 

The provisions of § 59 of c. 30 authorize the immediate suspension of 
any appointed ofificer or employee of the Commonwealth, or of any State 
department, board, commission or agency, or of any public authority, 
created by the General Court, should such officer or employee be indicted 
for misconduct in any public position at any time held by him. See Bes- 
sette V. Commissioner of Public Works, 348 Mass. 605, 608; Reynolds v. 
Commissioner of Commerce and Development, 1966 Mass. Adv. Sh. 167, 
168. However, the statute carefully preserves the rights of the suspended 
officer or employee in the event he should ultimately be cleared of the 
charges lodged against him. Thus, should criminal proceedings conclude 
in favor of the suspended appointee, he is entitled to immediate restora- 
tion to his position, and to receipt of whatever compensation and benefits 
have been withheld. 

"If the criminal proceedings against the person suspended are termi- 
nated 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 sus- 
pension, and the time of his suspension shall count in determining sick 
leave, vacation, seniority and other rights, and shall be counted as credit- 
able service for purposes of retirement." (Emphasis supplied.) 

Mass. G. L. c. 30, § 59 

There is no doubt that the criminal proceedings brought by the Com- 
monwealth against Mr. DiNatale have terminated in his favor in the sense 
intended by the Perry Law. The statute does not require actual acquittal 
of all charges as a condition precedent to restoration of the appointee to his 
position. Rather, it provides that the person involved shall be entitled to 
restoration and to receipt of back salary and other benefits upon termina- 
tion of the criminal proceedings "without a finding or verdict of guilty." 
In other words, termination of the criminal case in any way unfavorable 
to the Commonwealth satisfies the statutory condition and requires removal 
of the suspension. 

Mr. DiNatale has been acquitted by a Suffolk County jury upon two 
of the four indictments returned against him. The Commonwealth has 
elected not to proceed with the prosecution of the remaining two indict- 
ments. Accordingly, the criminal proceedings against Mr. DiNatale have 
been "terminated without a finding or verdict of guilty on any of the 



70 P.D. 12 

charges on which he was indicted," and I consequently answer your first 
inquiry in the affirmative. 

Chapter 30, § 59 contains a specific notice provision. 

"Notice of said suspension shall be given in writing and delivered in 
hand to said person or his attorney, or sent by registered mail to said per- 
son at his residence, his place of business, or the office or place of employ- 
ment from which he is being suspended. Such notice so given and de- 
livered or sent shall automatically suspend the authority of said person to 
perform the duties of his office or employment until he is notified in like 
manner that his suspension is removed. A copy of any such notice together 
with an affidavit of service shall be filed with the state secretary." (Em- 
phasis supplied.) 

It is my opinion that the statutory notice provision applies to the present 
case. The General Court has not made it absolutely clear whether formal 
notification of removal of suspension is necessary when such removal of 
suspension is required by law. Notice is of course necessary when a given 
appointing authority has decided — in his discretion — to terminate a 
suspension imposed at an earlier date. However, the desirability of in- 
forming both the individuals involved and the public as a whole of the 
exact status of a given appointee would seem to require application of the 
statute's notice provision under the present circumstances as well. 

Consequently, it is my opinion that the Governor of the Commonwealth 
— as the appointing authority of members of the Massachusetts Turnpike 
Authority — must notify Mr. DiNatale forthwith that his suspension has 
been removed. Written notice signed by the Governor may be delivered 
in hand to Mr. DiNatale or to his attorney, or may be sent by registered 
mail to Mr. DiNatale at his residence or place of business. A copy of such 
notice together with an affidavit of service should be filed with the Secre- 
tary of the Commonwealth in accordance with the statutory requirement. 

Very truly yours, 

Edv^ard W. Brooke, Attorney General. 

26. August 30, 1966. 

Honorable Elliot L. Richardson, Lieutenant Governor of the Com- 

momvealth. 

Dear Lieutenant Governor Richardson : — In a recent request for 
an opinion you state the following: 

"On May 4, 1966, by Executive Order No. 50, Governor Volpe estab- 
lished the Vocational Rehabilitation Planning Commission (hereafter 
called the Commission). 

"By this Executive Order the Governor also designated the Commis- 
sion as the agency to carry out state-wide planning for services to the 
handicapped pursuant to a program established by 29 U.S.C. 34 (a) (2) 
B as amended by section 4 (a) (2) of the Vocational Rehabilitation Act 
Amendments of 1965 (Public Law 89-333). A maximum of $100,000 a 
year for up to two years is available from the federal government to carry 
out this planning with no state matching funds required." 



P.D. 12 71 

In view of these facts you ask the following questions: 

"1. Will the rules and regulations of the Civil Service Commission 
under Chapter 31 of the General Laws be inapplicable to the professional 
consultant whose services as Executive Director are contracted for by the 
Commission ? 

"2. Is there any state law which would limit the Commission's power 
to receive federal funds? 

"3. Is there any state law which would limit the power of the Com- 
mission to contract for professional services to carry out the planning 
according to the charge in Executive Order No. 50 ?" 

I shall consider each question separately but I shall not consider, in 
answering any of these questions, the general validity of Executive Order 
No. 50; I assume that consideration of so weighty an issue is not within 
the scope of the questions which you pose. 

The term "consultant" generally suggests "a person who, as a non- 
employee, gives professional advice or service regarding matters in the 
field of his special knowledge or training." (Emphasis supplied.) G. L. 
c. 29, § 29A. See also G. L. c. 23A, § 9. I assume that any "consultant" 
hired by the Commission will be a "non-employee" ; that is, he will render 
professional services to the Commission without immediate supervision by 
any officer or employee of the Commonwealth and, in brief, the Com- 
mission will be his client rather than his employer. Under G. L. c. 31, 
§ 3, rules may be made to "regulate the selection and employment of 
persons to fill positions in the official service and labor service of the com- 
monwealth." (Emphasis supplied.) Since a consultant to the Vocational 
Rehabilitation Planning Commission presumal)ly does not hold a "position" 
with (see Brozvn v. Luster, 165 F. 2d 181, 185), and is in neither the 
"official service" (see State v. Smith, 19 Wash. 644) nor the "labor serv- 
ice" (see Deveney's Case, 223 Mass. 270, 271) of the Commonwealth, the 
rules issued by the Civil Service Commission under G. L. c. 31 would not 
apply to him. On the basis of my assumption regarding the status of the 
consultant as a "non-employee," I answer your first question in the affirm- 
ative. 

Although the General Court has from time to time specifically confer- 
red upon certain bodies the right to receive federal funds (see, e.g., G. L. 
c. 44, § 53 A), I know of no statute or constitutional provision that ex- 
pressly or impliedly limits the rights of other official bodies to receive such 
funds. Accordingly, I answer your second question in the negative. 

I assume that the funds to pay for any "professional services" for which 
the Commission may wish to contract will not come directly or indirectly 
from the treasuries of the Commonwealth or any of its subdivisions and 
that the Commission will not purport, in entering into any such contracts, 
to bind the Commonwealth to pay for such services. Based on this assump- 
tion, my opinion is that there is no law barring the Commission from 
entering into the contracts. Accordingly, I answer your third question in 
the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



72 P.D. 12 

28. September 9, 1966. 
Mr. Samuel M. Flaksman, Executive Secretary. 

Dear Mr. Flaksman : — You have requested my opinion "as to whether 
or not Chapter 740 of the Acts of 1964 is appHcable to Chapter 138, Sec- 
tion 24 of the General Laws concerning the approval of the Regulations 
of the Alcoholic Beverages Control Commission by the Council." 

Chapter 740 of the Acts of 1964 is an Act — passed by initiative pro- 
cess — repealing certain statutory powers of the Governor's Council. 
Section 2 of said Act lists those provisions of the General Laws which 
are exempt from the Act's effects. General Laws c. 138, § 24 is not in- 
cluded in those exemptions. 

General Laws c. 138, § 24 provides that "The commission shall, with the 
approval of the governor and council, make regulations. ..." As used in 
c. 740 and defined in § 1 of said Act, the phrase "advice and consent of 
the council" includes "approval" by that body. "Approval" by the Execu- 
tive Council is what is called for by c. 138, § 24. 

Chapter 740, § 4 specifically repeals so much of each provision of the 
General Laws "as requires the advice and consent of the council with re- 
spect to any action or omission to act by the governor or by any . . . 
agency ... in the executive department, including . . . any rules or regu- 
lations. ..." Accordingly, it is my opinion that c. 740 of the Acts of 
1964 is applicable to G. L. c. 138, § 24, and that rules and regulations of 
the Alcoholic Beverages Control Commission need no longer be submitted 
to the Executive Council for approval. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

29. September 13, 1966. 
Honorable Kevin H. White, Secretary of the Commonzvealth. 

Dear Secretary White: — By letter dated August 31, 1966, you have 
inquired whether men in the academies of the three armed services of the 
United States can be considered members of the armed services (for pur- 
poses of administration of the state election laws). 

General Laws c. 54, §§ 103B-103Q, make provision for special treat- 
ment under the election laws of those persons who are "federal service 
personnel." By § 103B, "federal service personnel" includes "persons on 
active service in the armed forces or merchant marine of the United 
States." The phrase "on active service in the armed forces ... of the 
United States" is not further defined in the election laws. 

Title 10 of the United States Code deals with the armed forces of the 
United States. Section 101(24) of Title 10 provides: "'Active service' 
means service on active duty." Section 3075(a) of Title 10 states, "The 
Regular Army is the component of the Army that consists of persons 
whose continuous service on active duty in both peace and war is contem- 
plated by law. ..." Section 3075(b) of Title 10 defines the Regular 



P.D. 12 73 

Army as including "... the professors, registrar, and cadets of the United 
States Military Academy. ..." (Emphasis supplied.) 

Similarly explicit provisions of federal law establish that cadets at the 
United States Air Force Academy are on active service in the armed 
forces of the United States. See United States Code, Title 10, § 8075. 

The status of midshipmen at the United States Naval Academy does 
not appear to be established by law with the precision used in the cases 
of cadets at the Military and Air Force Academies. Nevertheless, the 
provisions of Title 10 of the United States Code, taken in the aggregate, 
show that the status of midshipmen is that of men on active service in 
the armed forces of the United States. By § 5001 of Title 10, "member 
of the naval service" means a person "appointed or enlisted in . . , the 
Navy. ..." Sections 6961(a), 6962(b) and 6963 of Title 10 establish 
that midshipmen are members of the naval service. By § 802 of Title 10, 
midshipmen are subject to the Uniform Code of Military Justice. The 
provisions of law relating to the Naval Academy are all to be found in 
Title 10 of the United States Code, which, as stated above, deals with the 
armed forces of the United States. Those provisions (§§ 6951-6974) are 
similar to the provisions relating to the United States Military Academy 
_(§§ 4331-4355) and the Air Force Academy (§§ 9331-9355). Bearing 
in mind the provisions of the statutes dealing with absent voting by federal 
service personnel that "such provisions shall be construed liberally to 
effectuate their purposes" (G. L. c. 54, § 103Q), I conclude that the status 
of midshipmen is the same as that of cadets. 

Consequently, it is my opinion that cadets at the United States Military 
Academy and the United States Air Force Academy and midshipmen at 
the United States Naval Academy are persons on active service in the 
armed services of the United States for the purpose of administration of 
the state election laws. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



30. September 15, 1966. 

Honorable Samuel M, Flaksman, Executive Secretary, Executive 
Council. 

Dear Mr. Flaksman : — At a recent meeting the Executive Council 
voted to request an opinion of the Attorney General as follows : 

"... voted that an opinion of the Attorney General be requested as to 
whether, after a request for a respite by the Governor under Chapter 279, 
Section 49 of the General Laws, has received the consent of the Council, 
it is required that the Governor must therefore recommend a pardon for 
the 'convict', after the investigation and consideration of the facts; or 
can the Governor, after such investigation and consideration take no' action 
towards a pardon." 

Chapter 279, § 49 authorizes the granting of a respite of the execution 
of a sentence of death, and provides as follows : 



74 P.D. 12 

"The governor, with the advice and consent of the council, may from 
time to time respite the execution of a sentence of death for stated periods 
so long as he may consider it necessary to afford him, with the advice and 
consent of the council, on opportunity to pardon the convict and to in- 
vestigate and consider the facts of the case for that purpose" (Emphasis 
supplied.) 

I do not reach the question whether the Executive Council's statutory 
responsibility to advise with respect to such a respite has been repealed 
by the provisions of c. 740 of the Acts of 1964. See Constitution of the 
Commonwealth, Pt. 2, c. 2, § 1, Art. VIII; Juggins v. Executive Council, 
257 Mass. 386, 388. 

The clear purpose of c. 279, § 49 is to provide the Governor with the 
time that is necessary to make a careful and considered decision with re- 
spect to the granting of a pardon. The terms of the statute to the effect 
that execution of the sentence may be delayed for such period as is "neces- 
sary to afford him ... an opportunity to pardon the convict and to in- 
vestigate and consider the facts of the case" are susceptible to only one 
interpretation. The granting of such a respite in no way compels the 
Governor to take any action with respect to a pardon. The purpose of the 
respite is solely to provide the Chief Executive with time to investigate 
and to consider the question. Were the effect of the granting of a respite 
under the provisions of c. 279, § 49 to compel the recommendation of a 
pardon or any other action, the entire purpose of the statute would be 
negated. 

Accordingly, the statute in no way operates to require the Governor 
to recommend a pardon. It is my opinion that — after the investigation 
and consideration which takes place during the period of the respite — 
the Governor retains complete discretion to recommend or not to recom- 
mend a pardon as he sees fit. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



31. September 19, 1966. 

Honorable Kevin H. White, Secretary of the Cominomvealth. 

Dear Sir: — In your letter of August 16, 1966, you request my opinion 
with respect to one of the provisions of c. 236 of the Acts of 1966, which 
Act is entitled, "An Act Relative To Sessions For Registration Of 
Voters." You ask whether a Saturday registration session, which falls 
on the final day for registration under § 1 of St. 1966, c. 236, meets the 
Saturday session requirements imposed by §§ 2 and 3 of said Act. 

Sections 2 and 3 of St. 1966, c. 236, provide in part that "they [the 
registrars] shall hold at least one session on a Saturday during the last 
two weeks prior to the close of registration." Section 1 of the Act re- 
quires. that the final day for registration before the state primary and the 
state election shall be the thirty-first day preceding such primary or elec- 
tion. It is clear that such thirty-first day will always fall on a Saturday, 
since both the state primary and the state election are held upon Tuesdays. 
The question is, therefore, whether holding one Saturday registration on 



P.D. 12 75 

the Saturday which falls on the thirty-first day preceding the state primary 
or state election satisfies the requirement of §§ 2 and 3 of St. 1966, c. 236, 
that "they shall hold at least one session on a Saturday during the last 
two weeks prior to the close of registration." 

It should be noted that the language originally appearing in St. 1898, 
c. 548, § Z7, was : 

"They shall hold at least one session at some suitable and convenient 
place in every city or town on or before the Saturday last preceding the 
first caucus preceding the annual state election, to give an opportunity to 
qualified voters to register." 

This language has undergone subsequent changes by amendments, but the 
use of the phrase "on or before" clearly indicated a legislative intention 
that a registration session on the Saturday last preceding the first caucus 
preceding the annual state election would satisfy this section. 

The words "at least" are emphatic, and expressive of a minimum, to be 
equated with no less than one. Lasro Corp. v. Kree Institute of Elec- 
trolysis, 215 N.Y.S. 2d 125, 128; In Re Gregg's Estate, 213 Pa. 260; 
Barron v. Green, 13 N.J. Super. 483. The phrase "prior to," as used in 
St. 1966, c. 236, §§2 and 3, should be construed to mean a session "not 
later than" thirty-one days before the primary or election. Berkozv v. 
Hammer, 189 Va. 489. 

It will be noted further that a pertinent part of the language of § 1 of 
St. 1966, c. 236, is : " . . . there shall be no registration of voters between 
ten o'clock in the evening on the thirty-first day preceding and the day 
following, the biennial state primary. ..." The statute sets a precise time 
for the close of registration on the last day. Any session before ten o'clock 
in the evening on the thirty-first day preceding the state primary or elec- 
tion is a session prior to the close of registration. 

Accordingly, it is my opinion that the requirements of §§ 2 and 3 of 
St. 1966, c. 236 are satisfied if the various registrars hold Saturday ses- 
sions on the thirty-first day preceding the state primary or election. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

32. September 20, 1966. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Mr. White : — You have requested my determination pursuant to 
§ 19 of c. 53 of the General Laws whether a certain question filed with 
your office may properly be considered a question of public policy. General 
Laws c. 53, § 19 provides in part as follows: 

"On an application signed by twelve hundred voters in any senatorial 
district, or by two hundred voters in any representative district, asking 
for the submission to the voters of that senatorial or representative district 
of any question of instructions to the senator or representatives from that 
district, and stating the substance thereof, the attorney general shall upon 
request of the state secretary determine whether or not such question is 



76 P.D. 12 

one of public policy, and if such question is determined to be one of public 
policy, the state secretary and the attorney general shall draft it in such 
simple unequivocal and adequate form as shall be deemed best suited for 
presentation upon the ballot. ..." 

A sufficient number of voters of the Seventeenth Hampden Representa- 
tive District have filed an application with your office for submission of 
a question of public policy to the voters of the District at the State Elec- 
tion on November 8th. The question is designed to secure from the voters 
their approval or rejection of a continued increase in the rate of the prop- 
erty tax in order to meet the increased costs of government. 

The words "public policy" as used in G. L. c. 53, § 19 should not be 
given a restrictive construction. See my other opinion issued today to your 
Department. See also 8 Op. Atty. Gen. 490, 493. "Public policy" in sub- 
stance "may be said to be the community common sense and common con- 
science, extended and applied throughout the state to matters of public 
morals, public health, public safety, public welfare, and the like." Pitts- 
burgh, C, C. & St. L. Ry. Co. v. Kinney, 95 Ohio St. 64'; Hammonds v. 
Aetna Casualty & Surety Co., 243 F. Supp. 793, 796-797. 

The question submitted is clearly within the meaning of the term "public 
policy" as it is used in G. L. c. 53, § 19, and it may lawfully appear on 
the ballot. In accordance with the provisions of G. L. c. 53, § 19, I am 
including the following statement of the measure for use at the general 
election. 

Statement 

Shall the Representative from this District be instructed to vote to ap- 
prove the passage of a measure which would provide for a continued in- 
crease in the rate of property taxes in order to meet the increase in the 
cost of government? 

Very truly yours, 

Edward W. Brooke, Attorney General. 



33. September 20, 1966. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Mr. White: — You have requested my determination in accord- 
ance with the provisions of § 19 of c. 53 of the General Laws whether 
a certain "Application for Submission to Voters of Questions of Public 
Policy," duly filed in your office, in fact presents that type of policy ques- 
tion which may properly be placed upon the ballot at the general election. 

Since the term "public policy," as used in G. L. c. 53, § 19, is not 
limited or qualified in any way, it would appear that the Legislature in- 
tended that the term not be given a restricted meaning. See 8 Op. Atty. 
Gen. 490, 493. "Public policy" has been said to mean generally the com- 
munity common sense and common conscience applied to matters of public 
morals, public health, public safety, public welfare, and the like. See Pitts- 
burgh, C., C. & St. L. Ry. Co., v. Kinney, 95 Ohio St. 64 ; Hammonds v. 
Aetna Casualty & Surety Co., 243 F. Supp. 793, 796-797. It is my opin- 
ion that the question contained in the application, seeking the voters' ap- 



P.D. 12 • 77 

proval or rejection of a measure designed to increase the rate of the state 
income tax as a means of assisting the cities and towns in obtaining suffi- 
cient revenue so that the property tax may be maintained at a constant 
rate, is properly one of pubHc policy within the meaning of G. L. c. 53, 
§ 19. An important question concerning the fiscal policies of the Com- 
monwealth has been raised. The question may lawfully be submitted to 
the voters of the District at the State Election on November 8th. 

In accordance with the provisions of G. L. c. 53, § 19, I am including 
the following statement of the measure for use at the general election. 

Statement 

Shall the Representative from this District be instructed to vote to ap- 
prove the passage of a measure providing for an increase in the rate of 
taxation on income as a means of assisting the cities and towns without 
unnecessarily increasing the present rate of property tax? 

Very truly yours, 

Edward W. Brooke, Aitorney General. 



34. September 27, 1966. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Mr. White: — By two letters dated September 1, 1966, and two 
letters dated September 9, 1966, you have indicated that there have been 
filed in your office four applications for submission to the voters of ques- 
tions of public policy. Pursuant to the provisions of § 19 of c. 53 of the 
General Laws, you have requested my opinion whether the four questions 
are such that they qualify for inclusion upon the ballot at the general elec- 
tion as questions of "public policy." 

The questions are as follows : 

(1) 257 registered voters of the Seventeenth Worcester Representa- 
tive District have asked for the opinion of the voters upon "a constitutional 
provision to reduce the size of the Legislature from 240 members to 160 
members." 

(2) 346 registered voters of the Twenty-first Worcester Representa- 
tive District have submitted a similar question, worded upon their appli- 
cation as follows : "Do you favor reducing the members of the House of 
Representatives from 240 to 160?" 

(3) 251 registered voters of the Seventeenth Suffolk Representative 
District submitted the following: "Do you prefer a limited three per cent 
sales tax rather than a graduated income tax as a means of raising addi- 
tional state revenue needed to provide property tax relief for cities and 
towns?" 

(4) 253 registered voters of the Seventeenth Suffolk Representative 
District proposed the following question for consideration at the general 
election : "Do you prefer a financial responsibility merit system of auto- 
mobile insurance rather than the present compulsory system?" 



78 P.D. 12 

General Laws c. 53, § 19 provides in part : 

"On an application signed by twelve hundred voters in any senatorial 
district, or by two hundred voters in any representative district, asking for 
the submission to the voters of that senatorial or representative district of 
any question of instructions to the senator or representatives from that 
district, and stating the substance thereof, the attorney general shall upon 
request of the state secretary determine whether or not such question is 
one of public policy, and if such question is determined to be one of public 
policy, the state secretary and the attorney general shall draft it in such 
simple unequivocal and adequate form as shall be deemed best suited for 
presentation upon the ballot. ..." 

I do not believe that the General Court intended this section to be given 
a restrictive interpretation. See my two opinions to you, each dated Sep- 
tember 20, 1966, wherein this subject matter is more fully explored. 

I rule that each of the questions referred to above is properly one of 
public policy within the meaning of c. 53, § 19, and may lawfully appear 
on the ballot at the general election. In accordance with the provisions of 
that statute, I am including the following statements of the submitted 
measures for use upon the November ballot. 

Statements 

(1) Shall the Representative from this District be instructed to vote 
to approve the passage of a constitutional amendment reducing the size of 
the Massachusetts House of Representatives from 240 members to 160 
members ? 

(2) Shall the Representative from this District be instructed to vote 
to approve the passage of a constitutional amendment reducing the size of 
the Massachusetts House of Representatives from 240 members to 160 
members ? 

(3) Shall the Representative from this District be instructed to vote 
to approve the retention of a limited three per cent sales tax rather than 
the adoption of a graduated income tax as a means of raising additional 
revenue to provide property tax relief for cities and towns? 

(4) Shall the Representative from this District be instructed to vote 
to approve the passage of a measure creating a financial responsibility 
merit system of automobile insurance as a substitute for the present com- 
pulsory automobile insurance system? 

Very truly yours, 

Edward W. Brooke, Attorney General, 



35. September 27, 1966. 

Dr. David W. Wallvvork, Secretary, Board of Registration in Medicine. 

Dear Doctor Wallwork : — You have requested my opinion as to whe- 
ther Executive Order No. 67, issued on February 21, 1944 by then Gov- 
ernor Leverett Saltonstall, still effectively modifies G. L. c. 112, § 9A. 



P.D. 12 79 

For the purposes of this opinion, I assume that Executive Order No. 
67 was vaHd when issued and did not involve an unconstitutional delega- 
tion of legislative power. Inasmuch as I am of the opinion that the Order 
in question is, in any event, not currently effective, I need not consider the 
possible constitutional questions. 

Executive Order No. 67 was promulgated specifically to expedite the 
availability of qualified assistants in medicine for military service during 
World War II, by reducing the minimum age for registration from 
twenty-one years of age (as required by G. L. c. 112, § 9A) to twenty 
years of age. In relevant part that order provides as follows : 

"NOW, THEREFORE, I, LEVERETT SALTONSTALL, Gov- 
ernor of the Commonwealth of Massachusetts, acting under the provisions 
of Acts of 1941, chapter 719, as amended by Acts of 194'3, chapter 3, 
Acts of 1942, chapter 13, sections 2 and 3, and all other authority vested 
in me, do hereby issue this order as a measure necessary and expedient 
for meeting the supreme emergency of the existing state of war between 
the United States and certain foreign countries. 

"The Board of Registration in Medicine is hereby authorized to register 
as an assistant in medicine an applicant for such registration who fulfills 
all the requirements of General Laws (Ter. Ed.) chapter 112, section 9A, 
other than the requirement as to age ; but such applicant shall furnish the 
Board with satisfactory proof that he is twenty years of age or over. All 
provisions of law applicable to a j>erson registered under General Laws 
(Ter. Ed.) chapter 112, section 9A, as an assistant in medicine shall be 
applicable to a person registered as such an assistant under the authority 
of this order. 

"The provisions of General Laws (Ter. Ed.) chapter 112, section 9A, 
shall be inoperative during the effective period of this order only to the 
extent that such provisions are inconsistent with this order." (Emphasis 
supplied. ) 

The Governor's authority to issue Executive Order No. 67, which in 
effect amended a statute, was dependent on the legislative grant of powers 
contained in the statutes cited in the Order. I am of the opinion that the 
effective period of the Order was therefore coterminous with the effective 
period of the statutory authority upon which it was based. This conclu- 
sion is supported both in logic and in a number of reported cases. 

The statutes were passed as emergency measures to meet the demands 
of the wartime situation, and Executive Order No. 67 was promulgated 
on the basis of these statutes and in furtherance of the statutory purpose. 
It is reasonable to conclude that with the end of the war the emergency 
statutes and the executive orders based thereon ceased to be operative. 
Justice Holmes, in Chastleton Corp. v. Sinclair, 264 U.S. 543, 547, said: 
"A law depending upon the existence of an emergency or other certain 
state of facts to uphold it may cease to operate if the emergency ceases 
or the facts change even though valid when passed." 

Further, the Federal courts have uniformly held that suspension orders 
issued by the Office of Price Administration during World War II expire 
when the statutory authority to make such orders expires. Bowles v. 
Lovemnn, 147 F. 2d 654; DiMelia v. Bowles, 148 F. 2d 725; Illario v. 
Bowles, 57 F. Supp. 404. 



80 P.D. 12 

The statutes upon which Executive Order No. 67 was based are clearly 
no longer effective. Chapter 719 of the Acts of 1941, as amended by c. 
3 of the Acts of 1943, was to "be in effect during the continuance of the 
existing state of war between the United States and any foreign country. 
..." Chapter 13 of the Acts of 1942, in § 12 thereof, contains the identi- 
cal language. Thus, while no termination date was or could have been 
specified in the statutes, the Legislature clearly expressed its intention that 
the end of World War II would signal the end of the effective period of 
the statutes. A similar intention was expressed by Governor Saltonstall 
in the last paragraph of Executive Order No. 67. 

Accordingly, I answer your question in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



36. September 29, 1966. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs : — You have recently requested my opinion 
upon the following matter. You state that your Department took by emi- 
nent domain a parcel of land on March 13, 1956 and on November 9, 1956 
took three additional parcels from the same landowner; that the owner 
refused to settle these cases for the offers made by the Department and 
that he did not file a petition for assessment of damages within the period 
allowed by law; that he is now attempting to have special legislation 
passed to permit him to file a petition for assessment of damages ; that — 
pending the results of his efforts to obtain passage of a special bill — he 
has requested a pro tanto payment of damages and that he has refused 
to sign a final settlement agreement for a damage award concerning the 
four takings. You further state that the Commission is prepared to vote 
a payment of damages and such interest as might be due. Your questions, 
reworded for the purposes of this opinion, are as follows : 

1. May the Board comply with the landowner's request for a pro tanto 
payment under § 8A of c. 79 of the General Laws ? 

2. Will the award be a final payment under the provisions of c. 79, § 
41 of the General Laws although the owner does not sign the settlement 
agreement ? 

3. What is the period of time for which interest is payable on this 
award ? 

Section 8A of c. 79 of the General Laws which authorizes, and — in 
certain circumstances — commands, the taking authority to settle cases 
and make payments pro tanto was added to c. 79 by c. 626 of the Acts 
of 1959. Section 6 of that chapter states: 

"This act shall apply only to orders of taking adopted on and after the 
effective date of this act." (Emphasis supplied.) 

Since the taking of the land occurred in 1956, the Department has no 
power to make any payment pro tanto or enter any settlement agreement 
under c. 79, § 8A. 



P.D. 12 81 

Before the addition of § 8A to c. 79 in 1959, however, taking authori- 
ties were empowered to make settlements and payments pro tanto by § 
39 of c. 79 as amended by c. 242 of the Acts of 1955. Willar v. Common- 
wealth, 297 Mass. 527. This power was subsequently removed from § 39 
by the 1959 amendments, but only for "orders of taking adopted on and 
after the efifective date" of the act. St. 1959, c. 626, § 6. Section 39 was 
further amended in 1964 and 1965. These later amendments are also in- 
applicable to a 1956 order of taking. See St. 1964, c. 548, §§ 3 and 5; 
St. 1965, c. 653, § 2. 

Thus the question whether a settlement or payment pro tanto should 
now be made for a 1956 taking must be decided in accordance with § 39 
as it read before the amendments of 1959, 1964 and 1965. 

"... [the] body politic . . . may after the right to . . . damages has 
become vested offer in writing to pay to the person entitled to receive the 
same the amount which it is willing to pay in settlement thereof, with 
interest thereon, together with taxable costs if a petition for the assess- 
ment of damages is pending. If an award of damages has previously been 
made, the offer shall not be of a less amount than such award. Accep- 
tance thereof may be either in full satisfaction of all damages so sustained, 
or as a payment pro tanto without prejudice to any right to have the re- 
mainder thereof assessed by the appropriate tribunal. After notice of such 
ofifer, made as aforesaid, or payment of the amount thereof, no interest 
shall be recovered, except upon such amount of damages as shall, upon 
final adjudication, be in excess of the amount of said offer. ..." 

Section 39 authorizes the Department to "ofifer in writing" an appropri- 
ate damage award. It is then the responsibility of the person entitled to 
damages to determine whether to accept the offer as full settlement or as 
a payment pro tanto. However, with respect to the payment of interest, 
the section states, "... after (written) notice of such offer ... or pay- 
ment ... no interest shall l>e recovered, except upon such amount of 
damages as shall, upon final adjudication, be in excess of the amount of 
said ofifer. ..." 

The landowner has the right to accept the ofifer as a final settlement or 
as a payment pro tanto. Your Department must act in accordance with 
that decision. 

Interest upon the award should be calculated in accordance with c. 79, 
§ Z7, as amended by c. 2 of the Acts of 1920. The later additions and 
amendments to this section are either irrelevant to the instant facts (see 
Acts of 1956, c. 641 and Acts of 1960, c. 298, § 1), or do not apply to 
a 1956 taking (see Acts of 1963, c. 793, §§ 1 and 3 ; Acts of 1964, c. 
548, §§ 2 and 5). Shelist v. Boston Redevelopment Authority, 1966 Mass. 
Adv. Sh. 565. Thus, § Z7, in relevant part, states : 

"Damages under this chapter shall bear interest at the rate of four per 
cent per annum from the date as of which they are assessed until paid 
. . . but an award shall not bear interest after it is payable unless the body 
politic or corporate liable therefor fails upon demand to pay the same to 
the person entitled thereto." (Emphasis supplied.) 

It has long been the rule in IVlassachusetts that the title of a landowner 
converts to a claim for damages at the time of the taking of the property. 



82 P.D. 12 

Since damages are to be assessed at the date of the taking, compensation 
is due at that date. Thus the interest should accumulate on the award from 
the taking date as well. luihcschied v. Old Colony Railroad Company, 
171 Mass. 209. 

Section 37, which directs that an award shall not bear interest after it 
is payable unless there is a failure to pay on demand, should be read to- 
gether with § 39 above which states that no interest shall be recovered 
after notice of an offer by the Department "except upon such amount of 
damages as shall, upon final adjudication, be in excess of the amount of 
said offer." Thus the award, in my opinion, would be payable upon re- 
ceipt of notice of the offer of the Department. Interest should be calcu- 
lated at the rate of 4% only for the period from the date of the taking 
to the date of payment or receipt of notice of the offer of the Department. 
If the Department has in the past made a written offer to this landowner, 
the amount proposed with interest to date of the offer should now be 
paid and no further action need be taken by the Department. If the De- 
partment has never made a written offer of a damage award, it would be 
proper and advisable to do so at this time in order to prevent a further 
accumulation of interest. 

Section 41 of c. 79 states : 

"If no petition under section fourteen is filed within the time limited, 
the award of damages shall be final and the amount thereof shall be paid 
upon demand, and if not so paid may be recovered in an action of con- 
tract." 

Whether the landowner signs the agreement in full settlement or chooses 
to treat the offer as a payment pro tanto will make no difference as regards 
the liability of the Commonwealth for this taking. Since the landowner 
never filed a petition in court within the period allowed by § 16 of c. 79, 
he is now barred from doing so. Herman v. Nczv Bedford, 250 Mass. 
471. Thus there can be no "final adjudication" to determine an amount 
in excess of the offer by the Department. Either the amount proposed 
in any earlier written offer, or the amount now to be offered, plus interest 
in either case, would, in my opinion, be a final award under § 41 and the 
only relief to which the landowner is entitled. [Any special act extending 
the time of petitioning for assessment of damages in favor of this land- 
owner would raise significant constitutional questions. See Paddock v. 
Tozvn of Brookline, 347 Mass. 230.] 

Very truly yours, 

Edward W. Brooke, Attorney General. 



Z7. October 3, 1966. 

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

Dear Mrs. Sullivan : — On behalf of the Board of Registration of 
Barbers, you have requested my opinion with respect to the necessary 
prerequisites for registration as a barber. Specifically, you have asked : 

"Does this Section (§ 87H of c. 112) include barbers from a foreign 



P.D. 12 83 

country? In other words, does the word 'states' in this section cover those 
barbers from outside these United States?" 

Section 87H of c. 112 provides in relevant part as follows: 

"Any person desiring to obtain a certificate of registration shall make 
application . . . therefor . . . and . . . if he shows that he has . . . practiced 
such occupation for at least two years in this and/or other states . . . , 
the board shall issue to him a certificate of registration. ..." 

It is accepted practice in the interpretation of statutory language to give 
words their normal meaning whenever possible. Applying this to the in- 
stant situation, in the absence of circumstances indicating a contrary legis- 
lative intent, the word "states" must be construed according to its normal 
meaning and in the context of its usage in this sentence. 

Examination of the phrase in question leads to only one conclusion. 
The sentence contains the phrase, "in this and/or other states." Although 
no noun immediately follows the adjective "this," it is obvious that such 
adjective refers to a state and means the Commonwealth of Massachu- 
setts. It follows, therefore, that "other states" must be construed as re- 
ferring to the same category of political subdivision as would logically 
apply to the Commonwealth of Massachusetts — i.e., "states" with the 
United States. 

Had the General Court intended to include practice in foreign coun- 
tries within the prerequisites enumerated in § 87H, it presumably would 
have provided so specifically. Rather, it has used a word ("state") of 
more restricted connotation. It is my opinion, in view of the above, that 
the reference in § 87H of c. 112 to barbering experience acquired in 
"other states" does not include experience gained in foreign countries. 
Consequently, I answer your question in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



38. October 3, 1966. 

Honorable Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin: — By letter dated September 19, 1966, 
you have requested my opinion with respect to the qualifications of agents 
employed by licensed private detectives. Specifically, you have asked: 

"... whether persons engaged as agents by Private Detectives, licensed 
under Chapter 147 of the General Laws, must have reached a certain age 
before they can be employed as such." 

General Laws c. 147, §§ 22 to 30, as amended by St. 1960, c. 802, now 
provides — in § 28 — for the hiring of assistants by a licensed detective : 

"A licensee may employ to assist him in his business as many persons 
as he may deem necessary but shall not knowingly employ in connection 
with his business in any capacity any person who has been convicted of 
a felony or any former licensee whose license has been revoked. 



84 P.D. 12 

"No person shall be employed by any licensee until he shall have exe- 
cuted and furnished to such licensee a statement under oath setting forth 
his full name, date of birth and residence ; his parents' names and places 
of birth ; the luisiness or occupation in which he has been engaged for the 
three years immediately preceding the date of filing his statement ; and 
that he has not been convicted of a felony or of any offence involving 
moral turpitude. ..." 

Although § 24 of c. 147 requires, among other things, that an applicant 
for a private detective's license be at least twenty-five years of age, a 
similar requirement does not appear to be applicable to an assistant to a 
private detective. Admittedly, an assistant must — pursuant to § 28 — 
execute a statement which includes a reference to his date of birth. But 
I cannot by interpretation transform this directive into a minimum age 
requirement. Had the Legislature intended to impose an age restriction 
upon assistants, it presumably would have included some specific indica- 
tion to that effect. 

It is my opinion, therefore, that, while the nature of private detective 
work might warrant the use of mature individuals, the present statute sets 
no age requirement for an agent in such employment. The establishment 
of a minimum age requirement, if desirable, would require the passage 
of appropriate legislation. 

Very truly yours, 

Edward W. Brooke, Affornev General. 



39. October 3, 1966. 

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

Dear Mrs. Sullivan : — On behalf of the Board of State Examiners of 
Plumbers you have requested my opinion upon the following question : 

"Does Chapter 142, General Laws, allow a person who is licensed only 
as a Journeyman to engage in the business of plumbing by himself?" 
Your letter indicates that the State Examiners are aware of the opinion 
issued by this Department on February 23, 1966 which advised that either 
a master or a journeyman plumber could lawfully obtain a permit to per- 
form plumbing work. 

The opinion of February 23, 1966 was addressed to the question whe- 
ther it would be lawful for the State Examiners to adopt a regulation 
providing that permits to perform i)lumbing shall be issued to master 
plumbers only. It was then concluded : 

"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 
]:ermits to master plumbers only, the Board would in effect be attempting 
to amend provisions of the statute which governs its operations. It is my 



P.D. 12 85 

opinion that such a regulation would conflict with provisions of G. L. c. 
142, and accordingly may not lawfully be promulgated by the agency." 

Both the request submitted by the Board and the response of this Depart- 
ment were directed solely to the question whether plumbing permits could 
be issued to journeymen. The Board now seeks a determination whether 
— once having secured the permit — the journeyman may lawfully engage 
in the business of plumbing by himself rather than solely in the employ 
of a master. 

An argument can be made that journeymen plumbers may lawfully per- 
form plumbing work solely in the employ of a master plumber. Applica- 
tion for a master plumber's license requires the taking of a more difficult 
examination covering a wider variety of subjects. The master generally 
must encounter the expense of maintaining a place of business and of 
hiring employees. Yet, plumbing fees are regulated so that the master 
cannot demand a higher ])ayment for any given project than can the jour- 
neyman plumber. Of course, the holding of a master's license may well 
attract business which is not available to a journeyman. In any event, it 
would appear — without deciding — that the Legislature could constitu- 
tionally provide that journeymen must work solely in the employ and 
under the direction of master plumbers. 

It is my opinion that the General Court has not made such a choice. 
It is the right to work which is involved here. More specifically, it is the 
right to work for oneself without subjecting one's interests to the superior 
interests of an employer. If the Legislature seeks to limit or to eliminate 
this right, it must do so in clear and unmistakable terms. Limitations upon 
the right to work cannot be imposed liy vague or by ill-considered statu- 
tory or administrative action. See MilUgan v. Board of Registration in 
Pharmacy, 1965 Mass. Adv. Sh., page 237. 

Nothing in c. 142 indicates that the General Court intended journey- 
men to work solely in the employ of master plumbers. If such is the in- 
tention of the Legislature, the statute must be clarified by amendment in 
such a way that the objective of restricting the right to work is not dis- 
guised. Accordingly, I answer your question in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



40. October 4, 1966. 

Honorable Leon Sternfeld, M.D., Deputy Commissioner of Public 
Health. 

Dear Doctor Sternfeld : — You have requested my opinion upon the 
following question : 

"If a municipality, having joined (pursuant to procedures established 
by Section 142C, Chapter 111, General Laws) an air pollution control 
district formed pursuant to the said section, desires to withdraw there- 
from, is additional special legislation necessary for its withdrawal?" 

The Massachusetts Supreme Judicial Court in Brucato v. Lawrence, 
338 Mass. 612, 615, held that: 



86 P.D. 12 

"The Legislature may provide that a city or town, which once accepts 
a statute (enacted subject to local acceptance), shall have the power to 
revoke its acceptance. An intention that this power shall exist may be 
found in an express provision to that effect, as in the provision for absent 
voting in cities and towns, G. L. c. 54, § 103 A (as amended through St. 
1948, c. 477, § 2), or in the fact that an annual or periodic option is to 
be exercised locally as, for example, in the provisions with respect to 
liquor licenses, G. L. c. 138, §§ 11, llA, as amended, or in the oppor- 
tunity for changes in the form of city charters made possible under G. L. 
c. 43, §§ 1, 2, 7-13, 45-116, as amended. In the absence, however, of some 
indication in the language, the form, or the subject matter of a particular 
statute enacted subject to local acceptance, that an acceptance once given 
may be revoked, the effect of a valid acceptance by a city or town is to 
make the statute operative in that community until the statute is repealed 
or amended. Once the condition precedent stipulated by the Legislature 
to the taking effect of the statute in the community is satisfied, it becomes 
applicable statute law, subject to change, as in the case of other statutes, 
only by subsequent action of the Legislature. See Northern Trust Co. v. 
Snyder, 113 Wis. 516, 532-533; Holt Lumber Co. v. Oconto, 145 Wis. 
500, 505-507; McQuillin, Municipal Corporations, (3d ed.) § 9.15." 

Although the present matter does not involve technical "acceptance" of 
a statute, it does relate to discretionary municipal action which in effect 
constitutes an acceptance of statutory provisions which the city or town 
could have rejected. 

The statute in question (G. L. c. Ill, § 142C) provides for the forma- 
tion of air pollution control districts and states that : 

"Cities or towns wishing to form such a district shall mal^e joint appli- 
cation to the department, requesting the department to approve such dis- 
trict and to effect the control of air pollution therein." 

Such districts are also subject to the provisions of G. L. c. HI, § 142B. 
It appears, therefore, that municipalities have the option of joining air 
pollution control districts if they desire. 

Neither § 142B nor § 142C of c. Ill provides any means by which a 
town may withdraw from a district once it has agreed to come under the 
provisions of the statute. 

In the establishment of Regional Health Districts by two or more muni- 
cipalities under G. L. c. Ill, § 27B, there is a provision for withdrawal 
from said district. 

"Any constituent municipality may, by vote passed prior to July first in 
any year, withdraw from the district, such withdrawal becoming effective 
January first following ; provided, that the municipality shall have been a 
member of the district for at least five years." 

Also, in the case of Regional School District Planning Committees and 
Boards there is a provision in G. L. c. 71, § 14B(f ) for the member towns 
to determine a method by which they may withdraw from said district. 

Section 142C of c. Ill provides that "air pollution control districts 
similar to that established by section one hundred and forty-tzvo B may be 
formed upon approval of the department [of Public Health]. . . . The 



P.D. 12 87 

powers, duties, and rights of the department in the exercise of air pollu- 
tion control in such districts . . . shall be as provided in section one hun- 
dred and forty-two B." (Emphasis supplied.) Section 142B established 
a metropolitan air pollution control district to which a number of cities 
and towns were assigned by the Legislature. In addition, the Department 
of Public Health was authorized to admit other municipalities, provided 
the district would at all times be composed of contiguous territory. It 
is clear that a community which belonged to the district formed pursuant 
to c. Ill, § 142B could not effectively withdraw therefrom without en- 
abling legislation. 

Section 142C provides for the creation of districts which are similar to 
that formed under § 142B. Absent specific language authorizing with- 
drawal by administrative action, it must be assumed that the same limi- 
tations upon withdrawal which apply to § 142B are also applicable to § 
142C. Without such limitations, planning — financial and otherwise — 
could be made exceedingly difficult, even considering that the Department 
would have the power to reject withdrawal applications. Likewise, the 
statutory directive that districts shall be composed of contiguous terri- 
tory could be defeated. I am aware that your Department was — to some 
extent — responsible for the insertion of § 142C, and that your Depart- 
ment had expected that the General Court would authorize withdrawal 
by administrative action. Nevertheless, these views cannot control inter- 
pretation of the Legislature's language. 

In light of the fact that the Massachusetts Supreme Judicial Court has 
stated that a statute once accepted by a municipality may not subsequently 
be rejected by the town unless so provided in the statute itself, and since 
G. L. c. Ill, § 142C makes no such provision, it is my opinion that once 
a municipality joins an air pollution control district, it may not withdraw 
without subsequent special legislation. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

41. October 7, 1966. 

Honorable Joseph L. Driscoll, President, Southeastern Massachusetts 
Technological Institute. 

Dear President Driscoll: — In your letter of August 26, 1966, you 
request my opinion on a question relating to the salary due to the Presi- 
dent of Southeastern Massachusetts Technological Institute (SMTI) for 
the period from January 1, 1965 to July 1, 1966. To provide the back- 
ground for your question, I will first set forth certain statutes of the Com- 
monwealth and actions of the Board of Trustees of SMTI which are 
relevant to the problem. 

Statutes 1963, c. 801, § 77 amended G. L. c. 75 B, § 12 (as appearing 
in St. 1960, c. 543, § 3) by adding at the end of the section the following 
two sentences: "The president [of SMTI] shall receive a salary of not 
more than eighteen thousand dollars, the amount to be determined by the 
trustees. He shall devote his full time during business hours to the duties 
of his office." The Board of Trustees of SMTI, in accordance with this 



88 P.D. 12 

provision, established the salary of the President at $18,000.00 by vote 
taken at a meeting of the Board on December 18, 1963 (the minutes of 
which you have provided with your request). 

By St. 1964, c. 582, § 1. c. 75B of the General Laws was amended by 
striking out §§ 1-20, and inserting 17 new sections, effective (by St. 1964, 
c. 582, § 4) July 1, 1964. The authority to establish the salary of the 
President of SMTI after July 1, 1964' must be determined by reference 
to certain of the new sections of c. 75B, to which new sections I shall 
refer later. On July 1, 1964. however, and until action might be taken by 
the trustees under the new sections of c. 75B. the salary of the President 
continued at $18,000, since St. 1964, c. 582, § 2 provided: "The . . . salary 
of each member of the professional staff of . . . [SMTI] in existence on 
the day prior to the effective date of this act shall remain in effect until 
changed by the trustees as herein provided. ..." 

General Laws c. 75B, § 10 (as amended by St. 1964, c. 582. § 1) pro- 
vides, in part : "The trustees shall elect the president and such other offi- 
cers and members of the professional staff of the institution as they may 
determine necessary and shall fix their classification, title and salary within 
the general salary schedule and shall define their duties and tenure of 
office without limitation of any other provision of law." The words "gen- 
eral salary schedule" are defined elsewhere in § 10 as meaning "the pay 
plan of the commonwealth as contained in paragraph ( 1 ) of section forty- 
six of chapter thirty." 

At a meeting of the Board of Trustees of SMTI on December 16, 
1964, the trustees voted "that under the authority of Section 10 of Chap- 
ter 75B established by Chapter 582 of the Acts of 1964, the Board of 
Trustees of . . . [SMTI] hereby establishes the salary of the President 
of . . . [SMTI] at $21,372.00, effective January 1, 1965." 

You state that "[F]rom January 1965 through June of 1966 the Comp- 
troller's office refused to pay the President at a rate higher than $18,000 
per year. The refusal was based on the fact that although the President's 
salary was not set by statute beyond June of 1964. nonetheless the position 
continued to be listed on the 'Schedule of Unclassified and Statutory Sal- 
aries' of the Joint Committee on Ways and Means until July 1, 1966. 
For that entire period SMTI has filed a protest with the Comptroller's 
office with each payroll submitted." 

You have requested my opinion on the following question: "Should \ 
the President of Southeastern Massachusetts Technological Institute be j 
compensated at the rate of $21,372.00 per year, effective January 1, 1965, \ 
in accordance with the Board of Trustees' action of December 16, 1964 

. . . ?" 

An answer to the question requires a consideration of the relevant 
statutes in somewhat greater detail than has been necessary to provide the 
background for the question. 

General Laws c. 75B, § 10 (as amended by St. 1964, c. 582, § 1) reads, 
in relevant part, as follows : 

"As used in this section the following words shall have the following 
meanings, unless the context otherwise requires: 



P.D. 12 89 

'Professional staff', all officers of the university and all persons, except 
those whose duties are clerical, custodial, security, labor, maintenance and 
the like, employed for teaching, research, administration, extension, en- 
forcement, control laws and regulatory services, technical and specialized 
academic support staff, and such related activities as shall be determined 
by the trustees of the institute. 

'General salary schedule', the pay plan of the commonwealth as con- 
tained in paragraph (1) of section forty-six of chapter thirty. 

The trustees shall elect the president and such other officers and mem- 
bers of the professional staff of the institute as they may determine neces- 
sary and shall fix their classification, title and salary within the general 
salary schedule and shall define their duties and tenure of office without 
limitation of any other provision of law. The tnlstees shall have complete 
authority with respect to the election or appointment of the professional 
staff including terms, conditions and periods of employment, compensa- 
tion, promotion, classification and reclassification, transfer, demotion and 
dismissal within funds available by appropriation of the general court or 
from other sources. The classification, title, salary range within the gen- 
eral salary schedule, and descriptive job specifications for each position 
shall ])e determined by the trustees for each member of the professional 
staff and copies thereof shall be placed on file with the governor, budget 
commissioner, director of personnel and standardization, and the joint 
committee on ways and means. A notification of each persomiel action 
taken shall be filed by the president or other officers of the institute desig- 
nated by him with the director of personnel and standardization and with 
the comptroller. . . . x\nnually there shall be filed by the president or other 
officers of the institute designated by him, with the governor, budget com- 
missioner and joint committee on ways and means, a listing of all positions 
at the institute, including the name of the incumbent, the classification and 
title, and rate of pay." 

It is clear from the sweeping language of the statute that the powers 
of the trustees in this matter are very broad. This conclusion is reinforced 
by examination of § 6 of c. 75B : 

"Notwithstanding any other provision of law to the contrary, the gen- 
eral court shall annually appropriate such sums as it deems necessary for 
the maintenance, operation and support of the institute; and such appro- 
priation shall be made available by the appropriate state officials for ex- 
penditure through allotment, transfer within and among subsidiary ac- 
counts, 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 the disbursement on certification to the state comptroller in 
accordance with the provisions of section eighteen of said chapter twenty- 
nine, as may from time to time be directed by the trustees or an officer 
of the institute designated by the trustees." 

This section, together with § 10, was apparently intended to free SMTI 
from certain budgetary restrictions imposed on most departments and 
agencies. The language used appears to limit the applicability of G. L. 
c. 29, §§27 and 29. Section 27 provides : 

"Notwithstanding any provision of general law, no department, office, 
commission and institution shall incur an expense, increase a salary, or 



90 P.D. 12 

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. Appropriations by the 
general court, and any allotments by the governor, shall be expended only 
in the amounts prescribed in the subsidiary accounts, if any, established 
for the several appropriation accounts in schedules established by, and on 
file with, the joint committee on ways and means. Said committee, as 
soon as may be after the general appropriation bill or any other appro- 
priation bill has the force of law conformably to the constitution, shall file 
with the comptroller and with the budget director, a certified copy of the 
schedules aforesaid which relate thereto." 

Section 29 reads, in part, as follows : 

"Any subsidiary account set up as prescribed in the schedules referred 
to in section twenty-seven, on the books of any department, office, com- 
mission and institution, receiving an appropriation from the common- 
wealth, may be increased or decreased by interchange with any other such 
subsidiary account within the same appropriation account, if a request 
therefor from such department, office, commission or institution is ap- 
proved in writing by the budget director and is filed with the comptroller 
by said director." 

My conclusion that G. L. c. 75B, §§ 6 and 10 make G. L. c. 29, §§ 27 
and 29 inapplicable to SMTI is based in part upon the legislative back- 
ground of c. 75B. Statutes 1964, c. 582, amending c. 75B, had an un- 
eventful passage through the General Court, and its legislative history re- 
veals little. See 1964 Senate Bills Nos. 99 and 887. However, the pro- 
visions of St. 1964, c. 582, dealing with the budgetary powers of SMTI, 
are derived from an earlier statute, the legislative history of which is 
significant. 

Statutes 1962, c. 648 amended G. L. c. 75 by inserting numerous wholly 
new sections in place of old ones. Chapter 75 deals with the University of 
Massachusetts, and St. 1962, c. 648 grows out of the work of the Special 
Commission on Budgetary Powers of the University of Massachusetts, 
created by Res. 1961, c. 92. The report of the commission, printed as 
1962 House Doc. No. 3350, discusses at length the problems of control 
over fiscal matters and personnel. The legislation recommended by the 
commission, 1962 House Doc. No. 3350, App. A, contains provisions sub- 
stantially identical with the present G. L. c. 75B, §§ 6 and 10. See pro- 
posed G. L. c. 75, §§ 8 and 14 in 1962 House Doc. No. 3350, App. A, 
§ 1. (I note that proposed c. 75, § 14 contained specific limits on the 
minimum and maximum salary which the trustees might set for the presi- 
dent, limits not to be found in the present c. 75B, § 10.) The report of 
the commission makes clear that the legislation was intended to give the 
trustees of the University of Massachusetts power to set salaries within 
the general pay schedule and to transfer funds within any subsidiary ac- 
counts that might be established without the approval of any other body. 
See 1962 House Doc, No. 3350, pp. 20-23, 26-28, 34-37. 

In matters now relevant, the powers of the Trustees of the University 
were not curtailed by amendment in the General Court of 1962 House 
Doc. No. 3350, App. A. In the Senate an amendment was offered to 
proposed G. L. c. 75, § 8, to require specifically the establishment of sub- 
sidiary accounts and to make G. L. c. 29, § 29 applicable to transfers 



P.D. 12 91 

among subsidiary accounts. That amendment was decisively rejected. See 
1962 Senate Journal, pp. 1346-1347. 

Thus, I conclude that, in so far as the provisions of the General Laws 
are concerned, the power of the Trustees of SMTI to set the salary of 
the president is not restricted by G. L. c. 29, §§ 27 and 29 dealing with 
subsidiary accounts. 

Two further problems remain. The general appropriation act for the 
fiscal year beginning July 1, 1964 is St. 1964. c. 327. Section 2 of that act 
appropriated funds for SMTI. Section 6 provided : 

"Amounts included for permanent positions in sums appropriated in 
section two for personal services are based upon schedules of permanent 
positions and salary rates as approved by the joint committee on ways and 
means, and, except as otherwise shown by the files of said committee, a 
copy of which shall be deposited with the bureau of personnel, no part of 
sums so appropriated in section two shall be available for payment of sal- 
aries of any additional permanent position, or for payments on account 
of reallocations of permanent positions, or for payments on account of 
any change of salary range or compensation of any permanent position, 
notwithstanding any special or general act to the contrary. ..." 

An identical provision is part of the general appropriation bill for the 
fiscal year beginning July 1, 1965. See St. 1965, c. 824, § 6. 

In so far as the action of the Comptroller in refusing to pay the Presi- 
dent of SMTI a salary higher than that shown on schedules maintained 
by the Joint Committee on Ways and Means is based on § 6 of St. 1964, 
c. 337 and on St. 1965, c. 824, slightly different considerations apply to 
the period from January 1, 1965 to June 30, 1965 (covered by appropri- 
ations made in St. 1964, c. 337), than apply to the period from July 1, 
1965 to June 30, 1966 (covered by appropriations made in St. 1965, c. 
824). 

For the latter period, St. 1965, c. 824, § 6 does not limit the power of 
the trustees to set the salary of the President of SMTI pursuant to G. L. 
c. 75B, § 10 (as amended by St. 1964, c. 582, § 1), because St. 1965, c. 
824, § 20 provides : 

"The provisions of section ten, section fifteen and section sixteen of 
this act shall not apply to expenditures from appropriations made under 
this act for the division of state colleges and institutions under the control 
of the board of trustees of state colleges, the Lowell Technological Insti- 
tute of Massachusetts, the Southeastern Massachusetts Technological In- 
stitute, the University of Massachusetts and the regional community col- 
leges under the control of the Massachusetts board of regional community 
colleges; nor shall the provisions of section nine B or section twenty-nine 
of chapter twenty-nine of the General Laws, or any provision of section 
six or section eight of this act apply to said expenditures which are incon- 
sistent with any provision of the General Laws specifically regulating the 
expenditure of public funds at each of said institutions." (Emphasis sup- 
plied.) 

General Laws c. 75B, § 10 (as amended by St. 1964, c. 582, § 1) is a 
"provision of the General Laws specifically regulating the expenditure of 
public funds" at SMTI ; and St. 1965, c. 824, § 6 does not limit any action 



92 P.D. 12 

of the trustees validly taken pursuant to G. L. c. 75B, § 10 (as amended 
by St. 1964, c. 582, § 1). 

For the period from January 1, 1965 to June 30, 1965, covered by 
appropriations made in St. 1964, c. Z^7, the problem is slightly more in- 
volved. St. 1964, c. Z^7, § 20 reads : 

"The provisions of section ten, section fifteen, and section sixteen of 
this act shall not apply to expenditures from appropriations made under 
this act for the University of Massachusetts, the division of state colleges 
and institutions under the control of the board of trustees of state col- 
leges, the New Bedford Institute of Technology, the Lowell Technological 
Institute of Massachusetts, and the Bradford Durfee College of Tech- 
nology ; nor shall the provisions of section nine B or section twenty-nine 
of chapter twenty-nine of the General Laws, or any provision of section 
six or section eight of this act apply to said expenditures which are in- 
consistent with any provision of the General Laws specifically regulating 
the expenditure of public funds at each of said institutions." 

You will note that St. 1964, c. ZZ7. § 20, unlike St. 1965, c. 824, § 20, 
does not list SMTI among the institutions to which § 6 of the act does 
not apply if inconsistent with provisions of the General Laws specifically 
regulating the expenditure of public funds at that institution. However, 
New Bedford Institute of Technology and the Bradford Durfee College 
of Technology are so mentioned. By St. 1960, c. 543, § 9 (as amended 
by St. 1964, c. 495), it is provided: 

"On and after July first, nineteen hundred and sixty- four, the phrases, 
'New Bedford Textile Institute', 'New Bedford Institute of Textiles and 
Technology', 'New Bedford Institute of Technology', 'Bradford Durfee 
Institute of Technology of Fall River', 'Bradford Durfee College of Tech- 
nology', or any words connoting the same, when used in any statute, ordi- 
nance, by-law, rule or regulation, shall mean the Southeastern Massachu- 
setts Technological Institute." 

Thus, the situation is the same for the fiscal year covered by St. 1964, c. 
2)Z7, as it is for the fiscal year covered by St. 1965, c. 824; St. 1964, c. 
337, § 6 does not limit any action of the trustees validly taken pursuant 
to G. L. c. 75B, § 10 (as amended by St. 1964, c. 582, § 1). 

The final question to be considered is whether the action of the trustees 
at their meeting of December 16, 1964, setting the salary of the President 
at $21,372, was validly taken pursuant to G. L. c. 75B, § 10 (as amended 
by St. 1964, c. 582, § 1). Section 10 authorizes the trustees to fix the 
"classification, title and salary within the general salary schedule" of the 
President. The vote of the trustees, as recorded in the minutes you have 
provided, merely "establishes the salary of the President of . . . [SMTI] 
at $21,372.00, effective January 1, 1965," without making any reference 
to a classification within the general salary schedule contained in para- 
graph (1) of G. L. c. 30, § 46. However, $21,372 per year is equivalent, 
for a 52-week year, to $411 per week. Only one classification in the 
general salary schedule has a weekly pay rate of $411. Establishing the 
salary of the President at $21,372 must be considered also to be a classi- 
fication of the President in step 7 of job group XXXIII of the general 
salary schedule. 



P.D. 12 93 

Assuming that the various filings with, and notifications of, the Gov- 
ernor, Budget Commissioner, Director of Personnel and Standardization, 
Comptroller, and Joint Committee on Ways and Means required by G. L. 
c. 75B, § 10 (as amended by St. 1964. c. 582, § 1) have been made, I 
conclude that effective January 1, 1965 the President of the Southeastern 
Massachusetts Technological Institute should be compensated at the rate 
of $21,372 per year, in accordance with the vote of the Board of Trustees 
on December 16, 1964. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



42. October 7, 1966. 

Honorable Robert Q. Crane, Treasurer and Receiver General. 

Dear Mr. Crane: — In a recent request for an opinion you state: 

"An employee of this office who is not serving as a confidential secretary 
as outlined in Section 7 of Chapter 30 being a veteran has completed 
three (3) continuous years of service in one (1) job title. 

"A leave of absence from his position has been allowed by me in order 
that this employee in question may accept a promotion within this office 
to another position." 

In view of these facts, you ask, in essence, whether, at the termination 
of his leave of absence, the employee will be entitled to hold the position 
which he has held for three years. I assume, for purposes of this opinion, 
that the employee holds a position "in the service of the commonwealth 
not classified" under G. L. c. 31, that he has not been legally removed 
from his position, that his position has not been abolished, and that he has 
not been separated therefrom because of "lack of work or money." I 
further assume that the leave of absence was lawfully allowed, is for an 
appropriate period and is regular in every respect. 

Based on these assumptions, my answer to your question is in the 
affirmative. 

I quote the appropriate language of 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 classi- 
fied under said chapter thirty-one, other than an elective office, an ap- 
pointive office for a fixed term or an office or position under section seven 
of this chapter, and has held such office or position for not less than three 
years, 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." 

The above language conclusively establishes the rights of veterans to 
tenure in the positions covered thereunder ; they can be removed only pur- 
suant to the provisions of G. L. c. 31, §§ 43 and 45. Attorney General's 
Report (1954) pp. 61-62. And it is equally clear that a duly granted 



94 P.D. 12 

leave of absence unless extended beyond the period allowed by law (see 
F errant e v. Higgiston, 296 Mass. 208, 209) is not a separation from em- 
ployment. Ferrante v. Higgiston, supra. State ex rel. Outright v. Akron 
Civil Service Comm., 95 O.A. 385, 389. See cases collected at 24A Words 
and Phrases 298-299. Whatever rights the employee in question had 
accrued prior to leave have not been forfeited. See Thiebault v. New 
Bedford, 342 Mass. 552, 557. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

October 7, 1966. 
[ONORABLE Edward J. RiBBS, Commissioner of Public Works. 

Dear Commissioner Ribbs : — In a recent request for an opinion you 
state the following : 

"Former Associate Commissioner George C. Toumpouras of this De- 
partment was suspended from his position under Chapter 30, Section 59 
of the General Laws by the then Governor in the P.M. of October 15, 
1963 as a consequence of criminal proceedings instituted against him the 
day prior thereto. Said criminal proceedings were terminated without a 
finding of guilty. 

"Mr. Toumpouras . . . has now requested payment of [his] salary from 
the date of his suspension until the date of the [qualification] of two 
Associate Commissioners under the provisions of Chapter 821 of the Acts 
of 1963." 

You ask in essence whether Mr. Toumpouras is entitled to receive his 
salary from the date of his suspension to the date of qualification of the 
two Associate Commissioners. I quote part of the last paragraph of G. L. 
c. 30, § 59: 

"If the criminal proceedings against the person suspended are termi- 
nated 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 sus- 
pension. ..." 

I also quote St. 1963, c. 821, § 4 which provides that "[t]he tenure of 
the present associate commissioners [the office held by Mr. Toumpouras] 
shall cease upon the qualification of two associate commissioners appointed 
under the provisions of section one of this act." 

Mr. Toumpouras' tenure as a state employee came to an end with the 
qualification of the two Associate Commissioners provided for in St. 1963, 
c. 821. It is my opinion that — pursuant to c. 30, § 59 — he is entitled 
to receipt of whatever salary would ordinarily have been paid him from 
the date of his suspension to the date of qualification of the two new 
Associate Commissioners. 

Very truly yours, 

Edward W. Brooke, Attorney Getieral. 



P.D. 12 95 

44. October 10, 1966. 

Honorable John J. McCarthy, Commissioner of Administration, Exec- 
utive Office for Administration and Finance. 

Dear Commissioner McCarthy: — In a recent request for an opinion 
you state that the Department of Corporations and Taxation has adopted 
the following regulation interpreting the Sales Tax Act, St. 1966, c. 14: 

"The sale, lease or rental of motor vehicles, tools, machinery and equip- 
ment to contractors for use in the construction, reconstruction, alteration, 
remodeling or repair of real property is subject to the sales and use tax. 
Such tangible property is not exempt under Subsection 6(f) of Section 
1 or under Section 4 of Chapter 14 of the Acts of 1966 as building mate- 
rials or supplies. The fact that such tangible property is used under a 
construction contract with an exempt governmental body or with any 
other exempt organization does not render its sale, lease or rental exempt 
from the sales or use tax." 

You ask in essence whether the interpretation of c. 14 embodied in this 
regulation is legally tenable. I am of the opinion that it is. 

I quote the relevant portions of c. 14, § 1, subsection 6(f) and § 43. 
Subsection 6(f) of § 1 exempts: 

"Sales of building materials and supplies to be used in the construction, 
reconstruction, alteration, remodeling or repair of (1) any building or 
structure owned liy or held in trust for the benefit of any governmental 
body or agency described in paragraph (d) of this subsection and used 
exclusively for public purposes and (2) any building or structure owned 
by or held in trust for the benefit of any corporation, foundation, organ- 
ization or institution described in paragraph (e) of this subsection and 
used exclusively in the conduct of its religious, scientific, charitable or 
educational purposes." 

Section 4 provides : 

"Sales of building materials and supplies subject to the excise imposed 
by section one of this act and the storage, use or other consumption in 
this commonwealth of building materials and supplies subject to the excise 
imposed by section two of this act shall be exempt from the excises im- 
posed by said sections to the extent that such building materials and sup- 
plies are to be used in construction, reconstruction, alteration, remodeling 
or repair of any building or structure pursuant to a contract entered into 
before the effective date of this section or entered into within sixty days 
after said effective date pursuant to a bid required to be submitted before 
said date." 

In the case of Grimes v. Keenan, 88 N.H. 230, 232, the Court said that 
"materials and supplies" "in ordinary meaning, are used as part of, but 
not to facilitate construction and maintenance." To the same effect are 
Peter's Garage, Inc. v. Burlington, 121 N.J.L. 523, 526 and Traylor Bros. 
Inc. V. Indianapolis Equipment Co., Inc., 336 S.W. 2d 590, 593 (Ky.). 
See also Mutual Lumber Co. v. Sheppard, 173 S.W. 2d 494, 498 (Tex. 
Cir. App.) ; Troy Public Works Co. v. Yonkers, 207 N.Y. 81, 84; United 
States Fidelity & Guaranty Co. v. Stuhhs, 70 Ga. App. 284, 293. These 



96 P.D. 12 

opinions support the proposition that the phrase "building materials and 
supplies" "in common and approved usage" (G. L. c. 4, § 6, Third) does 
not generally comprehend "motor vehicles, tools, machinery and equipment 
. . . for use in construction." 

I advert briefly to two other considerations. First, it is well settled that 
the interpretation of a statute by an administrative body charged with its 
administration — in this case the Commissioner of Corporations and Tax- 
ation (see c. 14, § 1, subsection 31) — is entitled to considerable weight. 
Tyler v. Treasurer and Receiver General, 226 Mass. 306, 310. Scott v. 
Commissioner of Civil Service, 272 Mass. 237, 241. Cardullo's Inc. v. 
Alcoholic Beverages Control Commission, 347 Mass. 337, 343. Secondly, 
exemptions from the payment of a tax, such as those conferred by c. 14, 
§ 1, subsection 6(f) and § 4, are to be construed strictly in favor of the 
taxing authority. Commissioner of Corporations and Taxation v. Bristol 
County Kennel Club, 301 Mass. 27, 29. These considerations, of course, 
do not require the conclusion that the regulation in question is valid ; how- 
ever, they do serve to re-enforce it. 

It is entirely possible that the General Court intended the exemptions 
provided in the sections considered above to be construed broadly. If so, 
the legislative intention is far from clear. It is not the function of the 
Department of the Attorney General to provide by interpretation for 
legislative omissions except in the most obvious cases. The primary auth- 
ority charged with interpretation of the provisions of St. 1966, c. 14 is 
the State Tax Commission. Given the lack of statutory clarity — even 
were there substantial disagreement as to the meaning of the words "ma- 
terials or supplies" as used in the Act — I cannot say that the regulation 
promulgated by the Commission represents an arbitrary or unreasonable 
construction. Accordingly, it is my opinion that emergency regulation No. 
7 promulgated by the State Tax Commission is a valid interpretation of 
the provisions of the Sales Tax Act. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



45. October 19, 1966. 

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

Dear Governor Volpe: — By letter dated October 13, 1966, you have 
requested my opinion with respect to the current effect of c. 728 of the 
Acts of 1966. That Act, entitled "AN ACT ESTABLISHING A FLAT 
EXEMPTION OF A CERTAIN SUM OF MONEY DUE FOR 
TAXES BY CERTAIN ELDERLY PERSONS," amends G. L. c. 59, 
§ 5, cl. 41, first enacted by St. 1963, c. 808, § 1 and then amended by 
St. 1964, c. 681, § 1. 

Prior to this year's amendment, cl. 41 provided for an exemption from 
taxation for real property as follows : 

"... to the amount of four thousand dollars, of a person seventy years 
of age or over and occupied by him as his domicile, or of a person who 
owns the same jointly with his spouse, either of whom is seventy years 



P.D. 12 . 97 

of age or over, and occupied by them as their domicile or of a person 
seventy years of age or over who owns the same jointly or as a tenant 
in common with a person not his spouse and occupied by him as his 
domicile. ..." 

The clause contains certain conditions which must be met prior to the 
valid awarding of the particular exemption. The person applying for the 
exemption must have been domiciled in the Commonwealth for the pre- 
ceding ten years. He must have owned the real property which is the 
subject of the exemption for the preceding five years, or, "if such person 
has not so owned such real property for the preceding five years consecu- 
tively, has so owned and occupied as his domicile such real property and 
other real property in the same city or town for the preceding five years 
consecutively." 

The statute further requires that the applicant have — in the preceding 
year — "a net income from all sources both taxable and non-taxable [not 
including social security payments] of less than four thousand dollars or, 
if married, a combined net income from all sources both taxable and non- 
taxable with his spouse of less than five thousand dollars." Eligibility 
for the exemption is further conditioned upon the requirement that the 
total assessed value of all real property owned by an applicant or by his 
spouse, or by them jointly, does not exceed the sum of $14,000. 

Chapter 728 of the Acts of 1966 makes certain fundamental changes 
in the provisions of the clause in question. The amendment provides that 
a qualifying applicant shall be entitled either to the exemption to the 
amount of $4,000 previously available, or to the flat sum of $350 of taxes 
due, whichever figure is greater. In addition, the maximum assessed 
value of all real property which can be owned by an applicant or by his 
spouse, or by them jointly, has been increased from $14,000 to $20,(X)0. 
Finally, the amendment makes a technical change in the residence require- 
ment — i.e., an applicant may now qualify by owning and occupying as 
his domicile for the preceding five years the real property which is the 
subject of the exemption and other real property situated anywhere within 
the Commomvealth, rather than solely within the same city or town. 

Chapter 728 was approved on September 12, 1966; accordingly, it be- 
comes effective ninety days thereafter, on December 11, 1966. [See Const. 
of the Comm., Amends., Article 48, The Referendum, Pt. 1.] Under the 
provisions of G. L. c. 59, § 59, applications for the exemption granted 
by c. 59, § 5, cl. 41 must be filed on or before December 15, 1966. In 
light of the above, you request my opinion "as to whether or not Chapter 
728 of the Acts of 1966 applies to taxes assessed for the year 1966." 

I find nothing within the provisions of St. 1966, c. 728 which indicates 
that it was the intention of the General Court to suspend its effect until 
the taxable year 1967. The amendment was enacted in time for approval 
by the Governor on September 12, 1966. I cannot assume that the Legis- 
lature was unaware either that applications for the exemption were due 
to' be filed by the fifteenth day of December, or that the Constitution of 
the Commonwealth provides that an Act of this nature shall take effect 
ninety days after approval. The result is that the provisions of c. 59, § 
5, cl. 41 have been altered prior to the date upon which applications pur- 
suant to such provisions must be filed. On December 11, 1966, the earlier 
provisions of the clause in question will no longer exist. I see no reason 



98 P.D. 12 

for extending the effect of the prior provisions for a period which is 
longer than that imposed by the Massachusetts Constitution. 

Had the General Court intended that the amendment not be effective 
until 1967, it could have provided so specifically. See, for example, St. 
1964, c. 681, an earlier amendment to G. L. c. 59, § 5, cl. 41, which was 
approved July 31, 1964, and which specifically provided — in § 2 — that 
its provisions were to apply to taxes assessed for the year 1965 and for 
subsequent years. See also. St. 1964, c. 715 which amended G. L. c. 59, 
§ 5, cl. 42, approved July 6, 1964 and — hy § 2 — made applicable to 
the taxable year 1965 and thereafter. It cannot be assumed that such a 
provision was omitted from the amendment under discussion by inad- 
vertence. It can only be concluded that the General Court intended c. 
728 to take full effect no more than ninety days after its approval. 

I am aware of the fact that property taxes are ordinarily assessed and 
are payable as of the first day of January of any year. Likewise, I know 
that tax calculations in the cities and towns have for the most part been 
completed, and that local assessors could not possibly have envisioned a 
change in the tax laws at this late date. But the Legislature must also 
have been aware of these factors. It is apparent that the General Court 
expected that the Act would apply to taxes assessed for the year 1966 
notwithstanding some difficulties which might be caused certain munici- 
palities. 

The Constitution of this Commonwealth provides that a statute of this 
nature take effect ninety days after approval. This requirement would be 
a nullity were it to be held that although the statute was effective on 
December 11, 1966, applicants could not take advantage of its provisions 
until the following year. Nothing in the Act indicates that the Legislature 
intended to vary the date upon which c. 728 would ordinarily take effect. 
And the effective date cannot be varied merely by interpretation. 

Accordingly, it is my opinion that c. 728 of the Acts of 1966 takes effect 
ninety days after its approval, and that the provisions of the Act are 
applicable to taxes assessed for the taxable year 1966. Since the amend- 
ment in its present form becomes effective only four days prior to the 
final date upon which applications for exemptions may be filed, it would 
appear that the affixing of an emergency preamble to make the Act effec- 
tive immediately and give local assessors a longer period in which to 
accept applications would be highly desirable. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

46. October 24, 1966. 

Honorable John L. Quigley, Commandant, Soldiers' Home. 

Dear Mr. Quigley: — In a recent request for an opinion you state as 
follows : 

"Section 1861 (k) of Public Law 89-97 (Medicare) requires hospitals 
participating in Medicare programs to establish Utilization Review Com- 
mittees. 



P.D. 12 99 

"Serious question has arisen and been presented to the undersigned 
from doctors who will be charged with this responsibility at our hospital. 
Question arises on whether the doctors, who normally are consultants 
with us, will be covered or protected by the normal coverage and protec- 
tion extended to state employees for decisions or deeds of the Utilization 
Review Committee of the Medical Staff. ..." 

In essence you ask whether the physicians serving on the Utilization Re- 
view Committee are entitled to the coverage and protection of G. L. c. 
12, § 3D, which I quote : 

"Upon the filing with the attorney general of a written request by any 
officer or employee of the department of mental health, public health or 
correction, of the Soldiers' Home in Massachusetts or the Soldiers' Home 
in Holyoke, that the attorney general defend him against an action for 
damages for bodily injuries or infections, physical or mental agony or 
pain, death of any person, or any damage to property of another on the 
hospital grounds, arising out of the operation of said department of 
mental health, public health or correction, or of the Soldiers' Home in 
Massachusetts or the Soldiers' Home in Holyoke, the attorney general 
shall, if after investigation it appears to him that such officer or employee 
was at the time the cause of action arose acting within the scope of his 
official duties or employment, take over the management and defence of 
such action. The attorney general may adjust or settle any such action at 
any time before, during or after trial, if he finds after investigation that 
the plaintiff is entitled to damages from such officer or employee, and in 
such case there shall be paid from the state treasury for settlement in full 
of such action from such appropriation as may be made by the general 
court for the purposes of this section such sum, not exceeding ten thou- 
sand dollars on account of injury to or death of one person and not ex- 
ceeding five thousand dollars on account of damage to property, as the 
attorney general shall determine to be just and reasonable and as the gov- 
ernor and council shall approve. If an execution issued on a final judg- 
ment in such an action is presented to the state treasurer by an officer 
qualified to serve civil process and if there is also presented to or on file 
with said state treasurer a certificate of the attorney general certifying 
that said execution was issued on a judgment in an action in which he ap- 
peared for and defended the defendant in accordance with the provisions 
of this section, there shall be paid from the state treasury from the appro- 
priation above referred to the amount of the execution, including costs 
and interest, up to but not in excess of the respective limits hereinabove 
set forth." 

As you imply in your request, to participate in the federal Medicare 
program a hospital is required to have "in effect a hospital review plan." 
42 U.S.C. § 1395x(e)(6). See 42 U.S.C. §§ 1395f(d), 1395x(a)(2), 
1395x(e)(7), and 1395x(i) and (n). The provisions for a Utilization 
Review Committee are contained in 42 U.S.C. 1395x(k), which I also 
quote : 

"A utilization review plan of a hospital or extended care facility shall 
be considered sufficient if it is applicable to services furnished by the in- 
stitution to individuals entitled to insurance benefits under this subchapter 
and if it provides — 



100 P.D. 12 

"(1) for the review, on a sample or other basis, of admissions to the 
institution, the duration of stays therein, and the professional services (in- 
cluding drugs and biologicals) furnished, (A) with respect to the medical 
necessity of the services, and (B) for the purpose of promoting the most 
efficient use of available health facilities and services ; 

"(2) for such review to be made by either (A) a stafif committee of 
the institution composed of two or more physicians, with or without par- 
ticipation of other professional personnel, or (B) a group outside the 
institution which is similarly composed and (i> which is established by the 
local medical society and some or all of the hospitals and extended care 
facilities in the locality, or (ii) if (and for as long as) there has not 
been established such a group which serves such institution, which is 
established in such other manner as may be approved by the Secretary ; 

"(3) for such review, in each case of inpatient hospital services or ex- 
tended care services furnished to such an individual during a continuous 
period of extended duration, as of such days of such period (which may 
dififer for dififerent classes of cases) as may be specified in regulations, 
with such review to be made as promptly as possible, after each day so 
specified, and in no event later than one week following such day. ..." 

I infer from your request that the Soldiers' Home is now participating 
in the Medicare program, that it is legally qualified to do so, and that it 
has obtained whatever approvals are necessary for such participation. I 
assume that the physicians in question are officers or employees of the Sol- 
diers' Home while serving on the committee. Based on these inferences 
and assumptions, and upon the facts stated in your letter, it is my opinion 
that members of the Utilization Review Committee at the Soldiers' Home, 
when carrying out the Committee's functions, are acting within the scope 
of their official duties within the purview of G. L. c. 12, § 3D. They are, 
therefore, entitled to the protections conferred by that statute. 

This opinion is consistent with several judicial decisions that state or 
local employees, carrying out federally-imposed duties in connection with 
undertakings involving federal-state cooperation, remain state or local em- 
ployees for all usual purposes. See Robertson v. Baldivin, 165 U.S. 275, 
280; Dallemagnc v.Moisan, 197 U.S. 169, 174; County of Hampden v. 
Morris, 207 Mass. 167, 169; Goulis v. Judge of Third Dist. Ct. of East. 
Middlesex, 246 Mass. 1,5; United States ex rel, Indiana v. Killigreiv, 117 
F. 2d 863, 867-868 (CCA 7) ; Fries v. United States, 76 F. Supp. 396, 398 
(D. Ky.) affd. 170 F. 2d 726, 730 (CA 6) ; Robin Construction Co. v. 
United States, 345 F. 2d 610, 615-616 (CA 3) ; Lenski v. O'Brien, 207 
Mo. App. 224, 229-230. A contrary rule might well make impossible or 
impracticable the numerous programs, especially in areas of social welfare, 
in which the states and the federal government now work together. See 
generally Steward Machine Co. v. Davis, 301 U.S. 548, 595-598 (Cardozo, 
J.) ; Hozves Bros. Co. v. Unemployment Compensation Comui., 296 Mass. 
275, 294. 

Although I answer your cjuestion, as I have restated it, in the affirma- 
tive, I feel that 1 should add one qualification to this answer. Section 3D 
of G. L. c. 12 requires the Attorney General to investigate every claim 
against a physician covered thereunder to determine whether "at the time 
the [claim] arose" the physician "was acting within the scope of his official 



P.D. 12 101 

duties or employment." I construe this language to mean that, if there is 
any claim against a physician at the Soldiers' Home allegedly arising out 
of his duties as a member of the Utilization Review Committee, it will 
be the duty and prerogative of the Attorney General to determine for him- 
self in each instance whether the claim did in fact arise out of such duties 
before undertaking defense or settlement. This opinion treats the subject 
matter of your request in general terms ; it does not purport to indicate 
that the Attorney General will at any time be relieved of the necessity of 
making the threshold decision discussed above. 

Very truly yours, 

Edward W. Brooke, Attorney General. 

47. October 24, 1966. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Mr. White: — You have asked my opinion with respect to the 
meaning of a section of the Voting Rights Act of 1965. Public Law 89- 
110, 79 Stat. 437. Section 4(e)(2) of the Act, 42 U.S.C. § 1973(b) (e) 
(2) (1964 ed., Supp. I), provides: 

"No person who demonstrates that he has successfully completed the 
sixth primary grade in a public school in, or a private school accredited 
by, any State or territory, the District of Columbia, or the Commonwealth 
of Puerto Rico in which the predominant classroom language was other 
than English, shall be denied the right to vote in any Federal, State, or 
local election because of his inability to read, write, understand, or inter- 
pret any matter in the English language, except that in States in which 
State law provides that a different level of education is presumptive of 
literacy, he shall demonstrate that he has successfully completed an equiva- 
lent level of education in a public school in, or a private school accredited 
by, any State or territory, the District of Columbia, or the Commonwealth 
of Puerto Rico in which the predominant classroom language was other 
than English." 

You have asked: 

"What constitutes an adequate 'demonstration' that the three basic in- 
gredients apply to the prospective voter, namely that he was educated in a 
Puerto Rican school, that he successfully completed the sixth grade, and 
that English was not the primary classroom language? 

"May such a registrant testify to these facts by an affidavit signed only 
by himself, or may he be given an oath that these facts apply to him? 
Or, is it permissible that he be required to supply boards of registrars 
with some type of quasi official document, such as a diploma, a letter from 
the school authorities, or a letter from the Government of Puerto Rico 
in order to be allowed to register without reading the Constitution in 
English?" 

The term "demonstrate" is not defined in the Voting Rights Act of 
1965. It is not a term of art which has acquired a special and peculiar 
legal significance. It is necessary then to consider the meaning of the word 
in ordinary usage. 



102 P.D. 12 

Webster's Third New International Dictionary lists several meanings 
for the verb "demonstrate." The possibly relevant ones are: 

"Indicate, point out. 

"To manifest clearly, certainly, or unmistakably : show clearly the ex- 
istence of. 

"To make evident or reveal as true by reasoning processes, concrete 
facts and evidence, experimentation, operation, or repeated examples. 

"To illustrate or explain in an orderly and detailed way, esp. with many 
examples, specimens, and particulars." 

The first of these meanings is noted as obsolete, and may be eliminated 
from consideration. The other meanings of "demonstrate" all require 
something more than a bare assertion of the truth of that which is to be 
demonstrated. A registrant who merely asserted that he had successfully 
completed the sixth primary grade in a Puerto Rican school in which the 
principal language of instruction was other than English would not, in my 
opinion, have demonstrated those facts within the meaning of § 4(e)(2). 

A statement under oath, however, is more than a mere assertion. It is 
a solemn avowal of the truth of the statements made. If made falsely, it 
may under certain circumstances constitute perjury and expose the maker 
to criminal prosecution. A statement under oath is accepted as evidence 
of the truth of the assertion in the statement in courts of law. Thus, a 
sworn statement is far more than a bare assertion and it may be considered 
a sufficiently clear manifestation of the truth of the statement to consti- 
tute a demonstration. I am of the opinion that for the purposes of § 
4(e)(2) of the Voting Rights Act of 1965 a person "demonstrates that 
he has successfully completed the sixth primary grade in a public school 
in, or a private school accredited by, any State or territory, the District 
of Columbia, or the Commonwealth of Puerto Rico in which the pre- 
dominant classroom language was other than English" if he makes a 
sworn statement to that efifect. 

Since the question is not an entirely clear one, I set forth the reasons 
for my conclusion. First, the legislative history of § 4(e)(2) lends sup- 
port to this interpretation, although that history is far from conclusive. 
Second, the interpretation I have adopted furthers the broad remedial 
purposes of the Voting Rights Act of 1965 and § 4(e) (2) thereof. 

Section 4(e)(2) was not contained in the bill reported to the Senate by 
its Committee on the Judiciary. In the report accompanying the bill. Sena- 
tor Javits of New York noted that he had offered as an amendment what 
eventually became § 4(e)(2), on behalf of himself and Senator Kennedy 
of New York, but "this amendment did not come to a vote because of the 
time limitation imposed upon the committee by the Senate referral. It will 
he offered on the floor by both Senators from New York when the meas- 
ure is considered by the Senate." Senate Report No. 162, 89th Cong., 
1st Sess. The amendment was introduced in the Senate by Senator Ken- 
nedy of New York for himself and for Senator Javits. Ill Cong. Rec. 
11027 (May 19, 1965). The following day it was debated and adopted. 
The debate gives no indication of the meaning of "demonstrates." Ill 
Cong. Rec. 11060-11074 (May 20, 1965). 



P.D. 12 103 

In the House of Representatives, § 4(e)(2) was introduced by Repre- 
sentative Ryan of New York as an amendment to the bill reported by the 
Committee on the Judiciary. Ill Cong. Rec. 15666 (July 6, 1965). The 
amendment was debated and accepted by the Committee of the Whole 
House on the State of the Union, but later the same day rejected by the 
House itself. At no point in the debate was any light shed on the question 
which concerns us. Ill Cong. Rec. 16234-16245. 16282-16283 (July 9, 
1965). The conference committee convened by the two houses of Con- 
gress on the differing bills adopted by the Senate and the House of Repre- 
sentatives accepted § 4(e)(2) which had been adopted only in the Senate. 
The committee's report gives no indication of the meaning of "demon- 
strates." Conference Report No. 711, 89th Cong., 1st Sess. The bill re- 
ported by the conference committee was adopted by the House, but once 
again the debate is of no assistance. HI Cong., Rec. 19193-19201 (August 
3, 1965). At final adoption of the bill in the Senate, however, a pertinent 
exchange between Senator Kennedy of New York and Senator Hart of 
Michigan took place : 

"Mr. KENNEDY of New York. I would like to ask the Senator a 
question concerning the meaning of the word 'demonstrates' in section 
4(e) of the bill. The Senator from Michigan was one of the conferees, 
and would therefore be aware of the intent of the conference committee 
in agreeing to include section 4(e), which was not contained in the House 
version of the bill. Would it be correct to say that the demonstration 
which one must give of one's educational attainment in order to invoke the 
provisions of section 4(e) is not limited to production, of a diploma or 
certificate, but can also be satisfied by an oath or affirmation of the requi- 
site educational attainment, made at the time and place of registration? 

"Mr. HART. The Senator is correct. Section 4(e) contemplates that 
a potential voter may demonstrate his educational attainment by oath or 
affirmation made when he comes to register." 

Ill Cong. Rec. 19376 (August 4, 1965). 

No other part of the Senate debate on final adoption of the bill is of any 
assistance. Ill Cong. Rec. 19374-19378 (August 4, 1965). The exchange 
between Senators Kennedy and Hart which I have quoted strongly sug- 
gests that my interpretation of § 4(e)(2) is the correct one, but I do not 
regard it as conclusive to that effect. The colloquy came at the last stage 
of Congressional consideration of the bill — after initial Senate adoption 
of § 4(e)(2), after adoption of the amendment by the Committee of the 
whole and rejection by the House itself, after the report of the conference 
committee, and after House acceptance of the conference bill. The col- 
loquy cannot be regarded as conclusive evidence of what each house of 
Congress intended when it adopted § 4(e)(2), although it is certainly 
persuasive. 

In a broader sense, however, the legislative history of § 4(e)(2) pro- 
vides additional support for my view. It is clear that this is remedial 
legislation, designed to remove what Congress regarded as an unjustifiable 
clog on exercise of the franchise by citizens educated in Puerto Rico 
who, "because of our policy of cultural autonomy and self-determination 
. . . [have been educated under] the present system which allows instruc- 
tion in the Spanish language." Ill Cong. Rec. 16238 (remarks of Repre- 



104 P.D. 12 

sentative Scheuer of New York, July 9, 1965). See also the remarks of 
Representative O'Neill of Massachusetts. Ill Cong. Rec. 16241-16245 
(July 9, 1965). To effectuate the purposes of § 4(e)(2), it is appro- 
priate to adopt a liberal construction of its provisions, one which clears 
the path for those citizens of Massachusetts born and educated in Puerto 
Rico who now seek the right to vote. A construction of § 4(e) (2) which 
required these citizens to seek a certificate of their educational attainments 
from a faraway school, the past records of which might well be inaccess- 
ible, would in my opinion unduly and unnecessarily obstruct their exercise 
of the right to register and vote. 

Accordingly, I advise you that any person who makes a sworn statement 
at the time of registration that he has successfully completed the sixth 
primary grade in a public school in, or a private school accredited by, any 
State or territoi-y, the District of Columbia, or the Commonwealth of 
Puerto Rico in which the predominant classroom language was other than 
English may be allowed to register without being required to read the 
Constitution of the Commonwealth in the English language. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



48. October 31, 1966. 

Honorable Quintin J. Cristy, Chairman, Alcoholic Beverages Control 
Commission. 

Dear Mr. Cristy : — On October 24, 1966, you requested my opinion 
with regard to interpretation of the provisions of c. 511 of the Acts of 
1966. Chapter 511 amended § 11 of c. 138 of the General Laws (the 
Liquor Control Act) by striking out the former § 11, and inserting in 
place thereof a new section. 

Section 11 provides for certain local options with respect to the sale — 
within a given municipality — of alcoholic beverages. Prior to this year's 
amendment, § 11 directed that the following three questions were to appear 
on the ballot at each biennial State election : 

"A. Shall licenses be granted in this city (or town) for the sale there- 
in of all alcoholic beverages (whisky, rum, gin, malt beverages, wines and 
all other alcoholic beverages) ? 

"B. Shall licenses be granted in this city (or town) for the sale there- 
in of wines and malt beverages (wines and beer, ale and all other malt 
beverages) ? 

"C. Shall licenses be granted in this city (or town) for the sale there- 
in of all alcoholic beverages in packages, so-called, not to be drunk on the 

premises?" 

The section concluded with detailed instructions with respect to the legal 
result of affirmative and negative votes cast upon the various questions. 

The amendment contained in St. 1966, c. 511 directs that a fourth ques- 
tion appear upon the ballot : 



P.D. 12 105 

"D. Shall licenses be granted in this city (or town) for the sale of 
all alcoholic beverages by hotels having a dining room capacity of not less 
than ninety-nine persons and lodging capacity of not less than fifty 
rooms ?" 

The statutory instructions with respect to the result of certain affirmative 
and negative votes and combinations of votes are accordingly amended 
to include votes cast with respect to question D. 

Your Commission is apparently concerned with the efifect of affirma- 
tive votes upon question D, in light of the instructions included in the 
latter part of the new section. You state : 

"... if they (the registered voters) vote to renew their 'Package 
Goods' Store licenses (C), and also try to take advantage of subdivided 
question D., the result would be that there would be no licenses. ... It 
is very important that in a town . . . that has 'Package Goods' Store H- 
censes and will i)robably vote to renew them, if they also vote favorably 
on question D., they lose everything?" 

Your letter does not pose a specific legal question to be resolved. How- 
ever, since time is short and since your Commission must be prepared to 
advise the municipalities with respect to the efifect of different votes, I am 
providing the following general explanation. 

It is my opinion that no substantial legal question is posed by the en- 
actment of c. 511 of the Acts of 1966. The instructions contained in the 
latter part of c. 138, § 11 are not intended to cover every conceivable 
combination of votes. They are provided simply as guidelines. I am 
aware that a strict, legalistic construction of the statute might result in the 
cancellation of one vote by another. Such a result cannot be imputed to 
the Legislature, and an interpretation which enables such a result should 
be avoided. 

The obvious intent of St. 1966, c. 511 is to provide an additional option 
for certain so-called "dry" communities. It is entirely possible that regis- 
tered voters who have in the past rejected the option to authorize sales 
of alcoholic beverages to be drunk on or ofif the premises might never- 
theless choose to authorize the sale of such beverages by hotels which 
meet the size requirements specified in the statute. The additional option 
was clearly not intended to have any negative efifect upon those cities or 
towns which desire to grant some or all of the authorization contained in 
the first three questions. Had the General Court intended that responses 
to question D have the possible efifect of cancelling one or more affirma- 
tive votes taken on earlier questions, it presumably would have provided so 
with far greater clarity. 

An affirmative vote on question A makes question B unnecessary, since 
the general authorization for the sale of all alcoholic beverages to be drunk 
on the premises would automatically include the hotels specified in the 
latter query. In other words, an affirmative vote on question A would 
cancel a negative vote on question D. The result of any other combination 
of votes is obvious from the nature of the questions. A town could con- 
ceivably vote "yes" on questions B and D, thus authorizing only the sale 
of malt beverages in taverns and barrooms, but enabling the sale of all 
alcoholic beverages in the specified hotels. Nor would affirmative votes 



106 P.D. 12 

on questions C and D have a cancelling effect, as your letter seems to sug- 
gest. Such a vote — assuming negative votes on cjuestions A and B — 
would authorize the sale of all alcoholic beverages in package stores for 
consumption off of the premises, and also authorize the sale of all alcoholic 
beverages by certain hotels for consumption therein. 

I am unable to identify any hidden meanings within this statute, the sole 
purpose of which is obviously simply to provide the municipalities with an 
additional option. It is my opinion that the only cancelling effect which 
can be derived from any combination of votes would be that which results 
from an affirmative vote cast upon question A, in which case negative 
votes cast upon questions B, C or D would be nullified. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



49. November 4, 1956. 

Honorable Guy J. Rizzotto, Conimissioncr of Corporations and Taxa- 
tion. 

Dear Commissioner Rizzotto : — You have requested an opinion re- 
garding the authority of the Commissioner of Corporations and Taxation 
to designate certain banks doing business within the Commonwealth as 
his fiscal agents for the purpose of selling cigarette stamps and collecting 
revenues under c. 435 of the Acts of 1966. 

You state that : 

"Chapter 435 of the Acts of 1966 established a cigarette stamp law 
whereby payment of the cigarette excise, commencing January 1, 1967, 
shall be evidenced by the use of adhesive stamps or meter impressions 
affixed to the cigarette packages. The stamps are to be sold by the Com- 
missioner of Corporations and Taxation, who will also set meters for those 
licensees using such system." 

You further state : 

"Section 30 of chapter 64C of the General Laws, as inserted by said 
Chapter 435, authorizes the Commissioner to make 'provisions for the 
sale of stamps and the setting of metering machines at such places and 
at such times as he may deem expedient." It is his desire to designate 
a number of banks throughout the Commonwealth to sell cigarette stamps 
and set the metering machines without cost to the Commonwealth. They 
would remit the revenues collected on a monthly basis. This method of 
sale would, in his considered opinion, provide the maximum security for 
the sale of a highly negotiable item with no additional cost to the Com- 
monwealth. It would, moreover, provide accessible locations throughout 
the State for cigarette licensees to purchase stamps or set meters. If the 
Commonwealth were to provide equivalent security and service, the addi- 
tional cost would be considerable." 

You then request my opinion upon the following questions : 

"1. Is the Commissioner of Corporations and Taxation authorized to 



P.D. 12 107 

designate banks doing business within the Commonwealth as his fiscal 
agents to sell cigarette stamps and set meters under Chapter 435 of the 
Acts of 1966 without cost to the Commonwealth? 

"2. If he is so authorized, may he provide that said banks would re- 
mit to the Commissioner of Corporations and Taxation the cigarette 
revenues collected on a monthly basis?" 

Section 29 of c. 64C of the General Laws, as inserted by St. 1966, c. 
435, provides that the excise tax shall be paid "... to the commissioner 
by purchasing such stamps in accordance with such regulations as the com- 
mission may prescribe." Section 30 of said c. 64C, inserted by said c. 
435, provides that "The Commissioner shall make provisions for the sale 
of such stamps and the setting of metering machines at such places and at 
such times as he may deem expedient." 

It is my opinion that the broad powers for collection of this tax which 
have been conferred upon the Commissioner of Corporations and Taxation 
include by implication authority to designate banks doing business' within 
the Commonwealth as fiscal agents to sell cigarette stamps. Likewise, I 
believe that the Commissioner may determine the manner in which the 
cigarette revenues should be remitted by the banks to the Commissioner 
of Corporations and Taxation. Had the Legislature intended a specific 
method for collection and payment of the tax, a provision to that effect 
would undoubtedly have been inserted in the statute. As was stated in 
the case of Lynch v. Coinniissioner of Education, 317 Mass. 7d>, at page 
79: 

"The authority to deal with the subject matter was left in the hands of 
those best qualified to do so by reason of intimate knowledge of the de- 
tails of administration. . . . 'Statutes framed in general terms commonly 
look to the future and may include conditions as they arise from time to 
time not even known at the time of enactment, provided they are fairly 
within the sweep and the meaning of the words and fall within their 
obvious scope and purpose.' (Cases cited.) And it is well established that 
when a general power is given all authority necessarily incidental to carry 
out the power is given by implication." 

The case of Scannell v. State Ballot Lazv Couuuission, 324 Mass. 494, 
states at page 501 : 

"... An express grant carries with it by implication all incidental auth- 
ority required for the full and efficient exercise of the power conferred. 
The Legislature need not enumerate nor specify, definitely and precisely, 
each and every ancillary act that may be involved in the discharge of an 
official duty. It is enough for the Legislature to impose the duty to be 
performed within a prescribed field for a designated end, leaving to the 
board's discretion the selection of the appropriate methods and means and 
the other administrative details to be employed in accompHshing the statu- 
tory purpose." 

Accordingly, for the reasons stated above, I answer each of your ques- 
tions in the affirmative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



108 P.D. 12 

50. November 7, 1966. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs: — You have requested my opinion with 
respect to two questions involving interpretation of the provisions of c. 
689 of the Acts of 1966. 

Your first question states : 

"Assuming the Department wishes to implement the Act as soon as 
possible, in the absence of funds specifically provided to do so, what action 
can the Department take?" 

The Act is obviously permissive rather than mandatory legislation. How- 
ever, assuming that you do wish to implement its provisions, you are auth- 
orized "to construct garage facilities in the City of Springfield for the 
Springfield Street Railway System in exchange for certain land and garage 
facilities of said company to be taken by eminent domain. ..." 

A taking by eminent domain entails an obligation to pay, and it is pre- 
sumed that you have funds available under the Accelerated Highway Pro- 
gram with which to make such payment. Since this is an exchange speci- 
fically authorized by the Legislature, it appears that you are authorized 
to expend for garage facilities an amount equal to what you would other- 
wise be obliged to pay for the land to be taken. 
• 

It is my opinion, however, that this Act does not enable you to expend, 
for the specified purpose, a greater amount than you would be obligated 
to pay for the taking. If the statutory objective is to be carried out, the 
Springfield Street Railway Company should be required to release any 
claim for damages due from the taking in exchange for your agreement, 
under stipulated conditions, to construct or pay for the construction by 
them of facilities at a cost not to exceed fair compensation for the emi- 
nent domain taking. 

Your second question states : 

"Are the obligations of the Department under the Act too vague for 
implementation ?" 

Please note that there are no obligations of the Department under the 
Act, since it is a permissive or authorizing Act and does not, therefore, 
compel action by your Department. However, if you do elect to exercise 
the authority of the Act, the limitations upon that authority are as set 
forth in the answer to question one. 

Very truly yours, 

Edward W. Brooke, Attorney General 



51. December 20, 1966. 

Honorable Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Commissioner Solomon :— You have requested my opinion re- 
garding the authority of the Commissioner of Mental Health to accept a 
grant of real estate for a proposed Mental Health Center. 



P.D. 12 109 

Specifically, you have asked : 

"... whether under the provisions of Section 6, Chapter 123 of the 
General Laws, the Commissioner of Mental Health, in the name of the 
Commonwealth, is authorized to accept a parcel of land from the Spring- 
field Hospital for the purpose of constructing a Mental Health Center." 

General Laws c. 123, § 6 provides as follows : 

"The department [of Mental Health] shall be a corporation for the 
purpose of taking, holding and administering in trust for the common- 
wealth any grant, devise, gift or bequest made either to the common- 
wealth or to it, for the use of persons under its control in any state hos- 
pital. ..." 

Under the plain language of the above-quoted section, it is manifest 
that the Department of Mental Health is authorized to accept any grant 
made to it for the use of persons under its control in a state hospital. 
Accordingly, since a mental health center is a "state hospital" (See At- 
torney General's Report, March 1, 1966), the Department of Mental 
Health, acting by and through the Commissioner of Mental Health, may 
accept a grant of land for the use of the persons in such a center. 

It is my opinion, therefore, that the Commissioner of Mental Health, 
in the name of the Commonwealth, is empowered by c. 123, § 6 to accept 
a grant of land from the Springfield Hospital, to be used for the Mental 
Health Center authorized by c. 626 of the Acts of 1963. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



52. December 20, 1966. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan : — In a recent request for an opinion, 
you ask {inter alia) : 

"Does the School Committee of Lincoln have the legal responsibiHty 
to educate the children who live on the federal base at the Hanscom Field 
and if so should the cost of this operation be included in the regular school 
budget ?" 

According to facts contained in your letter, the Town of Lincoln for 
the past several years has operated a school on a military reservation 
known as L. G. Hanscom Field. You state : 

"Factually, the Real property upon which the Hanscom children reside 
and upon which the base school is located was ceded by the State to the 
Federal Government in 1958. The on-base school was constructed the 
following year entirely with Federal funds, and is attended only by chil- 
dren of military personnel residing on the installation. At the request of 
military authorities, the Town of Lincoln, with the sanction of a regular 
Town Meeting, agreed to operate the base school for military authorities 
on a year-to-year basis with all expenses to be borne by the Federal Gov- 
ernment. 



no P.D. 12 

"The Town of Lincoln has operated the on-base school as a separate 
educational facility for the past several years maintaining separate l^ooks, 
accounting and property records which are regularly audited by Federal 
officials." 

The Federal Government, on the basis of an opinion which I rendered 
to you on July 8, 1965, has suggested that the Town of Lincoln is under 
an obligation to provide educational facilities for the children who live at 
Hanscom. In my opinion to you of July 8, 1965, I ruled that the City 
of Chicopee was entitled tO' State reimbursement under G. L. c. 70, § 4 
for minors who lived on Westover Air Force Base and for whose educa- 
tion the City was assuming responsibility. I did not rule that any munici- 
pality is obligated to provide educational facilities for children who reside 
on federal reservations. Nothing in our statutes supports such a proposi- 
tion. See G. L. c. 71, §§ 1 and 68. And, indeed, the Supreme Judicial 
Court has taken the opposite view. Opinion of the Justices, 1 Met. 580, 
583. Neivcomh v. Rockport, 183 Mass. 74, 77-79. These opinions, until 
and unless overruled, remain the law of the Commonwealth. 

I answer the first part of your question in the negative and, accordingly, 
do not answer the second part. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



53. December 21, 1966. 

Honorable John L. Quigley, Couiniandant, Soldiers' Home. 

Dear Commandant Quigley : — You have requested my opinion in re- 
gard to the eligibility of Vietnam veterans for admission to the Chelsea 
Soldiers' Home. 

General Laws c. 4, § 7, cl. forty-third, as amended by St. 1965, c. 875, 
now includes Vietnam veterans within its scope : 

" 'Wartime service' shall mean service performed by a 'Spanish War 
veteran', a 'World War I veteran', a 'World War H veteran', a 'Korean 
veteran', a 'Vietnam veteran', or a member of the 'WAAC, as defined 
in this clause during any of the periods of time described herein or for 
which such medals described below are awarded. 

" 'Vietnam veteran shall mean any veteran zvho has been awarded the 
armed forces expeditionary medal or the Vietnam service medal for mili- 
tary service performed in Vietnam between July first, nineteen hundred 
and fifty-eight and the termination of the Vietnam emergency as declared 
by proper federal authority." (Emphasis supplied.) 

A reading of the plain and unambiguous language of the above-quoted 
statutory provisions makes manifest the legislative intention in this con- 
text. Clearly, that intention was to broaden the scope of the term "vet- 
eran" as previously defined therein so as to include individuals rendering 
military service in the Vietnam conflict. 

By virtue of the enactment of c. 875 of the Acts of 1965, those indi- 
viduals who serve in the military in Vietnam and who fall within the scope 



P.D. 12 111 

of the definition of "Vietnam veteran" in G. L. c. 4, § 7, cl. forty-third, 
as amended by St. 1965, c. 875, are now eligible for all the rights and 
privileges heretofore accorded to the veterans of other wars. Accordingly, 
since Vietnam veterans now clearly fall within the qualifying language of 
G. L. c. 115A, § 1(a), which sets out the prerequisites for admission to 
a soldiers' home, it is my opinion that Vietnam veterans are eligible to 
apply for admission to and treatment at the Soldiers' Home at Chelsea. 

Very truly yours, 
Edward W. Brooke, Affomcv General. 



54. December 23. 1966. 

Honorable W. Henry Finnegan, Director of Civil Service. 

Dear Mr. Finnegan: — In a recent request for an opinion, you state 
that on August 16. 1965 you wrote to the "public library in each city and 
in such towns Vv^hich have accepted the pertinent provisions of the civil 
service law." In this letter, a copy of which is attached to your request, 
you informed each library : 

"Section 47A of Chapter 31 of the General Laws sets forth the pro- 
cedure where any office or position is placed within the classified civil 
service by the provisions of a statute. In order that the procedure out- 
lined in the civil service law may be followed, I am sending to you here- 
with blank forms (Form 7Z) to be filled out IN DUPLICATE, signed 
by the appointing authority and listing the names of all persons, other than 
professional librarians, sub-professional librarians or pages, as described 
above, who were employed on August 15, 1965, the effective date of said 
Chapter 471. The name of any person who holds a certificate issued by 
the Board of Library Commissioners but who is performing duties, such 
as clerical duties, which are NOT those of a librarian or a sub-profes- 
sional librarian must also be included on the list. If no such persons were 
employed on August 15, 1965, will you please so inform me in writing. 

"I am also enclosing position-classification questionnaires (Form 59), 
two copies of which are to be filled out by each employee affected by said 
Chapter 471, signed by him, by his supervisor and by the appointing auth- 
ority. The original copy should be returned by you to this office with the 
list of employees (Form 7Z). The carbon copy may be retained by the 
department head." 

According to your letter, "certain library authorities either have not 
replied or replied in an unsatisfactory manner." Several others have re- 
plied through law firms. The libraries to which you refer are in Pittsfield, 
Westfield, Springfield and Northampton. In light of these developments, 
you ask : 

"Question 1) In the case of those municipalities which have not filed 
a list of employees or have not sent me a satisfactory reply, what action 
may be taken by me to force compliance with the provisions of section 2 
of Chapter 471 of the Acts of 1965 and section 47A of Chapter 31 of the 
General Laws?" 



112 P.D. 12 

The answer to this question depends upon whether the libraries in Pitts- 
field. Westfield, Springfield and Northampton are agencies of these muni- 
cipalities. None of them is. Each of the libraries is endowed and oper- 
ated by a charitable trust or non-profit corporation. I am aware that 
each of them receives considerable financial aid from the municipality in 
which it is located. But these grants do not convert them into public agen- 
cies or departments. See Opinion of the Justices, 337 Mass. 800, 806-807. 
There is no provision in the laws of this Commonwealth that confers 
upon the Director of Civil Service any authority with respect to non-public 
employees. Absent a clear grant of such authority (which conceivably 
could raise grave constitutional issues), private libraries are not subject 
to civil service control, direction or classification. Thus, there is no basis 
upon which you may demand information from these libraries. Cf. School 
Comm. of New Bedford v. Coimnissioner of Education, 349 Mass. 410, 
414-415. 

The above answer makes it unnecessary to consider other questions 
presented in your letter. 

Very truly yours, 

Edward W. Brooke. Attorney General. 



55. December 23, 1966. 

Honorable Edward J. Ribbs, Commissioner of P^d^lic Works. 

Dear Commissioner Ribbs : — You have requested my opinion on the 
following three questions : 

1. Does the Department of Public Works, through the Division of 
Waterways, have jurisdiction over the transportation of rubbish and debris 
by barge to the outer harbor of Boston for burning and disposal? 

2. If the Department has jurisdiction, may the Department formulate 
and implement rules and regulations governing such disposal operations? 

3. What are the duties and obligations of the Department under §§ 10, 
52, 53, 54 and 55 of Chapter 91 of the General Laws? 

(1) Chapter 91, § 10 of the General Laws states in part: 

"The department shall have general care and supervision of the harbors 
and tide waters within the commonwealth ... in order to prevent and 
remove unauthorized encroachments and causes of every kind which may 
. . . interfere with the navigation of such harbors, injure their channels or 
cause a reduction of their tide waters. ..." 

Section 52 of that chapter states in part : 

"The department shall supervise the transportation and dumping of . . . 
any . . . material which may be placed in scows or boats to be transported 
and dumped in tide water. ..." 

Chapter 91, § 3 considers separately certain powers of the Department 
in regard to Boston Harbor alone: 



P.D. 12 113 

"The department shall have all the rights, powers and duties transfer- 
red to the directors of the port of Boston under section four of chapter 
seven hundred and forty-eight of the acts of nineteen hundred and eleven 
in respect to lands, rights in lands, flats, shores, waters and rights belong- 
ing to the commonwealth in tide waters and land under water in Boston 
harbor. ... It may . . . excavate and dredge in Boston harbor wherever 
public convenience and necessity require. ..." 

The powers transferred from the Board of Harbor and Land Commis- 
sioners to the Directors of the Port of Boston by the 1911 provision are 
set out in c. 96, § 12 of the Revised Laws of 1902; that section was de- 
rived from c. 488 of the Acts of 1897. Bent v. Emery, 173 Mass. 495. 

Revised Laws 1902, c. 96, § 12 authorized the Board to "make contracts 
for the filling, improvement and use of the lands and flats" and to "ex- 
cavate and dredge" in Boston Harbor. In addition, the Board was to have 
"the management of all the wharves, docks and foreshore owned by the 
commonwealth in said harbor. ..." 

The present § 3 of c. 91 is then no more than a clarification and further 
spelling out of the powers and duties originally set forth in R. L. 1902, 
c. 96, § 12 in regard to excavation and dredging in the harbor and man- 
agement of certain piers, public works, shores and waterfront properties. 

Thus, although Boston Harbor is the subject of a separate and specific 
statutory enactment, § 3 of c. 91 should be restricted to its terms and no 
modification or restriction on the general power and authority granted to 
the Department in regard to harbors and tide water generally in § 10 
should be implied. 

Thus, in answer to your first question, the Department of Public Works 
through the Division of Waterways does have jurisdiction over the rub- 
bish burning and disposal operations in Boston Harbor through its power 
to prevent any activity which violates the mandate of § 10 by interfering 
with navigation, injuring the channels or causing a reduction of tide water. 
The Department is further commanded by § 52 to supervise the trans- 
portation and dumping of any material in Boston Harbor. The jurisdic- 
tion of the Department is not exclusive however; rather, it is concurrent 
with the Massachusetts Department of Public Health. See G. L. c. Ill, 
§ 142B. See also, the Rules and Regulations of the Metropolitan Air 
Pollution Control District ; the Massachusetts Department of Public 
Safety (c. 381, Acts of 1935) ; the Office of the State Fire Marshal (G. 
L. c. 148, §§ 3, 4) ; the Fire Department of the City of Boston (c. 355, 
Acts of 1943) ; and the Harbor Master of the City of Boston (c. 147, 
Acts of 1889, c. 234, Acts of 1947, c. 329, Acts of 1961). 

(2) The Department has not expressly been granted general authority 
to formulate and implement rules and regulations governing the disposal 
operations. Section 10 of c. 91 which confers the general powers of care 
and supervision of the harbors and tide waters contains no express grant 
of authority to formulate regulations. 

By expressly granting to the Department in § 7 the power to make rules 
and regulations governing the equipment of piers and other structures, the 
Legislature has indicated the power to make regulations shall be restricted 
solely to the specific subject matter of § 7 and that such power has not 
been impliedly granted in any other section of that chapter. General Elec- 
tric Company v. Conivnonwealth, 329 Mass. 661. 



114 P.D. 12 

This does not mean, however, that the Department is without authority 
to enforce the legislative purpose of c. 91. If the Department decides that 
the disposal and burning of waste materials interferes with the navigation 
of the harbor or injures the channels, it may seek to prevent such activity 
by way of § 57 which grants jurisdiction of violations of c. 91 to the 
Supreme Judicial Court. 

The Department may also utilize the licensing power of c. 91 to carry 
out its duty of care and supervision of the harbors and tidewaters. 

The power to license and issue permits has been expressly granted to 
the Department. Section 52, which commands the Department to super- 
vise the transportation and dumping of "any material," states in part: 

"... The cost of such supervision and also of the supervision under 
licenses and permits authorizing such transportation or dumping . . . shall 
be repaid to the commonwealth monthly by the owners. ..." (Emphasis 
supplied.) 

Section 55 provides for penalties for violations of "any provision of the 
three preceding sections (referring to §§ 52, 53 and 54) or of any license 
or permit granted under said sections. ..." (Emphasis supplied.) 

Thus, in answer to your second question, it is clear that while the De- 
partment has no broad general authority to make rules and regulations 
governing the disposal and burning of waste materials in Boston Harbor, 
it does have the power to prevent violations of § 10 and it also has the 
power to control the transportation and dumping of the waste materials 
by the license power. It must be noted, however, that in the absence of 
specific statutory limitations, the terms of any license or permit issued by 
the Department must be reasonable. Coniinissioner of Public IVorks v. 
Cities Service Oil Co., 308 Mass. 349. 

(3) Your third question seeks a general explanation of the duties and 
obligations of the Department under certain sections of c. 91. It is tradi- 
tional that opinions of the Attorney General are rendered solely upon 
factual situations which actually confront a given State department or 
agency, and not upon hypothetical questions or general requests for infor- 
mation. If your Department is faced with a specific problem involving 
the cited sections, I shall be happy to respond to a formal request con- 
taining the particular questions. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



56. December 29, 1966. 

Mr. Daniel M. O'Sullivan, Acting Director, Legislative Research Bu- 
reau. 

Dear Mr. O'Sullivan : — In a recent request for an opinion, you call 
my attention to the following 1966 Order of the House of Represen- 
tatives : 

"Ordered, That the legislative research council make a study and investi- 
gation relative to the feasibility of requiring the legislative research bu- 



P.D. 12 115 

reau to: (1) analyze all pending legislation on House and Senate daily 
calendars which has reached the third reading stage with a view to pre- 
paring a brief summary thereof and (2) to compile a related summary of 
the acts and resolves passed by each session of the General Court, similar 
to such publications of other states ; and that said council file its report 
hereunder with the clerk of the house of representatives not later than 
the third Wednesday of February in the year nineteen hundred and sixty- 
seven." 

In view of this Order you ask two questions : 

"(1) Would or could the daily summary of bills be construed as evi- 
dence of legislative intent, notwithstanding the summary's appearance in 
separate form apart from the journal or daily calendar? 

"(2) Would a narrative suminary explaining the principal points of 
each law enacted in the session be indicative of legislative intent?" 

I shall consider these questions individually. 

The "daily summary" to which you refer would presumably be an 
explanation from the Council, an official body of this Commonwealth, of 
all proposed legislation ready for its third reading. See Rule 30 of the 
Rules of the Senate ; Rule 5 1 of the Rules of the House of Representa- 
tives. The summary, I assume, would be available to every representative 
in the General Court. As such, the Council's explanations may be evidence 
of the meaning of an ambiguous (see Milton v. Metropolitan Dist. Comm., 
342 Mass. 222, 223) statute. See Plunk ctt v. Old Colon v Trust Co., 233 
Mass. 471, 474; Nezv Bedford v. Nezv Bedford, IVoods Hole, Martha's 
Vineyard & Nantucket SS. Autliy., 330 Mass. 422. 429; Horack, Suther- 
land, Statutory Construction (3rd ed.), §§ 5007, 5008, 5010. I, of course, 
cannot comment on how much probative value this evidence would have, 
since this would depend on the circumstances surrounding the need, if any, 
for extrinsic aid to interpretation. Nevertheless, I answer your first ques- 
tion in the affirmative. 

However, the proposed "narrative summary" of legislation would not, 
in my opinion, be evidence of legislative intent, since it would be prepared 
and distributed subsequent to the enactment of the laws which it purported 
to explain. The rule is well settled that legislative statements of statutory 
purpose made after the enactment of the statute in question are inad- 
missible to show legislative intent. State IVJiolesale Grocers v. Great At- 
lantic & Pacific Tea Co., 154 F. Supp. 471, 484-485 (N. D. 111.). See 
Horack, Sutherland, Statutory Construction (3rd ed.), § 5013 and cases 
collected in n. 2. Applying the general purpose of that rule to the facts 
set forth in your second question, I answer that question in the negative. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



57. December 29, 1966. 

The Honorable Owen B. Kiernan, Commissioner of Education. 

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



116 P.D. 12 

"... whether in computing Chapter 70 Aid for distribution in 1967, 
the 'equalized vakiation' for 1966 which will be submitted to the General 
Court on or l)efore Deceml^er 31, 1966 by the State Tax Commission 
(Chapter 58, Section IOC of the General Lav/s) or the 'equalized valua- 
tion' of 1965 contained in House No. 3998 should be used?" 

By St. 1966, c. 14, § 40. the General Laws were amended by striking 
out Chapter 70 and inserting a new Chapter 70. All references to G. L. 
c. 70 herein will be to the chapter as so amended. 

G. L. c. 70, § 4, provides, in part : 

The school aid to be paid to each city and town in any calendar year 
shall be the amount obtained by multiplying its reimbursable expenditures 
for the last preceding fiscal year by its school aid percentage for the calen- 
dar year during which such fiscal year begins ; 

[subject to provisions not now relevant]. 

The school aid to be paid in 1967 to each city or town is thus to be 
determined by multiplying its reimbursable expenditures for the fiscal 
year July 1, 1965-June 30, 1966 (which is the last preceding fiscal year 
to 1967) by its school aid percentage for the calendar year 1965 (which 
is the calendar year during which the last preceding fiscal year to 1967 
began ) . 

School aid percentage is defined by G. L. c. 70, § 2(d), as follows: 

"School aid percentage," for each city or town, the amount by which 
one hundred per cent exceeds the product, to the nearest tenth of one 
per cent, of sixty-five per cent times the valuation percentage ; 

Valuation percentage is defined by G. L. c. 70, § 2(f), as follows: 

"Valuation percentage," the proportion, to the nearest tenth of one per 
cent, which the equalized valuation per school attending child of the city 
or town bears to the average equalized valuation per school attending child 
for the entire state. 

Equalized valuation is defined by G. L. c. 70, § 2(a), as follows: 

"Equalized valuation", the equalized valuation of the aggregate property 
in a city or town subject to local taxation, as most recently reported by 
the state tax commission to the general court under the provisions of sec- 
tion ten C of chapter fifty-eight. 

The school aid percentage for the calendar year 1965 thus depends upon 
the valuation percentage for the calendar year 1965, which in turn depends 
upon the equalized valuation for the calendar year 1965. Difficulties arise, 
however, in determining the equalized valuation for the calendar year 1965. 
G. L. c. 70, § 2(a) refers to equalized valuation "as most recently reported 
by the state tax commission to the general court under the provisions of 
section ten C of chapter fifty-eight." (Emphasis supplied.) In 1965, there 
was no G. L. c. 58, § IOC, that section having been inserted by St. 1966, 
c. 14, § 43 (effective as of January 1, 1966, by virtue of St. 1966, c. 14, 

§ 79): 



P.D. 12 117 

However, the definition of equalized valuation in G. L. c. 70, § 2(a) 
is subject to the phrase with which G. L. c. 70, § 2 begins: 

"When used in this chapter the following words shall, unless the con- 
text requires otherwise, have the following meanings. ..." (Emphasis 
supplied.) In this case I believe that the context requires that equalized 
valuation have a meaning other than that given in G. L. c. 70, § 2(a). 
Chapter 70 is quite clear in specifying that school aid for 1967 is to be 
calculated using reimbursable expenses for the fiscal year 1965-1966 and 
the school aid percentage for the calendar year 1965. I am unable to see 
how a school aid percentage can be said to be for the calendar year 1965 
if one of the factors which determines the school aid percentage, equalized 
valuation, is determined as of a calendar year other than 1965. In the 
context, I take equalized valuation to be the equalized valuations prepared 
under G. L. c. 58, § 9, as amended through St. 1953, c. 654, § 7 (before 
amendment by St. 1966, c. 14, § 43). For the calendar year 1965, the 
equalized valuation "as most recently reported by the state tax commission 
to the general court" is that reported under G. L. c. 58, § 9, as amended 
through St. 1953, c. 654, § 7, and found in 1965 House Doc. No. 3998. 

The construction I adopt avoids the anomaly of requiring you to certify 
to the Comptroller and the State Tax Commission school aid figures for 
1967 based on equalized valuations as certified by the State Tax Commis- 
sion to the General Court for 1966, when both you and the State Tax 
Commission are required to make your certification by the same date, 
December 31, 1966 (see G. L. c. 70, § 5 and G. L. c. 58, § IOC, as 
inserted by St. 1966, c. 14, § 43). 

I note in passing that I have considered the effect of St. 1966, c. 14, 
§ 73, and concluded that it is not relevant to the problem you present. 
Section 73 provides : 

Notwithstanding the provisions of chapter seventy of the General Laws, 
as amended by section forty of this act, the equalized valuation to be used 
in determining school aid for the calendar year nineteen hundred and 
sixty-six shall be the equalized valuations as reported by the state tax 
commission to the general court under the provisions of section nine of 
chapter fifty-eight of the General Laws during the year nineteen hundred 
and sixty-five. 

It has been argued that this section indicates a legislative intention that 
the equalized valuations reported in 1965 under G. L. c. 58, § 9 (as it 
stood before amendment by St. 1966, c. 14, § 43) were to be used only 
in computing school aid for 1966, and that equalized valuations for 1966 
were to be used in computing school aid for 1967. As I interpret chapter 
70. however, the equalized valuations to be used in computing 1966 aid, 
aside from St. 1966, c. 14, § 73, would have been the equalized valuations 
for 1964, the calendar year in which the last preceding fiscal year to 1966 
began. St. 1966, c. 14, § 73 has the efifect of requiring the use of 1965, 
rather than 1964, figures. 



Very truly yours, 
Edward W. Brooke, Attornev General. 



118 P.D. 12 

58. December 29, 1966. 

Honorable Richard E. McLaughlin, Registrar of Motor Vehicles. 

Dear Sir : — In a request for an opinion, which you clarified by a sub- 
sequent letter, you ask, in essence, whether the Registrar may refuse to 
register a motor vehicle (see G. L. c. 90, §§ I, et seq.), where the appli- 
cant's excise taxes (see G. L. c. 60A, §§ 1, ct seq.), according to the 
sworn information provided in or with the application, have not been paid. 

In your request you call my attention to G. L. c. 60A, § 2A, which I 
quote : 

"If an excise assessed under this chapter remains unpaid for fourteen 
days after a demand therefor made not less than thirty days after such 
excise becomes due and payable, the local tax collector or the commis- 
sioner, as the case may be, may at any time and from time to time, in the 
calendar year to which such excise relates or in the next calendar year, 
transmit to the registrar of motor vehicles, hereinafter in this section 
called the registrar, upon a form approved by the state tax commission, 
a notice of such non-payment, specifying the name and address of the per- 
son to whom the excise is assessed, the amount of the excise due and such 
information as to the motor vehicle or trailer assessed as was transmitted 
by the registrar to the commissioner under section two ; provided, how- 
ever, that no notice shall be transmitted to the registrar under this section 
at a time when there is pending before the local board of assessors or the 
state tax commission, as the case may be, a duly filed application for the 
abatement of such excise in whole or in part nor within thirty days after 
action upon any such excise in whole or in part nor within thirty days 
after action upon any such application by the local board of assessors or 
the state tax commission, as the case may be. If at the time any such 
notice is received it appears from the records of the registrar that one or 
more motor vehicles or trailers are then registered in the name of the per- 
son to whom the excise is assessed, the registrar shall forthwith give him 
written notice by mail directed to his last known address that the certifi- 
cates of registration of all such motor vehicles and trailers will be sus- 
pended at the expiration of thirty days from the date of mailing such 
notice unless within said thirty days there is filed with the registrar, to- 
gether with a filing fee of one dollar, evidence satisfactory to him that the 
excise, and all interest thereon and costs relative thereto, have been paid 
or legally abated. Unless such evidence is so filed with the registrar, he 
shall forthwith suspend the certificates of registration of all such motor 
vehicles and trailers, and shall not terminate any such suspension nor re- 
new nor issue any certificate of registration for the person to whom such 
excise is assessed until such evidence shall have been filed with him and 
such filing fee paid. The fact that a motor vehicle or trailer is being oper- 
ated during any such suspension of its certificate of registration shall not 
be held to constitute such motor vehicle or trailer a trespasser upon the 
highways." 

Nothing in this statute empowers the Registrar to refuse to issue or 
renew motor vehicle registration except as a condition subsequent to a 
suspension made under this section. To be valid, a suspension under § 
2A requires {inter alia) notice to the Registrar from local tax assessors 
or from the State Tax Commission that a person's motor vehicle excise 



P.D. 12 119 

has not been paid as well as thirty days' prior notice from the Registrar 
to the delinquent taxpayer. 

"Requirements of notice . . . before an administrative board are to be 
strictly followed." Co-Ray Realty Co., Inc. v. Board of Zoning Adjust- 
nient of Boston, 32S Mass. 103, 107 and cases cited. Landers v. Eastern 
Racing Assn., 327 Mass. 32, 41. Chartrond v. Registrar of Motor Vehi- 
cles, 347 Mass. 470, 472, 474-476. Cf. Powell, Administrative Exercise of 
the Police Power, 24 Harv. L. Rev. '333, 334-335. 

I have no reason to doubt that the rule pertaining to notice stated in 
the Co-Ray case, supra, and the other cases that I have cited is applicable 
to disciplinary actions taken by the Registrar under G. L. c. 60A, § 2A. 
If the Registrar could refuse to issue or renew a registration merely upon 
receiving information from the applicant that his excise has not been paid, 
he could, in effect, vitiate not only the provision that such refusal follow 
a valid suspension but also, and far more important, the requirement that 
such suspension be made upon notice of thirty days. I know of no law 
other than G. L. c. 60A, § 2A that even conceivably confers upon the 
Registrar power to refuse registration for non-payment of the excise re- 
quired by c. 60A, § 2. Since I am of opinion that the notice may not 
be dispensed with and that, therefore, the Registrar may not refuse to 
issue or renew a motor vehicle registration when an aj^jplicant indicates 
that his excise has not been paid, it is not necessary to consider whether 
the Registrar is empowered to demand information, in any form other 
than that specified in § 2A, concerning non-payment of the motor vehicle 
excise. See School Conirn. of Nezv Bedford v. Commissioner of Educa- 
tion, 1965 Mass. Adv. Sh. 1029, 1033. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



59. December 29, 1966. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs : — You have asked my opinion on a ques- 
tion which has arisen in negotiations between the Department and the 
Massachusetts Bay Transportation Authority. You have stated : 

"The Department and the Massachusetts Bay Transportation Authority 
intend that a portion of the land to be acquired by the Department in the 
cities of Boston and Somerville for construction of the so-called Inner 
Belt, shall be used by the Authority for the location of a rapid transit 
system within the Department's proposed highway layout for Interstate 
Route 695 (Inner Belt). 

"Toward that end, the Department and the Authority are negotiating 
a contract to conserve public funds by coordinating their actions in acquir- 
ing interests in land in Boston and Somerville for their respective public 
purposes and to devote said land to its proposed highway layout for Inter- 
state Route 695 (Inner Belt) and also to devote a portion of said land 
within said layout to the construction, maintenance and operation of a 
mass transit rail system. 



120 P.D. 12 

"Negotiations have become stalemated concerning whether the Depart- 
ment must utilize the provisions of Chapter 16 of the General Laws, as 
amended by Section 5(b) of Chapter 821 of the Acts of 1963, which estab- 
lished the Board of Commissioners of the Department of Public Works as 
a Contract Appeal Board for disputes that may arise under the terms of a 
proposed contract, or, as declared by the Authority, utiHze the provisions 
of Chapter 251 of the General Laws (Uniform Arbitration Act for Com- 
mercial Disputes)." 

You have asked my opinion on the following question : 

"In order to adjust disputes arising under a contract to which the De- 
]:)artment of Public Works is a party, can the Department delegate arbi- 
tration of such disputes to a board of arbitrators under the provisions of 
Chapter 251 of the General Laws, or must the Department utilize the 
l^rocedures established by Section 5(b) of Chapter 821 of the Acts of 
1963?" 

I take your reference to St. 1963. c. 821, § 5(b) as a reference to 
G. L. c. 16, § 5(b), as amended by St. 1963, c. 821, § 1. St. 1963, c. 
821 does not contain a section denominated "5(b)." It is G. L. c. 16, 
§ 5(b), as amended by St. 1963, c. 821, § 1, which established the Board 
of Commissioners as a Board of Contract Appeals. I note that G. L. c. 
16, § 5(b) has been further amended by St. 1964, c. 645. Hereinafter, 
I will refer simply to G. L. c. 16, § 5(b), meaning thereby § 5(b) as 
amended through St. 1964, c. 645. 

In my opinion, the Department may delegate to a board of arbitrators 
under the provisions of G. L. c. 251 the duty of arbitrating disputes 
which may arise under the proposed contract to which you refer. The 
provisions of G. L. c. 16, § 5(b) need not be utiHzed. 

General Laws, c. 16, § 5(b) provides that the Board of Commissioners: 

"... shall act as a board of contract appeals, and shall approve or dis- 
approve 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 hearing examiner shall hear all claims by contractors from deter- 
minations of the department, and shall, after hearing, render to the com- 
mission a report of the matter including a recommendation as to the 
disposition of the claim. Said examiner shall at the request of the con- 
tractor or of the department or on his own motion summon witnesses and 
require the production of books and records and take testimony under 
oath. Such reports shall be maintained as public records in a place and 
form fully accessible to the public. Any person aggrieved by a decision 
of the commission acting as a board of contract appeals may bring suit 
against the commonwealth for recovery of damages based on such claim 
under the provisions of chapter two hundred and fifty-eight." 



P.D. 12 121 

It is apparent that this section does not provide a means for final reso- 
lution of disputes which may arise under contracts to which the Depart- 
ment is a party. Rather, it estabHshes a method by which the Department 
may determine what its own position is on the merits of a claim against 
it. The claimant, as the final sentence of the section shows, may seek 
relief in the courts if he is unwilling to accept the Department's deter- 
mination. I note also that a claimant need not press his claim under the 
procedure of this section. His right of action is fully matured, and the 
statute of limitations begins to run against him. when the alleged breach 
of the Department's contract with him occurs. See Canipanclla & Cardi 
Construction Company v. ComiuonuicaltJi, 1966 Mass. Adv. Sh. 1051. 

Arbitration, in contrast to the procedure under G. L. c. 16, § 5(b), 
is a means of final settlement of disputes. See G. L. c. 251, as inserted 
by St. 1960. c. 374, § 1. I advise you that if the Department wishes to 
agree to arbitrate disputes which may arise between it and the IMassachu- 
setts Bay Transportation Authority, under the proposed contract to which 
you refer, the appropriate procedure is the one provided by G. L. c. 251, 
not that of G. L. c. 16, § 5(b). 

Very truly yours, 
Edward W. Brooke, Attorney General. 



60. December 29, 1966. 

Honorable Edward J. Ribbs, Coinmissioncr of Public Works. 

Dear Commissioner Ribbs: — This will acknowledge yours of October 
20, 1966, requesting an opinion relative to the availability of funds for 
dredging and harbor improvements in the Town of Marshfield. 

The question asked is whether the Department of Public Works may 
utiHze funds provided under c. 711, § II. Item 8157-66 of the 1956 Act 
to Provide for a Special Capital Outlay Program for the Cominonzvealth. 
The Act in question authorizes expenditure by the Department of Public 
Works of money "for the improvement, development, maintenance and 
protection of rivers, harbors, tidewaters, and shores. ..." The specific 
item number authorizing funds for this purpose has been carried forward 
by subsequent acts, the most recent being the Acts of 1966, c. 391, § 2A, 
which re-appropriated the Item number effective to June 30, 1967, so that 
the unused funds are still available to the Department of Public Works 
for those purposes outlined in the Act. An inquiry to the Comptroller has 
indicated that there is still $73,128.88 in unallocated funds and $53,016.15 
in unencumbered funds giving a total of $126,145.03 still available to the 
Department of Public Works under the original Item number. There 
does not seem to be a question about this as the Department of Public 
Works has drawn on these funds as late as 1965. 

The utilization of the funds for the specific purpose outlined is auth- 
orized in the Act and there seems to be no question that the State can use 
the money in conjunction with Federal or municipal funds, since such use 
is specifically authorized by the Act itself. 



122 P.D. 12 

It is my opinion that under the condition stated in your letter, the De- 
partment of Public Works can draw on these funds because the Item 
number authorizing the funds has been continued until June 30, 1967. 

Very truly yours. 
Edward W. Brooke, Attorney General. 

61. December 29, 1966. 

(See Opinion No. 57, supra. Due to a clerical error, copies of this 
opinion had been distributed under two different numbers, 57 and 61, 
before printing this report.) 

62. December 30, 1966. 

Honorable Elliot L. Richardson, Lieutenant Governor of the Com- 
uionzvealth. 

Dear Lieutenant Governor Richardson :— In a recent request for 
an opinion you state : 

"Section 222 of the Social Security Act of the United States, as 
amended in 1965, provides for the payment from the Federal Disability 
Trust Fund and the Federal OASI Trust Fund for the authorized costs 
of vocational rehabilitation services provided to disabled worker benefi- 
ciaries entitled to benefits under Section 222) of the Act, and to disabled 
children entitled to benefits under Section 202(d) who are under a dis- 
ability having attained age 18. 

"These costs and the benefit payments themselves are totally chargeable 
to the federal trust funds. The amendment authorizes transfers of such 
sums as may be necessary up to a maximum of one per cent of the social 
security disability benefits certified for payment in the previous year for 
the purpose of paying for such services provided by agencies operating 
under a State plan pursuant to the Vocational Rehabilitation Act. 

"Section 222(d) (2) (C) of the Social Security Act provides: 

" ' . . . that such services will be furnished to any individual without 
regard to (i) his citizenship or place of residence, (ii) his need for finan- 
cial assistance except as provided in regulations of the Secretary in the 
case of maintenance during rehabilitation, or (iii) any order of selection 
which would otherwise be followed under the State plan pursuant to sec- 
tion 5(a) (4) of the Vocational Rehabilitation Act.' " 

You also call my attention to G. L. c. 6, § 78, which I quote : 

"The commission shall provide vocational rehabilitation services directly 
or through public or private rehabilitation facilities to any handicapped 
person ( 1 ) who is a resident of the state at the time of filing his appli- 
cation therefor and whose vocational rehabilitation the commission, after 
full investigation, determines can be satisfactorily fulfilled, or (2) who is 
eligible therefor under the terms of an agreement with any department, 
division, or subdivision of the commonwealth, with another state, or with 
the federal government; provided, however, that those vocational rehabili- 



P.D. 12 123 

tation services enumerated in items 2 to 8, inclusive, in section seventy- 
seven shall he provided at public cost only to those handicapped persons 
who are found by the commission to require financial assistance with re- 
spect thereto. If vocational rehabilitation services cannot be provided to 
all eligible handicapped persons who apply therefor, the commission shall 
provide by regulation the order to be followed in selecting those to whom 
such services will be provided." 

In view of these facts and this statutory provision, you ask (inter alia) : 

"First, is the State plan an 'agreement . . . with the federal govern- 
ment' so that where the entire program conducted by the commission is 
under the state plan there would not be a requirement of residency pur- 
suant to clause (2) of chapter 6, section 78. 

"If the answer to that question is negative, can section 80, which appears 
to envision that the plan achieve the maximum financial benefit to the 
Commonwealth from funds provided under Federal laws, be construed 
either together or notwithstanding section 78 to permit a plan to be sub- 
mitted under section 80 which would not require the imposition of a resi- 
dence requirement with respect to individuals referred to in Section 222 
of the Social Security y\ct inasmuch as a greater financial benefit can be 
said thereby to inure to the Commonwealth?" 

I shall consider these questions in the order posed. 

Answering your first question, I see nothing in G. L. c. 6, §§ 74 cf seq., 
which permits the vocational rehabilitation plan contemplated by this 
statute or by regulations adopted thereunder to be denominated an "agree- 
ment" between the Commonwealth and the federal government. Sections 
78 and 80 (to which I shall refer in detail later) obviously contemplate 
the making of such agreements but are not themselves these agreements. 
Cf. Springfield v. Comniontvealth, 349 Mass. 267, 268-270, interpreting 
G. L. c. 117, §§ 18-19 and c. 122, §§ 17, 19 (the latter now repealed). 
Accordingly, I answer your first question in the negative without consider- 
ing whether, if the State plan were an agreement, the residence and finan- 
cial requirements of § 78 would thereby be waived. 

Answering your second question, I quote G. L. c. 6, § 80 : 

"In carrying out the provisions of sections seventy-four to eighty-four, 
inclusive, the commission shall co-operate with the Secretary of the De- 
partment of Health, Education and Welfare, and shall develop a state 
plan including such methods of administration as are found by the said 
Secretary and the Commission to be necessary for the proper and efficient 
operation of said sections, to assure that full financial benefits of all fed- 
eral laws may be available to the commonwealth and the citizens thereof. 

"The commission is authorized to enter into an agreement on behalf 
of the commonwealth with the Secretary of Health, Education and Wel- 
fare to carry out the provisions of the federal social security act relating 
to the making of determinations of disability under Title II of said act, 
and to appoint such agents or assistants as may be necessary to administer 
the provisions of such agreements." 

Clearly, this section confers authority upon the Commission to enter 
into agreements with the federal Department of Health, Education and 



124 P.D. 12 

Welfare to enable the Commonwealth to take full advantage of federal 
funds available for vocational rehabilitation purposes. And § 78, already 
quoted, just as clearly contemplates that, as a result of such agreements, 
the residence requirements of that section will be waived. Section 78 does 
not contemplate, even where there is an agreement with the federal gov- 
ernment, that persons without financial need shall receive rehabilitation 
services at "public cost." But as I interpret these words, they do not apply 
to "costs" borne by the federal government; absent a most compelling 
reason, I would not impute to the General Court the intention of placing 
or attempting to place restrictions upon the expenditure of federal funds. 
See Peter Kieu't Sons Co. v. State, 116 N.W. 2d 619, 622 (N. D.). 

Since under § 222 of the Social Security Act the full cost of the re- 
habilitation program under the type of agreement contemplated by your 
second question will be met with federal funds, the financial need pro- 
visions of G. L. c. 6, § 78 are inajiplicable to this program. Accordingly, 
I answer your second question in the affirmative. 

This answer obviates the need to consider other questions raised in 
your letter. 

Very truly yours, 

Edward W. Brooke, Attorney General. 



63. December 30, 1966. 

Honorable William M. Powers, Chainnan, Massachusetts Executive 
Committee for Educational Television. 

Dear Mr. Powers: — In a recent request for an opinion you ask the fol- 
lowing questions : 

"1. Whether, as trustees of a special Educational Television Program 
Fund within the state treasury, the Executive Committee for Educational 
Television is not the sole state agency which can determine the expendi- 
ture of the money within this Fund. 

"2. Whether the Massachusetts Executive Committee for Educational 
Television may set the level of compensation of its professional employees, 
within the scope of and by reference to the pay scale of compensation 
established for professional employees of the Commonwealth, and may 
change that compensation, still subject to the above qualifications, without 
the requirement that such compensation, or its change, be approved by 
any part of the state government other than the Board of Education? 

"3. Whether the Massachusetts Executive Committee for Educational 
Television may not directly purchase, insure and dispose of personal prop- 
erty without reference to other state agencies or the regulations established 
by them? 

"4. Whether the Massachusetts Executive Committee for Educational 
Television may lease real property without being subject to authorization 
by any other state agency? 

"5. Whether, in addition to its annual accounting, the Executive Com- 



P.D. 12 125 

mittee must keep a set of standard state accounts and be audited by the 
state each year?" 

In considering these questions, which I shall answer individually, I 
shall refer continually to my opinion of June 23, 1965 to the Commis- 
sioner of Education (hereinafter "the previous opinion") concerning 
certain problems that had arisen in the functioning of your Committee 
and to G. L. c. 71, §§ 13F-13I, which establishes the Committee and pro- 
vides for its powers, duties and procedures. In referring to this statute 
I shall cite only the section numbers ; reference to other chapters of the 
General Laws, where necessary, will include both chapter and section 
number. 

Answering your first question, I call your attention to § 13H, which 
I quote : 

"The committee may establish and manage under such regulations as 
it may from time to time prescribe, a trust fund to be known as the Edu- 
cational Television Program Fund. All funds received from school com- 
mittees, organizations, or individuals for the purposes of sections thirteen 
F to thirteen I. inclusive, shall be credited to said Fund and shall be de- 
posited in the state treasury and may be expended by the committee for 
such purposes without appropriation ; provided, that no obligation shall 
be incurred for any expenditure in excess of sums available therefor. 

"The committee shall cause accurate accounts to be kept at all times of 
all receipts and expenditures of funds received by it, and shall make a 
report of the same annually in December to the board of education." 
Although this statute does not expressly state that only the Committee 
may spend money in the Educational Television Program Fund, in the 
absence of a statute giving any other person or body power to make such 
expenditures, I conclude that this power is vested in the Committee and 
not in any other state agency. See Attorney General v. Trustees of Boston 
Elevated Ry. Co., 319 Mass. 642, 654-655. I, of course, do not deem the 
General Court a "state agency" for purposes of this answer. 

In the previous opinion I answered a question (number four) which 
raised the same issues as are raised by the second question in your present 
request, except that the answer in the previous opinion applied to clerical, 
rather than to professional, employees. I see no need to repeat what was 
said there. I quote Rule 3 of the Civil Service Rules (amended since the 
rendering of the previous opinion). 

"All persons performing duties or rendering service in any of the offices 
and positions and classes of positions classified by statute, or in any of 
the offices and positions and classes of positions in the Commonwealth, 
cities and towns, unless otherwise exempted by statute, a list of which 
offices or positions and any amendments or additions thereto shall be on 
file in the office of the Division of Civil Service, which list shall be open to 
reasonable inspection by the public, and a copy filed with the Secretary of 
the Commonwealth, or performing duties or rendering services similar to 
that of any such offices or positions and classes of positions, under what- 
ever designation, whether such service is permanent or temporary, and 
whether the same is paid by time for work done, by the piece, or in any 
other manner, are subject to the Civil Service Law and Rules." 



126 P.D. 12 

Professional employees of the Committee are not "exempted by statute" 
from the operation and classifications of the civil service laws. Since G. L. 
c. 30, § 46 (c. 30, § 46B referred to in the previous opinion was repealed 
by St. 1966, c. 210, § 3) applies to all personnel classified under the civil 
service laws — see c. 30, §45(1) — professional employees of the Com- 
mittee are subject to the salary schedules of G. L. c. 30, § 46 and to 
classification by the director under c. 30. § 45. My answer to your second 
question is that the Committee lacks authority to set the level of compen- 
sation for its professional employees. 

Answering your third question, I quote § 131(a) : 

"In order to carry out its duties, said committee, from time to time and 
within the limits of appropriation therefor and of available trust funds, 
may — 

"(a) Acquire, construct, hold, lease and dispose of real and personal 
property." 

This language confers plenary power upon the Committee directly to pur- 
chase and dispose of personal property in carrying out its duties. But 
such property will be property of the Commonwealth and under G. L. 
c. 29, § 30 may not be insured by the Committee "without special auth- 
ority of law." The Committee has no such special authority and, accord- 
ingly, may not insure its personal property. See Attorney General's Re- 
port (1961) p. 46. 

The verb "lease." used transitively, may mean "let" or "hire." See 
Webster's Third New International Dictionary, Unabridged, p. 1286. I 
do not know in which sense you are using the word in your fourth ques- 
tion. However, if the Committee desires to lease property to other parties, 
it clearly may do so under the authority of § 131(a). 

Answering your fifth question, I quote the first sentence of G. L. c. 
11, § 12: 

"The department of the state auditor shall annually make a careful 
audit of the accounts of all departments, offices, commissions, institutions 
and activities of the commonwealth, including those of districts and of 
authorities created by the general court, and including those of the income 
tax division of the department of corporations and taxation, and for said 
purpose the authorized officers and employees of said department of the 
state auditor shall have access to such accounts at reasonable times and 
said department may require the production of books, documents and 
vouchers, except tax returns, relating to any matter within the scope of 
such audit." 

I have no doubt that the accounts of the Committee are subject to audit 
under this section. See Massachusetts Turnpike Authy. v. Commonwealth, 
2>A7 Mass. 524, 528; Opinion of the Justices, 309 Mass. 571, 582; At- 
torney General's Report (1936) p. 107. Your reference to "a set of 
standard state accounts" is ambiguous; but if you are referring to accounts 
required to be kept by order of the Comptroller (see G. L. c. 7, §§ 16 
et seq.), I am of the opinion that the Committee is required by law to 
keep the same. 

Very truly yours, 
Edward W. Brooke, Attorney General. 



P.D. 12 127 

64. January 13, 1967. 

Honorable John T. Driscoll, Chairman, Massachusetts Turnpike Auth- 
ority. 

Dear Mr. Driscoll: — You have requested my opinion as to whether 
you may run for public office. Specifically, you ask the three following 
questions : 

"1. Whether I, as Chairman of the Massachusetts Turnpike Authority, 
may run for public office at the national, state, city or county level as a 
declared candidate without resigning my present post ; 

"2. Whether I might take or be granted a leave of absence while so 
running for public office ; and 

"3. Whether the Members of this zA.uthority, the Governor of the 
Commonwealth, or any other person or persons are empowered to grant 
such a leave of absence for such purpose." 

You have not presented any facts in your request. Nothing more ap- 
pearing, I can find no statutory or other legal prohibitions which would 
require your resignation in order that you may actively seek election to 
public office. I, therefore, answer your first question in the affirmative. 
In reaching my conclusion I find no bar in the Acts of 1952, c. 354, § 1, 
as amended by the Acts of 1955. c. 47, as amended by the Acts of 1963, 
c. 801, § 84, which is the enabling legislation creating the Massachusetts 
Turnpike Authority and generally controlling its activities. 

I shall consider your second and third inquiries together. A leave of 
absence is generally granted in the discretion of the appointing authority 
except as such discretion may be modified by a specific statute. (See, for 
example, G. L. c. 31, § 46E which applies to persons within the classified 
civil service.) The Acts of 1952, c. 354, § 1, as amended by the Acts of 
1955, c. 47. as amended by the Acts of 1963, c. 801. § 84 provide that the 
Massachusetts Turnpike Authority shall consist of three members to be 
appointed by the Governor, by and with the advice and consent of the 
Council. The act does not specifically address itself to the question of 
leave of absence. However, since the Turnpike Authority is not generally 
subject to the supervision and regulation of any other department of the 
Commonwealth (Ibid.), it is clear that the Governor in his role as appoint- 
ing authority would have the incidental power to grant a leave of absence. 

Whether or not the Governor granted such a leave of absence would, 
of course, be within his sound discretion. I note that the enabling legis- 
lation provides, in part, that : 

"Two members of the Authority shall constitute a quorum and the 
affirmative vote of two members shall be necessary for any action taken 
by the Authority. No vacancy in the membership of the Authority shall 
impair the right of a quorum to exercise all the rights and perform all the 
duties of the Authority." Ibid. 

Therefore, inasmuch as the functioning of the Turnpike Authority would 
not be prohibited from acting in the absence of one of the three memljers 
of the Authority, there is no legal prohibition against granting a leave of 



128 P.D. 12 

absence to such member. Therefore, in answer to your second and third 
inquiries, it is my opinion that a leave of absence may be granted while 
you are running for public office in the sound discretion of the Governor. 

Very truly yours, 

Edward T. Martin, Attorney General. 

65. January 13, 1967. 

Honorable John L. Quigley, Commandant, Soldiers' Home. 

Dear Commandant Quigley: — You have requested my opinion re- 
garding the application of c. 458 of the Acts of 1966 concerning deduc- 
tions from the salaries of public employees for the purpose of meeting 
credit union obligations. Specifically, you have questioned "whether the 
credit union must be under the operation of state or municipal groups 
before deductions can be authorized for payment to the credit union." 

There is no doubt that the answer to your inquiry is in the affirmative. 
The controlling statute (G. L. c. 149, § 178B, as amended by c. 458 of 
the Acts of 1966) is plain and unambiguous. That section provides in 
part as follows : 

"The state treasurer, the treasurer of any county, the treasurer of any 
county or state department or institution, and the treasurer of any city 
or town having a by-law or ordinance so requiring shall, and unless con- 
trary to a by-law or ordinance the treasurer of any other city or town or 
of any district may, deduct from the salary of any employee of the com- 
monwealth or of any such county, city, town or district such amount or 
amounts as such employee in a written authorization to such treasurer 
may specify for purchasing shares of, or making deposits in, or repaying 
any loan from any credit union operated by employees of the common- 
wealth or of any such county, city, tozvn or district. . . . " (Emphasis 
supplied.) 

You have also directed my attention to G. L. c. 154, § 8 with the belief 
that it might have some applicability to the problem at hand. That section, 
in part, permits deductions from salaries for the purchasing of shares 
or for the repayment of loans to any credit union established in accordance 
with the laws of this Commonwealth. 

The general language of a statute such as G. L. c. 154, § 8, would not, 
ordinarily, be deemed to be applicable to the Commonwealth. See 2 Op. 
Atty. Gen. 175. 

The fact that when G. L. c. 154, § 8 was amended by St. 1955, c. 631, 
to permit deductions from employees' salaries for credit union purposes, 
the provisions of G. L. c. 149, § 178B were already in efifect and were 
continued without change, confirms the view that the provisions of G. L. 
c. 154, § 8, as to deductions from employees' salaries for credit unions 
are not applicable to state employees. 

Very truly yours, 

Edward T. Martin, Attorney General. 



P.D. 12 129 

66. January 13, 1967. 

Honorable Hugh Morton, Chairman, Civil Service Commission. 

Dear Mr. Morton : — You have requested my opinion relative to a 
Richard T. Rounds and James M. Murray. I repeat only the facts which 
were necessary to consider in reaching my decision. 

Mr. Rounds and Mr. Murray held the respective positions of Command- 
ing Officer and Chief Marine Engineer at the Massachusetts Maritime 
Academy. The duties of each position involve the teaching of cadets the 
many phases of operating ships in maritime trade. Both are veterans of 
the armed services within the meaning of G. L. c. 31, § 2 and G. L. c. 
4, § 7, and have held their positions with the Massachusetts Maritime 
Academy for not less than three years. The Board of Trustees of Massa- 
chusetts State Colleges voted on May 3, 1966: 

"to authorize the President of the Massachusetts Maritime Academy 
to abolish positions of a maritime nature at the Massachusetts Maritime 
Academy and to establish positions with academic titles and academic 
assignments for personnel affected. The President was also directed to 
establish necessary merchant marine positions and assignments aboard the 
training ship for each cruise." 

On May 20, 1966, the President of the Massachusetts Maritime Acad- 
emy abolished all positions of a maritime nature and reassigned person- 
nel to academic positions with academic titles. The reassignment of per- 
sonnel was accompanied by a salary increase. Among the titles abolished 
were Schoolship Commanding Officer and Chief Marine Engineer. Rich- 
ard T. Rounds was reassigned from Schoolship Com.manding Officer to 
Associate Professor; James M. Murray from Chief Marine Engineer to 
Assistant Professor. Each received a salary increase. 

Mr. Rounds and Mr. Murray contend that they have been reduced in 
rank and transferred to duties of a lesser rank without their consent. 
They argue that as veterans they are entitled to the protection of the 
Veterans' Tenure Act (G. L. c. 30, § 9A), and therefore cannot be in- 
voluntarily separated from their positions, except in accordance with G. L. 
c. 31, § 43. As such, you have asked: 

"Are Mr. Rounds and Mr. Murray entitled to a hearing before the 
Civil Service Commission under the provisions of G. L. c. 31, § 43(b)?" 

I question whether Mr. Rounds or Mr. Murray have any serious 
grounds of contention. On the factual situation presented, it does not 
appear that Mr. Rounds and Mr. Murray have been "transferred" and/or 
"lowered in rank" and/or had their respective offices abolished within the 
meaning of G. L. c. 31, § 43. Simonian v. The Boston Redevelopment 
Authority, 342 Mass. 573, 584-585. However, since I answer your ques- 
tion in the negative, it is not necessary for me to consider these subsidiary 
problems which you also raised in your inquiry. 

General Laws c. 30, § 9A provides in part: 

"A veteran, as defined in section twenty-one of chapter thirty-one, who 
holds an office or position in the service of the commonwealth not classi- 
fied under said chapter thirty-one, other than an elective office, an ap- 



130 P.D. 12 

pointive office for a fixed term or an office or position under section seven 
of this chapter, and has held such office or position for not less than three 
years, 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." 

Mr. Rounds and Mr. Murray are veterans as defined in § 21 of c. 
31 and § 7 of c. 4 who have held positions in the service of the Com- 
monwealth for not less than three years. These positions are not classi- 
fied under our Civil Service Laws. If Mr. Rounds and Mr. Murray had 
gained the protection of the Veterans' Tenure Act, they could not be in- 
voluntarily separated from their position, except in accordance with G. L. 
c. 31, § 43. Section 43 sets forth in great detail the procedures to be fol- 
lowed by an appointing authority wishing to afifect an employee's position 
by discharge, removal, suspension, transfer, lowering in rank or compen- 
sation or abolition of position. The Veterans' Tenure Act had the salu- 
tory purpose of securing the notice and hearing provisions of § 43 to 
veterans who would not otherwise be entitled to its protection. Notwith- 
standing that salutory purpose, the protection of the act does not extend 
to every position which is not expressly excluded from its provisions. 
Cieri v. Commissioner of Insurance, 343 Mass. 181, 185; Sullivan v. 
Committee on Rules of House of Representatives, 331 Mass. 135, 137. 

Where it is apparent the Legislature has not intended to extend the 
protection of this statute to certain positions, such legislative intent must 
be recognized. It is my opinion that such is the case as regards the posi- 
tions of Mr. Rounds and Mr. Murray. In reaching my conclusion it was 
necessary to review several sections of c. 73. Section 1 of c. 73 grants 
the Board of Trustees of the State Colleges broad discretionary powers 
over the appointment and removal of instructors and other employees of 
the Massachusetts Maritime Academy. The relevant provision of § 1 
provides that : 

"The board of trustees of the state colleges shall provide and maintain 
the Massachusetts Maritime Academy as a nautical college for the instruc- 
tion of students in the science and practice of navigation, seamanship 
and marine engineering, accommodations therefor on board a proper ves- 
sel at its present location and at such land facilities, including the present 
facilities, as the said trustees shall designate, books, stationery, apparatus 
and supplies needed in the work thereof, and shall appoint and may re- 
move necessary instructors and other employees, determine their compen- 
sation, fix the terms upon which students shall be received and instructed 
therein and discharged therefrom, make all regulations necessary for its 
management and provide from time to time for cruises." (Emphasis sup- 
plied.) 

This all-inclusive language is modified by § 16 of c. 73 which distin- 
guishes between "professional staff" and "non-professional staff." The 
"non-professional staff"," with some exceptions, are granted the protection 
and benefits of c. 31. However, as regards the "professional staff": 

"The trustees shall have complete authority with respect to the election 
or appointment of the professional staff including terms, conditions and 
period of employment, compensation, promotion, classification and reclassi- 



P.D. 12 131 

fication, transfer, demotion and dismissal within funds available by appro- 
priation of the general court or from other sources." (Emphasis sup- 
plied.) 

Mr. Rounds and Mr. Murray are members of the professional staff 
which includes : 

"all officers of the division of state colleges, and all persons, except those 
whose duties are clerical, custodial, security, labor maintenance and the 
like, employed for teaching, research, administration, extension, enforce- 
ment, control laws and regulatory services, technical and specialized aca- 
demic support staff, and such related activities as shall be determined by 
the trustees." 

It is significant that § 4B provides its own machinery for preventing 
arbitrary removal of teachers who have served for three prior consecutive 
school years. That section provides that: 

"The board of trustees, in electing a teacher in a state college, the 
Massachusetts college of art or the Massachusetts Maritime Academy 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 lazvs, he shall not be dismissed from such 
employment except for just cause and for reasons specificallv 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 personally or by counsel. (Emphasis supplied.) 

The broad discretionary powers of the Board of Trustees relating to 
all phases of employment, the specific protection of the "non-professional 
staff" as well as the independent machinery for removal of teachers who 
have served for three previous consecutive school years, indicate that c. 
73 is designed to control the actions of the board relative to its employees 
without interference or restriction of any other law, except as specifically 
provided. 

I, therefore, conclude that inasmuch as Mr. Rounds and Mr. Murray 
are part of the "professional staff" of the Massachusetts Maritime Acad- 
emy they are not entitled to the notice and hearing provisions under G. L. 
c. 31, § 43. 

Very truly yours, 

Edward T. Martin, Attorney General. 



67. January 16, 1967. 

Honorable Robert Q. Crane, Treasurer and Receiver General, Chair- 
man, State Board of Retirement. 

Dear Mr. Crane: — You have requested my opinion relative to an ap- 
plication for reinstatement in the retirement system filed by Walter J. 
Trybulski, Commissioner of the Industrial Accident Board. Your inquiry 
indicates that the appointment of Mr. Trybulski became effective on Feb- 



132 P.D. 12 

ruary 1, 1962. Previous to his appointment Mr. Trybulski had been re- 
tired by the Retirement Board in the City of Chicopee and on his appoint- 
ment by the Governor to the Industrial Accident Board for a term of 
years waived his retirement allowance under the provisions of G. L. c. 
Z2, § 91. 

Specifically, you have asked : 

"... whether or not Mr. Trybulski is now eligible to become a member 
of the State Employees Retirement System under the provisions of . . . 
Chapter 256 of the Acts of 1966." 

Chapter 256 of the Acts of 1966 expanded the class which might qualify 
for return to the retirement system under G. L. c. 32, § 5(1) (g) by 
adding, inter alia, those appointed to a position for a term of years by 
the Governor. The section, as amended, now provides as follows : 

"Notwithstanding any provision of this chapter to the contrary, any 
member inactive of a retirement system who is elected to office by popular 
vote, or who is appointed to a position for a term of years by the governor, 
or who is appointed to any position by the mayor of a city or by a city 
council or by the selectmen of a town, may elect to become a member in 
service of the system pertaining to the position to which he is elected or 
appointed ; provided, that any such member inactive who is receiving a 
retirement allowance shall repay into the system from which he is re- 
ceiving such allowance the total amount of any such allowance received 
from the date of his retirement to the date of his again becoming a mem- 
ber in service." 

The amendment was approved on May 9, 1966 and became effective as 
of January 1, 1966. (Acts of 1966, c. 256, § 2.) Since Mr. Trybulski 
was appointed on February 1, 1962, the question to be resolved is whether 
or not the amendment is applicable to persons who had been appointed 
prior to its effective date. 

It is a general rule of statutory construction that a statute will be con- 
strued as having a prospective operation only, unless the statute plainly 
indicates an intent that it shall operate retroactively. While examination 
of the amendment in question does not plainly indicate an intention that 
the statute operate retroactively, neither does it plainly indicate an arbi- 
trary cut-off date for the prosj^ective beneficiaries of the legislation. 

The words "who is appointed" could be construed as meaning either 
"who has been appointed and is now in service" or "who may be appointed 
in future" or "who have or may be appointed." 

Absent a clear-cut indication of the legislative will, it would seem that 
the construction of the amendment to be adopted should be that construc- 
tion which most clearly reflects the equitable treatment of all prospective 
or actual participants which is inherent in all retirement or pension sys- 
tems; I deem that to be the construction which would include those "who 
have or may be appointed." 

It should be clear that no reinstatements should be effected as of a date 
prior to the effective date of the amendment, namely, January 1, 1966. 
In other words, Mr. Trybulski could not be reinstated as of Februai-y 
1, 1962, the date of his appointment. 



P.D. 12 133 

It is therefore my considered opinion that, on the facts stated by you, 
Mr. Trybulski is eligible to become a member of the State Employees 
Retirement System pursuant to the provisions of c. 256 of the Acts of 
1966. 

Very truly yours, 

Edward T. Martin, Attorney General. 

68. January 17, 1967. 

Honorable Charles H. McNamara, Commissioner of Agriculture. 

Dear Sir :— I am in receipt of your request for my opinion whether a 
state-employed veterinarian who was injured by a cow in the course of 
his duties should be compensated under the "assault pay" provisions con- 
tained in Chapter 30, Section 58 of the General Laws. 

The last paragraph of Section 58 reads as follows : 

"Notwithstanding the provisions of this section, an employee who, 
while in the performance of duty, receives bodily injuries resulting from 
acts of violence of patients or prisoners in his custody, and who as a 
result of such injury would be entitled to benefits under said chapter one 
hundred and fifty-two, shall be paid the difference between the weekly 
cash l:)enefits to which he would be entitled under said chapter one hundred 
and fifty-two and his regular salary, without such absence being charged 
against available sick leave credits, even if such absence may be for less 
than eight calendar days' duration." 

The purpose of this provision is to extend benefits up to the amount 
of an injured state employee's full weekly wage when such employee is 
injured by the violence of a patient or prisoner in his custody. The re- 
quirement that the person committing the violent act must be in custody 
indicates that the General Court was mainly contemplating institutional- 
ized mental patients or prisoners. The terminology of the paragraph as 
a whole shows that the violence must be committed by a person who is 
under some legal form of physical restraint. Since taking care of or 
maintaining custody of people of this sort is usually fraught with some 
hazard, the General Court intended to provide some added benefit to those 
employees who are victimized in some violent manner by their exposure 
to a greater than normal risk of violence. 

Although a veterinarian is often exposed to injuries inflicted by animals 
he is treating, this danger is considered an ordinary hazard of the pro- 
fession. It is not the type of hazard against which the General Court in- 
tended to protect such state employees. The statute speaks of "patients", 
by which term a human being is ordinarily indicated. A cow either under 
treatment or receiving an inoculation by a veterinarian is not a "patient". 
The General Court meant to include only injuries inflicted by the acts of 
violence of human beings while under the care or custody of those em- 
ployees in a certain category. 

For the reasons set forth above, a state-employed veterinarian who has 
been injured by an animal either while treating or administering an in- 



134 P.D. 12 

jection to the same does not come within the purview of Section 58 of 
Chapter 30 of the General Laws. 

Very truly yours, 

Edward T. Martin^ Attorney General. 

69. January 17, 1967. 

Honorable Harry C. Solomon, M.D., Comuiissioncr of Mental Health. 

Dear Sir : — I am in receipt of your request for my opinion whether an 
employee of the Department of Mental Health may receive disability 
benefits under c. 30, § 58 of the General Laws, as amended, and Rule 
LS-15, in addition to benefits for partial disability under c. 152, § 35. 

The last paragraph of § 58 of c. 30 provides : 

"Notwithstanding the provisions of this section, an employee who, while 
in the performance of duty, receives bodily injuries resulting from acts of 
violence of patients or prisoners in his custody, and who as a result of 
such injury would be entitled to benefits under said chapter one hundred 
and fifty-two, shall be paid the difference between the weekly cash benefits 
to which he would be entitled under said chapter one hundred and fifty- 
two and his regular salary, without such absence being charged against 
available sick leave credits, even if such absence may be for less than eight 
calendar days' duration." 

The purpose of this statutory provision, sometimes referred to as the 
"assault pay" statute, is to extend benefits up to the amount of an em- 
ployee's full weekly wage when that employee is injured by the violence 
of a patient or prisoner in his custody. By this means the General Court 
intended to compensate for the added hazards to which such employees 
of a correctional or mental institution are exposed when their duties entail 
the care or custody of mental patients or prisoners. Save for this pro- 
vision, an employee in this category who is temporarily and totally disabled 
would receive only the benefits provided by § 34 of c. 152 which estab- 
lishes a weekly compensation rate equal to only two-thirds of the em- 
ployee's average weekly wage, as defined in § 1 of c. 152, at the time of 
injury, but, under a recent amendment, in no case more than fifty-eight 
dollars. 

When an injured employee is determined to be only partially disabled, 
either by a direct order of the Industrial Accident Board or by the fact 
that he is gainfully employed but at a lower average weekly wage necessi- 
tated by his industrial injury, he may receive benefits under § 35 of c. 
152. This section provides "a weekly compensation equal to the entire 
difiference between [the employee's] average weekly wage before the in- 
jury and the average weekly wage he is able to earn thereafter, but not 
more than fifty-eight dollars per week." 

As to your question No. 1 as to whether an employee who is receiving 
partial incapacity compensation based on an earning capacity established 
by order of the Industrial Accident Board is at the same time entitled to 
the benefits provided for in § 58 of c. 30, as amended and Rule Ls-15, 
the answer is in the negative. 



P.D. 12 135 

To apply the "assault pay" provisions to partial incapacity cases would 
in effect be a reimbursement by your department of the employee's earn- 
ing capacity. When the Industrial Accident Board determined that earn- 
ing capacity it found such employee to be physically capable of an earning 
capacity at least in that amount, whether that employee in fact then en- 
gaged in some gainful employment to earn such amount or not. 

To make the supplementary "assault" payment to the partially incapaci- 
tated employee would serve to discriminate against the totally incapacitated 
employee for whom the benefits under § 58, c. 30 were really intended 
and thus would be contraiy to the original intent of the General Court. 
The statute did not envision the same full salary benefits for the partially 
incapacitated employee who is in effect deemed physically able to earn the 
differential amount by engaging in certain forms of gainful employment. 

Chapter 152 is an equitable statute. The partial incapacity payments 
were part of the original enactment of this Act and this section has under- 
gone several amendments through the years equated with the needs of 
injured employees. To render any other interpretation to the statutes in 
question would tend to defeat the equitable purpose of the pertinent pro- 
visions of c. 152 and might serve to deter a partially incapacitated em- 
ployee from rehabilitating himself in achieving the earning capacity deter- 
mined by the Industrial Accident Board. 

Since the reply to question No. 1 is in the negative, it is not necessary 
to answer question No. 2. 

Very truly yours, 

Edward T. Martin, Attorney General. 



70. January 26, 1967. 

Honorable Edward J. Ribbs, Commissioner, Department of Public 
Works. 

Dear Mr. Ribbs : — You have asked my opinion in regard to the pos- 
sible issuance by your District Highway Engineers of permits approving 
traffic regulations and devices requested by cities and towns. 

It is my understanding that these permits are now issued by the Com- 
mission charged with responsibility for your Department, but that diversi- 
fication of this function might improve your service to the cities and towns. 

Your letter states : 

"The present procedural policy of the Department in granting approval 
and issuing Permits to the various cities and towns throughout the Com- 
monwealth for the installation of Traffic Controls vests directly with the 
Commission of this Department as provided in Section 2 of Chapter 85 
of the General Laws." 

You ask if it will be legal if your District Highway Engineers issue 
these permits "in the name of the Commission and the Department." 

My answer is in the affirmative. 



136 P.D. 12 

Chapter 85, § 2 makes no mention of the "Commission", but does set 
forth the duties of "the department of pubHc works" in regard to "writ- 
ten approval" required for certain traffic control devices. 

The functions set forth in § 2 are to be performed by "the department", 
and need not be performed only by the Commissioner or the Commission. 

Under G. L. c. 85, § 2, it is clear that "department" means "the depart- 
ment of public works." The same insistence upon the broad definition 
appears in Chapter 821, § 1, of the Acts of 1963 which created the five- 
man Commission to supervise and control the Department of Public 
Works. (Now G. L. c. 16, § 1.) All employees of the Department are 
available to the Commission to assist in carrying out the duties assigned 
to the Department. 

In specific answer to your question, the 1963 statute gives your Com- 
mission power to revise your regulations and practices to more efficiently 
carry out the responsibilities assigned to your Department by the Legis- 
lature : 

"It [the Commission] shall make, and from time to time revise, regu- 
lations for the conduct of the business of the department, and all regula- 
tions otherwise required by law." 

Your inquiry is directed primarily at two sentences in G. L. c. 85, § 
2, which reads as follows : 

"No such signs, lights, signal systems, traffic devices, parking meters 
or markings shall be erected or maintained on any state highway by any 
authority other than the department except with its written approval as 
to location, shapes, size and color thereof, and except during such time 
as said approval is in effect. . . . No rule, regulation, order or ordinance 
or by-law of a city or town hereafter made or promulgated relative to 
(the items listed above) . . . shall take effect until approved in writing 
by the Department." 

The Department can grant such approvals in writing in any reasonable 
manner so long as the decision is "under the supervision and control of 
a Public Works Commission." G. L. c. 16, § 1. 

If the Commission chooses to delegate its approval function to the 
District Highway Engineers, under guidelines which would retain reason- 
able supervision and control in the Commission, there is nothing in our 
statutes to preclude this change. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



71. January 27, 1967. 

Honorable John L. Quigley, Commandant, Soldiers' Home. 

Dear Sir : — You have requested my opinion as to "the effect of Chapter 
740 of the Acts of 1964 upon the operation and establishment of the 
Soldiers' Home as set forth in Chapter 452 of the Acts of 1931" and, 
specifically, in regard to "Section 2 of Chapter 452 wherein it says ' . . . 



P.D. 12 137 

Trustees of the Soldiers' Home . . . shall serve under the governor and 
council, and shall be subject to such supervision as the governor and 
council deem necessary or proper'." 

Chapter 740 of the Acts of 1964 concerns the curtailment of certain ^.,--^ 
powers of the Executive Council as regards appointments within^^4hg^ 
Executive Department, fiscal afifairs and contracts. You question "whe- 
ther Chapter 740 lessens in any way the charges set forth in Chapter 452 
of 1931." 

Section 2 of c. 452 of the Acts of 1931 became part of G. L. c. 6, 
§ 17. Said chapter and section were amended by § 1 of c. 535 of the Acts 
of 1966 to read : "... the board of trustees of the Soldiers' Home in 
Massachusetts . . . shall serve under the governor, and shall be subject 
to such supervision as the governor deems necessary and proper." 

Inasmuch as § 1 of c. 535 of the Acts of 1966, which provided that 
various officers serve under the "governor" rather than under the "gov- 
ernor and council," removed the word "council" from G. L. c. 6, § 17 
(§ 2 of c. 452 of the Acts of 1931), it is my opinion that it is no longer 
necessary to question whether c. 740 of the Acts of 1964 has any effect 
upon § 2 of c. 452 of the Acts of 1931. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 



72. January 27, 1967. 

Honorable Theodore W. Schulenberg, Commissioner, Department of 

Commerce and Development. 

Dear Commissioner Schulenberg: — You have requested the opinion 
of the Attorney General regarding the authority of the Deputy Commis- 
sioner of Housing in your Department to hear and decide an appeal from 
an architect's determination of a dispute arising under a contract executed 
on November 20, 1960 between a local housing authority and a contractor 
for the construction of state-aided housing for the elderly. The contract, 
a copy of which has been furnished to me by the Chief Counsel of your 
Department, provided that such appeals should be heard by the Chairman 
or Director of the State Housing Board. In 1964, however, that agency 
was abolished and all its "powers and duties" were transferred to your 
Department. Acts of 1964, c. 636, inserting a new G. L. c. 23 A, § 10. 

The substantive matter in dispute involves the imposition of a "penalty" 
for late performance of the contract. We infer from your letter that this 
dispute has been submitted to the architect under the contract, that his 
decision was in favor of the housing authority, and that the contractor has 
appealed the decision to your Deputy Director of Housing. You also state 
that the housing authority has challenged your Deputy Director's juris- 
diction to hear and decide the appeal. 

The contract between the local housing authority and the contractor 
contained the following clause : 



138 P.D. 12 

"DISPUTES" 

"A. All disputes arising under this contract shall be decided by the 
Architect subject to the right of appeal to the Chairman or Director of 
the State Housing Board whose decision shall be final. 

"B. The Chairman or Director may hear the appeal without regard to 
the particular officer to whom the appeal was directed except that decisions 
of the Director shall not be final without the written approval of the 
Chairman. 

"C. If the architect fails to render a decision within thirty (30) days 
after receiving written notice of the claim either party may request a hear- 
ing before the Chairman or Director." 

Section GC-1 of the "General Conditions" of the contract defined 
"board" and "State Housing Board" to mean the "chairman of the State 
Housing Board, an agency or instrumentality of the Commonwealth of 
Massachusetts created by chapter 260, Acts of 1948. ..." 

In 1960, when the contract was executed, the State Housing Board 
existed by authority of G. L. c. 6, § 64, inserted by c. 260 of the Acts of 
1948. That statute specified that the powers and duties of the Board 
other than making reports "shall be exercised and performed by the 
chairman." See WeUesley Housing Authority v. S. & A. Allen Construc- 
tion Co., 340 Mass. 466, 468, footnote 1. 

In 1964, c. 636 of the Acts of that year established the Department of 
Commerce and Development. Section 10 of the Act provided: 

"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. ..." 

General Laws c. 23A, § 3, as inserted by the same Act provides: 

"There shall be in the department the following five divisions : — eco- 
nomic development, tourism, housing, urban renewal and planning. Each 
division shall be under the charge of a deputy commissioner of commerce 
and development, in this chapter called deputy commissioner, subject to 
the direction, control and supervision of the commissioner. Each deputy 
commissioner shall be a person of skill and experience in the field of his 
appointment and shall be appointed and may be removed by the commis- 
sioner, with the approval of the governor, and shall serve until so removed. 
The position of deputy commissioner shall not be subject to the provisions 
of chapter thirty-one or section nine A of chapter thirty. Each deputy 
commissioner shall devote his full time during business hours to the duties 
of his office. The commissioner may authorize any deputy commissioner 
to exercise in his name any power, or to discharge in his name any duty, 
assigned to him by law, and he may at any time revoke such authority." 

In determining who. if anyone, is now authorized to hear and decide 
appeals from any architect's decision of a dispute between the local hous- 
ing authority and the contractor, we begin with the settled rule of contract 
law that the authority of an arbitrator over a controversy must be derived 
solely from the agreement of submission itself, here the "Disputes" clause. 
/. F. Fitzgerald ^Construction Co. v. Southbridge Water Supply Co., 304 



P.D. 12 139 

Mass. 130, 134. Whatever doubts might have otherwise existed over whe- 
ther the old State Housing Board had as one of its official duties the 
review of such decisions of an architect must be regarded as settled by 
Wellesley Housing Authority v. vS'. & A. Allen Construction Co., 340 
Mass. 466, where the Supreme Judicial Court assumed that the Board's 
exercise of the power of review involved the discharge of a public func- 
tion. 

Your question whether the old Board's power of review may be exer- 
cised by the Deputy Commissioner of Housing in your Department is not 
wholly free from doubt. Yet, on balance, I am of the opinion that § 10 
of c. 636 of the Acts of 1964, quoted above, vested that jurisdiction in the 
Deputy Commissioner. 

I am not unmindful of the proposition that "Arbitration implies the 
exercise of the judicial function." Brocklehurst & Potter Co. v. Marsch, 
225 Mass. 3, 8. Thus the transferability of that function should not be 
lightly inferred. Yet. I am of the opinion that here the inference is suffi- 
ciently strong. 1 consider it significant that the "Disputes" clause identi- 
fied the reviewing agent, not by name, but rather by designation of his 
office, that the contract was a construction contract requiring a number 
of months for its performance, and that it was reasonably possible that 
at some time before final settlement of the contract the old State Housing 
Board might be reorganized or abolished. The parties should be regarded 
as having contracted with this possibility in mind. 

"Experimentation is frequent in the field of administration, and par- 
ticular administrative agencies are sometimes abolished and new ones cre- 
ated embodying the fruits of the experiment, or old agencies are reorgan- 
ized, or their functions transferred to other agencies. The powers of de- 
partments, boards, and administrative agencies are subject to expansion, 
contraction, or abolition at the will of the legislative and executive 
branches of the government. As there is no constitutional right to a par- 
ticular form of remedy, there is no such right to the enforcement of a 
remedy by a particular agency. Thus a new agency may be created to 
centralize authority which had been scattered among several agencies, the 
powers of an independent commission may be placed in a division of an- 
other agency, or reorganization may create an independent agency in re- 
gard to previously subordinate functions." 

1 Am. Jur. 2d Administrative Law, § 25. 

The fact that the General Conditions of the contract defined the State 
Housing Board by specific reference to c. 260 of the Acts of 1948, with- 
out providing for a possible successor, does not require a different result. 
We are concerned here with a remedial rather than a substantive pro- 
vision of a contract affecting a matter of public interest, and reasonable 
inferences may properly be drawn to promote the public purpose of vest- 
ing review of disputes in the agency charged with the supervision of the 
public program involved. 

Nor does the fact that the Deputy Commissioner of Housing in your 
Department is, unlike the chairman of the old State Housing Board, not 
the chief official of his agency require a different result. The office of the 
Deputy Commissioner is specifically created by G. L. c. 23A, § 3 of c. 
636 of the Acts of 1964, quoted above, and carries with it comparable 
responsibility in the area of its particular concern. 



140 P.D. 12 

Support for this conclusion can be found in § 9 of c. 636 of the Acts 
of 1964, establishing your Department. By that section the Division of 
Housing in your Department was substituted for the State Housing Board 
in G. L. c. 121 A (the statute providing for urban redevelopment corpora- 
tions) and thereby became vested with all the responsibilities formerly 
held by the old Board in that field. 

In summary, it is my opinion that the Deputy Commissioner of Hous- 
ing in your Department has authority to hear and decide the appeal from 
the architect's decision in this matter. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

73. February 1, 1967. 

Honorable Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin : — You have requested an opinion of 
the Attorney General on the following two questions : 

"Question 1. Does this steam boiler which generates more than nine 
horsepower come within the scope of c. 146, § 46? 

"Question 2. Is it mandatory that duly licensed personnel be employed 
to supervise the operation of the steam boiler in accordance with the in- 
tent of c. 146, § 48, the source of heat being hot oil?" 

The steam boiler in question is described as follows in your letter : 

"Steam is generated in a boiler from the circulation of hot oil at a 
temperature from 350°F. to SOO^F. Saturated steam is generated at a 
pressure of 150 PSI by the extraction of heat from the hot oil being cir- 
culated by pumping the oil through coils in the boiler. The output of steam 
may range from 250 to 20,000 lbs. per hour depending on the size of the 
unit." 

General Laws c. 146, § 46 provides in part that : 

"No person shall have charge of or operate a steam boiler or engine 
or its appurtenances, except boilers and engines upon locomotives, motor 
vehicles, boilers and engines in private residences, boilers in apartment 
houses of less than five apartments, boilers and engines under the juris- 
diction of the United States, boilers and engines used for agricultural, 
horticultural and floricultural purposes exclusively, boilers and engines of 
less than nine horsepower, and boilers used for heating purposes exclu- 
sively which are provided with a device approved by the commissioner 
limiting the pressure carried to fifteen pounds to the square inch, unless 
he holds a license as hereinafter provided. ..." 

In my opinion, the factual determinations which you have incorporated 
in your two questions clearly establish the boiler in question as one which 
comes within the scope of §§ 46 and 48 and requires duly licensed per- 
sonnel for its operation. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



P.D. 12 141 

74. February 1, 1967. 

Honorable John J. Carroll, M.D., Superintendent, Massachusetts Hos- 
pital Scliool. 

Dear Doctor Carroll: — At the direction of the Board of Trustees of 
the Massachusetts Hospital School, you have requested an opinion of this 
ofifice on (1) whether the Trustees may admit commuting patients and 
(2) if so, what powers the Trustees have in setting- the rates for them, 
especially for tuition only. 

The School was established by c. 446 of the Acts of 190-1. which, as 
since amended, is now G. L. c. Ill, §§ 62I-62S. Section 62J provides 
that the School "shall be maintained for the education and care of crippled 
and deformed children of the commonwealth." Section 62J provides that 
the Trustees "shall have the same powers and shall be required to perform 
the same duties in the management and control of the school as are vested 
in and required of the various state hospitals under chapter one hundred 
and twenty-three, so far as applicable." Section 62M provides: 

"The trustees may, upon application of any child entitled to receive the 
benefit of said school, or upon such application by a parent, guardian or 
person having the legal custody of the child, or by any state or municipal 
department, board or officer having such custody, admit such child to said 
school, subject to such rules and regulations as the trustees may prescribe, 
and the trustees may discharge such child from the school. The charges 
for the support of the children of the school who are of sufficient ability 
to pay for the same, or have persons or kindred bound by law to main- 
tain them, shall be paid by such children, such persons or such kindred 
at a rate determined by the trustees. The board of such children as have 
a legal settlement in a town shall be paid by the town at a rate not exceed- 
ing seventeen dollars and fifty cents a week, notice of the reception of the 
children by the trustees being given by them to the board of public wel- 
fare of the town as soon as practicable ; and the tuition and board of those 
having no such settlement shall be paid by the commonwealth. The trus- 
tees may receive other children having no means to pay for tuition and 
support, and the tuition and board of all such children shall be paid by 
the commonwealth. The attorney general and district attorneys shall upon 
request bring action to recover said charges in the name of the state treas- 
urer. The admission of a child as aforesaid to the school shall be deemed 
a commitment of the child to the care and custody of the comnionwealth, 
and the trustees, with the approval of the department, may detain the child 
at said school during its school age, or for such longer period during its 
minority as in the opinion of the trustees will tend to promote the educa- 
tion and welfare of the child." 

It is my opinion that under the foregoing provisions the Trustees may 
admit commuting or "day" students, as well as boarding students. In 
view of the vital contribution that the Legislature plainly intended the 
School to make to the education of crippled and deformed children of the 
Commonwealth, the statute should not be interpreted in any narrow or 
restrictive sense. 

The fact that § 62M declares that the "admission of a child ... to the 
school shall be deemed a commitment of the child to the care and custody 



142 P.D. 12 

of the commonwealth ..." does not require a different result. In the sense 
in which "commitment" appears to be used in that section, it conveys the 
meaning only of an entrusting of general supervision rather than a de- 
livery for continuous detention. The "commitment" is not to an institu- 
tion but rather "to the care and custody of the commonwealth. ..." In 
relation to children, "care and custody" ordinarily conveys the meaning of 
the right to control a child's upbringing and education. In the exercise of 
that right, the custodian may properly decide that the child does not have 
to remain at all times in the custodian's immediate presence. 

That this meaning was the one intended by the Legislature in enacting 
§ 62M seems clear from the language in that section saying that the trus- 
tees "}nay detain the child at said school during its school age. ..." (Em- 
phasis supplied.) If the provision relative to "commitment" was intended 
to convey a command for continuous detention, the provision giving a 
discretionary right to detain would have been superfluous. Its inclusion 
in the statute suggests that the Legislature may have thought that the 
"commitment" clause, standing alone, was not sufficient to permit physical 
detention. 

The foregoing interpretation is consistent with the practice which I 
understand you follow with regard to boarding students. Supplemental 
information that you have given my office indicates that the Trustees have 
regularly allowed these students to go home every other weekend, at 
Thanksgiving, during Christmas and Easter vacations, and for six weeks 
during the summer. 

As for your second question, namely, what powers the Trustees have 
in setting rates for commuting students, especially for tuition only, it is 
my opinion that the Trustees have the discretion to set a separate rate for 
such students. Section 62M provides in part that the "charges for the 
support of the children of the school who are of sufficient ability to pay 
for the same, or have persons or kindred bound by law to maintain them, 
shall be paid by such children, such persons or such kindred at a rate 
determined by the trustees." The statute then goes on to impose Hability, 
for "board" only, on towns where a child has a settlement. Contrasting 
the extent of the liabilities for "support" and for "board" only, the Su- 
preme Judicial Court, in construing the statute, has remarked, "The liabil- 
ity for the support of children is of much broader signification than is 
the mere liability for mere board." Treasurer and Receiver General v. 
Bourne, 27 S Mass. 313, 315. It is my opinion that especially in relation 
to handicapped children, "support" is an appropriate tenn to cover both 
tuition and board. 

This view seems to be the one adopted by the Legislature in passing 
the present statute. When it came to the point in the statute of specifying 
the particular components of the charges for attendance at the School in 
cases where a student has no settlement in a town, the Legislature pro- 
vided in § 62M that "the tuition and board" of such children shall be 
paid by the Commonwealth. Where, on the other hand, the Legislature, 
by using the more general term "support" in the part of § 62M with 
which we are concerned, did not specify the particular elements of the 
charges, it may fairly be considered to have had in mind the specific ele- 
ments of "tuition and board" that it enumerated later on in the same sec- 
tion. Hence, the provision in § 62M for "support" should be regarded 



P.D. 12 143 

as including both of these items. Commuting students may, therefore, be 
charged separately for their tuition ; and they may also be charged for 
any meals that they may from time to time have at the school. 

In summary then, it is my opinion that the Trustees have the discretion 
to admit commuting students and to set separate rates for their tuition and 
other lawful charges. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



75. February 1, 1967. 

Honorable Owen B. Kiernan, Commissioner, Department of Educa- 
tion. 

Dear Commissioner Kiernan : — You have requested an opinion of 
the Attorney General as regards interpretation of St. 1966, c. 601, a 
statute which authorizes your Department to issue a certificate of exemp- 
tion for tuition at any state institution of higher education within the 
Commonwealth, 

"to any Vietnam veteran, as defined in section seven of chapter four 
of the General Laws, whose service in Vietnam was credited to the com- 
monwealth . . . said department shall issue such certificate to any person 
who applies for such exemption, who satisfactorily establishes his status 
as a Vietnam veteran, and who is otherwise deemed qualified to attend 
such institution." 

The difficulty of interpretation arises because of a recent change in the 
definition of the term "Vietnam veteran" in said G. L. c. 4, § 7. Prior 
to December 8, 1966, the term was defined in G. L. c. 4, § 7, to mean, 
"any veteran who has been awarded the Armed Services Expeditionary 
Medal or the Vietnam Service Medal for military service performed in 
Vietnam between July 1, 1958, and the termination of the Vietnam emer- 
gency as declared by proper federal authority." Thus on September 2, 
1966, the effective date of Chapter 601, service performed in Vietnam was 
part of the definition of a "Vietnam veteran" and was plainly a qualifying 
requirement for certification under Chapter 601. 

However, a week following the effective date of Chapter 601, on Sep- 
tember 9, 1966, Chapter 716 of St. 1966 was approved and became effec- 
tive 90 days thereafter, on December 9, 1966. Chapter 716 amended 
G. L. c. 4, § 7, so as to define a "Vietnam veteran" as " . . . any veteran 
who has served more than one hundred and eighty days on active duty 
in the armed forces of the United States between February first, nineteen 
hundred and fifty-five and the termination of the Vietnam campaign as 
declared by proper federal authority." Thus under the amended definition, 
service in Vietnam was no longer any part of the definition of a Vietnam 
veteran. 

You state in your letter : 

"The Department has interpreted this act to mean that the applicant 
must qualify as a Vietnam veteran under the first definition until Decem- 



144 P.D. 12 

ber 8 and under the new definition on December 8, 1966, but in addition 
to this he must have had service in Vietnam which was credited to the 
Commonwealth." 

Based on the specific language of Chapter 601, it is difficult to avoid the 
conclusion that your interpretation is correct. 

If eligibility turned solely on being a "Vietnam veteran" under G. L. 
c. 4, § 7, it would be clear that St. 1966, c. 716, eliminated actual service 
in Vietnam as a prerequisite to certification. But Chapter 601 makes eligi- 
bility for tuition exemption dependent not only upon a veteran's being a 
"Vietnam veteran" within the meaning of G. L. c. 4, § 7, it further pro- 
vides that such "Vietnam veteran" be one "whose service in Vietnam was 
credited to the commonwealth." (Emphasis supplied.) 

"The statute must be construed as a whole, giving effect to all its pro- 
visions so far as possible. Tt is a familiar canon of statutory interpreta- 
tion that every word of legislative enactment is to be given force and effect 
so far as reasonably practicable. No part is to be treated as immaterial 
or superfluous unless no other rational course is open.' " Hinckley v. Re- 
tirement Board of Gloucester, 316 Mass. 496, 500, and cases cited. 

In Boynton's Case, 328 Mass. 145, at page 147, the Court said: 

"To reach the contrary result, it is necessary to argue, as does the in- 
surer, that the words 'in addition to all other sums' add nothing. But it 
is rationally possible to give these words force and effect, thence they can 
not be rejected as surplusage." 

In Chapter 601, force and effect can rationally be given to the words 
"service in Vietnam." To do otherwise would be to ignore the foregoing 
rule of construction and, in effect, to rewrite the statute by disregarding 
part of its language. It may well be that because Vietnam veterans with- 
out service in Vietnam are entitled to federal benefits, including educa- 
tional benefits, under P. L. 89-358 which was in force at the time the 
General Court enacted Chapter 601, and other state benefits, the Legis- 
lature intended Chapter 601 to confer this additional benefit only upon 
persons with actual service in the war theatre of Vietnam. Accordingly, 
I am of the opinion that "service in Vietnam" remains one of the require- 
ments for tuition exemption under St. 1966, c. 601. 

I am, of course, mindful of the fact that the Legislature is now in 

session, is considering further legislation in this area, and may, if it so 

chooses, take further action should such action be deemed advisable to 
remedy what may well have been a legislative oversight. 

Very truly yours. 

Elliot L. Richardson, Attorney General. 



76. February 3, 1967. 

Honorable John R. Wheatley, District Attorney for the Plymouth 
District. 

Dear District Attorney Wheatley: — You have asked the Attorney 
General for an opinion as to your authority, with the approval of a Justice 



P.D. 12 145 

of the Superior Court holding a criminal session in your district, but with- 
out an appropriation of funds by the Legislature, to hire a list clerk for 
the session at the expense of Plymouth County, no such clerk having been 
previously employed. 

Although G. L. c. 12, § 22 authorizes you, with the approval of a Justice 
of the Superior Court, to employ persons for "clerical or stenographic 
work," and although this same section provides that "Their compensation 
shall be paid by the county . . . , " it is my opinion that the county cannot 
lawfully pay for their services unless the statutory provisions relative to 
payment of county bills are first satisfied. These sections, so far as now 
pertinent, are G. L. c. 35, §§ 29 and 32. Section 29 provides, in part: 

"The expenditure of money by the several counties shall be in accord- 
ance with the appropriations of the general court, which shall specify as 
separate appropriations the several items of expenditure, as prescribed by 
the director of accounts. ..." 

Section 32 provides : 

"No county exi)enditure shall be made or liability incurred, nor shall 
a bill be paid for any purpose, in excess of the ap])ropriation therefor, 
except as provided in sections fourteen and thirty- four."* 

It is, therefore, my opinion that without an appropriation by the Legis- 
lature, funds will not be available to pay for the services of your list clerk, 
essential as I recognize such services to be. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



77. February 7, 1967. 

Honorable Howard Whitmore, Jr., Commissioner, Metropolitan Dis- 
trict Commission. 

Dear Commissioner Whitmore: — You have requested an opinion of 
the Attorney General on the following questions : 

"1. Is the Metropolitan Police force a part of the Parks Division of 
this Commission? 

"2. Under the provisions of Chapter 562 of the Acts of 1961, amend- 
ing General Laws Chapter 28, Section 3, is the Commissioner authorized 
to establish divisions within the Metropolitan District Commission as well 
as subdivisions or sections thereof ?" 

Since the answer to your first question depends in part on the answer 
to your second, I shall deal with your questions in reverse order. 

Until amended by c. 562 of the Acts of 1961, G. L. c. 28, § 3 expressly 
authorized the Commissioner of the Metropolitan District Commission to 
"organize it in such divisions as he may from time to time determine." 
Although this provision was stricken from § 3 by the 1961 amendment, 

*Sections 14 and 34 relate to continuation of the past rate of expenditures until an appropriation 
for the current year has been voted. Section 34 provides, in part: "No new or unusual expense 
shall be incurred, or permanent contract made, or salary increased, until an appropriation therefor 
has been made by the general court. ..." 



146 P.D. 12 

it is my opinion that the Commissioner still has the same power to estab- 
lish divisions. 

The Metropolitan District Commission is one of twenty departments 
established in the executive branch of the state government. It has long 
been the custom to designate most of the agencies immediately subordinate 
to state departments as "divisions." A legislative intention to preserve 
this custom in the Metropolitan District Commission is manifested in G. L. 
c. 28, § 3, where the Commissioner is given the "direction, control and 
supervision" of "each division or section thereof." (Emphasis supplied.) 
The extremely diversified functions of the Metropolitan District Com- 
mission, including responsiliility for parks, sewage disposal, water supply, 
highways and police (see G. L. c. 92), taking place in a variety of loca- 
tions and requiring a variety of specific skills, plainly call for the estab- 
lishment of different administrative units. 

Yet, to the best of my knowledge, since the Commission's establishment 
in 1919, there has been only one occasion on which the Legislature has 
itself expressly created a "division" within the Commission : in c. 583 of 
the Acts of 1947. the Metropolitan District Water Supply Commission 
was abolished and its functions transferred "to a division of construction 
which the commissioner of the metropolitan district commission is hereby 
authorized and directed to establish." St. 1947, c. 583, § 2. While refer- 
ence is made in G. L. c. 28, § 4A to a "sewerage division," the establish- 
ment of that division was evidently the result of administrative action by 
one of your predecessors. There are also occasional statutory references 
to "the police force of the commission" (see, for example, G. L. c. 92, 
§§ 62, 62A, 62B), but without any indication whether or not the police 
force is to have divisional status. The Legislature has left the establish- 
ment of appropriate divisions primarily to administrative action by the 
Commission; and, indeed, before 1961, it was expressly provided in G. L. 
c. 28, § 3, that the Commissioner should "organize it in such divisions as 
he may from time to time determine." 

In 1961, the Legislature made major changes in the executive organiza- 
tion of the Metropolitan District Commission and, in so doing, eliminated 
the specific language authorizing establishment of divisions. The 1961 
amendments to G. L. c. 28, however, greatly strengthened the office of 
Commissioner and eliminated the separation of responsibilities thereto- 
fore existing between the Commissioner and a board consisting of the 
Commissioner and four associate commissioners. The powers of the board 
of commissioners prior to 1961 had included the appointment of "a secre- 
tary, engineering chiefs, a purchasing agent, engineers, ins}3€ctors, officers 
and members of the police force, one or more women as s|3ecial police 
officers, clerks and such other officers and employees as the work of the 
commission may require." G. L. c. 28, § 4 (as appearing in St. 1936, c. 
244, § 2). The board also had authority to "assign them to divisions, 
transfer and remove them." Ibid. However, the Commissioner, not the 
board, had the power to organize the commission "in such divisions as he 
may from time to time determine" and to appoint directors of those divi- 
sions. G. L. c. 28, § 3 (as appearing in St. 1936, c. 244, § 1). The 1961 
amendment rewrote both sections in such a way as to transfer virtually 
all of the enumerated powers of the board to the Commissioner. The new 
G. L. c. 28, § 3 provided : "The commissioner shall be the executive and 
administrative head of the commission and each division or section 



P.D. 12 147 

thereof shall be under his direction, control and supervision." It fur- 
ther authorized the Commissioner to "appoint and remove, such officials 
and employees as the w^ork of the commission may require, including 
officers and members of the police force, and one or more women as spe- 
cial police officers, and . . . from time to time assign to such officials and 
employees such duties as the work of the commission may require." Gen- 
eral Laws c. 28, § 4 in its new form brought about a corresponding reduc- 
tion in the powers of the board, providing only that "the commissioner 
with the approval of at least two associate commissioners may appoint a 
secretary." 

The statutory changes made in 1961 do not suggest a desire by the 
Legislature to take away either from the Commission or the Commissioner 
the authority to organize the Commission into divisions. Rather, they 
suggest that the draftsmen of the revised G. L. c. 28 may have decided 
that specific language authorizing the Commissioner to establish divisions 
had become redundant, since there was no longer any question as to whe- 
ther the power to do so was lodged in the Commissioner rather than the 
board. Certainly, the broad new powers conferred upon the Commissioner 
make it obvious that he. if anyone in the Commission, would have the 
power to establish divisions. Had the Legislature wished to provide in the 
future for legislative rather than administrative establishment of divisions, 
it would presumably have so indicated, either by specifying the particular 
divisions into which the Commission was henceforth to be divided, or in 
some other manner. 

It is, therefore, my opinion that your second question is to be answered 
in the affirmative, both as respects establishment of divisions and sub- 
divisions or sections thereof. 

In answer to your first question, I am aware of no statute placing the 
Metropolitan Police Force in any particular division of the Metropolitan 
District Commission. The predecessor of the Metropolitan Police Force 
was the police force of the Metropolitan Parks Commission established 
by c. 407 of the Acts of 1893. The Metropolitan Parks Commission and 
its police force were abolished by § 123 of c. 350 of the Acts of 1919, and 
their functions transferred to the newly created Metropolitan District 
Commission. The "Parks Division" referred to in your letter is presum- 
ably the successor to the Metropolitan Parks Commission. However, the 
powers and duties of the Metropolitan Police Force now extend well be- 
yond the boundaries of the Metropolitan Parks District. G. L. c. 92, § 61. 
The statutes pertaining to the Metropolitan Police Force, moreover, ap- 
pear in a different portion of G. L. c. 92 (§§ 61-63B) than those dealing 
with the Metropolitan Parks District (§§ 33-59). These considerations 
lead me to the conclusion that the Legislature had no intention of assign- 
ing the Metropolitan Police Force to the Parks Division. 

Since the statutes are silent on this organizational detail of the Metro- 
politan District Commission, the position of the Metropolitan Police Force 
in the departmental hierarchy — whether it be a part of one of the divi- 
sions or a division in its own right — can be determined only by your own 
examination of the records of the Commission, or by future administra- 
tive action on your part. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



148 P.D. 12 

78. February 7, 1967. 

Honorable John A. Gavin, Commissioner of Correction. 

Dear Commissioner Gavin: — You have requested the opinion of the 
Attorney General relative to certain questions arising under G. L. c. 127, 
§ 133, as rewritten by c. 764 of the Acts of 1965.* Said section provides 
in relevant part as follows : 

"Parole permits may be granted by the parole board to prisoners subject 
to its jurisdiction at such time as the board in each case may determine; 
provided (a) that no prisoner, convicted for a violation of [various sec- 
tions of G. L. cc. 165 and 172 pertaining to certain violent crimes], or 
for an attempt to commit any crime referred to in said sections, and held 
under a sentence containing a minimum sentence shall receive a parole 
permit until he shall have served two thirds of such minimum sentence, 
but in any event not less than two years or if he has two or more sentences 
to be served otherwise than concurrently, two thirds of the aggregate of 
the minimum terms of such several sentences, but in any event not less 
than two years for each such sentence; {b) that no other prisoner held 
under a sentence containing a minimum sentence shall receive a parole per- 
mit until he shall have served one third of such minimum sentence, but 
in any event not less than one year, or, if he has two or more sentences 
to be served otherwise than concurrently, one third of the aggregate of the 
minimum terms of such several sentences, but in any event not less than 
one year for each such sentence. ..." 

You ask, first, whether a prisoner serving two minimum sentences, one 
for a crime of violence specified in provision (a) of § 133 and one for a 
non-violent crime covered by provision {b) of said section, must serve at 
least two thirds of the aggregate minimum terms of both sentences before 
becoming eligible for parole, or whether such a prisoner need serve only 
two thirds of the minimum sentence for the crime of violence plus one 
third of the minimum sentence for the non-violent crime before becoming 
eligible for parole. 

I am of the opinion that for such prisoner the requirements of provi- 
sion (a) would apply only to the sentence for the crime of violence and 
the requirements of provision {b) would apply to the sentence for the non- 
violent crime. Section 133 distinguishes between specified crimes of vio- 
lence and all other crimes. To the first class of crimes it applies harsher 
parole requirements than it does to the second class of crimes. In view 
of this clear distinction in the statute and the legislative intent expressed 
thereby, it would be unreasonable to apply the stricter requirements of 
provision (a) to a sentence for a non-violent crime simply because the 
prisoner is also serving a sentence for a crime of violence. 

Had the Legislature intended that in the situation which you pose the 
harsher requirements of provision (a) should be applied to the sentence 
for the non-violent crime as well as to the sentence for the crime of vio- 
lence, it would undoubtedly have made this intention explicit in the statute. 
No such intention appears explicitly in the statute; indeed the structure 
of the statute leads to the opposite conclusion. 

*This opinion is based strictly on § 133 as appearing in St. 1965, c. 764, since it was that version 
of the statute as to which the opinion was requested. However, § 133 was significantly amended 
thereafter by St. 1966, c. 261, approved on May 10, 1966. 



P.D. 12 149 

Accordingly, the requirements of provision (a) are applicable only to 
sentences for the crimes specified in said provision and the requirements 
of provision (b) are applicable to sentences for other crimes, even though 
one prisoner may be serving sentences for both types of crimes. 

You ask, further, whether a prisoner serving two concurrent sentences, 
one for a crime of violence and one for a non-violent crime, must serve 
in any event not less than two years on each sentence before becoming 
eligible for parole. If the two sentences are concurrent, the minimum 
periods for each sentence are not aggregated. The prisoner would there- 
fore have to serve the longest minimum parole eligibility period, that is, 
two years. If, however, the sentences do not run concurrently, the 
prisoner would have to serve not less than two years for each crime of 
violence plus one year for each non-violent crime. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



79. February 8, 1967. 

Honorable George W. Waters, Chairman, Board of Standards. 

Dear Sir: — You have asked my opinion concerning the promulgation 
of regulations by your agency. You say that, "the Board has found in 
certain of its regulations . . . relating to electrical equipment and wiring 
. . . that there have been hardships and misinterpretations." In view of 
these circumstances, you ask if the Board can "amend or revise the regula- 
tions without holding a public hearing as specified in Chapter 143, Section 
SB, or does Section 3, paragraph 3 of Chapter 30A [of the General Laws] 
give the Board the right to make amendments without a public hearing?" 

The State Administrative Procedure Act (G. L. c. 30A) was enacted 
by c. 681 of the Acts of 1954 and has been in effect thereafter. Sections 
2 and 3 of the Act set forth the procedural steps to be followed in pro- 
mulgating administrative regulations.^ " However, procedures established 
in § 2 are different from those in § 3, and regulations required to be 
issued under § 2 may not alternatively be issued under § 3. 

The first part of § 2 defines the regulations which must be promulgated 
in accordance with procedures in that section. It states, "Prior to the 
adoption or amendment of any regulation as to which a hearing is required 
by any laiv, or any other regulation the violation of which is punishable 
by fine or imprisonment except a regulation of agency practice or pro- 
cedure, an agency shall give notice and hold a public hearing. . . ." (Em- 
phasis supplied.) Thus, where "a hearing is required by any law," the 
agency must follow § 2. To determine whether "a hearing is required by 
any law," it is necessary to examine the laws under which your Board 
operates. 

1 Not all the steps for promulgating effective regu'lations are set forth in these two sections. For 
instance, to be effective, all regulations must be filed with the Secretary of State pursuant to 
G. L. c. 30, § Z7 and G. L. c. 30A, § S. 

^ All agencies subject to G. L. c. 30A must, before issuing regulations, adopt rules under § 9 set- 
ting forth the agency procedure, as distinguished from the statutory procedure, to be used in 
promulgating regulations (see "Uniform Rules for Adjudicatory Proceedings Before Administra- 
tive Agencies and For Adopting Regulations", Office of the Attorney General (March 1, 1966) ), 



150 P.D. 12 

The Board of Standards is organized pursuant to G. L. c. 22, § 13. 
Its responsibilities are enumerated in G. L. c. 143. Section 3B of that 
Chapter, dealing with the promulgation of regulations by the Board, reads 
in pertinent part as follows : 

"The board shall hold public hearings annually, on the first Tuesday in 
May and October, and at such other times as it may determine, on peti- 
tions for changes in the rules and regulations formulated by it. If, after 
any such hearing, it shall deem it advisable to make changes in said rules 
and regulations, it shall appoint a day for a further hearing, and shall give 
notice thereof and of the changes proposed by advertising in at least one 
newspaper in each of the cities of Boston, Worcester, Springfield, Fall 
River, Lowell and Lynn, at least ten days before said hearing. If the 
board on its own initiative contemplates changes in said rules and regula- 
tions, like notice and a hearing shall be given and held before the adoption 
thereof." 

Since under the above statute the Board is required to hold a public 
hearing before making changes in its regulations, the provisions of § 2 
of c. 30A, rather than of § 3, are controlling. Accordingly, except in an 
emergency situation, the Board must hold a public hearing before pro- 
mulgating regulations. 

In an emergency, an abbreviated procedure is provided for in para- 
graph (3) of § 2. In such an instance, a public hearing need not be held. 
However, the emergency regulation remains in efi^ect for three months 
only. In order to perpetuate the emergency regulation the agency must, 
during the three-month period, reissue the regulation in accordance with 
the procedural steps usually followed for promulgating a regulation. Para- 
graph (3) of § 2 may only be used where a genuine emergency exists and 
not as an administrative short cut. 

In summary, it is my opinion that the Board of Standards cannot, ex- 
cept in an emergency, amend or revise its regulation without holding a 
public hearing in accordance with the procedures set forth at length in 
G. L. c. 30A, § 2.^ The procedures of G. L. c. 30A, § 3 are not, in my 
opinion, applicable. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



80. February 10, 1967. 

Honorable Anthony P. DeFalco, Commissioner of Administration. 

Honorable Guy J. Rizzotto, Commissioner of Corporations and Taxa- 
tion. 

Gentlemen : — In a letter from the former Commissioner of Adminis- 
tration and the Commissioner of the Department of Corporations and 
Taxation, the opinion of the Attorney General has been requested on three 

3 An agency required to adopt and amend regulations under G. L. c. 30A, § 2 may repeal regula- 
tions under G. L. c. 30A, § 3. (Compare § 2: "Prior to the adoption or amendment of any 
regulation. ..." with § 3: "Prior to the adoption or amendment of any regulation other than 
those subject to Section two or the repeal of any regulation. . . .") (Emphasis supplied.) 



P.D. 12 151 

matters pertaining to the Greenfield-Montague Transportation Area. The 
letter sets forth the following facts : 

"The Transportation Area contemplates the purchase of three buses, at 
a total estimated cost of $75,000, and the construction of a garage facility 
at an estimated cost of $90,000. The Town of Greenfield has approved 
an appropriation in the amount of $115,000 for the purpose of contribut- 
ing towards this capital expenditure by the Area, and the Town of Monta- 
gue has approved the appropriation of $51,150 for the same purpose. The 
Towns have jointly petitioned the Department of Public Utilities for ap- 
proval, and a hearing has been scheduled by the Department of Public 
Utilities for December 8, 1966." 

The questions as to which an opinion has been requested are as follows : 

( 1 ) Whether or not the Commonwealth, acting through the Executive 
Office for Administration and Finance, may enter into a contract as pro- 
vided in G. L. c. 161, § 152A to reimburse the Towns of Greenfield and 
Montague, when it appears from the facts that the pur])ose of the appro- 
priations is to give the Transportation y\rea Funds with which to make 
the initial purchase of the buses and garage facility rather than for the 
specific purposes set forth in G. L. c. 161, § 152. 

(2) Whether or not the Department of Corporations and Taxation, 
acting through the Director of Accounts, may certify the issuance of notes 
by said towns under the provisions of G. L. c. 44, § 24, when G. L. c. 
44. § 8(12) contains the same limiting purpose provisions as are contained 
in G. L. c. 161, § 152. 

(3) Whether or not the Commonwealth, acting through the Executive 
Office for Administration and Finance, may enter into a contract to reim- 
burse the Towns of Greenfield and Montague pursuant to the provisions 
of G. L. c. 161, § 152A if the appropriation by the said Towns is raised 
by the means of notes rather than by the means of bonds. 

The first and third of the foregoing questions have been asked by the 
Commissioner of Administration, while the second has been asked by the 
Commissioner of the Department of Corporations and Taxation. 

1. 

General Laws c. 161, § 152A provides: 

"The commonwealth, acting by and through the executive office for ad- 
ministration and finance, may enter into a contract or contracts with the 
trustees of a transportation area created under the provisions of sections 
one hundred and forty-three through one hundred and fifty-eight of this 
chapter whereby the commonwealth agrees to reimburse the cities and 
towns comprising the area for an amount equal to ninety per cent of the 
annual debt service on any bonds issued pursuant to section one hundred 
and fifty-two of this chapter in respect to any equipment or facility for 
mass transportation purposes acquired by the trustees after the effective 
date of this act, less the amount received by any such city or town from 
surplus as provided under section one hundred and fifty-one of this chap- 
ter in any year." 

The Executive Office for Administration and Finance may, therefore, 
contract to reimburse a town if the town issues bonds pursuant to G. L. 



152 P.D. 12 

c. 161, § 152 "in respect to any equipment or facility for mass transporta- 
tion purposes acquired by the trustees of the transportation area." 

General Laws c. 161, § 152 provides, in part: 

"For the purpose of acquiring street railway property or other equip- 
ment or facility under sections one hundred and forty-three to one hun- 
dred and fifty-eight, inclusive, of operating the same, or of contributing 
t07uard the sums expended by the transportation area for capital purposes, 
cities and towns may, with the approval of the department, borrow money 
in excess of the statutory limit, but not exceeding the sum of two per cent 
of their respective assessed valuation. ..." (Emphasis supplied.) 

Thus, a town may borrow "for the purpose ... of contributing toward 
the sums expended by the transportation area for capital purposes. ..." 
Clearly, the purchase of buses, and the construction of a garage facility, 
are "capital purposes" within the meaning of § 152, and said buses and 
garage come within the terms "equipment or facility for mass transporta- 
tion purposes" employed in § 152A. The first question asked seems to 
arise only from the fact that the Towns' borrowing will occur before any 
sums are actually expended by the Transportation Area. 

I do not believe that § 152 limits a town's power to borrow to the 
situation where the transportation area has already made a capital expen- 
diture. Standing alone, the words "sums expended" could admittedly be 
read narrowly to mean only "sums already expended." But these words 
can also be read to include "sums which are to be expended," and con- 
sideration of the language immediately surrounding them, and of the entire 
statute and its purposes, leads me to believe that the latter meaning was 
intended. "It is a general rule of statutory construction that all provisions 
must be so construed that they can operate harmoniously together." Mc- 
Cue v. Director of Civil Service, 325 Mass. 605, 611. 

The words "contributing towards," which precede the words "sums 
expended," suggest an activity still in progress — the outlay of funds to 
meet unsatisfied liabilities. In G. L. c. 161, § 150, the word "contribute" 
is used in this sense. Under § 150, towns are required to "contribute to 
the discharge of . . . liabilities and obligations" of the transportation area 
in accordance with a specified formula. (Emphasis supplied.) If the 
Legislature had intended § 152 to apply only where funds have already 
been paid out by the Transportation Area, "reimburse" would be the ap- 
propriate word. General Laws c. 161, § 152A, where such was the legis- 
lative intention, provides : " . . . the commonwealth agrees to reimburse 
the cities and towns comprising the area for an amount equal to ninety 
per cent of the annual debt service on any bonds issued pursuant to section 
one hundred and fifty-two. ..." (Emphasis supplied.) 

This interpretation of the term "sums expended" is borne out by a 
consideration of the practical result of a contrary interpretation. If a 
transportation area were required to pay for all capital purchases and im- 
provements before becoming eligible for a contribution under § 152, it 
might not be possible for an area ever to make any such purchases or 
improvements of significance. Indeed, the only statutory means speci- 
fically provided for acquiring funds for "capital purposes" is by contri- 
])ution of cities and towns under the provision in question. A transporta- 
tion a^ea has no power to raise money by taxation. It may issue short- 



P.D. 12 153 

term notes for the purpose of meeting "current expenses" only. G. L. c. 
161, § 152. It is entitled to annual contributions from the constituent 
towns, but only to meet operating expenses. G. L. c. 161, §§ 150, 151. 
Its only other source of funds is the revenue from operating its trans- 
portation facilities. However, it is required by G. L. c. 161, § 151 to 
distribute eighty-five per cent of its annual net profits to the towms. Thus, 
in order to accumulate the necessary $165,000 for the expenditures in- 
volved in this case alone, the Transportation Area would have to realize 
total net profits of $1,100,000. As a practical matter, this would mean 
that such expenditures could probably never be made. 

The fact that a restricted interpretation of the words sums expended 
"would thus tend to make the sections wholly ineffective is strong indica- 
tion that this interpretation does not reflect the legislative intention." 
O'Shea v. Holyokc, 345 Mass. 175, 179. These sections were revised and 
expanded in 1964. At that time, the state aid provisions of § 152A were 
inserted, and the scope of § 152 broadened. These and other amendments 
to the General Laws were included in St. 1964, c. 563, entitled, "An Act 
Abolishing the Metropolitan Transit Authority, Estabhshing the Massa- 
chusetts Bay Transportation Authority, and Providing for the Acquisition 
and Maintenance of Mass Transportation Facilities and Sei-vices Which 
Shall Be Coordinated With Highway Systems and Urban Development 
Plans Throughout the Commonwealth." These amendments were enacted 
for the express purpose of promoting mass transportation in the Com- 
monwealth. With respect to G. L. c. 161, §§ 152 and 152A, this purpose 
can be accompHshed only if those sections are given an interpretation 
whereby a workable system of state and local aid can be devised. 

It is, therefore, my opinion that a town may borrow funds under G. L. 
c. 161, § 152 for the purpose of contributing to the capital exj^enditures 
of a transportation area whether or not such capital expenditures have 
actually been made at the time of the borrowing. Accordingly (assuming 
compliance with other statutory requirements), I conclude that the Com- 
monwealth, acting through the Executive Office for Administration and 
Finance, may enter into an appropriate contract under G. L. c. 161, § 
152A with the Trustees of the Greenfield-Montague Transportation Area. 



The second of the questions presented involves an interpretation of 
G. L. .0. 44, § 8, which provides in part as follows: 

"Cities and towns may incur debt, outside the limit of indebtedness 
prescribed in section ten, for the following purposes and payable within 
the periods hereinafter specified. 

* * * * 

"(12) For acquiring street railway property under sections one hun- 
dred and forty-three to one hundred and fifty-eight, inclusive, of chapter 
one hundred and sixty-one, operating the same, or contributing toward the 
sums expended by a transportation area for capital purposes, ten years ; 
but the indebtedness so incurred shall not exceed two per cent of the last 
preceding assessed valuation of the city or town." 

The pertinent language of this statute is almost identical to that of 
G. L. c. 161, § 152 ("contributing toward the sums expended by a trans- 



154 P.D. 12 

portation area for capital purposes") and reflects an identity of legislative 
purpose. 

My answer to the second question is, therefore, governed by my answer 
to the first ; and, under the facts presented, the Director of Accounts in 
the Department of Corporations and Taxation may, in my opinion, cer- 
tify the issuance of the notes referred to under G. L. c. 44, § 24. 



The third question, like the first, must be answered in light of G. L. 
c. 161, § 152A, quoted above. The issue here is whether or not notes to 
be issued by the Towns are equivalent to "bonds issued pursuant to section 
one hundred and fifty-two" for purposes of § 152A. 

While the terms "bonds" and "notes" have at times been used inter- 
changeably, a contrary pattern has been consistently followed in the Gen- 
eral Laws of Massachusetts. Throughout c. 44 of the General Laws, 
which governs the issuance of bonds and notes by municipalities, these 
words appear side by side as mutually exclusive terms. See, for example, 
G. L. c. 44, §§ 8A, 16, 16A, 16B, 16C, 17, 18, 19. 20 and 28. The impor- 
tance of this distinction is manifest in G. L. c. 44, §§ 23-27, where numer- 
ous requirements are imposed upon the issuance of municipal notes but not 
upon the issuance of municipal bonds. Because of the intimate relation- 
ship between the municipal finance provisions of G. L. c. 161 and G. L. 
c. 44, I conclude that the powers of the Executive Ofiice for Administra- 
tion and Finance under G. L. c. 161, § 152 A with respect to municipal 
"bonds" do not extend to municipal notes. It is, therefore, my opinion 
that the Commonwealth, acting through the Executive Office for Adminis- 
tration and Finance, may not enter into a contract to reimburse the Towns 
of Greenfield and Montague under G. L. c. 161, § 152A, if the appropria- 
tion by the Towns is raised by notes rather than bonds. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



81. February 14, 1967. 

Ruth Morey, Chairman, Board of Schoolhoiise Structural Standards. 

Dear Madam Chairman : — You have asked the Attorney General for 
an opinion as to the validity of actions taken by the Board of Schoolhouse 
Structural Standards following the exhaustion of the funds appropriated 
by the Legislature for the Board's operation. 

The Board was established by c. 675 of the Acts of 1955, since amended 
by various Acts, including c. 361 of the Acts of 1958, c. 457 of the Acts 
of 1961, and c. 546 of the Acts of 1964. As now constituted, the Board 
consists of the Commissioner of Public Safety, the Chief of Inspections 
of the Department of Public Safety, the Administrator of the School 
Building Assistance Commission, and eight members appointed by the 
Governor. 

Section 1 of c. 675 of the Acts of 1955, as now in force, provides in 
pertinent part : 



P.D. 12 155 

"A majority of said board, constituted as above provided, may transact 
business but a lesser number may adjourn from time to time. 

"Each appointive member of said board shall be paid twenty dollars for 
each day while in the actual performance of his duties as such, but not 
exceeding one thousand dollars in any fiscal year, and each member shall 
receive from the commonwealth all expenses necessarily incurred by him 
in connection with his official duties. 

"Such clerical, technical and other assistance as may be required by the 
board shall be assigned to it by the commissioner." 

General Laws c. 29, § 27 provides in pertinent part : 

"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 appropriation 
by the general court and an allotment by the governor, sufficient to cover 
the expense thereof, shall have been made." 

General Laws c. 29, § 26 provides : 

"Expenses of offices and departments for compensation of officers, 
members and employees and for other purposes shall not exceed the appro- 
priation made therefor by the general court or the allotments made there- 
for by the governor. No obligation incurred by any officer or servant of 
the commonwealth for any purpose in excess of the appropriation or allot- 
ment for such purpose for the office, department or institution which he 
represents, shall impose any liability upon the commonwealth." 

Section 26 has been described as "designed to require an official or depart- 
ment to keep expenditures within the amount appropriated and to protect 
the public credit by preventing the incurring of any indebtedness against 
the Commonwealth for the payment of which no provision had been made 
by the Legislature." Baker v. Commonwealth, 312 Mass. 490, 493. See 
also United States Trust Co. v. Comnionzvealth, 348 Mass. 378, 380-381. 

The application of § 26, in an earlier form, to a commission known as 
the Cattle Commissioners, for whom the Legislature had refused an ap- 
propriation, was the subject of an opinion of Attorney General Knowlton 
in 1898. 1 Op. Atty. Gen. 556. Attorney General Knowlton's opinion 
dealt with the question whether the Commission should, nevertheless, con- 
tinue to perform its duties. So pertinent were the Attorney General's 
views to your inquiry, that I will set forth extracts from his opinion at 
some length. 

First quoting Pub. Sts. c. 16, § 37 (the predecessor of the present G. L. 
c. 29, § 26), Attorney General Knowlton declared: 

"By the positive provisions of the statute above quoted, you have no 
right to do any acts whatsoever which call for the expenditure of the 
money of the Commonwealth. The general statutes applicable to your 
commission imposing duties upon your Board are to be construed in con- 
nection with and are limited by the statute I have quoted. For example, 
it is made your duty to cause horses afflicted with glanders to be killed. 
In so far as this duty may require the expenditure of money, you have 
no right, in view of the action of the Legislature, to perform it; and the 
failure of the Legislature to furnish money for the purpose is to be re- 



156 P.D. 12 

garded by you as abrogating any duty imposed upon you in that respect. 
Although by general laws you have been made the agents of the Common- 
wealth to do certain acts, your agency has been by implication revoked by 
the failure of the Legislature to furnish you with money for that purpose. 

"The foregoing considerations apply to such portion of your duties as 
involve the expenditure of money. The failure, however, to make an ap- 
propriation does not repeal the law establishing your Board and its duties, 
except as hereinbefore stated, nor that which fixes your compensation. 
You are still sworn ofificers of the Commonwealth, duly constituted, 
charged with the performance without the expenditure of money or the 
incurring of liability on behalf of the Commonwealth, and entitled to the 
compensation fixed by law for your services. No appropriation having 
been made, you cannot at present receive your salary. . . . 

"The failure of the Legislature to make appropriation for your work 
does not require you to abdicate your offices, nor to give up the per- 
formance of your duties, excepting in the cases where liability in behalf 
of the Commonwealth may be incurred. On the contrary, it is the duty of 
your commission to continue to hold their offices, and to perform the 
duties thereof, so far as may be, with the expectation that at some future 
time the Legislature will authorize payment therefor. If you are not 
willing to continue in office under these conditions, it is your duty to 
resign." 

The foregoing opinion of Attorney General Knowlton should provide 
an adequate guide to your Board. Following his views, it is my opinion 
that to the extent that performance of your duties may not subject the 
Commonwealth to liability, your actions will be valid if otherwise per- 
formed in accordance with law; and that if the appointive members of 
the Board are willing to continue to serve despite the absence of funds 
to pay their compensation, they may continue to do so, and the actions 
of the Board, if otherwise in conformity with law, will be valid. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



82. February 14, 1967. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs: — In a recent request for an opinion you 
state the following : 

"As a result of a hearing held by the Commissioner of Public Works 
against Rodolphe Bessette, Director of Waterways, he was ordered sus- 
pended by the Commissioner from August 10, 1961 to September 10, 
1961 without pay, based upon the Department's own decision of having 
violated the Department rules. 

"Mr. Bessette was also ordered suspended on June 28, 1963 as a direct 
result of an indictment pending against him in Court. Mr. Bessette was 
subsequently not found guilty of the charges alleged in said indictment." 

In view of these facts you ask the following questions: 



P.D. 12 157 

"1. Is Mr. Bessette entitled to receive the one month's salary withheld 
between August 10, 1961 to September 10, 1961 ? 

"2. Is Mr. Bessette entitled to receive his salary from June 28, 1963 
to the date the position of Director of Waterways was abolished? If so 
on what date was said position abolished? 

"3. Is Mr. Bessette entitled to receive interest in both the above cases, 
if so, at what rate and for what period of time? 

"4. In addition to the salary question, during the period of suspension 
in 1963, Mr. Bessette paid the full premium for Blue Cross and Blue 
Shield, including the part of the premium which the State would have 
contributed if he were an employee. Is he entitled to a re-payment of 
what would have been the State's share of the premium? If so, is he 
entitled to interest on the same, and at what rate?" 

It does not appear from the facts stated in your letter that Mr. Bes- 
sette's suspension in 1961 was related to the operation of G. L. c. 30, § 
59 (which I shall discuss later), since that statute did not take effect until 
January 1, 1963. See St. 1962, c. 798, § 1. Beyond making this observa- 
tion, I am unable to respond to your first question, because your request 
for opinion contains no facts upon which to base an answer. 

With respect to your second question, I quote part of the last para- 
graph of G. L. c. 30, § 59: 

"If the criminal proceedings against the person suspended are termi- 
nated without a finding or verdict of guilty on any of the charges on which 
he was indicted, his sus]:)ension shall Ijc forthwith removed, and he shall 
receive all compensation or salary due him for the period of his suspen- 
sion. ..." 

It therefore follows that Mr. Bessette was entitled to receive his salary 
from the date of his suspension, June 28, 1963, to the date on which his 
position as Director of Waterways was abolished by St. 1963, c. 821, § 
2. Since the Governor affixed an emergency preamble to c. 821 (see 
MoJestvorth v. Secretary of the Commonwealth, 347 Mass. 47; Prescott 
V. Secretary of the Commonwealth, 299 Mass. 191), the act took effect on 
the date designated by the Governor. November 15, 1963, and on that 
date Mr. Bessette's position was abolished. 

With respect to your third question, I do not know enough about the 
facts of Mr. Bessette's earlier suspension in August, 1961 to say whether 
he has any claim to be reimbursed for that period ; thus. I cannot say 
whether such payment, if made, should bear interest. The payment con- 
templated by my answer to your second question should not bear interest, 
since G. L. c. 30, § 59 does not provide for any, either by its own terms 
or by reference to another statute. In general, there can be no interest 
paid on money owed by a state unless a statute provides for the payment 
of interest. Salthouse v. Board of Commrs. of McPherson County, 115 
Kan. 668, 673. Yancey v. North Carolina State Highway & Pub. Works 
Commn., 222 N. C. 106, 112. 49 Am. Jur. 286-287 and cases cited. Cf. 
G. L. c. 258, § 4A ; C. & R. Construction Co. v. Commonivealth, 334 
Mass. 232. I note in passing that in two recent cases in which the Su- 
preme Judicial Court ordered "back pay" to be given to illegally dis- 
charged employees, the order did not provide for the payment of interest 



158 P.D. 12 

to these employees. Chartrand v. Registrar of Motor Vehicles, 347 Mass. 
470, 476-477. McKemia v. Connnissioner of Mental Health, 347 Mass. 
674, 675, 677. 

With respect to your fourth question, I assume that Mr. Bessette, at the 
time of his second suspension, was an employee whose hospital insurance 
was paid partly by the Commonwealth pursuant to G. L. c. 32A, § 8(a), 
which I quote in part : 

"With respect to any period of insurance authorized by this chapter 
which is in eflfect for an active or retired employee and dependent, there 
shall be withheld from each payment of salary, wages, pension or retire- 
ment allowance fifty per cent of the premium for such insurance, and the 
commonwealth shall contribute the remaining fifty per cent of said pre- 
mium. ..." 

Payment of "fringe" benefits such as hospital or disability insurance 
premiums has been held to be a form of "compensation" to the person 
covered by the insurance. Hohbs v. Lewis, 159 F. Supp. 282, 286 
(D.D.C.). In view of the purposes of G. L. c. 30, § 59, I am not in- 
clined to give the word "compensation," as it is used therein, a restricted 
meaning. It is my opinion that the amounts which would have been paid 
by the Commonwealth for Mr. Bessette's hospital insurance between the 
date of his second suspension and the date on which his position was 
abolished should be returned to him. For the reasons indicated in my 
answer to the third question, the amounts so returned should not include 
interest. 

Very truly yours, 
Elliot L. Richardson, Attorney GeneraL 



83. February 16, 1967. 

Honorable Howard Whitmore, Jr., Commissioner, Metropolitan Dis- 
trict Commission. 

Dear Commissioner Whitmore: — You have requested an opinion of 
the Attorney General on the effect of the creation of the Division of 
Water Pollution under c. 685 of the Acts of 1966 upon the construction 
of certain sewerage projects by the MetropoHtan District Commission 
under c. 645 of the Acts of 1951. You have asked three questions regard- 
ing these statutes : 

1. "Was the requirement of the 1951 law, . . . relative to approval of 
plans by the department of public health, so altered or changed by the 
1966 law . . . that such approval by the department of ])ublic health is no 
longer required? 

2. "If the answer to [Question 1] is 'Yes', is approval of such plans 
by the division of water pollution control now required? 

3. "If the answer to [Question 1] is 'No', is approval of such plans 
by the division of water pollution control , . . now required in addition 
to department of public health approval?" 



P.D. 12 159 

The first paragraph of St. 1951, c. 645, § 2, as amended by St. 1958, 
c. 649, § 1, St. 1963, c. 18, § 1 and St. 1965, c. 674, § 1, authorizes and 
directs the Metropolitan District Commission to undertake the following 
projects : 

"Project A. The construction of a tunnel l^etween Kosciuszko circle 
and Deer Island with necessary shafts and appurtenant works. Project 

B. The construction of a tunnel between Ward street pumping station and 
Kosciuszko circle with necessary shafts and appurtenant works. Project 

C. The enlargement of the previously authorized Deer Island Sewage 
treatment plant to care for the flow from Project A. Project D. The con- 
struction of a reHef sewer between Boston University bridge and Ward 
street. Project E. The construction of a reHef sewer for the west side 
and Stony Brook interceptors of the Boston main drainage district. Pro- 
ject F. The construction of a Marginal Conduit pumping station and 
appurtenant works. Project G. The rehabiHtation of tide gates and pump- 
ing stations. In constructing said projects A, B, C, D, E and F the com- 
mission shall provide for the receipt by the south metropoHtan sewerage 
system of the sewage of the main drainage system of the city of Boston 
at such place or places as the commission, after consultation with the com- 
missioner of public works of said city, shall determine to be most prac- 
ticable. The commission shall also make all connections, and construct 
intercepting sewers necessary to enable the city of Quincy to drain the 
territory in the Squantum section of said city now connected to the Boston 
main drainage system into the metropolitan sewerage system." 

The requirement that plans for these projects be approved by the De- 
partment of Public Health, referred to in your first question, appears in 
the second paragraph of the same section : 

"None of the projects authorized by this section shall be undertaken 
unless it is approved by the governor ; nor shall any act be done under 
authority of this section, except the making of surveys, plans and borings 
and other preliminary investigations for submission to the governor for 
approval, until the plans of the system of sewerage and sezvage disposal 
herein authorised have been approved by the department of public health. 
Upon application to said department for its approval of any sewage dis- 
posal works, it shall give a hearing after due notice to the public. At such 
hearing, plans showing in detail all the work to be done in constructing 
such sewage disposal works shall be submitted for approval by said de- 
partment." (Emphasis supplied.) 

The Division of Water Pollution Control is established as an agency 
within the Water Resources Commission, and its responsibilities are de- 
fined in G. L. c. 21, §§ 26-50. These sections were added to the General 
Laws by St. 1966, c. 685, § 1. As its name suggests, the Division is given 
the duty "to enhance the quality and value of water resources and to estab- 
lish a program for the prevention, control, and abatement of water pollu- 
tion." G. L. c. 21, § 27. In order to reconcile this and many other new 
provisions inserted in the General Laws by c. 685 of the Acts of 1966 
with preexisting statutes, the Legislature goes on to provide that "wher- 
ever in any general or special law reference is made to the authority to 
administer water pollution abatement or control laws, such authority shall 
... be vested in the division of water pollution control. ..." St. 1966, c. 
685, § 3. 



160 P.D. 12 

The answer to the first of your questions depends upon whether or not 
the above-quoted language of St. 1966, c. 685, § 3 has the effect of entirely 
substituting approval by the Division of Water Pollution for approval by 
the Department of Public Health under St. 1951, c. 645, § 2. In my 
opinion no such total substitution was intended by the Legislature. 

Approval by the Department of Puljlic Health has long been a routine 
requirement in enabling legislation for sewerage projects. During the 
same year in w^hich the Metropolitan District Commission was authorized 
to undertake the projects at issue here, the Legislature created the Lanes- 
borough Garden Circle Sewer District and imposed the condition that the 
plans for its sewerage system be "approved by the state department of 
public health. ..." St. 1951, c. 133, § 14. The Legislature, again in the 
same year, authorized the Town of Clarksburg to construct a system of 
sewerage and sewage disposal, but again, not "until the plans for said 
system of sewerage and sewage disposal have been approved by the de- 
partment of public health. ..." St. 1951, c. 668. § 9. There have been 
many other special acts authorizing sewer districts and towns to construct 
works of this kind, enacted in some cases before the turn of the century 
(see, for example, St. 1887, c. 403), which include the same requirement 
of approval by the Department of Public Health and its predecessors. 
Many of them predate the present-day concern over water pollution, and 
many of them relate to projects whose geographical location is such that 
water pollution could scarcely have been a significant concern. 

The jurisdiction and responsibilities of the Department of Public Health 
are, of course, exceedingly broad. Under G. L. c. Ill, § 5, the Depart- 
ment is charged with the duty to "take cognizance of the interests, life, 
health, comfort and convenience among the citizens of the commonwealth," 
including the conduct of "sanitary investigations and investigations as to 
the causes of disease. ..." The Department's functions extend far be- 
yond the control of water jxillution ; and, important though this subject 
may be in the construction and operation of sewage disposal facilities, 
there are many other considerations relative to public health, sanitation 
and the prevention of contagious disease involved in designing an appro- 
priate sewerage system. We may infer that the Legislature intended the 
Department to take all these considerations into account in reviewing the 
projects authorized by St. 1951, c. 645. 

Accordingly, since the Legislature, in requiring approval by the Depart- 
ment of Public Health under the 1951 statute, must be assumed to have 
had in mind more than the Department's then responsibility for adminis- 
tering water pollution abatement or control laws, I am of the opinion that 
the 1966 law does not abrogate the need for such approval. 

In view of my answer to your first question, no answer to your second 
question is required. 

With respect to your third question, I am of the opinion that St. 1966, 
c. 685 does have the effect of requiring approval by the Division of Water 
Pollution Control of sewerage projects to be constructed under St. 1951, 
c. 645, as well as approval thereof by the Department of Public Health. 
While, as indicated above, the approval provision of St. 1951, c. 645, § 2 
was intended to be more than an anti-pollution measure, the abatement and 



P.D. 12 161 

control of water pollution was plainly within its intended scope. Prior to 
the 1966 amendments, one of the major functions of the Department of 
Public Health was to control the pollution or contamination of any or all 
of the lakes, ponds, streams, tidal waters and fiats within the Common- 
wealth. ..." G. L. c. Ill, § 5. For this reason I think that St. 1951, c. 
645, § 2 must be interpreted as containing an implicit "reference" to the 
authority of the Department of Public Health "to administer water pollu- 
tion abatement or control laws" without respect to the particular sewerage 
projects therein authorized. St. 1966, c. 685, § 3. It follows that the ap- 
proval powers vested by the 1951 act in the Department of Public Health 
have, in so far as they confer "authority to administer water pollution 
abatement or control laws" (but not otherwise), been transferred to the 
Division of Water Pollution Control. 

Any other reading of St. 1951, c. 645 and St. 1966, c. 685, § 3 would 
eliminate an important safeguard provided by the approval requirement 
of the 1951 statute. St. 1966, c. 685 was enacted to strengthen and con- 
solidate the Commonwealth's efforts in the field of water pollution control. 
This clear legislative purpose would be undermined if the 1966 statute 
were interpreted as making it unnecessary that the projects in question 
meet the standards of the agency primarily charged with water pollution 
control. 

It is, therefore, my opinion that approval by the Division of Water 
Pollution Control is now required under St. 1951, c. 645, § 2. as well as 
approval by the Department of Public Health. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



84. February 20, 1967. 

Honorable Harry C. Solomon, M.D., Commissioner, Department of 
Mental Health. 

Dear Commissioner Solomon: — You have requested my opinion rela- 
tive to the proposed acquisition of land by your department under item 
8066-43 of St. 1965, c. 791, for purposes of a community habilitation 
and daytime treatment center. Item 8066-43 reads as follows : 

"For the preparation of plans for a mental health treatment center, as 
authorized by chapter five hundred and seventy-one of the acts of nineteen 
hundred and sixty-four, including the acquisition of certain land by pur- 
chase or by eminent domain under chapter seventy-nine of the General 
Laws; provided that no payment shall be made for the purchase of said 
property until an independent appraisal of the value of the property has 
been made by a qualified, disinterested appraiser. $125,000." 

(Emphasis supplied.) 

You state that the basis for said appropriation item was State Building 
Project Request, Form CO 1 (which I shall hereinafter call the "Re- 
quest") submitted by you to the Commissioner of Administration on May 
20, 1965. You have provided me with a copy of the Request. The prop- 
erty to be acquired, as referred to in the Request, is located on Crane 
Avenue, Pittsfield. You further state: 



162 P.D. 12 

"We have recently been advised by the Berkshire Mental Health Asso- 
ciation that the Crane Avenue site is no longer desirable and that a site 
near Onota Lake in Pittsfield should be acquired. This is some 2^ miles 
from the Crane Avenue site." 

You ask whether the appropriation item in its present form would permit 
acquisition of any parcel of property other than that referred to in the 
original request form. 

In my opinion, item 8066-43 of St. 1965, c. 791, does not authorize 
acquisition of property other than the Crane Avenue property. 

St. 1965, c. 791 was approved by the Governor on December 9, 1965, 
and item 8066-43 thereof was, as you state, based on your Request pre- 
viously submitted on May 20, 1965. In the Request, authority is re- 
quested solely for the acquisition of "certain land with buildings thereon" ; 
and "the property to be acquired" is specifically described in explicit de- 
tail, said described property being that located on Crane Avenue only. 

In preparing item 8066-43 for insertion in the budget, the Budget Com- 
missioner would have had your Request before him ; and, indeed, the 
references in item 8066-43 to "certain land" and "said property" follow 
identical language found in the Request where they referred to the Crane 
Avenue property. By carrying over the terms "certain land" and "said 
property" from the Request to the actual appropriation, the Legislature 
indicated that it was granting to your department only the authority sought 
in your Request — ■ namely, an authority limited to acquisition of the 
Crane Avenue property. 

I accordingly am obliged to conclude that item 8066-43, St. 1965, c. 
791, does not authorize acquisition of the property near Onota Lake, or 
any land other than the Crane Avenue property contained in the Request 
upon which said item was based. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

85. February 20, 1967. 

Honorable John A. Gavin, Commissioner of Correction. 

Dear Sir: — You have requested an opinion of the Attorney General 
relative to a George C. Toumpouras, who held the position of Correction 
Social Worker in the Department of Correction. You have attached to 
)'Our request several letters, including a letter dated November 17, 1966, 
from an attorney representing Mr. Toumpouras. This letter is, in sub- 
stance, a claim brought on behalf of Mr. Toumpouras for salary which he 
alleges is due him from your Department. 

From these various documents, there appear the following facts : On 
September 15, 1957, Mr. Toumpouras was appointed by the then Gover- 
nor of the Commonwealth to the position of Associate Commissioner of 
Public Works. Simultaneously, the then Commissioner of Correction 
granted him a leave of absence without pay from his position of Correction 
Social Worker with the Department of Correction. Further leaves of ab- 
sence without pay were granted at six-month intervals, up to and including 
December 31, 1966. In all instances, Mr. Toumpouras requested the 



P.D. 12 163 

leaves of absence. On October 15, 1963, Mr. Toumpouras was suspended 
from his position of Associate Commissioner of Public Works by the then 
Governor of the Commonwealth pursuant to G. L. c. 30, § 59 (the so- 
called Perry Law) as a consequence of pending criminal indictments 
against him based on alleged misconduct in his position as Associate Com- 
missioner of Public Works. These indictments were nolle prossed on July 

29. 1966. 

St. 1963, c. 821, effected a reorganization of the Department of Public 
Works. Pursuant to § 4 thereof, the tenure of the then Associate Com- 
missioners (the office held by Mr. Toumpouras) was to cease upon quali- 
fication of two Associate Commissioners appointed under the provisions 
of § 1. The two Associate Commissioners were appointed on December 

30, 1963. As a result of a request from the Honorable Edward J. Ribbs, 
Commissioner of Public Works, it was my predecessor's opinion, with 
which T concur, that since the criminal proceedings terminated against Mr. 
Toumpouras without a finding or verdict of guilty on any of the charges 
on which he was indicted, Mr. Toumpouras was entitled to receive what- 
ever salary would ordinarily have been paid him from the date of his sus- 
pension to the date of qualification of the two Associate Commissioners. 
Op. Atty. Gen. 66/67 No. 2 (interpreting G. L. c. 30, § 59). From the 
letter of the attorney for Mr. Toumpouras, it does appear that Mr. Toum- 
pouras received from the Department of Public Works his salary from 
the date of suspension (October 15, 1963) to the date of the qualification 
('December 30, 1963) of the two Associate Commissioners. 

He now alleges that he is entitled to receive his salary from the Depart- 
ment of Correction from December 31, 1963 to July 29, 1966 (the date the 
indictments were nolle prossed). He contends that it would have been 
contrary to both the meaning and intent of G. L. c. 30. § 59 for one depart- 
ment of the Commonwealth to take back an employee who was suspended 
from another department as a result of criminal indictments returned 
against him. He states that for this reason, and for reasons of "personal 
embarrassment," he never requested to be taken back by the Department 
of Correction. Thus, he submits that G. L. c. 30, § 59 necessitates the con- 
clusion that he is now entitled to be fully compensated for the period from 
December 31, 1963 to July 29, 1966. since the criminal proceedings referred 
to were "terminated without a finding or verdict of guilty on any of the 
charges on which he was indicted." 

On the foregoing facts, you have requested my opinion regarding his 
claim. 

This claim must, in my opinion, be disallowed under the actual situation 
you present. General Laws c. 30, § 59 does not authorize reimbursement 
for back pay except for any period during which an employee was "sus- 
pended." Since Mr. Toumpouras was not under any form of suspension 
by your Department from December 31, 1963 to July 29, 1966, the "Perry 
Law" does not authorize reimbursement for that period. Mr. Toumpouras 
voluntarily sought and was granted a leave of alisence without pay up to 
and including December 31, 1966. At six-month intervals during the entire 
period for which he now seeks compensation, he renewed his voluntary 
request for a leave of absence without pay. I know of no authority which 
would permit you to rely on anything but the outward manifestations of a 
person under such circumstances. Cf., Greany v. McCormick, 273 Mass. 



164 P.D. 12 

250, 253 and cases cited. >dr. Toumpouras' persona! and unexpressed 
reasons for seeking- the leave of absence without pay are not relevant. 
[hid. The fact is, he did so. 

Furthermore, G. L. c. 30, §59 does not prevent a department of the 
(.'ommonwealth from taking Ixick an employee who was suspended from 
another department as the result of criminal indictments returned against 
him. Suspension of an employee is only permissive. The statute says 
"may . . . suspend." The use of the word "may" in a statute commonly 
imports discretion. E.q., Dascalakis v. CoinnwmvcaltJi. 244 Mass. 568, 569 ; 
Irivin v. Municipal Court of the Brighton District, 298 Mass. 158, 160; 
Turnpike Amusement Park, Inc. v. Licensing Commission of Cambridge, 
343 Mass. 435, 437. I recognize that in most situations where an officer 
or employee of the Commonv/ealth is indicted for misconduct in connection 
with his office or employment an appointing authority will wish to avail 
itself of G. L. c. 30, § 59 and su.'^pend the officer or em])]oyee. Nonetheless 
in exceptional circumstances an appointing authority may have sound 
reasons for continuing the employment of the indicted officer or employee. 
I find nothing in the statute that requires a dififerent construction. See 
Turnpike Amusement Park, Inc. v. Licensing Commission of Cambridge, 
supra at 437-438. 

Only the Department of Correction, as the appointing authority in ques- 
tion, had the power to decide ^\•hether or not to suspend Mr. Toumpouras 
from his position as Social Worker. However, your Department was 
never asked to reinstate Mr. Toumpouras and never had occasion to exer- 
cise this power. It is unnecessary, therefore, to speculate as to what you 
would have done had Mr. Toumpouras asked to return to active status. 
Suffice to say that at no time during the period in question was Mr. Toum- 
pouras suspended by the Department of Correction. It is therefore my 
opinion that Mr. Toumpouras' claim for salary cannot be allowed. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



86. February 21, 1967. 

Mr. Malcolm E. Graf, Director and Chief Engineer, Water Resources 
Commission. 

Dear Mr. Graf: — In your letter of December 14, 1966 you requested an 
oj)inion with reference to c. 581 of the Acts of 1966. You have asked the 
following questions : 

1. "Where section 2 of said Act states ' . . . directed to construct an 
850 foot long dam . . . with a spillway at elevation 128 .. . immediately 
above the crossing of said river by Pond Street ..." does this mean that we 
cannot make reasonable adjustment in location or elevation as may be de- 
termined by careful surveys and borings in the vicinity?* 

'Section 2 reads as follows: "Said commission is hereby further authorized and directed to con- 
struct an eight hundred and fifty foot long low head earth dam with a spillway elevation of one 
hundred and twenty-eight in the town of Braintree on the Upper Blue Hill river immediately above 
the crossing of said river by Pond Street for the diversion of the flood runoff of said river, said 
dam raising the levell of the water in the Blue Hill river to elevation one hundred and Jwenty- 
seven at which it will flow by gravity through a forty-two inch culvert into Great Pond." 



P.D. 12 165 

2. "Must we keep the maximum level of the water in the reservoir at 
elevation 127? 

3. "Could we, if it was found to be more feasible, excavate a pool to be 
pumped from in lieu of a dam?" 

Before answering your questions, I observe that the feasibility report 
does not show a crossing of the Blue Hill River by Pond Street in Brain- 
tree. Since Pond Street in Randolph continues as West Street in Brain- 
tree, I think the Act is to be read to refer to a crossing by West Street. 
Apparently the feasibility study disclosed the possibility of building the 
l)roposed dam at a point a short distance above that crossing. Such a dam, 
however, would not be wholly "in the Town of Braintree," because at that 
point the Blue Hill River is the dividing line between the Town of Brain- 
tree and the City of Quincy. A dam across that stream at that location 
would be located in both municipalities. 

Notwithstanding these inaccuracies, the dam's intended location seems 
sufficiently plain from the legislation. 

In answer to Question 1, the statutory location and elevation require- 
ments must, in my opinion, be substantially adhered to, although with 
reasonable tolerances. I would add that if you find that a dam of prescribed 
height may be constructed at the prescribed location, but of a slightly dif- 
ferent length because of a difference in measurement between the uplands 
on each side to be connected by the dam, it is my opinion that you may 
construct such a dam even though the length measurement may vary 
slightly from that called for in the statute. The elevation of the spillway, 
however, would seem to be more critical, because of its possible effect on 
surrounding lands or purposes to be served. If it is possil)le to construct 
to the specified elevation without flooding either jirivate property on the one 
hand or public facilities, such as Route 128, on the other hand, the specified 
elevation should be observed, always, of course, within reasonable toler- 
ances. If it is not possible for the reasons above stated, or other reasons, to 
build to approximately the specified height, you should return to the Legis- 
lature for clarification or modification of its directive. Similarly, you 
should return to the Legislature if the dam cannot be constructed at a loca- 
tion reasonably within the language, "immediately above the crossing of 
said river by Pond [West] Street." 

In answer to Question 2, the dam should be so constructed that the 
maximum level of water in the reservoir behind the dam would be eleva- 
tion 127, under foreseeable conditions. 

My answer to Question 3 is in the negative. Section 2 of St. 1966, c. 581, 
provides that the purpose of the dam is "for the diversion of the flood run- 
otT of said river. ..." The intent of this legislation is to provide a flood 
control reservoir with perhaps some incidental benefit to local vv^ater supply 
resources. The construction of the pool to which you have referred was 
not specifically authorized and would not accomplish what is at least the 
declared purpose of the legislation. 

In view of the problems raised by your questions relative to this legis- 
lation, you may well determine that you should return to the Legislature 
for a somewhat broader or dififerent authority before proceeding with the 
work. Certainly, if, as you suggest in your letter, you find that it is possi- 



166 P.D. 12 

hie to "provide a better job at a lower cost" by departing from the re- 
quirements of St. 1966, c. 581, you will doubtless want to make your views 
known to the Legislature. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

87. February 27, 1967. 

Honorable Robert L. Yasi, Commissioner of Natural Resources. 

Dear Commissioner Yasi : — Your predecessor in office has requested 
an opinion of the Attorney General as to whether or not G. L. c. 130, § 80 
requires a certificate for 

(1) "Sportsfishermen who sell their catches to persons who sell at 
wholesale or retail" ; or 

(2) "Fishing vessel catches which are sold to persons who resell at 
wholesale or retail." 

The introductory paragraph of G. L. c. 130, § 80 provides (with ex- 
ceptions not here relevant) that "no person shall engage in the commercial 
distribution of fish in this commonwealth as set forth herein unless he is 
the holder of a certificate hereinafter mentioned in full force and efifect 
therefor. ..." The next four paragraphs of § 80 deal with specific activi- 
ties and the types of certificates required therefor. These requirements are 
as follows : 

( 1 ) A "bed certificate" for commercial use, digging or taking of shell- 
fish other than scallops ; 

(2) A "dealer's shellfish certificate" for commercial distribution of 
shellfish or operation of a shucking plant ; 

(3) A "dealer's shellfish shipping certificate" for purchases of shellfish 
for shipment outside the Commonwealth, or for maintaining a packing 
plant for such shipment, and a "digger's shellfish shipping certificate" for 
digging or taking shellfish for such shipment or packing ; 

(4) A "wholesale fish dealer's certificate" for commercial distribution 
of fish other than shellfish by a wholesale dealer. 

Thus, § 80 does not purport to require certificates for all persons who 
"engage in the commercial distribution of fish." Rather, its introductory 
paragraph refers only to "the comn-iercial distribution of fish in this com- 
monwealth as set forth herein," and to "a certificate hereinafter nien- 
iioned." (Emphasis supi)lied.) In this way the application of § 80 is con- 
fined to the four types of "commercial distribution of fish" enumerated 
above and to the particular types of certificates mentioned by the statute 
in reference thereto. 

The first three of these four types of activities relate exclusively to shell- 
fish. Assuming that neither of the questions presented was directed at such 
activities, I conclude that the only type of certificate (if any) required by 
a sportsfisherman or fishing vessel would be a "wholesale fish dealer's 
certificate." 



P.D. 12 167 

The full text of the provision in § 80 requiring that type of certificate 
is as follows : 

"No person, as a wholesale dealer, shall engage in the commercial dis- 
tribution of fish other than shellfish within this commonwealth or ship the 
same outside the commonwealth without first obtaining a wholesale fish 
dealer's certificate." 

The term "wholesale dealer," as used in the foregoing provision is defined 
in G. L. c. 130, § 1 as "any person who distributes fish commercially in bulk 
or for resale by a dealer, or who operates branch stores for the retail sale 
of fish." 

A sportsfisherman who sells his catches is not normally one who "dis- 
tributes fish commercially in bulk," and is plainly not a branch store opera- 
tor. While he may under some circumstances be one who sells fish "for 
resale by a dealer," I do not think that the Legislature intended the term 
"wholesale dealer" to include a bona fide sportsfisherman who engages oc- 
casionally and spontaneously in isolated transactions involving the sale of 
small quantities of surplus fish. The definition of "wholesale dealer" in § 1 
is restricted to a "person who distributes fish coinmer daily," and the cer- 
tificate requirement in § 80 to "the commercial distribution of fish." (Em- 
phasis supplied.) A sportsfisherman who on rare occasions sells a few fish 
that he cannot himself use would not seem to be engaging in a "commercial" 
activity, as that term is normally understood. 

Still, I do not believe that all fishermen who claim to be fishing solely 
for recreation are exem]it from the statutory requirement. If a fisherman 
makes a practice of selling his catches for resale by dealers, or if he sells 
a substantial number of fish for such resale, I think that the Department 
of Natural Resources would be justified in treating him as a "wholesale 
dealer" and requiring him to obtain a certificate. 

There will inevitably be occasions when it will be difficult to draw the 
line between isolated non-commercial transactions and commercial activity. 
In dealing with such cases the Department may appropriately take into 
account that a certificate can be obtained for the relatively small fee of $20. 
G. L. c. 130, § 83. It is also significant that § 80 seeks to protect the public 
health* and the public's interest in natural resources. The determination 
in borderline cases, as to whether or not a certificate should be required 
is one which is most properly made by your Department, focusing its ex- 
perience and expertise on the immediate factual situation. 

The answer to part (2) of the question depends upon the type of "fish- 
ing vessel catches" referred to. If reference is to the catch of a fisherman 
who engages in fishing as a business or occupation, I am of the opinion 
that he is a "wholesale dealer" as that term is defined in G. L. c. 130, § 1, 
and must obtain the "wholesale fish dealer's certificate" required by G. L. 

"The fact that G. L. c. 130, § 80 was intended in part as a public health measure is apparent from 
the following provision thereof: 

" . . . At the request of the commissioner of public health, or of his own motion, the director 
shall revoke and caned and require the surrender of any certificate issued by him under this sec- 
tion if, in his opinion, after a hearing, after due notice, by him or some person designated by him, 
the holder thereof is guilty of violating any rule or regulation of the director or of the department 
of public health pertaining to fish or the sale thereof, or any provision of this section or section 
seventy-five, or upon a change in the facts and conditions set forth in such certificate. Pending 
the hearing the certificate shall be suspended. Whoever violates any provision of this section shall 
be punished by a fine of not less than ten nor more than fifty dollars or by imprisonment for 
thirty days, or both." 



168 P.D. 12 

c. 130, § 80. There is no statutory exemption for commercial fishermen. 
Nor is there any parallel system of licensing or certification to suggest that 
they be treated otherwise than as wholesale dealers. 

If, on the other hand, the question refers to the surplus catch of a char- 
ter-party fishing ijoat engaged by a group of sportsfishermen the criteria 
suggested above in connection with sportsfishermen would apply. In gen- 
eral, I am of the opinion that if a charter boat operator makes a practice 
of selling excess fish for resale, and such sales are not so infrequent and 
isolated as to fall short of being a "commercial" activity within the ordin- 
ary meaning of that term, he should be required to obtain a certificate 
under G. L. c. 130, § 80. 

The factual determination as to whether or not your Department should 
insist upon the procurement of a certificate for the sale of fishing vessel 
catches in borderline situations, as indicated in my answer to part (1) of 
the question, is one which is most properly made by your Department. 

Very truly yours, 
Elliot L.. Richardson, Attorney General. 



88. February 27, 1967. 

Honorable James T. Bleiler, Chairman, Outdoor Advertising Board. 

Dear Mr. Bleiler: — By letter dated December 21, 1966, you have re- 
quested an opinion of the Attorney General on certain questions relating 
to the application of c. 93, §§ 29 and 29A, relevant portions of which are 
set forth in your letter. 

Your first question is : 

"Under each of the forms of local government in the Commonwealth, 
what officer or body of the local government may make objection to an ap- 
plication for a permit to maintain an advertising device in the city or town, 
and request a hearing on such application?" 

Section 29A is applicable here. Its pertinent provisions are : 

"Whenever, within thirty days after notification to the city or town, 
the board shall have received written objection to an application for permit, 
such permit shall issue only after consideration by the board of such objec- 
tion, and whenever, within thirty days after notification to the city or town, 
the board shall have received written notice of intention to appear in op- 
position to the application, the board shall issue such permit only after a 
public hearing on due notice to the applicant and the city or town." 

This language contains no specific statement as to who in the city or town 
ib entitled to file written objections. We must, therefore, consider the in- 
tent of the Legislature in providing that before granting a permit, con- 
sideration must be given by the Board to any written objection to an appli- 
cation received in thirty days after "notification to the city or town" and 
hold a public hearing if given "written notice of intention to appear in op- 
jiosition." 



P.D. 12 ■ 169 

The obvious intent, in my opinion, is to make certain that before a bill- 
board is erected in a city or town, the local authorities may have an oppor- 
tunity to call to the attention of the Board any relevant objections. These 
objections may be based on specific ordinances or by-laws, or they may 
rest on broad grounds of public policy. They may relate to safety factors, 
or be merely aesthetic. See General Outdoor Advertising Co. v. Depart- 
ment of Public Works, 289 Mass. 149, 159. The Board is not required to 
comply with them, but it is required to listen to them if they relate to "the 
proper control and restriction of billboards, signs and other advertising 
devices." (§ 29.) 

If this is the intent of the statute, as I think it is, then it is not of major 
importance which officer or board (or agent of such ofificer or board) 
raises the objection. It is important only that the ofificer or board have a 
legal duty which is relevant to the question, and that the objection be heard 
and weighed. For example, if a building inspector, having a duty to enforce 
the building or zoning by-laws, considers the proposed structure a violation 
of such by-laws, he should be able to object and be heard on his objection. 

If a policy-making board, such as a city council, the selectmen of a town, 
or a planning board wishes to raise an objection based on grounds of local 
public policy, it should be able to do so. 

As long as the written objection required by § 29A comes from an offi- 
cial body or official of a city or town whose duties, policy making or other- 
wise, have relevance to the granting of the permit, I am of the opinion that 
it must be received and considered and a public hearing held, if requested, 
by the official body or official. Inasmuch as all written objections must be 
submitted so as to be received within thirty days after notification by your 
board, all objections from a particular municipality can be considered in a 
single hearing. 

In this connection, the provision in § 5 of the Rules aiid Regulations of 
the Board providing for "the approval of the Mayor and Aldermen, if in a 
city, and the Board of Selectmen, if in a town," of temporary sign locations 
does not obviate the necessity for consideration of a written objection re- 
ceived from another official city or town body or officer, having duties in 
relation thereto, and a hearing, if requested. Your rules and regulations 
should be amended to make this clear. 

For these reasons, my answer to your first question is that any officer or 
official body of a city or town, which or who has an ofificial duty to the town, 
v\ hetber executive or policy making in nature, which the granting of a per- 
mit might in any way affect, is entitled to make an objection in writing to 
your board under the provisions of § 29A. 

The statute requires that if a written objection is filed, it must be con- 
sidered, and that if notice of intention to appear is filed, a hearing must be 
held. At the same hearing, it is within the discretion of your board to hear 
other municipal officials if your board sees fit to do so, and to attach such 
weight to the testimony and opinions adduced at that hearing as you think 
is justified. 

Secondly, you ask: 

"May a city or town delegate the authority to approve or disapprove an 



170 P.D. 12 

application for a permit and to request a hearing to a subordinate official 
of the city or town?" 

The statute, as pointed out above, does not give cities or towns authority 
to approve or disapprove applications. So far as your Board has done so by 
regulation, you may specify what official or board is to give the approval. 
However, as stated above, the Board must itself consider written objections 
and hold a hearing upon receipt of written notice of intention to appear in 
opposition from any municipal officer or board interested. 

I see no reason why this authority may not be delegated by the officer or 
boards concerned. 

Your third and final question is whether your Board should demand 
written proof of such delegation of authority before accepting action by a 
subordinate official as the action of a city or town. 

If your Board, in its experience, finds that such a requirement is desira- 
ble, it cannot be said to be unreasonable. However, as stated in my answer 
to your first question, since in my opinion an objection can be lodged and 
a hearing insisted upon by any municipal officer or board having duties 
broadly relating to the subject matter, such delegation need only l)e shown 
to have come from such an officer or board. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

89. March 7, 1967. 

Samuel M. Flaksman, Esquire, Executive Secretary of the Executive 
Council. 

Dear Mr. Flaksman : — You have asked, in behalf of the Executive 
Council, my opinion as to whether veterans' benefits under G. L. c. 115, as 
amended, may be paid to a veteran whose alleged need for such benefits 
arises from the fact that he is engaging in a strike against his employer as 
a result of a labor dispute. 

You state that two previous attorneys general have rendered conflict- 
ing written opinions interpreting the applicable language in c. 115, and the 
Council wishes to resolve the matter at this time. 

G. L. c. 115 § 5 in ^2 states in part : 

"... [Sjuch benefits shall not be paid to any person who is able to sup- 
port himself. ..." 

and in j|3 : 

"... [UJnless the commissioner, at his discretion, shall otherwise de- 
termine, no veterans' benefits shall be paid . . . to or for any veteran or 
applicant if the necessity therefor is caused by his voluntary idleness. ..." 

On July 19, 1948, the Attorney General ruled that it was his opinion that : 

" . . .to strike and to remain on strike without seeking employment with 
a new employer is to engage in 'voluntary idleness,' as the quoted words 



P.D. 12 171 

are used in said Chapter llS, and if the necessity for veterans' benefits is 
caused by such voluntary idleness, under the terms of the statute they may 
not be paid." Report of the Attorney General for the Year Ending June 
30, 1948 [sic], p. 75. 

On October 8, 1949, his successor as Attorney General, in a more 
lengthy opinion, ruled to the contrary, stating in part, 

"The particular language in [c. 115] . . .is to be read not only in con- 
junction with the entire context of the section from which the language 
. . . has been extracted but also in conjunction with the context of the 
entire chapter in so far as the chapter relates to veterans' benefits. All this 
is necessary in order to arrive at a fair, reasonable and rational conclusion 
in determining the legislative intention." Report of the Attorney General 
for the Year Ending June 30, 1950, p. 25. 

In an opinion on another matter, the Attorney General on October 15, 
1958, stated: 

"As a general proposition, any veteran who is participating in a lawful 
strike is entitled to receive veterans' benefits provided he satisfies the re- 
quirements of the statute." Report of the Attorney General for the Year 
Ending June 30, 1959, p. 43. 

Since 1949, the year in which an opinion was rendered that striking vet- 
erans could receive benefits, the General Court has amended § 5 no less than 
nine times, including a 1956 amendment which comj^letely rewrote 1|3 — 
the paragraph which contains the language in question. 

Prior to 1956 G. L. c. 115 § 5 provided: 

"No veteran's benefits shall be paid to or for any applicant if the neces- 
sity therefor is caused by his voluntary idleness . . . unless the commis- 
sioner, after a hearing, shall otherwise determine. ..." 
In rewriting this paragraph, in 1956, the General Court struck the require- 
ment of a hearing and granted to the Commissioner of Veterans' Services 
his present unconditional discretionary power to pay benefits even if the 
necessity therefor is caused by the voluntary idleness of the veteran. 

The Commissioner of Veterans' Services is the agent charged with ad- 
ministration of G. L. c. 115. It was the Commissioner who sought and re- 
ceived the 1949 opinion. He has relied upon that opinion in exercising his 
statutory discretion and in determining the qualification of applicants for 
veterans' benefits under § 5 of c. 115 for nearly 18 years. 

If the General Court had not been in accord with the administrative 
practice of paying veterans' benefits to veterans on strike, it could have 
added appropriate language to the statute at any time and would most cer- 
tainly have done so in 1956 when ^3 was totally rewritten. It is significant 
that the 1956 amendment actually strengthened the commissioner's discre- 
tionary power to confer benefits. 

The Supreme Judicial Court in a 1964 decision stated: 

"The duty of statutory interpretation is for the courts. Nevertheless, 
particularly under an ambiguous statute . . . the details of legislative 
policy, not spelt out in the statute, may appropriately be determined, at 



172 P.D. 12 

least in the first instance, liy an agency charged with administration of the 
statute." CIcary v. Cardullo's Inc., 347 Mass. 337, 344. 

I am accordingly not inclined at this time to issue an opinion which 
might have the effect of altering well-settled administrative policy which 
has been in existence with apparent legislative acquiescence, for nearly a 
generation. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

90. March 13, 1967. 

Honorable Edward J. Ribb.s, Coiniiiissioner of Public Works. 

Dear Commissioner Ribbs : — Your predecessor has requested the opin- 
ion of the Attorney General upon the following questions : 

"1. Where there is no written notice to the Department of a claim from 
the collector of taxes of the town in which such real estate is located under 
Section 44A of Chapter 79 when real estate is taken in whole or in part by 
the Department by eminent domain : 

"a. Can the Department pay said town that portion of a damage award 
allocated to taxes ; or 

"b. Must the Department pay said portion of a damage award allocated 
to taxes to the person from whom the taking was made? 

"2. In view of your opinion to me dated March 24, 1965, on page 2 
thereof, in which you state, 'It is my opinion that interest is payable upon 
that portion of a damage award allocated to taxes,' and if the collector of 
taxes of the town in which said real estate is located, gives the Department 
written notice of a claim under Section 44A of Chapter 79. to whom shall 
the Department pay said interest allocated to taxes — to the collector of 
taxes of the town in which such real estate is located or to the person from 
whom the taking was made? 

"3. If the collector of taxes of the town in which such real estate is lo- 
cated fails to give the written notice of c'aim provided in Section 44A of 
Chapter 79, to whom shall the interest allocated to taxes be paid?" 

General Laws, c. 79, § 44A, to which reference is made in all of these 
questions, provides as follows : 

"If real estate taken in whole or in part by eminent domain was at the 
time of said taking subject to any lien for taxes, assessments or other 
charges, which is extinguished by such taking, and if the collector of taxes 
of the town in which such real estate is located gives written notice of a 
claim of the amount covered by such lien to the body politic or corporate, 
on behalf of which such taking was made, prior to the payment of any 
award of damages for such taking or to the entry of judgment therefor, 
said collector shall be entitled to be paid such amount before any payment 
of damages for such taking is made to any other party ; and any amount 
so payable on account of such taxes, assessments or other charges shall be 
deducted from the amount of such damages otherwise payable." 



P.D. 12 173 

In answer to Question 1, I am of the opinion that if the Collector of 
Taxes fails to give written notice as provided in G. L. c. 79, § 44A, your 
Department may not pay any portion of the damages awarded for land 
taken to the municipality in which it is located, but must pay the entire 
amount of such damages to the j>erson from whom the land is taken. 

A taking of land by eminent domain extinguishes any tax lien upon such 
land. Collector of Taxes v. Revere Building, Inc., 276 Mass. 576; Richard- 
son V. Boston, 148 Mass. 508. The purpose of G. L. c. 79, § 44A is to es- 
tablish a procedure whereby the Collector of Taxes may recover directly 
from the taking authority the amount secured by the lien prior to the de- 
struction of that lien by the taking. General Laws c. 79, § 7F requires that 
the Collector of Taxes of a municipality be notified whenever land therein 
is taken. The initiative is then left with the Collector of Taxes. General 
Laws c. 79, § 44A provides in plain language that the municipality is 
"entitled" to be paid the amount secured by the lien "if" the Collector of 
Taxes "gives written notice" to the taking agency "prior to the payment 
of any award of damages for such taking or to the entry of judgment 
therefor. ..." 

The Collector of Taxes must therefore act within the statutory period, 
or forfeit the opportunity to avail himself of G. L. c. 79, § 44A. Apart 
from § 44A, your Department is given no authority to make direct paym.ent 
to the Collector of Taxes of amounts owing on account of back taxes. 

Your reference in Question 1 to "that portion of a damage award allo- 
cated to taxes" is evidently directed at the following provision of G. L. c. 
79, § 12: 

"Whenever the title or interest taken is such that the property will be 
exempt from taxation so long as it is held and used for the purposes for 
which it is taken, the damages for the taking shall include an amount 
separately determined and stated which shall he estimated to be equal to that 
portion of the tax assessed upon the property in the year it is taken which, 
if the tax were apportioned pro rata according to the number of days in 
such year, would be allocable to the days ensuing after the taking." 

The purpose of this provision is to reimburse the owner of the land taken 
for a fair share of the taxes assessed upon his property "in the year it is 
taken". It appears in c. 79 as an element of damages payable to anyone 
from whom taxable land is taken, in the same sense that the value of the 
land taken is an element of such damages. 

The purpose of G. L. c. 79, § 44A is entirely different. That section has 
no effect on the amount of damages payable, but only on their apportion- 
ment. Moreover, the amount allocable to the Collector of Taxes under § 
44 A bears no necessary relation to the amount payable under § 12; § 44 A 
is broader in that it applies to all local taxes, rather than only those assessed 
during the year of the taking, and to "assessments and other charges" as 
well as taxes ; § 12 is broader in that it applies to all tax liabilities during 
the year of the taking, rather than only those taxes which remain unpaid. 
Contrary to the implication of Question 1, the amount payable to the Col- 
lector of Taxes, upon his filing of notice under § 44A, is drawn from the 
total damages av/arded, without regard to the amount of those damages 
(if any) arising from the tax apportionment provision of § 12. Since the 
latter type of damages is treated no differently than other types of land 



174 P.D. 12 

damages, when the Collector files notice under § 44A, I see no reason for 
them to receive special treatment if the Collector fails to file such notice. 

It is therefore my opinion that your Department has no authority to pay 
a municipality any sum on account of taxes owing on land taken unless 
the Collector of Taxes has fulfilled the condition of written notice in ac- 
cordance with G. L. c. 79, § 44A. In the absence of such notice, the total 
award of damages, including that portion thereof attributable to local 
taxes, must be paid to the person from whom the land is taken. \ 

Questions 2 and 3 arise from an Opinion of the Attorney General dated 
March 24, 1965, in which the then Attorney General stated that "interest 
is payable upon that portion of a damage award allocated to taxes." Report 
of the Attorney General for the Year Ending June 30, 1965, p. 250. Ques- 
tions 2 and 3 can be resolved into the single question : to whom is such 
interest payable? I am of the opinion that it is payable to the person from 
whom the property is taken regardless of whether or not the Collector of 
Taxes has filed notice under G. L. c. 79, § 44A. 

General Laws c. 79, § 37 provides that "damages under this chapter 
shall bear interest at the rate of six per cent per annum from the date as 
of which they are assessed until paid. ..." General Laws c. 79, § 39 pro- 
vides that when a land damage case is settled, "the amount of such settle- 
ment shall bear interest at the rate of six per cent per annum from the date 
of such settlement. ..." Both sections speak in terms of interest payable 
on the damages as a whole, without distinguishing between the interest 
attributable to the value of the land taken and that attril)utable to the tax 
apportionment. There is nothing in these sections or in G. L. c. 79, § 44A 
to suggest that any portion of such interest is payable to the Collector of 
Taxes. 

As indicated in my answer to Question 1, the Collector of Taxes who 
gives notice according to § 44A has a priority claim against taking agency 
for all amounts "payable on account of . . . taxes, assessments or other 
charges" upon the land taken. Such "other charges" include any interest 
owing to the municipality by reason of tax arrearages. Were the munici- 
pality also entitled to the interest payable on account of the tax reimburse- 
ment under G. L. c. 79, § 12, the municipality would be receiving a windfall. 
If the Legislature had intended such a peculiar result, I am convinced that 
it would have expressed this intention in clear language. 

It is therefore my opinion that interest payable on account of damages 
to reimburse a landowner for local taxes, like interest on other elements 
of damage arising from the taking of land, is payable, in all instances, to 
the owner of the land. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 

91. March 16, 1967. 

Mr. William G. Dwyer, President, Board of Regional Community Col- 
leges. 

Dear Mr. Dwyer: — You have asked my opinion on the application of 
c. 601 of the Acts of 1966 to those educational programs in the community 
colleges, operating under the Board of Regional Community Colleges, 



P.D. 12 175 

which are offered in the evening and summer divisions, as authorized by 
G. L. c. 15, § 39, which provides: 

"Each regional community college may conduct summer sessions, pro- 
vided such sessions are operated at no expense to the commonwealth. 
Each regional community college may conduct evening classes, provided 
such classes are operated at no expense to the commonwealth." 

You state in your letter to me that : 

"The community colleges have been offering evening and summer 
courses. . . Faculty salaries, administration of the programs, and clerical 
support are paid for completely from student tuition and fees. For a 
program to be self-supporting, it is necessary to have an enrollment of 
15 paying students in a given course. Without this number, the course 
cannot pay for itself and the college does not have access to other funds 
to make up the deficit." 

Chapter 601 of the Acts of 1966 authorizes the Department of Educa- 
tion to issue a Certificate of Tuition Exemption to any state institution 
of higher education within the Commonwealth to any Vietnam veteran 
as defined in G. L. c. 4, § 7 whose service in Vietnam was credited to 
the Commonwealth. 

You have asked my opinion whether : 

"1. The Board may inform Vietnam veterans that Ch. 601 of the Acts 
of 1966 does not apply to those programs which are self-supporting and 
are, therefore, not financed out of state funds, or 

"2. The Board should direct the separate colleges that there must be 
an enrollment of 15 paying students in addition to Vietnam veterans in 
each course offered in the evening and summer divisions, in order to make 
the offering of such courses possible." 

I interpret your first alternative as, in effect, to deny any tuition exemp- 
tion whatever to Vietnam veterans even where such exemption could be 
granted without expense to the Commonwealth. Your second alternative 
would recognize the exemption to the extent — but only to the extent — 
it could be granted without expense to the Commonwealth. I think that 
the second alternative is correct. 

Under G. L. c. 15, § 39, summer sessions and evening courses must be 
self-supporting. Moreover, G. L. c. 29, §§26 and 27 provide that no de- 
partment, office, commission or institution shall incur an expense unless 
an appropriation by the General Court and an allotment by the Governor, 
sufficient to cover such expense, shall have been made. Accordingly, it 
seems clear that a community college need not, and indeed may not, admit 
a Vietnam veteran on a tuition-free basis if to do so means to operate the 
summer session or evening classes so as to incur any expense to the Com- 
monwealth. 

If, however, a course has sufficient tuition-paying students to enable 
it to be given without expense to the Commonwealth, I am of the opinion 
that students eligible for tuition exemption under c. 601 could be enrolled 
in that course; and I think that to do so would be in keeping with the 
Legislature's intent in enacting c. 601. 



176 P.D. 12 

As authority to issue the Certificate of Tuition Exemption under c. 
601 is given to the Department of Education, I have discussed your re- 
quest for this opinion with the Commissioner and am sending him a copy 
hereof. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

92. March 16, 1967. 

Honorable Theodore W. Schulenberg, Commissioner of Commerce 
and Development. 

Dear Commissioner Schulenberg: — You have asked my opinion on 
several questions involving interpretation of G. L. c. 23A, which provides 
for the appointment by you, subject to the approval of the governor, of 
advisory committees to assist your department in the discharge of its 
duties. 

Specifically, your questions are : 

1. Are you limited to the specific advisory committees set forth in the 
second paragraph of § 6? 

2. If you are not so limited, may you appoint additional advisory com- 
mittees within divisions or bureaus of the department, all necessary in 
your opinion, to assist the department? 

3. If you do make such appointments in addition to the specific com- 
mittees named in paragraph 2 of § 6, may the members be reimbursed 
for expenses? 

General Laws c. 23A, § 6 states in part: 

"To assist the department in the discharge of its duties the commis- 
sioner shall appoint, without regard to chapter thirty-one but with the 
approval of the governor, advisory committees from among interested 
citizens of the commonwealth. There shall be advisory committees 
on : .... " 

The statute in paragraph 2 then names eleven specific advisory committees 
which you are to appoint. Paragraph 3 states, in part : 

"Members of such committees shall receive no compensation for their 
services, but may be reimbursed for their expenses. Such committees shall 
receive assistance from appropriate bureaus of the department as desig- 
nated by the commissioner." 

In answer to your first question, I do not think that G. L. c. 23A, § 6 
provides authority for the appointment of advisory committees other than 
the ones listed by name therein. I reach this conclusion from a reading 
of the statute as a whole. The first sentence says that the commission 
"shall appoint" advisory committees to assist the department, and speci- 
fies that the commissioner shall act with the approval of the governor and 
■'without regard to chapter thirty-one." The next sentence says "There 
shall be advisory committees on :" and there follows a detailed listing of 



P.D. 12 177 

some eleven committees covering a wide variety of functions. The con- 
cluding paragraph of § 6 provides for reimbursement of committee mem- 
bers' expenses, assistance from appropriate bureaus within the department, 
and the issuance of annual reports by each committee on or before the 
first of November. 

In my opinion, § 6 reflects a comprehensive legislative formulation 
establishing specific committees within your department. While the first 
sentence of § 6, taken alone, might be said to authorize the establishment 
of advisory committees generally, the use of the word "shall' in said sen- 
tence indicates that all the committees contemplated by § 6 have to be 
established — and from this I infer that only those specified come within 
the particular authorization of § 6. Consideration of the care with which 
the Legislature has listed the eleven committees that are to be established, 
its specification of applicable detail, together with failure to authorize 
"such other committees as he may deem appropriate" or some such apt 
language, strongly suggests that the Legislature did not envisage § 6 as 
conferring general authority to create advisory committees thereunder. 

Thus, I do not think that you can establish additional advisory com- 
mittees under authority of § 6. On the other hand, I know of nothing to 
prevent the head of a department, in the absence of statutoi-y authority, 
from consulting with groups of interested citizens and from calling any 
such group an "advisory committee." Such an informal body would, of 
course, have no legal authority or status, and its members would not be 
entitled to reimbursement for expenses or otherwise. But, as I say, I 
know of nothing to prevent you from organizing such a purely voluntary 
group and calling it an advisory committee. 

The foregoing answer to your first question should answer your second 
and third questions. Since the members of any informal advisory groups 
that you might choose to create, other than those specified in G. L. c. 
23A, § 6, would not have any statutory right to reimbursement, I am of 
the opinion that you would not be legally empowered to provide for re- 
imbursement of their expenses. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 

93. March 22, 1967. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs : — Acting on your behalf, Associate Com- 
missioner Robert S. Foster has requested my opinion on the following 
question : 

"Can a traffic regulation prohibiting parking on a State Highway be 
enforced against violators in the absence of signs notifying the public of 
such prohibition?" 

This question has apparently arisen from attempts to enforce Article 
II, Section 2 of your Department's Rules and Regulations for Driving on 
State Highways. Section 2 provides : 



178 P.D. 12 

"Prohibiting Parking. — No person shall stop, stand or park a vehicle 
upon any State Highway except as otherwise provided in Section 3 of 
this Article." 

Section 3, referred to in the proviso of Section 2, forbids parking on any 
such highway "for a time longer than that specified upon official signs 
erected within the area." 

In an intra-departmental memorandum accompanying the request for 
my opinion, it is stated that the regulation appearing in Article II, Section 
2, "is being questioned in one or two of the District Courts of the Com- 
monwealth" on the ground that "enforcement of this regulation without 
official signs being posted would be improper." This memorandum con- 
tinues as follows: 

"Our regulation which has evolved to its present form stems from an 
assumption dating back almost forty years in our traffic engineering and 
regulatory experience and prior to that in the accepted policies of highway 
and traffic engineers nationally and internationally, that parking on a 
highway is not the right of any person, but rather a privilege granted by 
authorities where parking incidental to travel will not interfere with the 
travel rights of the public on the highway, or the rights of abutters along 
the highway. This policy was upheld and strengthened in a Supreme 
Court advisory opinion to the Mass. General Court in 1947. (297 Mass. 
559). 

"State highways have always been constructed primarily to provide 
facilities for travel betv/een the many cities and towns of the Common- 
wealth by connecting them with a network of ways superior in quality 
and design than the connection of town ways could provide. 

"State highways while they may in certain instances be constructed 
with side lanes for emergency stopping or safety rest areas are not con- 
structed with specific provisions for parking lanes to provide convenient 
stopping or storage facilities for conducting business with highway abut- 
ters. 

"As a matter of policy developed many years ago and expanded in the 
last ten years the Department has installed 'No Parking' signs at points 
along the State highway system where the abutting property development 
was such that it would induce the stopping of vehicles for the sole pur- 
pose of transacting business with abutting establishments. These 'No 
Parking' signs were installed to emphasize the general 'No Parking' re- 
striction and to assist the police in enforcement of the parking prohi- 
bition. 

"Where the stopping of vehicles at the side of a State highway would 
not interfere with the travel of the general public, and when local officials 
request them, signs allowing parking are installed. 

"In areas where no signs are installed local officials are experiencing 
opposition to an enforcement program. This raises questions which we 
believe to be of sufficient importance to warrant reference to the Attorney 
General in order that we may be officially advised and may in turn advise 
local officials. 

"Under the authority granted by Section 2 of Chapter 85 of the Gen- 
eral Laws, this Department not only adopts regulations for traffic on 



P.D. 12 179 

State highways but also sets standards for the use of traffic control signs, 
signals, pavement markings and other traffic control devices. Nothing in 
this law requires signs for enforcement of regulations. The only require- 
ment for signs is found in our Standards, where it is stated that general 
rules of the road should be matters of common knowledge and therefore 
do not require signs. 

"It is our contention that the general prohibition of parking on a State 
highway does not require signs for enforcement and that if anything 
additional is needed, it is only additional education of the public. 

"The major question is whether or not we are correct in this conten- 
tion." 

With respect to violation of the general regulation quoted above (Arti- 
cle II, Section 2), I am of the opinion that signs would not be a necessary 
precondition to enforcement provided that the violation occurs on a way 
which is plainly identified as a state highway, and provided also that there 
are not misleading roadside conditions which would lead a reasonable 
person to believe that parking was allowed. 

According to Amendment No. 7 to the Rules and Regulations for 
Driving on State Highways, Article II, Section 2 was adopted by the 
Commissioner of Public Works under G. L. c. 85, § 2. That statute 
authorizes your Department to "issue rules and regulations to direct, 
govern and restrict the movements of vehicles on all state highways. ..." 
Section 2C of the same chapter makes it clear that this authorization in- 
cludes the issuance of parking regulations, for it refers to "any rule or 
regulation adopted under section two which prohibits the parking or stand- 
ing of all vehicles. ..." There is no statutory requirement that your 
Department erect signs to notify the public of rules and regulations 
adopted pursuant to G. L. c. 85, § 2. On the contrary, § 2 provides that 
your Department shall erect only such signs "as it may deem necessary 
for promoting public safety and convenience. ..." 

Said Article II, Section 2 of your Rules and Regulations is worded 
so as to apply generally and unifonnly to all state highways throughout 
the Commonwealth. Its text appears on page 185 of an official publica- 
tion entitled Legislation, Rules and Regulations Relating to Motor Vehi- 
cles (October, 1964), available to the general public without charge. In 
my opinion, it is not unreasonable or contrary to standards of due process 
to charge the motorist with kuozvledge of this general regulation — any 
more than it is unreasonable to charge him with knowledge of the laws 
and other general regulations applicable to the operation of motor vehicles 
on public ways. 

It does not follow, however, simply because the motorist may be pre- 
sumed to know of this regulation, that he can always be expected to know 
that a given way is a state highway or that the regulation applies at a 
given location. On an unmarked highway, or under misleading roadside 
conditions, I think that it might well violate constitutional standards of 
due process to penalize a motorist in the absence of signs or other reason- 
able means of notification. The memorandum quoted above mentions 
several potentially confusing situations, such as the existence of roadside 
commercial establishments which seem to invite stopping. Even greater 
confusion may result from the fact that many — perhaps most — state 



180 P.D. 12 

highways (unlike those of the multi-lane, Hmited-access type) are physi- 
cally indistinguishable from town ways ; unless such highways are con- 
spicuously marked, the motorist cannot be expected to know that he is 
traveling on a state highway. In all these situations, I think that Article 
II, Section 2 would be unenforceable unless the motorist were put on 
notice, by signs or by other means, of the a])plicability of the no-parking 
regulation. 

Up to this point I have dealt with the general parking regulation appear- 
ing in Article II, Section 2 of your Rules and Regulations for Driving 
on State Highways adopted pursuant to G. L. c. 85, § 2. Another pro- 
vision of the General Laws, G. L. c. 90, § 18, covers promulgation of 
"special regulations as to the speed of motor vehicles and as to the use of 
such vehicles upon particular ways". (Emphasis supplied.) Unlike G. L. 
c. 85, § 2, G. L. c. 90, § 18 expressly provides that no regulation adopted 
thereunder "shall be effective until there shall have Ijeen erected, upon the 
ways afifected thereby . . . , signs . . . setting forth the . . . restrictions 
established by the regulation. ..." 

Since G. L. c. 90, § 18 deals only with "special" regulations as to traffic 
on "particular" highways, its intended scope is obviously much narrower 
than that of G. L. c. 85, § 2. While the broad language of the latter 
statute could perhaps be read as granting authority to issue the very type of 
"special" regulation referred to in G. L. c. 90. § 18, the inconsistencies 
and confusion which would result from such an interpretation convince 
me that your Department's authority to adopt "special" regulations as to 
parking on "particular" state highways is governed exclusively by the 
narrower and stricter provisions of G. L. c. 90, § 18. Hence, with respect 
to any such special parking regulations that it may issue, your Depart- 
ment is required by statute to erect signs. 

Indeed, this conclusion would seem to follow from the constitutional 
standards of due process to which I have previously referred. It would 
offend those standards to penalize an individual for violating a parking 
restriction of purely localized application unless the existence and terms 
of that restriction were made known to him. While a motorist can be 
expected to apprise himself of a regulation that applies generally and uni- 
formly on all state highways throughout the Commonwealth, he can 
scarcely be expected to have knowledge of a special regulation that applies 
only on particular highways or sections thereof. 

It is therefore my opinion that a traffic regulation prohibiting parking 
on state highways cannot be enforced against violators in the absence of 
signs in the following cases : ( 1 ) where the applicability of a general no- 
parking regulation is unclear due to misleading roadside conditions or due 
to the absence of any plain indication that the road in question is a state 
highway; or (2) where the parking restriction is a special regulation 
applicable only to particular ways or sections thereof. In these situations, 
appropriate signs must be erected as a precondition to enforcement of your 
Department's regulations. 

I would emphasize, moreover, that your Department has discretionary 
authority to erect signs in all cases. Common sense should always play 
a controlling role in the determination of whether or not signs are neces- 
sary in any given instance. Considerations of fairness and safety, not to 



P.D. 12 181 

mention ease of law enforcement, may well make it desirable for your 
Department to publicize all of its parking restrictions by the use of signs 
and other means. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

94. March 22, 1967. 

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

Dear Mr. Papalia :— You have asked my opinion on whether the De- 
partment of Public Utilities (the Department) may, on behalf of the 
Commonwealth, enter into a certain cooperative agreement with the Inter- 
state Commerce Commission (ICC) to enforce the economic and safety 
laws and regulations of the Commonwealth and the United States con- 
cerning highway transportation. The terms of the agreement are em- 
bodied in Section 117a.4 through Section 117a.7 of Title 49 of the Code 
of Federal Regulations. Upon consideration of the matter, I am of the 
opinion that specific authorization from the Legislature should be obtained 
before the Department enters into it. 

The agreement is divided into four parts, two providing for reciprocal 
services to be rendered by the State and the Federal governments and two 
providing for joint action by the two governments. The recijirocal pro- 
visions relate to (1) exchanging information about violations of laws 
governing highway transportation and (2) obtaining evidence, "as time, 
personnel, and funds permit," for use in enforcement of such laws. The 
joint provisions relate to (1) "examinations, inspection, or investigation 
of the property, equipment, or records of motor carriers or others," for 
the enforcement of State and Federal laws concerning highway trans- 
portation and (2) conferences of staff members to exchange information 
and to facilitate the conduct of joint investigations and administrative 
action. The agreement also provides that either party may cancel it, in 
whole or in part, at any time. 

The authority of the ICC to enter into the agreement is found in a 
1965 amendment (Pub. L. 89-170) to the Interstate Commerce Act. 
Among other changes made by the amendment, section 205(f) of the 
Act, 49 U.S.C. § 305(f), was changed by the insertion of the following 
sentence : 

"... the Commission is authorized to make cooperative agreements 
with the various states to enforce the economic and safety laws and regu- 
lations of the various States and the United States concerning highway 
transportation." 

Adoption of this amendment was based on a doubt whether existing legis- 
lation, 49 U.S.C. § 305, which authorized the ICC "to avail itself of the 
cooperation, services, records and facilities of . . . State authorities . . . , " 
was sufficient to empower the ICC to enter into a "cooperative agreement." 
Expression of this doubt is found in the report of the House Committee 
on Interstate and Foreign Commerce proposing the amendment. See 
House Report No. 253, 89th Cong. 1st Sess., U.S. Code Cong, and Adm, 



182 P.D. 12 

News, 2923, 2927, where the Committee said that it was adding the new 
sentence to the section "so as to specifically authorize the Commission to 
reciprocate [for State cooperation] hy entering into cooperative agree- 
ments with the States to enforce State and Federal economic safety laws 
and regulations concerning highway transportation." 

I have set forth the Federal aspect of the coo])erative agreement at some 
length so that the State aspect may be seen in the necessary context. 
From the Federal background we can also see that despite the language 
already existing in 49 U.S.C. § 305 relative to the ICC availing itself of 
the cooperation of State authorities, specific authorization to enter into 
"cooperative agreements" was still thought to be desirable. 

Here in Massachusetts our statutes confer on your Department a 
"broad general power of regulation of carriers. ..." Netvton v. Depart- 
ment of Public Utilities, 339 Mass. 535, 541. Yet, 1 know of no statute 
that authorizes "cooperative agreements." Indeed, I know of no statute 
that even refers to "cooperation" by your Department with other agencies. 
Compare the statutes that authorize such cooperation by other depart- 
ments. G. L. c. 21, § 1, relative to the Department of Natural Resources; 
G. L. c. 21, § 5, relative to the Division of Marine Fisheries; G. L. c. 
21, § 9, relative to the Water Resources Commission; G. L. c. 62, § 58, 
relative to reciprocal inspection of State and Federal income tax returns ; 
G. L. c. 90, § 40, relative to the Massachusetts Aeronautics Commission. 
And see generally G. L. c. 9, §§ 21-24, relative to the Commission on 
Interstate Cooperation. 

I do not mean to imply that the absence, in the statutes governing your 
Department, of provisions for cooperation with other agencies means that 
you cannot engage in any cooperative activities at all. Such a narrow 
interpretation of your powers would be unwarranted. "The Legislature 
need not enumerate nor specify, definitely and precisely, each and every 
ancillary act that may be involved in the discharge of an official duty." 
Scamiell v. State Ballot Lazu Conuuission, 324 Mass. 494, 501. Rather, 
my point is simply that in determining whether we can imply authority 
in your Department to enter into a cooperative agreement with the ICC, 
we do not even have, as a possible basis for such an implication, a statute 
that explicitly contemplates cooperative action with such an agency. 

M^y principal reason, however, for concluding that we cannot infer that 
your Department may enter into the cooperative agreement with the ICC 
is that the agreement, by its very nature, goes beyond the informal assis- 
tance and arrangements that may occur in day-to-day administration of a 
department and establishes instead a formal and systematic Federal- State 
relationship. This should be preceded by legislative authorization. In 
addition, the cooperative agreement now being considered contemplates 
that the State will expend its own money and utilize state personnel, spe- 
cifically in the obtaining of evidence, to carry out the responsibilities as- 
sumed by it to the Federal government under the agreement. Without an 
appropriation of funds by the Legislature, however, the incurring of ex- 
penditures would be illegal. G. L. c. 29, §§ 26 and 27. 

The making of Federal- State cooperative agreements is an important 
new development in Federal-State relationships. At the Federal level. 
Congressional authorization appears to be sought for their execution. In 



P.D. 12 183 

addition to the amendment to the Interstate Commerce Act, already noted, 
relative to the agreement on highway transportation, there is, to name a 
few other instances, specific Congressional authorization for cooperative 
agreements for disposition of surplus property (40 U.S.C. § 484(n), the 
improvement and management of public lands (40 U.S.C. § 1362), and 
preservation of historical data threatened by dams (16 U.S.C. § 469(b)). 
I am of the opinion that similar consent by the General Court should be 
obtained before a Massachusetts agency enters into a formal cooperative 
agreement such as that now under consideration by you. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

95. March 23, 1967. 

Honorable Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin : — You have requested the opinion of 
the Attorney General on the question of whether a person under suspen- 
sion from the Uniformed Branch of the Division of State Police is con- 
sidered as being employed in law enforcement as defined in c. 268, § 9A, 
and, if so, whether the tendering of a testimonial dinner in his honor, as 
described by you, would be in direct violation of G. L. c. 268, § 9A. 

You state that on October 24, 1966 a uniformed member of the Divi- 
sion of State Police was suspended in compliance with the Rules and 
Regulations for the government of the Massachusetts State Police (Uni- 
formed Branch) for the period of one year. The suspension will termi- 
nate October 23, 1967. 

You further state that it has come to your attention that arrangements 
are being made to hold a testimonial dinner in honor of the suspended 
member, said dinner being scheduled for Saturday, April 8, 1967. A dona- 
tion of $5.00 per guest is being requested. 

General Laws c. 268, § 9A provides as follows : 

"No person shall sell, offer for sale, or accept payment for, tickets or 
admissions to, nor solicit or accept contributions for, a testimonial dinner 
or function, or any affair, by whatever name it may be called, having a 
purpose similar to that of a testimonial dinner or function, for any person, 
other than a person holding elective public office, whose office or employ- 
ment is in any law enforcement, regulatory or investigatory body or agency 
of the Commonwealth or any political subdivision thereof. 

"Whoever violates any provision of this section shall be punished by 
a fine of not more than five hundred dollars." 

A primary purpose of this statute is to place persons in law enforce- 
ment and related fields above any suspicion that they may be improperly 
influenced in the performance of their duties. The member in question 
of the Uniformed Branch of the Division of State Police is under sus- 
pension only, and is to return to active duty on October 23, 1967. Thus, 
any receipt of contributions for, or sale of tickets to a testimonial dinner 
held for him, whether or not occurring during this period of temporary 
suspension, would be contrary to the foregoing purpose of the statute. 



184 P.D. 12 

In an opinion of the Attorney General dated January 24, 1963, concern- 
ing testimonial dinners, it is stated : 

"It is further my opinion that the new statute is applicable for the full 
period of the service of any person concerned and until the service is 
actually terminated, and the fact that the service is in prospect of termina- 
tion by retirement or otherwise does not alter the situation." Report of 
the Attorney General for the Year Ending June 30, 1963, p. 110. 

Thus, until the service is actually terminated, the statute is applicable. 
The suspended member has not resigned, and he has not been discharged. 
Therefore, his service as a member of the Uniformed Branch of the Divi- 
sion of State Police has not been terminated. 

A suspension differs greatly from a dismissal or discharge. In Mayor 
of Newton v. Civil Service Commission, ZZZ Mass. 340, the Court said, 
at page 343-4: 

"Suspension denotes a 'temporary withdrawal or cessation from public 
work as distinguished from permanent severance from the service accom- 
plished by removal. . . . ' 'The distinction between suspension and dis- 
missal thus is one of substance and not of form. Suspension imports the 
possibility or likelihood of return to the work when the reason for the 
suspension ceases to be operative.' " 

Thus it is clear that the suspended member remains subject to the pro- 
visions of G. L. c. 268, § 9A. 

The statute relates to persons whose office or employment is in any law 
enforcement, regulatory or investigatory body or agency of the Common- 
wealth. A member of the Uniformed Branch of the Division of State 
Police is, of course, employed in a law enforcement agency of the Com- 
monwealth. As a member of the State Police he is vested with all police 
power in the Commonwealth of Massachusetts. 

For the above-stated reasons, it is my opinion that the sale of tickets 
to or accepting of contributions for the proposed testimonial dinner in 
honor of the suspended member would be in direct violation of the statute. 

Very truly yours, 

Edward T. Martin, First Assistant Attorney General. 



96. March 30, 1967. 

Honorable Harry C. Solomon, M.D., Commissioner of Mental Health. 

Dear Doctor Solomon : — You have asked whether your Department 
may transmit certain information about patients to state and federal licens- 
ing agencies. 

You say that under your Department's so-called Regulation No. 10, 
as currently in efifect, each state or licensed private mental institution is 
required to report to the Department upon admission the name of any 
committed patient who is licensed as a physician, nurse, dentist, pharmacist, 
stationary engineer, railroad engineer, steam fireman, dynamiter, aircraft 
operator, or motor vehicle operator. Likewise, the admission of any 



P.D. 12 185 

voluntary patient holding any of the foregoing licenses must be reported 
to the Department whenever the patient's mental condition is believed to 
be of such a degree as to interfere with his occupation, profession or the 
operation of a motor vehicle. Whenever a licensee's name is so reported, 
you say that it is the Department's practice to notify the appropriate state 
or federal licensing agency. 

You say that the Department now contemplates revising Regulation No. 
10 to permit a more individualized decision for each voluntary or com- 
mitted patient. The amended regulation (which would include the same 
licenses, with the addition of "airplane . . . crew member") would require 
the physician responsible for examining or treating the patient to deter- 
mine the patient's ability to exercise the rights and privileges of the li- 
cense without endangering the public, and would report to the Department 
the names of only those licensees deemed incompetent because of medical 
considerations to exercise the rights and privileges of the license, or un- 
willing to comply with the physician's instructions that the licensee tempo- 
rarily desist from exercising such rights and privileges. The term "medical 
considerations" is said by you to include, "for example, the presence of 
mental or physical illness or the effects of prescribed medication." 

You say that the Registry of Motor Vehicles agrees on the substance 
of the proposed revision of Regulation No. 10. 

You express doubt, however, whether the Department has the right to 
divulge the above information about a patient _ without his permission, 
especially when such action might cause him to lose a license. Under 
Regulation No. 10, you point out that the Department has been notifying 
licensing agencies, when licensees are admitted to one of its institutions, 
without the permission of the patient or guardian. 

You state that another related question has been raised by the Registry 
of Motor Vehicles. The Registry has asked the Department to notify the 
Registry whenever any person who has been adjudged sexually dangerous 
under G. L. c. 123 A is known to hold a driver's license. The Registry 
asks that this be done even when the patient's physician thinks that the 
patient has capacity to exercise reasonable and ordinary control over a 
motor vehicle, provided the physician believes the operation of a vehicle 
by the patient would contribute to the potential danger to the public repre- 
sented by such person. 

With respect to the above matters, you ask the following two questions : 

"1. Does the Department of Mental Health have the authority to notify 
the various licensing agencies of the state and federal governments when 
any licensee is admitted to a state or licensed private hospital, whether by 
commitment or voluntary admission, and whenever such licensee is deemed 
by the Department to be either medically incompetent to exercise such 
rights and privileges of the license without endangering the pubHc or un- 
wilHng to refrain temporarily from exercising such rights and privileges 
when so advised by his physician, even though the licensee or his guardian 
has not given his permission in writing for such information to be con- 
veyed to the licensing agency? 

"2. In the special case of persons who have been adjudged sexually 
dangerous under Chapter 123A of the General Laws, does the Depart- 



186 P.D. 12 

ment have the right to inform the Registry of Motor Vehicles of such 
persons who have operator's licenses, and who are substantially capable of 
exercising reasonable and ordinary control over a motor vehicle, but whose 
operation of a motor vehicle might contribute to the potential danger to 
the public represented by such persons?" 

In my opinion, the answer to your first question is in the affirmative. 

While there is no statute authorizing the Department to furnish infor- 
mation of this nature to state or federal licensing agencies, neither is there 
any statute prohibiting it ; and I believe that authority to do so may be 
inferred from the extensive powers given by the Legislature to the De- 
partment to care for, and to protect the public from, the mentally ill,* as 
well as from the duty imposed by the Legislature on the different state 
licensing agencies to see that unfit persons do not hold licenses. 

A mentally-ill person is defined for purposes of involuntary commitment 
as one suffering from a disease or disorder "which renders him so defi- 
cient in judgment or emotional control that he is in danger of causing 
physical harm to himself or to others, or the wanton destruction of valu- 
able property, or is likely to conduct himself in a manner which clearly 
violates the established laws, ordinances, conventions or morals of the 
community." G. L. c. 123, § 1. It would be unrealistic to assume that all 
mentally-ill persons will voluntarily desist from performing the services 
or acts for which they may be holding a license. With increasing out- 
patient treatment, and with use of modern drugs which may impair an 
individual's functioning, 'it may be essential, both for the patient's pro- 
tection and that of the public, for information of a licensee's disabling 
mental or physical conditions to be relayed to the licensing agency. 

All the licenses referred to both in current and proposed Regulation 
No. 10 regulate conduct which can be dangerous to the public or the li- 
censee, or both, if incompetently or maliciously performed. The boards 
of registration in medicine, pharmacy and nursing, and the board of dental 
examiners, are expressly authorized to suspend, cancel or revoke licenses 
to practice those professions if the holder is "insane." G. L. c. 112, § 61. 
(In G. L. c. 123, § 1, the term "insane" is equated with the term "mentally 
ill.) The licenses of stationary engineers and steam firemen may be re- 
voked for "incompetence." G. L. c. 146, § 67. The Registrar of Motor 
Vehicles may revoke a driver's license "after due hearing, for any cause 
he may deem sufficient." G. L. c. 90, § 22. Thus, if the Department is 
to exercise appropriate supervision and control of the activities of men- 
tally-ill patients under its care, and if the licensing agencies are to dis- 
charge their public functions, a sharing of information of the type de- 
scribed in your first question would seem to be necessary. 

The transmission of such relevant information to public agencies hav- 
ing a legitimate interest therein, although done without permission of the 
patient or his guardian, does not violate any provision of the state or fed- 

•Under G. L. c. 123, the Department of Mental Health is given broad power to supervise and con- 
trol all mentally ill, epileptic and mentally deficient persons in its institutions. § 3. It may 
"investiiiate the question of the mental illness" of any such persons. § 5. It "shall take cogni- 
zance of all matters affectini< the mental health of the citizens of the commohwealth," and it 
"shall disseminate such information relating thereto as it considers proper for diffusion among 
the people, and shall define what physical ailments, habits and conditions surrounding employment 
are to be deemed dangerous to mental heallth." § 3 A. In Ex Parte Dubois, 331 Mass. 575, 578- 
579, the term parens patriae is used in referring to the Commonwealth's powers with respect to 
incompetent persons. 



P.D. 12 187 

eral constitution. Ordinarily, an individual's license may not be suspended 
without opportunity for a hearing before the licensing agency. At the 
hearing, the licensee would be entitled to seek to show that he was qualified 
to continue to exercise the privileges of the license. In this opinion, of 
course. I do not consider the adequacy or inadequacy of a particular 
agency's procedures with regard to the suspension or revocation of a 
license. Such procedures must be fair and must meet constitutional stand- 
ards. The present opinion concerns only the Department's authority to 
advise a licensing agency of the patient's admission to one of its institu- 
tions in the instances set forth. No question of due process is, therefore, 
involved. In the recent case of Moran v. Bench, 353 F. 2d 193 (1st Cir. 
1965), a Massachusetts resident unsuccessfully sued officials of the Regis- 
try of Motor Vehicles alleging a violation of 42 U.S.C. §§ 1983 and 1985, 
the so-called civil rights statute, by reason of the suspension of her 
driver's license upon a report from the Veteran's Administration of her 
commitment for treatment of mental illness. The court said, at page 194, 
"It does not appear that the defendants' acts were beyond their authority, 
or that their conduct was arbitrary or unreasonable. If they acted in good 
faith, treating the suspension as a matter of ordinary procedure, even if 
they might be thought to have been over-demanding, plaintiff has no fed- 
eral claim." 

In your request, you mention G. L. c. Ill, § 70, the Opinion of the 
Attorney General to you dated May 4, 1964 (Report of the Attorney 
General for the Year Ending June 30, 1964, p. 231), and the case of Bane 
V. Superintendent of Boston State Hospital, 350 Mass. 637. That Opinion 
of the Attorney General dealt with the interpretation of G. L. c. HI, § 
70. prior to its most recent amendment by St. 1964, c. 653, approved July 
2, 1964. The Attorney General advised that G. L. c. 111. § 70 as then 
written did not apply to institutions controlled solely by the Department 
of Mental Health. That Opinion is, however, largely superseded, by the 
1964 amendment to G. L. c. Ill, § 70, which places all state-supported 
hospitals and like institutions within the coverage of the statute. It is, 
therefore, now clear that any such state-supported institutions under the 
Department's control are subject to G. L. c. Ill, § 70. 

The presently worded G. L. c. Ill, § 70 provides that hospitals, dis- 
pensaries or clinics and sanatoria, 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." The statute provides that 
such records are not public records within the meaning of G. L. c. 66. 
The statute also provides for inspection of the records by a patient or his 
attorney except in cases where the records are kept by a hospital or clinic 
under the control of the Department of Mental Health. In the Bane case, 
supra, the Supreme Judicial Court held that § 70 applied to Boston State 
Hospital, and. on the authority of the statute, denied a patient's request 
to see records of his "involuntary admission and detention" at Boston 
State Hospital. However, I do not interpret G. L. c. Ill, § 70 or Bane 
as prohibiting the Department, when it thinks advisable and in the best 
interest of the patient and the public, from furnishing the information 
referred to in your first question to other public agencies in furtherance 
of its and their statutory duties. 

The foregoing conclusion is consistent with practices authorized by 
G. L. c. 123, § 13, in the case of persons designated as "mental defectives." 



188 P.D. 12 

Section 13 establishes "a registry of mental defectives." and provides that, 
"... the name of any person so registered shall not be made public except, 
upon written request therefor, to public officials or other persons having 
authority over the persons so registered. ..." (Emphasis supplied.) The 
Legislature has thus recognized the interest of public officials, as distin- 
guished from members of the public generally, in examining those other- 
wise confidential records. 

I am, accordingly, of the opinion that it would be proper for the De- 
partment to furnish the information described in your first question to the 
licensing agencies. 

With respect to your second question, I think that the answer is also 
in the affirmative, for many of the reasons already discussed. While 
medical and case records of persons found to ])e sexually dangerous would 
normally be subject to G. L. c. Ill, § 70, and. hence, not public records, 
there is nothing in the statute providing for the adjudication of a person 
as sexually dangerous which requires the fact of such adjudication to be 
kept confidential. The furnishing to the Registry of the names of per- 
sons who have been adjudged sexually dangerous "whose operation of a 
motor vehicle might contribute to the potential danger to the public repre- 
sented by such persons" would seem to be in reasonable accord with the 
legislative purpose behind G. L. c. 123 A, which creates the classification 
of "sexually dangerous." The Legislature apparently assumed that some 
individuals would, predictably, continue to engage in certain dangerous 
conduct ; and that such individuals need special restrictions to be placed 
upon them. The identifying to the Registry of such sexually dangerous 
persons, who have lieen adjudged such in court proceedings held pursuant 
to G. L. c. 123x\, does not violate any statute and, indeed, would merely 
seem to provide information to which the public already has access. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



97. April 6, 1967. 

Richard M. Millard, Chancellor, Board of Higher Education. 

Dear Doctor Millard: — On behalf of the Scholarship Committee of 
the Board of Higher Education, you have asked my opinion "as to whe- 
ther the Board of Higher Education does or does not have the authority 
to [cause distribution of] the funds voted by the legislature in Chapter 
709, Item 1320-09, Acts of 1966, for scholarships to the Boston Lyric 
Opera Company Workshop." 

The Item in issue provides : 

"For quarter, one half or full scholarships [for] worthy and qualified 
students, domiciled in the commonwealth, with previous musical training, 
in need of financial assistance to perfect such musical training at the Bos- 
ton Lyric Opera Co.. Inc. Workshop of the Boston Lyric Opera Co., Inc., 
forty-five Newbury Street, Boston, Massachusetts, and approved by the 
board of educational assistance . . . $35,000." 



P.D. 12 189 

Boston Lyric Opera Co., Inc., to which the appropriation is apparently 
intended to refer, is a so-called charitable corporation formed under the 
provisions of Chapter 180 of the General Laws. According to its Articles 
of Organization, the corporation was formed for the following purposes : 

"To advance, encourage, foster and promote the cause of opera, music, 
dramatics, musical art, theater art, art, or any combination thereof in all 
aspects by any proper means ; to arrange, prepare, stage, produce, and 
sponsor performances and exhibitions of opera, music, dramatics, art, 
musical art, theatrical art or any combination thereof ; to engage in re- 
search in the fields of opera, music, dramatics and any other similar or 
related fields and issue publications with respect to any findings made 
therein ; to provide educational facilities to enable students to study the 
production of opera, music and dramatics by participation therein ; to raise 
funds to provide financial assistance and scholarships for gifted and needy 
students ; to give financial assistance to composers and dramatists and com- 
mission new works for public performance; to buy, sell, and lease real 
estate to carry out the purposes of the corporation ; to raise and collect 
funds and accept any gifts and bequests necessary for carrying out any 
of its purposes by all lawful means ; to do all other things necessary, de- 
sirable or useful in carrying out the above purjxjses." 

It does not appear from the Articles of Organization or any other avail- 
able information that any of the officers or directors is a public official 
or public agent. 

It is my opinion that Item 1320-09 violates the provisions of Article 
Forty-Six of the Articles of Amendment of the Constitution of Massa- 
chusetts, commonly known as the "anti-aid" amendment. Accordingly, it 
would, in my opinion, be improper for the Board of Higher Education 
to approve the award of any scholarships under that appropriation. 

Section 2 of the "anti-aid" amendment provides in pertinent part : 

"... no grant, appropriation or use of public money . . . shall he made 
or authorized by the commonwealth . . . for the purpose of founding, 
maintaining or aiding any school or institution of learning . . . , or any 
college . . . institution, or educational, charitable or religious undertaking, 
which is not publicly owned and under the exclusive control, order and 
superintendence of public officers or public agents authorized by the com- 
monwealth or federal authority, or both. ..." 

The corporation in question is clearly an "educational [and] charitable 
. . . undertaking", and is neither "publicly owned [nor] under the exclu- 
sive control, order [or] superintendence of public officers or . . . agents." 
Therefore, if the appropriation is "for the purpose of founding, main- 
taining or aiding" Boston Lyric Opera, Inc., it is unconstitutional. In 
my opinion, such is the case. 

The "anti-aid" amendment would prohibit legislation designed to grant 
funds directly to Boston Lyric Opera, Inc. (or to any other non-publicly 
owned and controlled undertaking). This result cannot properly be 
achieved by the simple device of making students conduits for grants, if 
the eventual, exclusive recipient is required by the statute to be a single, 
named corporation. My opinion in this regard is supported by an opinion 
rendered by a previous Attorney General. In the course of a discussion 



190 P.D. 12 

of whether a hill could, without infringing on the "anti-aid" amendment, 
provide for payment of scholarships to individuals to attend some ap- 
proved institution, the following guiding principle was enunciated : 

"[A]ny plan must be subjected to the test of substance rather than to 
a mere test of form. A payment of tuition, whether directly to the private 
institution (VI Op. Atty. Gen. 356) or to the scholar under such condi- 
tions that in effect it is a payment to the institution, if thq effect of it is 
to aid the institution, would seem to achieve the forbidden result by in- 
direction." VI Op. Atty. Gen. 648, 653 (1922). 

In view of the above, I conclude that the Board of Higher Education 
lacks authority to approve scholarships, or cause distribution of any funds, 
under Item 1320-09. 

To avoid misunderstanding, I emphasize that this question is intended 
to apply only to the specific appropriation in question, and that in reaching 
the above conclusions it has been unnecessary to consider the extent to 
which an appropriation may, without restricting the grants to students at 
a single, named institution, provide scholarships for musical training. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



98. April 6, 1967. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — Your recent letter requesting an 
opinion of the Attorney General states that you would appreciate a clari- 
fication of an opinion of the Attorney General rendered on December 30, 
1966 to the Chairman of the Executive Committee for Educational Tele- 
vision (Op. Atty. Gen. 66/67 No. 63). Your letter further states that 
that opinion "appears to be in conflict" with an opinion rendered by the 
Attorney General to you on June 23, 1965 (Report of the Attorney Gen- 
eral for the Year Ending June 30, 1965, p. 315). 

You now inquire, in essence, whether or not the Executive Committee 
for Educational Television may, without approval by the Board of Edu- 
cation : 

(1) expend money in the Educational Television Program Fund, and 

(2) purchase and dispose of personal property, and lease real property. 

It is my opinion that the Executive Committee for Educational Tele- 
vision may not exercise any of the above }X)wers without approval by the 
Board of Education. 

With regard to expenditure of money in the Educational Television 
Program Fund, G. L. c. 71, § 13H provides: 

"The [executive] committee may establish and manage ... a trust fund 
to be known as the Educational Television Program Fund. All funds 
received from school committees, organizations, or individuals for the pur- 
poses of sections thirteen E to thirteen I, inclusive, shall be credited to 



P.D. 12 191 

said Fund . . . and may be expended by the committee for such purposes 
without appropriation. ..." (Emphasis supplied.) 

The foregoing provision is supplemented and qualified by G. L. c. 71, 
§ 13G, which provides: 

"Subject to the approval of the board of education, the executive com- 
mittee for educational television shall act in matters pertaining to educa- 
tional television." (Emphasis supplied.) 

In my opinion, expenditures from the Educational Television Program 
Fund constitute acts in "matters pertaining to educational television" with- 
in the meaning of said section 13G. Accordingly, they must be approved 
by the Board of Education. To interpret section 13G otherwise would 
be unduly restrictive. Any meaningful power of approval of the activities 
of the executive committee would have to include authority to review 
the expenditures thereof. 

The conclusion that expenditures by the executive committee must be 
approved by the Board of Education is supported by the language of sec- 
tion 13H. In stating the purposes for which the Fund may be expended, 
that section refers explicitly to sections 13F to 131, inclusive. Section 
13G falls within sections 13F to 131. Thus, from the fact that the section 
governing expenditures refers in this manner to the section requiring ap- 
proval by, the Board of Education, one may further infer that expendi- 
tures are subject to the approval of the Board. 

To avoid misunderstanding, it should be made clear that even though 
the Executive Committee must obtain approval by the Board of Education 
of expenditures from the Educational Television Program Fund, the 
Board of Education may itself neither make nor compel any expenditures 
therefrom. Section 13H designates the Executive Committee as the trus- 
tee of the Fund, and authorizes only the committee to make expenditures 
therefrom. 

With regard to purchasing and disposing of personal property, and 
leasing real property, G. L. c. 71, § 131, provides, in pertinent part: 

"In order to carry out its duties, said committee, from time to time 
and within the limits of appropriation therefor and of available trust 
funds, may — 

"(a) Acquire, construct, hold, lease and dispose of real and personal 
property. ..." 

Although sections 131(a) and 13G do not directly refer to one another, 
it is my opinion that the exercise of the powers conferred upon the Exec- 
utive Committee by section 131(a) is also subject to the approval of the 
Board of Education. Sections 13F to 131 constitute a single, unified 
statutory scheme, and must be read together. Any purchase or disposition 
of personal property, or lease of real property, by the Executive Com- 
mittee would be an "act in [a matter] pertaining to educational tele- 
vision," and would thus be "subject to the approval of the board of edu- 
cation," within the meaning of section 13G. 

That the Legislature conceived of the Executive Committee as occupy- 
ing such a position that its acts would be subject to approval of the Board 



192 P.D. 12 

is further borne out by the provisions and wording of section 13F, which 
provides, inter alia : 

"The hoard of education, v^ith the advice of the commissioner, shall 
appoint a committee to co-ordinate and administer [educational] programs. 
Said committee shall be known as the executive committee for educational 
television. ..." (Emphasis supplied.) 

Accordingly, I conclude that the Executive Committee for Educational 
Television may not expend money in the Educational Television Program 
Fund, purchase or dispose of personal property, or lease real property, 
without approval of the Board of Education. 

Very truly yours, 

Elliot L. Richardson^ Attorney General. 



99. April 7, 1967. 

Honorable Robert Q. Crane, Treasurer and Receiver General. 

Dear Sir : — You have asked my opinion as to whether individual schol- 
arship payments under the Walter Parker Beckwith Scholarship Fund, 
the income of which is to be used for scholarships for students attending 
the State Teachers College at Salem, can be increased "due to the fact 
that the tuition at said college is $100.00 per semester." You also ask 
"whether or not such payments are limited to be paid annually." 

The Fund to which you refer was established on February 13, 1957. 
At that time, the principal amount of $5,000, derived from the contribu- 
tions of alumni of the State Teachers College at Salem who were grad- 
uates or students under the administration of Dr. Walter Parker Beck- 
with, was turned over to the President of that College accompanied by a 
letter specifying "the conditions upon which the trust fund is to operate." 
The letter provided that the fund was to be transferred to the State 
Treasurer to be held in trust on the terms contained in the letter. The 
terms material to your questions are that "The income only from the trust 
fund is to be used for scholarships to students attending the State 
Teachers College at Salem. . . . Scholarships of $50 are to be awarded 
to students whose rank and character justify such aid. . . . The fund 
should never be joined to any other fund and should always retain its 
original name. . . . Scholarships are to be awarded on the recommenda- 
tions of the President of the College." 

In view of the explicit requirement that "Scholarships of $50" are to 
be awarded, I am of the opinion that the State Treasurer, as trustee, may 
not authorize individual scholarships in any greater amount. Legislation 
seeking to authorize such deviation is not valid. Franklin Foundation v. 
Attorney General, 340 Mass. 197. The courts alone have power to permit 
a trustee to deviate from the terms of a trust, and then only in the event 
that the trustee can demonstrate that compliance is impossible or illegal 
or " . . . where owing to circumstances not known to the settlor and not 
anticipated by him compliance would defeat or substantially impair the 
accomplishment of the purposes of the trust." SCOTT, TRUSTS, § 
381, p. 2738. Franklin Foundation v. Attorney General, supra. 



P.D. 12 193 

It would not appear to me that the continued payment of $50 scholar- 
ships would bring about such a defeat or impairment of the objectives of 
the trust as to justify your petitioning the court for permission to deviate 
from its terms. I would, however, be glad to receive any further infor- 
mation or thoughts on this matter that you or the Bursar at Salem State 
Teachers College would care to provide, should you disagree with thi^s 
conclusion. In any event, it is clear that absent a decree of the couft 
granting you the authority to deviate from the express terms of the trust, 
you may not pay out individual scholarships in excess of $50 each. 

With regard to your second question, I am of the opinion that the 
scholarships are to be awarded annually, in the absence of any language 
indicating that the scholarships are to be awarded on a semester or some 
other basis. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 

100. April 7, 1967. 

Honorable Kevin H. White, Secretary of the Commonwealth. 

Dear Secretary White: — You have asked for an opinion whether 
the Massachusetts Historical Commission possesses "legal authority and 
responsibility to administer funds made available" by the Federal govern- 
ment for programs of historic preservation. The authority for the Federal 
grant is found in The Historic Preservation Act, P. L. 89-665, now 16 
U.S.C. sections 470-470M, effective October 15, 1966. This statute vests 
in the Secretary of the Interior the authority for its general administra- 
tion. The Secretary has, in turn, delegated his authority to the Director 
of the National Park Service within the Department of the Interior. Al- 
though I know of no regulations which have yet been issued under the 
statute, the Director has prepared a draft of a "Manual for the Implemen- 
tation of (the act)." Chapter 3, Paragraph A of the Manual provides 
that an application by a State for funds must include a proposal for the 
conduct of a historic survey, preparation of a statewide preservation plan, 
and review of their professional content. Chapter 3, Paragraph B of the 
Manual provides: 

"B. Prerequisites. The proposal must show how the State intends to 
meet these standards. 

1. Accomplishment of survey and plan by or under the supervision of 
a State agency : 

(b) Possessing legal authority and responsibility to administer funds 
made available under P. L. 89-665." (Emphasis supplied.) 

The Massachusetts Historical Commission was established in the De- 
partment of the State Secretary by Chapter 697 of the Acts of 1963, 
adding sections 26 and 27 to Chapter 9 of the General Laws. Consisting 
of twelve members, the Commission is headed by the State Secretary, or 
an officer or employee from his department designated by him, who shall 
be the chairman, and includes the Commissioner of Natural Resources and 
the Commissioner of Commerce and Development. 



194 P.D. 12 

Section 26 provides in part : 

"The commission shall advise the state secretary on matters relating to 
the historic assets of the commonwealth and assist him in compiling and 
maintaining an inventory of such assets. The state secretary may on be- 
half of the commonwealth for the purposes of this section and section 
twenty-seven accept gifts of real and personal property including papers, 
documents and moneys, and he may provide technical and other assistance, 
and publish, furnish and disseminate information of an historic nature. 
All moneys received hereunder shall be transmitted forthwith to the state 
treasurer, who shall administer the same as a trust fund in the manner 
provided by section sixteen of chapter ten." 

Section 27, as amended by Chapter 707 of the Acts of 1965, authorizes 
the Commissioner to certify sites and structures in the Commonwealth as 
historic landmarks, and to establish standards with respect thereto ; and 
the State Secretary is to maintain and publish annually a list of such his- 
toric landmarks. 

General Laws, chapter 10, section 16, which relates to the State Treas- 
urer's management of gifts to the Commonwealth for certain public pur- 
poses, provides in part that the Treasurer shall : 

"invest, reinvest and hold in the name of the commonwealth any money 
or securities, or the proceeds thereof, received from the department of 
education . . . the commissioner of natural resources ... or from the trus- 
tees of the state library . . . and shall disburse the income or principal 
thereof on the order of the commissioner of the department having charge 
of the work in aid of which the gift . . . was made . . . ; provided, that 
no disposition of either income or principal shall be made which is incon- 
sistent with the terms of the trust on which the property is held." 

Also to be noted is the following provision in section 8 of Chapter 411 
of the Acts of 1966 (the General Appropriation Act for that year) : "All 
federal subventions and grants available to the commonwealth under any 
act of congress and not otherwise authorized to be received shall be paid 
into the treasury of the commonwealth." 

We can turn now to the precise question that you have asked, namely, 
whether the Massachusetts Historical Commission is, within the meaning 
of the Draft Manual of the National Park Service, a State Agency pos- 
sessing "legal authority and responsibility to administer funds made avail- 
able" by the Federal act. In my opinion, it is such an agency. 

"The word 'administer' is one susceptible of a very broad interpretation. 
In Fluet V. McCahe, 299 Mass. 173, at page 179, it was said that '(t)o 
manage' is to control and direct, to administer, to take charge of ... " 
(emphasis supplied by the court in its quotation of the original text). 
Costonis V. Medford Housing Authority, 343 Mass. 108, 114. 

The foregoing broad interpretation of "administer" appears to be appro- 
priate in the present situation. Since the State Secretary, acting for the 
Commission of which he or his designee is chairman, is authorized by 
virtue df the provision incorporated by reference from G. L. c. 10, section 
16, to direct the disbursement of the Federal grant, the Commission, may 
in my opinion, be regarded as possessing the requisite "authority and re- 



P.D. 12 195 

sponsibility" specified in the Draft Manual. That the Commission or the 
State Secretary does not have the responsibility for the actual custody and 
investment of the Federal grant does not, in my opinion, prevent the Com- 
mission from being considered a qualified state agency to "administer" 
the funds. 

I would suggest, however, that since the Manual states that it is "merely 
intended to be used as a basis for future discussions." you might, in the 
interest of eliminating all doubts, recommend to the Director of the Na- 
tional Park Service that the provision concerning the administration of 
the grant should be expanded to read as follows : 

"B. Prerequisites. The proposal must show how the State intends to 
meet these standards. 

1. Accomplishment of survey and plan by or under the supervision of 
a State agency : 

(b) Possessing legal authority and responsibility to administer or 
supervise the administration of funds made available under P. L. 89-665." 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

101. April 7, 1967. 

Honorable Clayton L. Havey, Acting Commissioner of Public Safety. 

Dear Sir: — You have requested my opinion as to whether the Ameri- 
can District Telegraph Company, commonly known and hereinafter re- 
ferred to as ADT, is subject to the licensing provision of G. L. c. 147, § 
23 as a watch, guard or patrol agency. 

General Laws, c. 147, § 23 provides in part that: 

"No person shall engage in, advertise or hold himself out as being 
engaged in, nor solicit . . . the business of watch, guard or patrol agency, 
notwithstanding the name or title used in describing such business, unless 
licensed for such purposes as provided in section twenty-five." 

The term watch, guard or patrol agency is defined in G. L. c. 147, § 
22 as follows : 

"... the business of watch, guard or patrol agency, including the fur- 
nishing, for hire or reward, of watchmen, guards, private patrolmen or 
other persons to protect persons or property, to prevent the theft or the 
unlawful taking of goods, wares or merchandise, or the misappropriation 
or concealment thereof or of money, bonds, stocks, notes or other valuable 
documents, papers or articles of value, or to procure the return thereof, 
whether or not other functions or services are also performed for hire 
or reward, or other persons are employed to assist therein." 

The services provided by ADT are outlined in a pamphlet it publishes 
and distributes entitled, "Protecting Life, Property and Profits". On 
page 5 of said pamphlet, the following protection services are enumerated : 



196 P.D. 12 

"Burglar Alarm Service for Premises protection, including Invisible 
Ray and ultrasonic alarms. 

"Burglar Alarm Service for safes and vaults. 

"Holdup Alarm Service. 

"Intrusion Detection and Alarm Service. 

"Watchmen's Reporting Service." 

The ensuing descriptions of these services reveal that alarm devices and 
other related equipment are installed on the clients' premises and connected 
with a central system in the ADT offices. ADT stresses the fact that it 
oversees, services and leases the equipment much as a telephone company 
does. 

Concerning the ADT Central Station, the ADT pamphlet states on 
page 6: 

"Upon operation of the system, or in case of trouble, distinctive signals 
are automatically received at the central station, which immediately initi- 
ates appropriate action. Fire or police headquarters are notified when 
necessary. Uniformed ADT guards stand ready to make investigations 
and to provide appropriate assistance if it is required." 

On page 22, with regard to the Watchman's Reporting Service, it pro- 
vides : 

"ADT Watchman's Reporting Service checks your watchman's per- 
formance by requiring him to signal the ADT central station while on 
patrol. If the watchman fails to signal on schedule, ADT investigates. 
If he is ill, injured or otherwise disabled, ADT provides assistance." 

The Burglar Alarm Service is described on page 25 as follows: 

"Upon closing your premises, you apply the ADT protection merely 
by throwing a switch. Thereafter, any attempt to enter the building 
sounds an alarm at the central station — but not at the premises. Central 
station operators immediately take steps to have the premises surrounded 
and searched by ADT guards, the police, or both." 

On page 29, the Telapproach System provides that : 

"An alarm is automatically transmitted to the ADT central station, 
where operators go into action to initiate an investigation by ADT uni- 
formed guards, the police, or both." 

In each of the above-described functions, it furnishes "for hire . . . 
guards, private patrolmen or other persons" to protect its clients against 
theft. It provides uniformed guards, who conduct investigations, surround 
and search the premises, and assist injured watchmen. The fact that ADT 
also installs various fire protection devices does not place it without the 
scope of the definition in G. L. c. 147, § 22 which applies "whether or not 
other functions or services are also performed for hire. ..." 

In addition, the purpose clause in the ADT corporate charter on file 
with the Secretary of the Commonwealth states that said company is in- 
corporated for "the transaction of a general messenger circular delivery, 



P.D. 12 197 

offices, carriage supply, burglar alarm night watch and general service 
business." Also, on page 1093 of the 1967 edition of the New England 
"Yellow Pages" Telephone Directory, ADT is listed under the heading 
of "Watchmen's Clocks and Watchmen's Services." 

Therefore, it is my opinion that the American District Telegraph Com- 
pany does engage in, advertise and hold itself out as being engaged in the 
business of watch, guard or patrol agency as defined in the above-quoted 
G. L. c. 147, § 22, thereby requiring that it be licensed as such an agency 
as provided in Section 25 of that Chapter. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

102. April 13, 1967. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan : — As the result of the recent decision 
of the Supreme Judicial Court of Massachusetts in Pedlosky v. Massa- 
chusetts Institute of Technology. Mass. Adv. Sh. (1967) p. 369, holding 
the "Teacher's Oath Law," G. L. c. 71, § 30A, to be invalid, you have 
asked for an opinion on two questions : 

1. Should the Department of Education advise school committees that 
the oath [viz., the Teacher's Oath] should no longer be taken "even on 
a voluntary basis"? 

2. Does the Pedlosky case have any effect on the oath required under 
G. L. c. 264, § 14 of public employees generally upon entering the em- 
ployment of the Commonwealth or any political subdivision thereof? 

As for your first question, it is my opinion that the answer is in the 
affirmative, and that school officials should take no action either to compel 
the taking of that oath or to receive the oath on a voluntary basis. The 
effect of the Court's decision in Pedlosky is to render the Teacher's Oath 
provision a nullity, lacking in official significance altogether. 

As for your question about the Public Employee's Oath, the Pedlosky 
decision did not deal with the matter and did not invalidate or otherwise 
affect any of the requirements of G. L. c. 264, § 14 relative to that oath. 
These continue, therefore, to be applicable to all public employees, in- 
cluding teachers. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



103. April 18, 1967. 

Mr. Crocker Snow, Director of Aeronautics, Massachusetts Aeronautics 
Commission. 

Dear Mr. Snow: — By letter dated April 3, 1967, you have requested 
my opinion as to whether the zoning by-law of the town of Danvers may 



198 P.D. 12 

be applied to bar the use of land in Danvers lawfully acquired by the 
Beverly Airport Commission for airport purposes for a hangar and ground 
school to be leased and operated by commercial tenants. 

It is conceded that such use is within the terms of the statute under 
which the Beverly Airport Commission manages the property. (G. L. c. 
90, §§ 51E-51N.) 

The establishment of municipal airports is a public purpose. Burnham 
V. Mayor and Aldermen of Beverly, 309 Mass. 388, 391. The court in 
that case after exhaustive review held that provision for adequate means 
of transportation of the public at large by air was as much a public pur- 
pose as provision for other methods of travel which have been held to 
be public purposes and that legislation providing for taking land for air- 
port purposes by eminent domain was proper. 

Subsequent to that decision, G. L. c. 90, §§ 51E-51N were enacted 
(St. 1946, c. 613, § 1; St. 1947, c. 332; St. 1947, c. 501). Section 51G 
now specifically provides that land for airport purposes may be acquired 
or taken by eminent domain "both within and zvithout its territorial limits" 
by a municipality. (Emphasis supplied.) 

It is inherent in the nature of airports, at least in the present state of 
the art of aeronautics, that ample open space be provided for runways, 
approaches and other appurtenances. The authority granted to acquire 
land and, if necessary, make takings by eminent domain "both within and 
without its territorial limits" clearly recognizes this fact, and the likelihood 
that such space may not be available within a single community. 

Whether it is desirable for the Legislature to go so far as to authorize 
one municipal subdivision of government to acquire or take land in the 
territory of another, and to use it in a manner contrary to local by-laws, 
is a question of legislative policy. If the Legislature decides that the public 
interest in transport by air is more important than the desire of the resi- 
dents of a particular community to be left alone, it can grant such author- 
ization. (Since November 8, 1966 this is subject to the provisions of 
Article 89 of Amendments to the Constitution.) 

In the instance before me, it is not contended that the Legislature could 
not do this, but only that the Legislature has left the Airport Commission 
subject to the zoning by-law of its neighboring community. 

In my opinion this is not so. It is well settled that local zoning by-laws 
do not apply to the Commonwealth, or instrumentalities of the Common- 
wealth, when acting in pursuance of a public function on land of the Com- 
monwealth. Teasdale v. Newell & Snowling Construction Co., 192 Mass. 
440. 

Medford v. Marinucci Bros., 344 Mass. 50, the most recent case on this 
point, held that a highway contractor was not required to comply with local 
zoning by-laws in carrying out a construction contract for a state highway, 
even though his contract required him to comply with local by-laws. This 
principle is not confined to instances where the land is directly owned by 
the Commonwealth, but extends to instrumentalities of the state when en- 
gaged in their public function unless the Legislature has indicated a differ- 
ent intention. 



P.D. 12 199 

In Village on the Hill v. Massachusetts Turnpike Authority, 348 Mass. 
107, at page 118 the court stated that the Massachusetts Turnpike Auth- 
ority is "sufficiently governmental in character so that the actual construc- 
tion and operation of the Turnpike, its essential 'government function', 
and action reasonably related to that function, should not be prevented 
by a zoning statute applicable to one municipality or by a local zoning 
ordinance or by-law", although there was no specific exemption from local 
zoning by-laws as such in the act creating it (St. 1952, c. 354). 

The court went on to hold that land not needed by the Turnpike Auth- 
ority for turnpike purposes and sold by it as excess, zvas subject to the 
Boston zoning statute. These facts are inapplicable here. 

It is to be noted that legislation setting up such subordinate public in- 
strumentalities frequently contains language requiring compliance with 
local zoning regulations. For example, local housing authorities are made 
subject to local zoning regulations by the express language of G. L, c. 
121, § 26S. 

The omission of any such express provision from G. L. c. 90, here in- 
volved, is significant. Furthermore, there is an obvious difference in the 
two situations. 

Since local housing authorities operate only in the towns in which they 
are established, the town which sets up a housing authority has full power 
to change its zoning by-laws, if necessary, and there is no hardship or 
hamstringing of the proper carrying out of a public function in requiring 
compliance therewith. 

In the situation here presented, Beverly, which has the undoubted right 
to own and operate an airport, and is expressly authorized to take land 
"within and without its territorial limits" for the purpose, could be de- 
feated in this object, conceivably even in the portion of the airport within 
Beverly because of inadequate space, if the town of Danvers could use 
its zoning powers to forbid such use. 

It is therefore my opinion that the Beverly Airport Commission, acting 
within its authority under §§ 51E to 51 N of G. L. c. 90, is not subject to 
the Danvers zoning by-laws to the extent that they prevent it from dis- 
charging its public functions. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



104. April 18, 1967. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan : — You have requested an opinion of the 
Attorney General as to certain aspects of the legal obligation of cities and 
towns to furnish transportation to school children. 

Your first two questions arise from a petition filed with the Department 
of Education under G. L. c. 71, § 68 by Mr. Joseph Wrona of Springfield, 
asking the Department to require the School Committee of that city to 



200 P.D. 12 

transport his daughter to the public high school she attends there. Quot- 
ing from a letter written to you on behalf of the Springfield School Com- 
mittee, you state the following facts: 

"The Wrona home at 530 Berkshire Avenue is approximately 3.5 miles 
from the high school. The Springfield Street Railway bus that takes their 
daughter to school passes by their door. Although the Wrona home is in 
a two fare zone, it is only .4 of a mile from a one fare zone bus stop. If 
the Wrona girl boards the bus in front of her house she pays a double 
fare to and from school. This costs 60 cents per day for a total of $108 
for the school year of 180 days. By walking .4 of a mile to the one fare 
zone bus stop she could cut the annual cost to $54, the same annual cost 
for all other students who pay for transportation to the high school." 

The underlying policy of the Springfield School Committee is described 
in the same letter as follows: 

"It is the general rule of the school committee to provide free trans- 
portation to the high schools only for those students who live more than 
two miles from school and more than one mile from a school bus stop." 

On the basis of the foregoing, you have asked the following questions : 

"(1) Has the Springfield School Committee declined to furnish trans- 
portation according to Section 68 of Chapter 71 of the General Laws? 

"(2) If the answer is in the affirmative, and the Department deter- 
mines Springfield should furnish transportation to the Wrona child, how 
does it proceed to compel Springfield to provide transportation to this child 
and others living more than two miles from the school?" 

Your final question arises from the fact that "there are about ten com- 
munities in Massachusetts which do not provide school transportation." 
You ask: 

"(3) If a school committee refuses to request money in its budget for 
transportation for youngsters who fall within the purview of Chapter 71, 
Section 68, or the town meeting or city council eliminates funds for school 
transportation, can the Department require the school committee to pro- 
vide transportation and how will it accomplish this?" 

I 

The answer to your first question calls for an interpretation of G. L. 
c. 71, § 68, the relevant provision of which is as follows: 

"If the distance between a child's residence and the school he is en- 
titled 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, 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." 

Thus, in order for a child to qualify under this provision of § 68, she 
must meet two requirements : ( 1 ) the distance between her residence and 
the school she attends must exceed two miles, and (2) the distance be- 
tween her residence and the nearest "school bus stop" must exceed one 
mile. 



P.D. 12 201 

According to the facts stated in your letter, the Wrona child lives "ap- 
proximately 3.5 miles from the high school." The first of these conditions 
is therefore met. 

Whether or not the Wrona child also qualifies under the second of the 
above requirements depends upon the meaning of the phrase "school bus 
stop." I infer from the letter written on behalf of the Springfield School 
Committee that the Committee regards the Springfield Street Railway stop 
located .4 miles from the Wrona home as a "school bus stop" for pur- 
poses of G. L. c. 71, § 68. The Committee has evidently interpreted the 
phrase "school bus stop" to mean any bus stop at which a child can obtain 
transportation to school without paying more than a single fare. 

I do not agree. There is nothing in § 68 which ties the phrase "school 
bus stop" to considerations of the fare zones which may be established 
by a local street railway company. The term "school bus" implies a vehi- 
cle by which transportation to a school is furnished at public expense. It 
certainly is not suggestive of public transportation for which the rider is 
charged a fare. It has long been the policy of this Commonwealth to fur- 
nish free education to all children of school age. Our system of public 
schools was established to implement this policy. The transportation pro- 
vision of G. L. c. 71, § 68 is a part of the same statutory scheme. In my 
opinion, that provision is based on a legislative conclusion that the cost 
of transporting children who live more than two miles from their schools, 
like the cost of the schools themselves, may appropriately be borne by the 
general public. 

This interpretation of the transportation provision is supported by the 
statutory context in which it appears. General Laws c. 71, § 68 begins 
with the following sentence : 

"Every town shall provide and maintain a sufficient number of school- 
houses, properly furnished and conveniently situated for the accommoda- 
tion of all children therein entitled to attend the public schools." 

This is immediately followed by the transportation provision under con- 
sideration. The juxtaposition in a single section of these two seemingly 
diverse requirements — that of public schoolhouses and that of transpor- 
tation to and from those schoolhouses — suggests a similarity of legisla- 
tive approach toward the two: since the purpose of the first is to assure 
free education, one may infer that the purpose of the second is to assure 
free transportation. 

Then, in the next sentence of § 68, the two topics are combined in a 
single provision : 

"If said distance exceeds three miles, and the distance between the 
child's residence and a school in an adjoining town giving substantially 
equivalent instruction is less than three miles, and the school committee 
declines to pay for tuition in such nearer school, and for transportation in 
case the distance thereto exceeds two miles, the department, upon like ap- 
peal, may require the town of residence to pay for tuition in, and if neces- 
sary provide for transportation for a part or for the whole of said dis- 
tance to, such nearer school." (Emphasis supplied.) 

Thus, in the case of out-of-town schools, the Legislature has expressly 
authorized your Department to require the town of residence to pay not 



202 P.D. 12 

only for tuition but for transportation as well. The Legislature would 
hardly have intended the town to defray the cost of transportation to 
schools outside its limits but not to its own schools. 

I think, therefore, that just as G. L. c. 71, § 68 requires a community 
to provide tuition-free schools for its resident children, it also contem- 
plates that your Department may require free transportation for any child 
living more than two miles from "the school he is entitled to attend." 

Since the Wrona child liv«s more than two miles from her school and 
more than one mile from the nearest "school bus stop," and since the 
Springfield School Committee has thus far failed to furnish transportation 
for her (and, in the letter written on its behalf, has indicated that it has 
no intention of doing so in the future), it is my opinion that the Spring- 
field School Committee has declined to furnish transportation within the 
meaning of G. L. c. 71, § 68. 

II 

Your second and third questions both involve the procedural issue of 
how a municipality can be required to furnish transportation under G. L. 
c. 71, § 68. I shall answer these questions together. 

Your Department may require a city or town to provide transportation 
under G. L. c. 71, § 68 only "upon appeal of the parent or guardian" of 
a child qualifying under that section to whom transportation is refused. 
While this condition has been fulfilled in the Springfield case, it is not 
clear from your letter whether or not such appeals have been filed with 
respect to the other cities and towns referred to in your third question. 
Once such an appeal has been filed, and once your Department has deter- 
mined that the municipality to which it relates should furnish transporta- 
tion, I am of the opinion that the municipality can be compelled to do so. 

Your Department should first issue a formal order pursuant to G. L. 
c. 71, § 68, whereby the city or town involved is directed to furnish trans- 
portation over such portion of the distance between the residence and 
school of the appellant's child as your Department may determine. This 
order should be directed to the city or town in its corporate capacity and 
delivered to the city or town clerk. It would also be appropriate to send 
copies of the order to the school committee and to the mayor or selectmen 
(who must initiate appropriations, if necessary), as well as the city council 
or board of aldermen of a city (which must appropriate the money). 

A reasonable time should then be allowed for voluntary compliance. 
What constitutes a "reasonable time" will depend upon the particular cir- 
cumstances. For example, our laws are such that a town requires much 
more time to appropriate funds than a city. The financial resources readily 
available to the municipality should also be considered, as well as the 
feasibility of its promptly obtaining adequate transportation facilities once 
the necessary funds have been raised. On the other hand, if it appears 
that the responsible municipal authorities are unwilling to take even the 
initial steps toward compliance with an order of your Department, I be- 
lieve you would be justified at once in assuming noncompliance. 

As soon as it becomes clear that a municipality will not voluntarily 
comply with your Department's order, the matter should be referred to 



P.D. 12 203 

this Department for appropriate legal action. Ordinarily, I would not 
discuss the judicial remedies which are available, since the selection of 
these is a matter for this Department. But your letter suggests that some 
municipalities may contend that there is no judicial remedy for noncom- 
pliance with a transportation order of your Department. I do not agree 
with that contention. 

In an opinion rendered to your Department on May 16, 1927, the then 
Attorney General stated that such a transportation order could be enforced 
under G. L. c. 71, § 34. 8 Op. Atty. Gen. 302. That section provides as 
follows : 

"Every city and town shall annually provide an amount of money suffi- 
cient for the support of the public schools as required by this chapter. 
Upon petition to the superior court, sitting in equity, against a city or 
town, brought by ten or more taxable inhabitants thereof, or by the mayor 
of a city, or by the attorney general, alleging that the amount necessary 
in such city or town for the support of public schools as aforesaid has 
not been included in the annual budget appropriations for said year, said 
court may determine the amount of the deficiency, if any, and may order 
such city and all its officers whose action is necessary to carry out such 
order, or such town and its treasurer, selectmen and assessors, to provide 
a sum of money equal to such deficiency, together with a sum equal to 
twenty-five per cent thereof. When such an order is made prior to the 
fixing of the annual tax rate the foregoing sums shall be required by such 
order to be provided by taxation in the manner set forth in section twenty- 
three of chapter fifty-nine; and when such an order is made after the 
annual tax rate has been fixed according to law such sums shall be re- 
quired by such order to be provided by borrowing in the same manner 
and for the same period of time as is provided under clause (11) of sec- 
tion seven of chapter forty-four in the case of final judgments, subject to 
all other a]:)plicaljle provisions of chaj^ter forty-four, except that, in the 
case of a town, such borrowing shall be made by the town treasurer, with 
the approval of a majority of the selectmen, and no vote of the town shall 
be required therefor. Said court may order that the sum equal to the 
deficiency be appropriated and added to the amounts previously appropri- 
ated for the school purposes of such city or town in the year in which 
such deficiency occurs and may order that the amount in excess of the 
deficiency be held by such city or town as a separate account, to be ap- 
plied to meet the appropriation for school purposes in the following year." 

Since the above-mentioned 1927 opinion of the Attorney General, the 
Supreme Judicial Court has held, in Ring v. Woburn, 311 Mass. 679, 
688-689, that a municipality could not be required, in a proceeding brought 
by ten taxpayers under G. L. c. 71, § 34, to appropriate sums requested 
by its school committee for transportation of school children. The Court 
held that such transportation was not an item which fell into the category 
of being "necessary for the support of the public schools as required by 
this chapter [c. 71]." The Court noted that the primary authority for 
furnishing school transportation was conferred not by G. L. c. 71 but by 
G. L. c. 40, § 4, which provides that a municipality may furnish trans- 
portation to school children, and reiterated the earlier statement in Eastern 
Massachusetts Street Ry. v. Mayor of Fall River, 308 Mass. 232, 237, 
that "contracting for the furnishing of transportation of school children 
bears only a secondary relation to education." 



204 P.D. 12 

On facts similar to those involved in Ring, the decision in that case 
must be taken to be the law. However, no order of your Department 
under G. L. c. 71, § 68 was involved in the Ring case.* There is a vast 
difference between the transportation which a municipality may furnish 
under G. L. c. 40, § 4 if it so desires, and ,the transportation which it 
must furnish under G. L. c. 71, § 68 upon the order of your Department. 
It is understandable that the Court in the Ring case did not find that the 
particular school transportation item there in question was "necessary" 
under the language of § 34. But where an order has been issued by your 
Department under G. L. c. 71, § 68, it is my opinion that the reasoning 
behind the Ring decision would no longer apply, and that the furnishing 
of school transportation pursuant to that order would be a "necessary" 
item for the "support of the public schools as required by" c. 71. 

Even apart, however, from the statutory remedy provided by G. L. c. 
71, § 34, I am of the opinion that the Superior Court, upon a petition in 
equity brought by the Commonwealth, would have the power to "require" 
the furnishing of transportation pursuant to the order of your Depart- 
ment issued under the authority of G. L. c. 71, § 68. The judicial power 
in suits brought by the Commonwealth against municipalities, to enforce 
the orders of state agencies, is virtually unlimited. The broad extent of 
this power is outlined in Commonzvealth v. Hudson, 315 Mass. 335, 343- 
346. 

It is, therefore, my opinion that the officers and inhabitants of a munici- 
pality can be judicially compelled to take the necessary steps for com- 
pliance with an appropriate order of your Department issued under G. L. 
c. 71, § 68, including the raising and appropriation of such funds as are 
needed. 

Very truly yours, 
Elliot L, Richardson^ Attorney General. 



105. April 21, 1967. 

Mr. Everett V. Olsen, Assistant to the President, Lowell Technological 
Institute. 

Dear Mr. Olsen : — I am writing in response to your inquiry of De- 
cember 5, 1966, which was joined in by Commissioner of Education, Owen 
B. Kiernan, by letter to me dated March 30. 1967. You have asked for 
an opinion on whether your Board of Trustees must terminate the em- 
ployment of a teacher at your Institute who, in signing the oath required 
of him as a public employee under G. L. c. 264, § 14, underlined the words 
uphold and defend in the clause "I will uphold and defend the Constitu- 
tion of the United States of America and the Constitution of the Com- 
monwealth of Massachusetts ..." and wrote on the reverse side of the 
oath form "uphold and defend must be qualified by the fact that I am a 
conscientious objector." 

*The Ring case involved numerous alleged violations of G. L. c. 71, § 34, as to most of which the 
Court granted relief. The item of school transportation was not even mentioned as such in the 
pleadings, being subsumed under general allegations as to reductions in the budget submitted by the 
School Committee. It received only the most cursory treatment in the testimony and briefs. 



P.D. 12 205 

Your inquiry, which antedates the recent decision of the Supreme Judi- 
cial Court of Massachusetts in the case of Pedlosky v. Massachusetts In- 
stitute of Technology, Mass. Adv. Sh. (1967) p. 369, holding the teachers' 
oath under G. L. c. 71, § 30A (which oath differs from the public em- 
ployees' oath under G. L. c. 264, § 14) to be invalid, has also asked whe- 
ther the teacher must be dismissed because he had similarly underlined and 
annotated the word support in that portion of the teachers' oath requiring 
a teacher to swear that he "will support the Constitution of the United 
States and the Constitution of Massachusetts." 

I will take up the teachers' oath first, since that can now be disposed 
of briefly and conclusively. The Pedlosky case held that because of the 
vagueness and the consequent judicial unenforceability of that portion of 
the oath requiring a teacher to declare that "I will faithfully discharge 
the duties of the position of . . . according to the best of my ability," the 
entire oath, being inseparable, was invalid. Hence, since it is now clear 
that a teacher may not be required to sign the teachers' oath in any form, 
we need not consider the significance of your teacher's annotation of it, 
and your Board of Trustees should not take any action based thereon. 

The decision in the Pedlosky case having rested on the limited ground 
just stated, the Court did not reach the question of the constitutionality 
of that portion of the teachers' oath swearing support of the United States 
and Massachusetts Constitutions ; nor did the Pedlosky case give partic- 
ular consideration to the fact that the teacher was employed at a private 
institution, the Massachusetts Institute of Technology. Thus, the Ped- 
losky decision does not touch the questions presented by your inquiry 
about the annotation which your teacher, an employee at a state institution, 
attached to his public employee's oath required under G. L. c. 264, § 14. 
That statute, which was enacted by Chapter 619 of the Acts of 1949, 
provides : 

"Every person entering the employ of the commonwealth or any politi- 
cal subdivision thereof, before entering upon the discharge of his duties, 
shall take and subscribe to, under the pains and penalty of perjury, the 
following oath or affirmation :— 

" T do solemnly swear (or affirm) that I will uphold and defend the 
Constitution of the United States of America and the Constitution of the 
Commonwealth of Massachusetts and that I will oppose the overthrow of 
the government of the United States of America or of this Common- 
wealth by force, violence or by any illegal or unconstitutional method. 
[Emphasis as in the oath filed by your teacher.] 

"Such oath or affirmation shall be filed by the subscriber, if he shall 
be employed by the state, with the secretary of the commonwealth, if an 
employee of a county, with the county commissioners, and if an employee 
of a city or town, with the city clerk or the town clerk, as the case 
may be." 

General Laws c. 264, § 15, inserted by Chapter 619 of the Acts of 1949, 
as amended, provides : 

"Violation of section fourteen shall be punished by a fine of not more 
than ten thousand dollars or by imprisonment for not more than one 
year, or both." 



206 P.D. 12 

In the absence of any contrary indication by the Supreme Court of the 
United States or by the Massachusetts Supreme Judicial Court, I regard, 
as I must, the Legislature as authorized to require public employees to 
take an oath to uphold and defend both the Constitution of the United 
States and also our own Massachusetts Constitution. An oath to support 
the United States Constitution is required of all federal and state legis- 
lators and all federal and state executive and judicial officers by Article 
VI, Clause 3 of the United States Constitution as follows : 

"The senators and representatives before mentioned, and the members 
of the several state legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be bound by oath 
or affirmation, to support this constitution ; but no religious tests shall 
ever be required as a qualification to any office or public trust under the 
United States." 

Similarly, Article VI of the Amendments to the Massachusetts Constitu- 
tion requires an oath to support the Massachusetts Constitution of all 
persons "chosen or appointed or commissioned to any judicial, executive, 
civil, military, or other office under the government [of Massachusetts]." 
The oath prescribed by Article VI is as follows : 

"I, A.B., do solemnly swear that I will bear true faith and allegiance 
to the Commonwealth of Massachusetts, and will support the constitution 
thereof. So help me GOD." [Quakers may substitute "affirm" for 
"swear" and substitute "This I do under the pains and penalties of per- 
jury" for "So help me GOD."] 

Article VII of the Amendments to the Massachusetts Constitution pro- 
vides : 

"No oath, declaration or subscription, excepting the oath prescribed in 
the preceding article [just quoted] and the oath of office, shall be re- 
quired of the governor, lieutenant governor, councillors, senators or rep- 
resentatives, to qualify them to perform the duties of their respective 
offices." 

We turn now to the annotation which the teacher at your Institute 
made to his oath as a public employee when he underlined the phrase "up- 
hold and defend" and stated on the reverse side of the form, "uphold and 
defend must be qualified by the fact that I am a conscientious objector." 
If this annotation should be construed to add a condition or qualification 
not already impliedly permitted by law, then the oath has not been legally 
subscribed. If, on the other hand, the annotation only affirms a reserva- 
tion impliedly accorded by law to a public employee, then it should be 
regarded as mere surplusage, not an added condition or a qualification. 

Whether the annotation is an actual qualification or is mere surplusage 
depends on the meaning to be given to the statement, "... I am a conscien- 
tious objector." If this means that the teacher, because of religious scru- 
ples, is unwilling to participate in war, I am of the opinion that it is a 
reservation impliedly allowed by law and hence should not be regarded as 
an improper qualification. 

It is my opinion that in passing the public employees' oath statute, the 
Legislature did not intend to impose more rigorous requirements on state 
employees than are required of state officials under both the United States 



P.D. 12 207 

and Massachusetts Constitutions. That the oath required of state officials 
under Article VI, Clause 3 of the United States Constitution (quoted 
above on page 4 of this opinion) to "support this Constitution" should 
not be construed as requiring a willingness to bear arms contrary to one's 
religious scruples was impliedly determined in Girouard v. United States, 
328 U.S. 61, decided by the United States Supreme Court in 1946. In 
that case an alien had answered "No (Non-combatant) Seventh Day Ad- 
ventist" to a question in his citizenship application which asked, "If neces- 
sary, are you willing to take up arms in defense of this country?" When 
questioned by a naturalization examiner, he explained his answer by say- 
ing, "it is a purely religious matter with me, I have no political or per- 
sonal reasons other than that." 

In holding that the applicant was not thereby disqualified from being 
admitted to citizenship, the Supreme Court reasoned that a contrary result 
would have meant that Congress intended to set a stricter standard for 
aliens seeking citizenship than the United States Constitution requires of 
holders of the highest public offices under the United States. The pro- 
vision in Article VI, Clause 3 of the United States Constitution (quoted 
above on page 4 of this opinion) that "no religious tests shall ever be 
required as a qualification to any office or public trust under the United 
States," the Court stated, safeguards the right of citizens who have the 
same religious scruples as the alien applicant to hold public office. Con- 
gress, it was said, could not have intended to deny the same right to aliens 
applying for citizenship. 

By the same reasoning, I am of the opinion that the Massachusetts 
Legislature, in enacting the public employees' oath statute, did not intend 
to deny to public employees the right to assert their religious scruples 
against participating in war. When the statute requiring the oath was 
adopted in 1949, the Girouard case was three years old and it stood unim- 
paired. That the Massachusetts Legislature intended a result inconsistent 
with the principle underlying the Girouard case is most unlikely. 

With regard to the portion of the oath in which the public employee 
swears to uphold and defend the Massachusetts Constitution, I hold a 
like opinion. Article 11 of our Declaration of Rights provides: 

'Tt is the right as well as the duty of all men in society, publicly, and 
at stated seasons to worship the SUPREME BEING, the great Creator 
and Preserver of the universe. And 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." 

Further, § 1 of Article 46 of the Amendments provides : 

"No law shall be passed prohibiting the free exercise of religion." 

In the face of these constitutional guarantees, any requirement that a 
public employee, in taking his oath, must abandon his religious scruples, 
would raise serious constitutional questions. Statutes should, if reasonably 
possible, be construed so as to avoid reasonable constitutional doubts. 
Sheridan v. Gardner, 347 Mass. 8, 18. 

For these reasons, then, I conclude that the teacher at your Institute 
may properly subscribe his public employee's oath by adding the stated 



208 P.D. 12 

annotation, provided that his action is based on religious scruples against 
participating in war. The Institute, however, will have to conduct a fur- 
ther inquiry to determine if this is so. In making this determination, the 
Institute may appropriately use the definition of a "conscientious objector" 
contained in the Universal Military and Service Act, 50 U.S.C. App. § 
456(j), where an exemption from combatant training and service in the 
armed forces is granted to a person, "who, by reason of religious train- 
ing and belief, is conscientiously opposed to participation in war in any 
form. Religious training and belief in this connection means an indi- 
vidual's belief in a relation to a Supreme Being involving duties superior 
to those arising from any human relation, but does not include essentially 
political, sociological, or philosophical views or a merely personal moral 
code." 

I am transmitting this letter to you through Commissioner Kiernan 
pursuant to his request. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

106. April 25, 1967. 

Honorable Owen B. Kiernan, Commissioner of Education. 

Dear Commissioner Kiernan: — As you know, pending litigation has 
placed in issue an opinion of my predecessor to you, dated December 29, 
1966, with regard to the basis for computing the school aid to be paid 
to each city and town of the Commonwealth during the year 1967 under 
G. L. c. 70, § 4 (Op. Atty. Gen. 66/67 No. 57). As a consequence of 
this litigation, I have had occasion to reconsider that opinion, and it is my 
belief that its conclusions should be modified. 

The question you originally posed was "... whether in computing 
Chapter 70 Aid for distribution in 1967, the 'equalized valuation' for 1966 
which . . . [was] submitted to the General Court on or before December 
31, 1966 by the State Tax Commission (Chapter 58, Section IOC of the 
General Laws) or the 'equalized valuation' of 1965 contained in House 
[Document] No. 3998 should be used?" 

The valuations contained in House Document No. 3998 are those figures 
submitted by the state tax commission under the provisions of G. L. c. 
58, § 9, as amended through St. 1953, c. 654, § 7 (before amendment 
by St. 1966, c. 14, § 43). That section provided: 

"In the year nineteen hundred and forty-three and in every second 
year thereafter, the commission shall, on or before April first, report to 
the general court an equalization and apportionment for the two succeed- 
ing years upon the several towns of the amount of property and the pro- 
portion of every one thousand dollars of state tax, and the proportion of 
county tax, which should be assessed upon each town." 

The Acts of 1966, c. 14, § 40 amended the General Laws by striking 
out c. 70 and inserting a new c. 70. (Hereafter all references to c. 70 
will be to this new chapter.) 



P.D. 12 209 

General Laws, c. 70, § 4 provides in part as follows: 

"The school aid to be paid to each city and town in any calendar year 
shall be the amount obtained by multiplying its reimbursable expenditures 
for the last preceding fiscal year by its school aid percentage for the calen- 
dar year during which such fiscal year begins. ..." 

The "financial year" of cities and towns of the Commonwealth, com- 
monly referred to as their "fiscal year," is coterminous with their calendar 
year. G. L. c. 44, §§ 56 and 56A. Therefore, the term "fiscal year" as 
set forth in G. L. c. 70, § 4, apparently refers to the "fiscal year" of the 
Commonwealth (July 1 to June 30) as defined by G. L. c. 4, § 7. Thus, 
the school aid to be paid to each city and town in 1%7 is determined by 
multiplying its reimbursable expenditures for the fiscal year July 1, 1965 
to June 30, 1966 (the fiscal year last preceding 1967) by its school aid 
percentage for the calendar year 1965 (the calendar year during which 
the fiscal year began). 

General Laws c. 70, § 2(d), (f) and (a) define the terms "School aid 
percentage," "Valuation percentage," and "Equalized valuation" as fol- 
lows: 

" 'School aid percentage', for each city or town, the amount by which 
one hundred per cent exceeds the product, to the nearest tenth of one per 
cent, of sixty-five per cent times the valuation percentage; (subject to a 
prbviso not here relevant)." 

" 'Valuation percentage', the proportion, to the nearest tenth of one per 
cent, which the equalized valuation per school attending child of the city 
or town bears to the average equalized valuation per school attending child 
for the entire state." 

" 'Equalized valuation', the equaHzed valuation of the aggregate prop- 
erty in a city or town subject to local taxation, as most recently reported 
by the state tax commission to the general court under the provisions of 
section ten C of chapter fifty-eight." (Emphasis supplied.) 

Prior to 1966 there was no G. L. c. 58, § IOC, that section having been 
inserted by St. 1966, c. 14, § 43 (effective as of January 1, 1966 by virtue 
of St. 1966, c. 14, § 79). That section provides in relevant part as fol- 
lows: 

"Oti or before December thirty-first in each year in which an equaliza- 
tion is to be established, the commission shall, on the basis of the equal- 
ized valuations determined under sections nine and ten A, as modified by 
the appellate tax board under section ten B, establish a final equalization 
and apportionment upon the several cities and towns. . . The commission 
shall report its final equalization and apportionment to the general court, 
on or before December thirty-first, to assist it in determining the amount 
of any state tax or county tax to be imposed upon the several cities and 
towns." 

Thus, the "equalized valuation" is an integral part of the formula for 
determining the "valuation percentage" for the calendar year 1965 which 
in turn is a part of the formula for determining the "school aid percen- 
tage" for the calendar year 1965, which in turn is a part of the formula 
for determining "school aid" for the year 1967. For 1967 the "equalized 



210 P.D. 12 

valuations," as most recently reported by the state tax commission under 
G. L. c. 58, § IOC, are the 1966 equalized valuations reported on or before 
December 31, 1966. In essence, you express doubt as to whether the 
definition of "equalized valuation" specified in G. L. c. 70 should be given 
its plain and ordinary meaning. While perhaps arguments to the contrary 
can be made, I submit that this is the only reasonable alternative. As 
I shall explain, I do not think that use of the equalized valuation reported 
under G. L. c. 58, § 9 (prior to amendment by St. 1966, c. 14, § 43) and 
contained in House Document No. 3998 would be reasonable. 

School aid for the year 1966 was payable quarterly, commencing not 
later than March 20 (G. L. c. 58, § 18A), at a time when there were no 
equalized vahtations as most recently reported under § IOC, since under 
§ IOC the state tax commission was not required to report the equalized 
valuations for the year 1966 until December 31, 1966, and prior to the 
year 1966 there was no section IOC. To correct this gap, it was necessary 
for the Legislature to make special provision for the year 1966. This they 
did by St. 1966, c. 14, § 73, which provides : 

"Notwithstanding the provisions of chapter seventy of the General 
Laws, as amended by section forty of this act, the equalized valuation to 
be used in determining school aid for the calendar year nineteen hundred 
and sixty-six shall be the equalized valuations as reported by the state tax 
commission to the general court under the provisions of section nine of 
chapter fifty-eight of the General Laws during the year nineteen hundred 
and sixty-five." 

Without this special provision for the year 1966, § 9 of G. L. c. 58 
(as amended through St. 1953, c. 654, § 7 but prior to amendment by St. 
1966, c. 14, § 43), has no relevance. That section simply required the 
filing of a report by the state tax commission to the General Court which 
did not have any official standing until acted upon and adopted by the 
Legislature. The last report submitted by the commission prior to 1965 
was adopted by the General Court by St. 1963, c. 660. But the report in 
1965 contained in House Document No. 3998 was never adopted by the 
General Court. Passage of St. 1966, c. 14, § 73 did give the report filed 
in 1965 legal significance, but by the express temis of that statute its use 
is limited to calculating school aid under G. L. c. 70 for the year 1966 only. 
The figures in the 1965 report have no legal status standing by themselves, 
and, without some express legislative direction, I can see no reasonable 
justification for using them in calculating state aid for the year 1967. 
This is especially so where it is entirely feasible to give literal effect to the 
definition of "equalized valuation" in G. L. c. 70. 

In reaching this conclusion, I have considered the apparent anomaly of 
the requirement that you must make your certification for school aid 
figures based on equalized valuations to the Comptroller and the state tax 
commission not later than December 31, 1966, which is the last day the 
state tax commission must certify the equalized valuations to the General 
Court (G. L. c. 70, § 5 and G. L. c. 58, § IOC, as inserted by St. 1966, 
c. 14). However, as will appear, the equalized valuations are finally deter- 
mined by December 2nd and thereafter are equally available both to you 
and to the state tax commission. 

General Laws c. 58, § 9, as inserted by St. 1966, c. 14, § 43 (subse- 



P.D. 12 211 

quent references to G. L. c. 58 will be to the statute as amended by St. 
1966, c. 14, § 43) provides: 

"In the year nineteen hundred and sixty-six and in every second year 
thereafter, the commission shall, on or before April first, determine and 
establish for each city and town a proposed equalized valuation. ..." 

Thereafter, on or before April 20th of each year in which an equalization 
is to be established, the commission is required to hold a public hearing 
on the proposed equalized valuations. G. L. c. 58, § lOA. On the basis 
of any new information received at the hearing or otherwise, the com- 
mission may change the proposed valuations, sending notice not later than 
one week after the close of the hearing to the assessors of the city or town 
concerned. Ibid. Any city or town aggrieved by the equalized valuation 
so established may appeal on or before June 1st to the Appellate Tax 
Board. G. L. c. 58, § lOB. The Appellate Tax Board must then decide 
any such appeal by December 1st. and failure of the Appellate Tax Board 
to act by that date is deemed to be a denial of the appeal. Ibid. 

Thus, on December 2nd the equalized valuations are finally determined 
and are equally available to you and the state tax commission. Nothing 
in the statute prevents you from acting before the state tax commission 
has filed its report with the General Court. After December 1st the com- 
pilation of the figures is merely a ministerial function. 

Thus, for years subsequent to 1966, it is my opinion that the plain and 
ordinary meaning of the statute should be given eflfect. Consistently with 
this opinion, in calculating state aid for 1967, you should use the "equal- 
ized valuations" for 1966 which were most recently reported by the state 
tax commission to the General Court on or before December 31, 1966 
under the provisions of G. L. c. 58, § IOC. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



107. May 1, 1967. 

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

Dear Governor Volpe: — You have asked for my opinion as to: 

1. Whether House Bill No. 4561, which is appended to your request, 
would, if enacted, be a law relating to the city of Boston within the mean- 
ing of Section 8 of Article LXXXIX of Amendment to the Constitution 
of the Commonwealth. 

2. Whether Chapter 652 of the Acts of 1960 is a special law to which 
Section 9 of said Article is applicable. 

3. Whether it is constitutionally competent, if the answer to Question 
2 is in the affirmative, for the Legislature to amend said Chapter 652, 
except by a general law applying alike to all cities, or all cities and towns, 
or to a class of not fewer than two cities, no approval of such amendment 
having been given by the voters of Boston or by the Mayor and City 
Council of Boston. 



212 P.D. 12 

Since it is brief, I set forth the entire text of House Bill No. 4561 here : 

"AN ACT PROVIDING COMPENSATION FOR MEMBERS 
OF THE BOSTON REDEVELOPMENT AUTHORITY. 

"Be it enacted by the Senate and House of Representatives in General 
Court assembled, and by the authority of the same, as follozvs: 

"SECTION 1. Chapter 652 of the Acts of 1960 is hereby amended 
by inserting after section 14 the following section : — 

''Section 14 A. Each member of the Boston Redevelopment Authority 
shall receive as compensation three thousand dollars a year for the per- 
formance of his duties. Such compensation shall be allocated by said 
Authority among its various projects in such manner and amounts as 
it deems proper. 

"SECTION 2. This act shall take effect upon its acceptance by the 
city of Boston." 

In my opinion, House Bill No. 4561, if enacted, would be a law "in 
relation to" the city of Boston within the meaning of Section 8 of Article 
LXXXIX, and therefore unconstitutional unless the provisions of Section 
8 with respect to "special laws" have been complied with. This does not 
appear to be the case on the basis of the facts which you have stated. 

Section 8 is quite clear in its terms, which I quote in full : 

"The general court shall have the power to act in relation to cities and 
towns, but only by general laws which apply alike to all cities, or to all 
towns, or to all cities and towns, or to a class of not fewer than two, and 
by special laws enacted (1) on petition filed or approved by the voters 
of a city or town, or the mayor and city council, or other legislative body, 
of a city, or the town meeting of a town, with respect to a law relating 
to that city or town; (2) by a two-thirds vote of each branch of the gen- 
eral court following a recommendation by the governor; (3) to erect and 
constitute metropolitan or regional entities, embracing any two or more 
cities or towns or cities and towns, or established with other than existing 
city or town boundaries, for any general or special public purpose or pur- 
poses, and to grant to these entities such powers, privileges and immuni- 
ties as the general court shall deem necessary or expedient for the regu- 
lation and government thereof; or (4) solely for the incorporation or 
dissolution of cities or towns as corporate entities, alteration of city or 
town boundaries, and merger or consolidation of cities and towns, or any 
of these matters." 

The Boston Redevelopment Authority was established under the pro- 
visions of G. L. c. 121, § 26QQ. That statute is in tenns a general law, 
originally including all cities and towns except Boston, and amended by c. 
150 of the Acts of 1957 to include Boston. Chapter 121, as so amended, 
states: ' \ ' < 

"There is hereby created in each city and town in the commonwealth 
a public body politic and corporate to be known as the 'redevelopment 
authority' of such city or town. . . ." (Emphasis supplied.) 

It provides further that no such redevelopment authority shall function 
until the local legislative body of the town or city (in a town, the town 



P.D. 12 213 

meeting and in a city, the city council with the approval of the mayor) 
shall determine that there is a need for such an authority "in such city or 
town". (Emphasis supplied.) In such case an authority shall be organ- 
ized in the same manner as a housing authority. That is, four members 
are appointed by the mayor of the city involved and one by the state hous- 
ing board. Further, the city or town is authorized to appropriate money 
for administrative expenses. 

The Boston Redevelopment Authority was duly organized in pursuance 
of a vote of the Boston City Council passed August 19, 1957, and its 
members appointed and certificate thereof filed with the Secretary of the 
Commonwealth on October 4, 1957. 

Chapter 652 of the Acts of 1960, "An Act concerning the development 
or redevelopment of blighted open areas, decadent areas and substandard 
areas by urban redevelopment corporations with special provisions for 
projects in the city of Boston," as its title indicates, is in some respects 
a general and in other respects a special law. Sections 1, 2, 5, 6, 7, 8, 
9 and 10 make general amendments to G. L. c. 121A, dealing with urban 
renewal. Sections 3, 4, 11, 12, 13 and 14 all specifically mention the city 
of Boston or the Boston Redevelopment Authority or both, sometimes 
in connection with other cities or towns, and sometimes not. As stated by 
the Court in Simonian v. B.R.A., 342 Mass. 573, 575-576, § 12 "gave 
substantial new powers and responsibilities to the Boston Redevelopment 
Authority" (p. 575), specifically including all the powers of the State 
Housing Board in respect to redevelopment projects "in the city of Bos- 
ton", and establishing the Authority as the planning board of the city of 
Boston under G. L. c. 41, § 70. 

We now come to House Bill No. 4561. It proposes to insert immedi- 
ately after § 14 of St. 1960, c. 652 a new section, 14A, which does one 
thing and one thing only, namely, to give compensation of $3,000 each to 
members of the Boston Redevelopment Authority and to no others. 

Section 8 of Article LXXXIX deals with the power of the General 
Court to act "in relation to cities and towns." It divides such legislation 
into general laws and special laws. General laws are stated to be "laws 
which apply alike to all cities, or to all towns, or to all cities and towns, or 
to a class of not fewer than two. ..." 

It is too clear for argument that House Bill No. 4561 is not a general 
law under any of these categories. It relates to one city, and only one, 
Boston. The Boston Redevelopment Authority is coterminous geographi- 
cally with the city limits of Boston. It came into functioning being only 
by vote of the Mayor and Council of the City of Boston to meet a muni- 
cipal need. It carries out projects for the benefit of the people of Boston. 
It is the Planning Board of the city of Boston. Four of its five members 
are appointed by the Mayor of Boston. 

It is quite true that the state has an interest, and a large one, in the 
effective functioning of such authorities. But the General Court can pro- 
tect that interest by general legislation at any time, such as the original 
legislation by which one member of each such authority is named by the 
state. 

If House Bill No. 4561 is not general legislation under § 8, does it come 



214 P.D. 12 

under any of the categories of special legislation permitted under that 
section ? 

I think not. It does not appear that it was introduced in pursuance of 
a petition filed or approved by the voters of the city of Boston or the 
Mayor and City Council of the City of Boston and, as I have stated, it 
clearly is "a law relating to that city or town," and, therefore, CI. (1) is 
not satisfied. The provision in House Bill No. 4561 that it must be ac- 
cepted by the City of Boston does not satisfy the constitutional require- 
ment that it be initiated or approved by the voters or the Mayor and Coun- 
cil before the Legislature may act on it, not after. It was not adopted fol- 
lowing a recommendation by the Governor under CI. (2) ; it does not re- 
late to a regional entity embracing two or more cities or towns or with 
other than existing city or town boundaries under CI. (3), nor does it 
come under the matters enumerated by CI. (4). 

Since, in my opinion, House Bill No. 4561 is clearly a bill relating to the 
City of Boston which does not comply with the requirements set by Sec- 
tion 8 of Article LXXXIX, it is constitutionally incompetent for the 
Legislature to enact it into law. It, therefore, does not appear necessary 
to attempt to answer your second question and to sort out the parts of c. 
652 of the Acts of 1960 that may constitutionally be amended in one way 
or another. Question 3 has been substantially answered in connection with 
Question 1. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 



108. May 4, 1967. 

Honorable Cleo F. Jaillet, Commissioner of Corporations and Taxa- 
tion. 

Dear Commissioner Jaillet: — You have asked for an opinion on whe- 
ther the persons in the classes enumerated below are entitled to personal 
income tax credits or refunds under G. L. c. 62, § 6B, inserted by c. 14 
of the Acts of 1966 (the Sales Tax Act), as amended by c. 698, § 13 of 
the Acts of 1966. 

Section 6B provides that if the total income of a "qualified taxpayer" 
and his spouse, if any, do not exceed $5,000 for the taxable year, the tax- 
payer, upon seasonable filing of a claim, shall be entitled to a credit (or 
a refund if the tax is less) of $4 for himself, a like sum for his wife, and 
$8 for each "qualified dependent." The section also provides that the 
credit or refund shall not be allowed to a married individual unless a joint 
return is filed. The same section defines a "qualified taxpayer" as : 

"... an individual who was an inhabitant of the commonwealth for not 
less than six months during the preceding calendar year, and who was 
not a person for whom another taxpayer was entitled to claim an exemp- 
tion [under c. 62, § 5A]." 

Finally, § 6B defines a "qualified dependent" as: 



P.D. 12 215 

"... an individual other than a spouse for whom a qualified taxpayer 
was entitled to claim an exemption [under c. 62, § 5A]." 

Your inquiry to me asks whether, under the foregoing provisions, the 
following classes of persons, as described by you, are eligible for credits 
or refunds : 

1. Inmates of correctional institutions, both federal and state. 

2. Patients in mental institutions of all categories supported by private 
or public funds. 

3. Persons on the welfare rolls of the Commonwealth in any form or 
on the rolls of any political subdivision thereof. 

4. Members of the various religious communities, whether male or 
female. 

5. Unwed mothers. 

6. Any person receiving any aid in any form from any governmental 
unit or any political subdivision thereof. 

7. Any married person estranged from his or her spouse who cannot 
meet the requirements of filing a joint return (because the spouse is of 
parts unknown). 

8. Derelicts with no permanent place of residence anywhere and who 
can be classified as "drifters." 

With respect to class number 7, you have also asked whether children of 
a union described in that class are "eligible to apply individually for and 
receive a refund?" 

I construe your request for an opinion on all the foregoing matters as 
assuming that all the requirements for a credit or refund have been met 
unless by coming within one of your enumerated categories an individual 
is thereby rendered ineligible. Taking up your categories in the order of 
your presentation, my views on whether inclusion in any of them is by 
itself a disqualification are as follows : 

(1) Prison Inmates. 

Nothing in the statute disqualifies them as such. However, in order to 
be eligible as an "inhabitant," an individual must be "domiciled in the 
commonwealth." G. L. c. 62, § 61(c). This means that the taxpayer must 
have his home here. Obviously, this may occasionally present difficult 
factual questions in certain cases ; but if an individual was domiciled in 
Massachusetts when imprisoned, the fact of imprisonment would not 
destroy the pre-existing domicile here. 

(2) Patients in mental institutions. 

Nothing in the statute disqualifies them, provided they are inhabitants 
of Massachusetts. Especially if the patient is committed by a court order, 
factual questions of domicile, as in the case of prison inmates, may occa- 
sionally arise where the patient was at some earlier time an inhabitant of 
another state. But if the patient was domiciled here when committed, the 
fact of commitment or mental incompetency would not destroy the pre- 
existing domicile. 



216 P.D. 12 

(3-6) Welfare recipients, members of religious communities, and un- 
wed mothers. 

Nothing in the statute disqualifies any of the foregoing persons simply 
because they come within any of these categories. 

(7) Estranged married persons. 

Nothing in the statute excepts parties to broken marriages from the re- 
quirement that if a person is married, he and his spouse must file a joint 
return in order to qualify for the credit or refund. Nor does the statute 
disqualify a claimant simply because he is a child of a broken marriage. 

(8) ''Drifters." 

Unless a person can qualify as an "inhabitant," as defined above in 
category 1, he is ineligible for a credit or refund. 

The foregoing, I trust, answers your questions, so far as the facts pre- 
sented allow. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 

109. May 16, 1967. 

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

Dear Mrs. Sullivan: — On behalf of the Board of Registration of 
Radio and Television Technicians, you have requested my opinion on whe- 
ther the Board may issue a master technician license to one Basil W. Mc- 
Farland under the "grandfather clause" of the licensing statute. 

The licensing of radio and television technicians by the Board is gov- 
erned by St. 1963, c. 604, which became effective on November 3, 1963. 
Section 2 of the statute inserted §§ 87PPP-87VVV, the general licensing 
provisions, into G. L. c. 112. However, § 4, the "grandfather clause," as 
amended by St. 1964, c. 110, exempted persons already in the business of 
radio and television repair prior to December 31, 1964 from the examina- 
tion and other requirements of §§ 87PPP-87VVV, by providing: 

"Notwithstanding the provisions of section eighty-seven PPP to eighty- 
seven VVV, inclusive, of chapter one hundred and twelve of the General 
Laws, inserted by section two of this act, any person who [1] files an 
application for a license as a technician or a master technician with the 
board of registration of radio and television technicians at any time prior 
to December thirty-first, nineteen hundred and sixty- four, on a form fur- 
nished by said board, containing a written statement that he is engaged 
in the business of repairing and maintaining radio and television receivers 
in the commonwealth on the date of said application and [2] furnishes 
evidence that he is and is found to be of good moral character, and [3] 
pays the appropriate license fee as provided in section eighty-seven UUU, 
shall, without examination or compliance with any other provision of sec- 
tions eighty-seven PPP to eighty-seven VVV, inclusive, be granted and 



P.D. 12 217 

issued such license by the board. Any such license shall expire one year 
from the date of issuance." 

You state that Mr. McFarland submitted an application for a master 
technician license, together with a check for the license fee, prior to De- 
cember 31, 1964, but that his application and check were returned to him 
by the Board because the application form had not been properly com- 
pleted, and were not resubmitted by him until January 4, 1965. (You do 
not indicate when you returned the original papers to him.) Mr. Mc- 
Farland's error occurred in Item 18 of the Board's application form, 
which states : 

"List the names and address of three (3) citizens, unrelated to you, 
who can vouch for your character, reputation, and technical competence 
in the repairing and maintenance of Radio and Television Receivers. Do 
not give the members of this hoard." (Emphasis supplied.) 

Spaces are provided on the form for three such references. One of the 
three references given by Mr. McFarland in his original application was 
a member of the Board, contrary to the prohibition in the foregoing in- 
structions against using such a reference. 

This raises a question whether Mr. McFarland qualified under the 
"grandfather clause" as a "person who files an application for a license 
. . . prior to December thirty-first, nineteen hundred and sixty-four. ..." 
I am of the opinion that he did. 

As indicated by the numbers [1], [2] and [3] that I have inserted in 
the "grandfather clause" quoted in the second paragraph of this opinion, 
a license must be granted to an applicant who meets the following three 
requirements : 

[1] "files an application ... at any time prior to December thirty-first, 
nineteen hundred and sixty-four on a form furnished by [the] board," 
containing a statement that he is engaged in the radio and television repair 
business on the date of the application and 

[2] "furnishes evidence that he is and is found to be of good moral 
character," and 

[3] "pays the appropriate license fee." 

Item 18 of the application form is evidently addressed to the second of 
these requirements. Strictly read, however, the statute provides that only 
the first requirement need be fulfilled before December 31, 1964, and im- 
poses no deadline for compliance with the second and third. Yet even if 
the statute did require the submission of evidence of good moral character 
before December 31, 1964, Mr. McFarland's error in completing the form 
cannot be regarded as so fundamental as to vitiate his application since 
the statute did not in terms require the submission of any particular kind 
of character evidence. 

Further, viewing the application alone, as in the case of Assessors of 
Brookline v. Prudential Insurance Co., 310 Mass. 300, 312 (holding that 
an application for abatement of a real estate tax on a form approved by 
the tax commissioner was not vitiated by the failure to answer certain 
questions on the form), I think that the application was only a notice by 



218 P.D. 12 

which information was given to the Board with reference to the appli- 
cant's claim for an exemption. "An application, however, is not in its 
nature the presentation of evidence in support of such claim." Assessors 
of BrookUnc case, at p. 312. Without specifying in detail the kinds of 
errors and omissions that would be fatal to an application under the 
"grandfather clause," I am of the opinion that the application of Mr. Mc- 
Farland was a sufificient compliance with the statute, and that, if he has 
otherwise satisfied the statutory requirements, he is entitled to be licensed 
thereunder. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 

110. May 16, 1967. 

Honorable Theodore W. Schulenberg, Commissioner of Commerce 
and Development. 

Dear Commissioner Schulenberg: — You have requested my opinion 
on the following questions arising in connection with regional planning 
districts established under G. L. c. 40B : 

"1. May a district refuse membership to an applicant municipality 
assuming the area requirement of section 3 of said chapter 40B is satis- 
fied 

(a) for any reason? and, 

(b) on the ground that it has set its per capita limitation lower than 
set by the Commission? 

"2. May a municipality lower its per capita limitation after joining and 
while a member, below the assessment set by the Commission for all 
member municipalities ? 

"3. If your answer is 'y^s', must the commission lower the assessment 
for all the other member municipalities? Or, putting this question differ- 
ently — does the lowest limitation set by one municipality in effect place 
a limit on the per capita assessment to be levied by the Commission on 
all member cities and towns? 

"4. If your answer to question No. 2 is 'no', may the districts be ad- 
vised that limitations as set by the municipalities at time of joining the 
District shall not be subsequently reduced?" 

While it is not the practice of this Department to render formal opinions 
on matters of an essentially local character, an exception should be made 
here because of G. L. c. 40B, § 6, which provides : 

"The several officers, boards, commissions, departments and divisions 
of the commonwealth and city and town officials may consult with any 
such district planning commission and shall furnish or make available to 
it on request all data and information within their knowledge and control 
pertaining to the area of jurisdiction of such commission." 



P.D. 12 219 

I 

Question 1 is apparently based on the assumption that a regional plan- 
ning district established under G. L. c. 40B may be enlarged by the addi- 
tion of other cities and towns which apply for membership. The only 
statute, however, which deals with membership in such a district is G. L. 
c. 40B, § 3, which provides : 

"Any group of cities, towns, or cities and towns may, by vote of their 
respective city councils or town meetings, vote to become members of and 
thus to establish a planning district, which shall constitute a public body 
corporate, the area of jurisdiction of which shall be an area defined by 
the division of planning of the department of commerce and development 
as an effective planning region under clause (c) of section six of chapter 
twenty-three A." 

Since § 3 makes no provision for enlargement of the membership of an 
existing district, an established district does not, as such, have power to 
accept an applicant municipality as an additional member. However, in 
conformity with § 3, the member municipalities of an existing district may 
at any time join with other municipalities to form what would, in essence, 
be a new, enlarged regional planning district which could then assume 
the functions of the old one. Should the formation of such a new, en- 
larged district be undertaken, any of the cities and towns belonging to an 
existing district could, of course, refuse to join the new one, and by so 
doing frustrate its formation. Thus, as a practical matter, an applicant 
municipality can be kept out of an expanded district by the refusal of any 
member of an existing district to join with it. The refusal of any such 
member need not be based on any particular ground. 

II 

Your remaining questions involve an interpretation of G. L. c. 40B, § 
7, the relevant portions of which are as follows : 

"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 assessors 
thereof who shall include the sums 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 certi- 
fied by the commission as the municipality's share of the costs and ex- 
penses of the district." 

Question 2 focuses on the "limit or maximum amount fixed by the city 
council of any city or town meeting of any town" upon the amount which 



220 P.D. 12 

may be assessed by the regional planning commission, vmder the first 
sentence of § 7. The answer turns on whether or not such an assessment 
limit, once fixed by a member city or town at the time it votes to become 
a member of the district, may thereafter be reduced.* 

I am of the opinion that no such reduction is permissible. Under G. L, 
c. 40B, § 3 (quoted in my answer to Question 1, above), a regional plan- 
ning district is established by what amounts to a contract or compact 
among municipalities. The use of the language "which votes to become a 
member of such planning district," directly following the phrase "amount 
fixed by the city council of any city or town meeting of any town" in 
G. L. c. 40B, § 7, suggests that "the limit or maximum amount" fixed 
when the district was formed is not subject to later reduction and remains 
one of the obligations assumed by the member municipality. 

The need for such a financial commitment on the part of the member 
municipalities is obvious. Without it, a single community could at any 
time sharply curtail the activities of the district by unilaterally reducing 
its sources of revenue. Indeed, there would be nothing to stop a recalci- 
trant municipality from cutting its assessment limit to an amount barely 
more than zero. Moreover, since § 7 requires that the portion of the costs 
assessed by the commission to any city or town "be on a per capita basis 
in direct proportion to the population of the city or town and the planning 
district," there would have to be a corresponding reduction in the amount 
assessed to all the other municipalities in the district. I find it hard to 
believe that the Legislature intended that the operations of a duly consti- 
tuted regional planning district could be so readily frustrated. 

The details of the fiscal procedure established by § 7 suggest the same 
result. That procedure consists of the following sequence of events : 

(1) The district planning commission must "estimate the amount of 
money required to pay the costs and expenses of the district for the fol- 
lowing year" ; 

(2) The commission must "fix and determine the proportion of such 
costs and expenses to be paid by the constituent cities and towns thereof 
during such year" ; 

(3) The commission must "certify the amount so determined for each 
city and town to the assessors thereof" ; 

(4) The assessors must "include the sum in the tax levy for each 
year" ; and 

(5) The treasurer of each constituent municipality must from time to 
time pay to the district "sums not exceeding the amount certified by the 
commission." 

The statute provides that the first three of these acts are to be per- 
formed by the commission "annually in the month of December." The 
plain implication is that step (4) is to be performed immediately there- 
after, and the statute specifies that step (5) shall be completed "from 

*There is now pending before the General Court a bill (Senate No. 516) which would insert in 
G. L. c. 40B, § 7, after the words "votes to become a member of such planning district" in the 
first sentence, the words: "provided that such per capita limit shall not be less than the per 
capita cost to the member municipalities at the time such city or town became a member. ..." 
The filing of the bill does not, of course, mean that the amendment is needed. 



P.D. 12 221 

time to time" during the ensuing year. Thus, each step in the above pro- 
cedure is subject to a definite timetable. If the Legislature had intended 
the setting of the local assessment Umits to be a recurring event, it seems 
to me that the statute would likewise have specified a time for this as well. 

If, on the other hand, the absence of explicit reference to the time for 
municipal action under the assessment limit clause were interpreted as 
allowing such action at any time, the statute could become wholly unwork- 
able. This clause appears in § 7 immediately after step (2) in the fore- 
going procedure, as a limitation on the amount which the commission is 
directed to "fix and determine" in December. The amount certified to the 
local assessors under step (3) is identical to the amount determined under 
step (2), and the duties of the assessors under step (4) and the local 
treasurer under step (5) are based on the amount so certified. Once this 
chain of events is set in motion, the statute makes no provision for re- 
determination or recertification by the commission, or for any exercise of 
discretion by the assessors or treasurer in the performance of their duties 
thereunder. Thus, any supervening change in the assessment limit of any 
municipality for the year in question would throw the entire procedure 
into chaos. 

It is, therefore, my opinion that a municipality belonging to a regional 
planning district established under G. L. c. 40B may not reduce its existing 
assessment limit below the assessment lawfully set by the regional plan- 
ning commission. 

Since I have given a negative answer to Question 2, Question 3, by its 
terms, requires no answer. You will note, however, that I have already 
answered Question 3 in the course of my answer to Question 2. 

In answer to Question 4, I see no objection to advising the regional 
planning districts established under G. L. c. 40B that the limits originally 
set by their member municipalities may not subsequently be reduced. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



111. May 18, 1967. 

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

Dear Mrs. Sullivan : — Acting on behalf of the Board of State Ex- 
aminers of Electricians, you have requested my opinion on the following 
question : 

"Under the provisions of G. L. c. 143, § 3L, does the Inspector of 
Wires in a city or town have to be given notice of work being done by a 
private contractor in or on property of the Commonwealth?" 

Since you have not submitted specific facts with your question, I can an- 
swer it only in general terms. 

The notice requirement referred to in your question appears in the last 
two paragraphs of G. L. c. 143, § 3L: 



222 P.D. 12 

"No person shall install for hire any electrical wiring or fixtures sub- 
ject to this section without first or within five days after commencing the 
work giving notice to the inspector of wires appointed pursuant to the 
provisions of section thirty-two of chapter one hundred and sixty-six. 
Any person failing to give such notice shall be punished by a fine not 
exceeding twenty dollars. This section shall be enforced by the inspector 
of wires within his jurisdiction and the state examiners of electricians. 

"Any person installing for hire electrical wiring or fixtures subject to 
this section shall notify the inspector of wires in writing upon the com- 
pletion of the work. The inspector of wires shall, within five days of such 
notification, give written notice of his approval or disapproval of said 
work. A notice of disapproval shall contain specifications of the part of 
the work disapproved, together with a reference to the rule or regulation 
of the board of fire prevention regulations which has been violated." 

Thus, the notice requirement applies only to the installation for hire of 
"electrical wiring or fixtures subject to this section. ..." The scope of 
"this section" (i.e., G. L. c. 143, § 3L) is defined in its first sentence as 
"electrical wiring and electrical fixtures used for light, heat and power 
purposes in buildings and structures subject to the provisions of sections 
three to sixty, inclusive." 

While there are a great many types of "buildings and structures" which 
are "subject to the provisions of" G. L. c. 143, §§ 3-60, those sections 
contain no answer to the question of whether or not their scope extends 
to real estate of the Commonwealth. That question, I think, is answered 
by the first two sentences of G. L. c. 143, § 2A : 

"The provisions of this chapter relative to the safety of persons in 
buildings shall apply to buildings and structures, other than the state 
house, owned, operated or controlled by the commonwealth, and to build- 
ings and structures owned, operated or controlled by any department, 
board or commission of the commonwealth, or by any of its political sub- 
divisions, in the same manner and to the same extent as such provisions 
apply to privately owned or controlled buildings occupied, used or main- 
tained for similar purposes. The provisions of this chapter relative to the 
inspection of buildings privately owned shall apply in the same manner 
to the inspection of buildings subject to this section." 

It is, therefore, my opinion that, generally speaking, a private contractor 
installing electrical wiring or fixtures used for light, heat or power pur- 
poses in any building or structure other than the State House, owned, 
operated or controlled by the Commonwealth is required to notify the 
municipal inspector of wires in accordance with § 3L thereof. In the ab- 
sence of additional facts, I cannot answer your question more definitely. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



P.D. 12 223 

112. May 25, 1967. 

Honorable Howard Whitmore, Jr., Commissioner, Metropolitan Dis- 
trict Commission. 

Dear Commissioner Whitmore: — You have requested my opinion 
relative to a taking- by the City of Boston of land owned by the Metro- 
politan District Commission (MDC) for the relocation and revision of 
the grade of the American Legion Highway in that city. 

The documents you attached to your request reveal the following facts : 

On December 6, 1962, the Public Improvement Commission (PIC) of 
the City of Boston filed in the SufiFolk Registry of Deeds an order, ap- 
proved by the PIC and the Mayor, for the relocation and revision of 
grade of American Legion Highway from Hyde Park Avenue, Hyde 
Park, to Canterbury Street, West Roxbury. Affected by this construction, 
and shown on plans dated November 5, 1962, attached to the order, is a 
parcel of land containing 55,265 square feet, owned in fee by the MDC 
and taken by a predecessor agency in October, 1899 in connection with 
the construction of Section 67, Stony Brook Siphon, High Level Sewer. 
The PIC order of December 6, 1962 purported to take 19,817 square feet 
of the MDC's parcel for a 90-foot highway location and 12,591 square 
feet for slope easements. The PIC construction will also require that one 
headhouse on the siphon be raised about 17 feet. The PIC order also 
purportedly took, in part, slope easements of the Metropolitan sewer ease- 
ment from Station 0+70 to Station 11+47. Section 68, and slope ease- 
ments and a highway location in the Metropolitan sewer and over the 
Metropolitan sewer from Station 11+47 to Station 17+30, Section 68. 

The City of Boston cites as authority for this taking c. 393 of the Acts 
of 1906. That special act [as amended, including provisions for substitu- 
tion of the PIC for the board of street commissioners] provides in part: 

"Section 1. Every highway in the city of Boston shall be laid out, re- 
located, altered, widened, discontinued, constructed, or shall have specific 
repairs made thereon, only as provided in this act or as provided in some 
other special act for a highway named therein. . . . 

"Section 2. Whenever said board of street commissioners shall be of 
opinion that in said city a public improvement should be made, consisting 
of laying out, relocating, altering, widening or discontinuing, with or with- 
out construction of sewer, or of changing the grade of, or constructing, 
with or without sewer, a highway or public alley, the board shall appoint a 
time for a public hearing. . . . After the hearing the board may pass an 
order for making any such improvement that in the opinion of the board is 
required by public convenience. . . . The board on the same day shall pass 
another order and therein shall determine and award the damages to be 
paid by the city to each person whose property is taken for the improve- 
ment. . . . Said orders shall ... be approved in writing by the mayor. . , . 
After such approval by the mayor . . . the board shall cause to be recorded 
in the registry of deeds for the county of Suffolk the order for the im- 
provement, . . . and such recording shall constitute the taking of land re- 
quired for the improvement. ..." 

Specifically, you have asked "... whether or not this taking, made for 
the purpose for which it was taken by the city of Boston (PIC), was a 



224 P.D. 12 

valid taking. ..." You question whether the City of Boston has auth- 
ority to take land held by the Commission in the absence of express legis- 
lation. 

For reasons which I shall state below, I am unable to give you a con- 
clusive answer to your question. I shall, however, set forth the relevant 
legal principles which may help you resolve the problems resulting from 
the purported taking. 

As you correctly point out, there is no statute specifically authorizing 
Boston to take the land in question. Yet even absent specific authoriza- 
tion, land already in public use may be taken under a general power of 
eminent domain such as c. 393 of the Acts of 1906, for another public 
use provided the two uses are not inconsistent. See Boston v. Brookline, 
156 Mass. 172, 175. Commonwealth v. Massachusetts Turnpike Auth- 
ority, 346 Mass. 250, 254. Furthermore, uses are not necessarily incon- 
sistent simply because the later taking may somewhat impair the original 
use. East Hampton v. County Commissioners of Hampshire, 154 Mass. 
424. Needham v. County Commissioners of Norfolk, 324 Mass. 293, 
296-297. Since the taking by the City of Boston is under the general 
authority of c. 393 of the Acts of 1906, the issue which must be resolved 
is whether the use of the City of Boston for the relocation and revision 
of the grade of the American Legion Highway is inconsistent with the 
MDC's sewer use. 

This determination is essentially one of fact rather than law. Boston v. 
Brookline, supra at 176-177; East Hampton v. County Commissioners of 
Hampshire, supra at 425-426. No doubt an examination of the maps lay- 
ing out each taking as well as an examination of the premises should be 
made. Consideration should also be given to the requirements of the City 
and the MDC and to possible engineering difficulties in adjusting them. 
These are some of the facts that should be resolved. With the aid of 
engineers, no doubt, other facts will also become relevant. 

In your request you appear to assume that if the taking by the City of 
Boston was valid, the property would no longer be under the jurisdiction 
of the MDC. This result does not, however, follow from the given as- 
sumption. There being no statute specifically authorizing the City of Bos- 
ton to take the land in question, the validity of any taking by the City 
under its general authority given by c. 393 of the Acts of 1906 must 
necessarily depend on the taking being so limited that the MDC's use of 
the land is not materially disturbed. Nezvton v. Newton, 188 Mass. 226, 
228. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

113. June 5, 1967. 

Mr. Robert G. Davidson, Executive Director, Metropolitan Area Plan- 
ning Council. 

Dear Mr. Davidson : — You have requested my opinion as to the eligi- 
bility of the Metropolitan Area Planning Council (MAPC) to share in 
an appropriation made by Item 3015-05 of the Supplementary Budget for 



P.D. 12 225 

the 1967 Fiscal Year (St. 1966, c. 709, § 2) to the Department of Com- 
merce and Development from the Local Aid Fund. The appropriation is 
cast in the following terms : 

"For the reimbursement, on a matching basis, of regional planning 
agencies for a program of planning studies . . . $30,000" 

The eligibility of the MAPC to receive a distribution under this appro- 
priation therefore apparently depends only on whether it is a "regional 
planning agenc[y]" within the meaning of the statutory language. On the 
face of it, this title certainly fits the MAPC, as described in G. L. c. 6, 
§§ 109-114. The MAPC is a regional agency, in that its activities are con- 
fined to a geographical district (the Metropolitan Area Planning District) 
consisting of a group of contiguous municipalities in the metropolitan 
Boston area. G. L. c. 6, § 111. That it is also a planning agency, is evi- 
dent from the powers conferred upon it by G. L. c. 6, § 110. The very 
names "Metropolitan Area Planning Council" and "Metropolitan Area 
Planning District" are suggestive of its intended inclusion under the 
phrase "regional planning agencies." 

According to your letter, however, it has been contended that the Legis- 
lature has, in effect, excluded the MAPC from the beneficiaries of this 
appropriation by making it payable from the Local Aid Fund. That Fund 
was established on the books of the Commonwealth by St. 1966, c. 14, § 
28, inserting G. L. c. 29, § 2A, which provides that revenues credited 
thereto "shall be used solely for the state assistance of the cities and 
towns in accordance with the provisions of sections eighteen and eighteen 
A of chapter fifty-eight." General Laws c. 58, § 18A authorizes distri- 
butions from the Local Aid Fund "to the several cities and towns" for a 
variety of local purposes. The MAPC is a state agency, not a local one. 
G. L. c. 6, § 17. Its expenditures (with exceptions not here relevant) 
are limited to "such amounts as the general court may appropriate there- 
for." G. L. c. 6, § 114. For these reasons, it is argued, the allocation of 
sums from the Local Aid Fund to the MAPC would be inconsistent with 
the purposes for which that Fund was created and inconsistent with the 
word "reimbursement" in Item 3015-05. 

I do not agree with this contention. That the MAPC is a state agency 
and that it receives a state appropriation are, in my opinion, insufficient 
reasons for ignoring the plain language of Item 3015-05. The particular 
issue to be decided here does not depend on the source, the General Fund, 
from which the MAPC may receive its other money. The issue is rather 
the uses which the Legislature authorized for Item 3015-05. It should be 
noted, moreover, that the MAPC differs from most state agencies in that 
the annual appropriations it receives from the General Fund are reim- 
bursable from local sources. Under G. L. c. 6, § 114, "the amount appro- 
priated by the general court [for the MAPC] shall be charged as assess- 
ments on the various cities and towns comprising the district ; provided, 
however, that any such assessment on such city or town shall not exceed 
a sum equivalent to five cents per capita of the population of such city or 
town. ..." Thus, the annual appropriations to the MAPC are in the 
nature of short-term charges against the member municipalities, rather 
than outright grants to the MAPC. A distribution of money from the 
Local Aid Fund to the MAPC under Item 3015-05 will thus have the 
effect of reducing the assessments upon these municipalities. 



226 P.D. 12 

Actually, the reasons which have been advanced for excluding the 
MAPC from a share of these funds would apply to all "regional plan- 
ning agencies." Typically, these agencies are the regional planning dis- 
tricts established by the voluntary action of cities and towns under G. L. 
c. 40B. While the c. 40B planning districts differ in a number of respects 
from the MAPC, these differences are only superficial. The two types of 
districts are almost indistinguishable in every important respect. For 
example : 

( 1 ) They are regional rather than local, both in purpose and in govern- 
mental status. (The MAPC, as previously indicated, is a state agency. 
G. L. c. 6, § 17. The c. 40B districts are political subdivisions of the 
Commonwealth. G. L. c. 40B, § 3.) 

(2) They are governed by a body composed of locally appointed repre- 
sentatives of their member cities and towns. G. L. c. 6, § 109 (the "metro- 
politan area planning council").* G. L. c. 40B, § 4 (the "district planning 
commission"). 

(3) These bodies are charged with essentially the same regional plan- 
ning responsibilities, their recommendations to their constituent munici- 
palities being "advisory only." G. L. c. 6, § 110. G. L. c. 40B, § 5. 

(4) They are financed principally by assessments upon the member 
cities and towns, made annually on a per capita basis. G. L. c. 6, § 114. 
G. L. c. 40B, § 7. 

It seems to me, moreover, that exclusion of the MAPC from eligibility 
for distributions under Item 3015-05 would work a substantial injustice. 
Eighty-seven cities and towns are embraced in the Metropolitan Area 
Planning District, among them the City of Boston. It is by far the most 
populous of all the regional planning districts in the Commonwealth, and 
generates a large percentage of the income, meals and sales tax revenues 
from which the Local Aid Fund (in accordance with G. L. c. 58, § 18) 
is derived. If the Legislature had intended to omit such an important area 
from the benefits of this appropriation, I think it would have manifested 
this intention in plain language. 

It is therefore my opinion that the MAPC is among the "regional plan- 
ning agencies" referred to in Item 3015-05 of the Supplementary Budget 
for the 1967 Fiscal Year and hence is eligible to receive a portion of the 
funds appropriated thereunder. I would add, however, that the mere eli- 
gibility of the MAPC for such a distribution does not confer upon it any 
absolute right thereto, since, by the terms of Item 3015-05, the allocation 
of these funds among the "regional planning agencies" is left to the dis- 
cretion of the Department of Commerce and Development. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

*The MAPC also includes certain members appointed by the Governor and certain ex officio mem- 
bers, though the great majority of its members are the local representatives described above. 
There are also other details wherein the MAPC and the c. 40B planning districts differ. 



P.D. 12 227 

114. June 6, 1967. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs: — I have had under consideration a request 
by your predecessor to former Attorney General Edward W. Brooke for 
an opinion concerning land damage payments where the land is subject 
to a security interest. After careful consideration of the request, I have re- 
luctantly come to the conclusion that the questions submitted are so gen- 
eral that it is inadvisable to attempt to deal with them without a specific 
factual foundation. In this connection I have in mind a statement by 
former Attorney General Paul A. Dever in 1935, appearing in the Report 
of the Attorney General for the year ending November 30, 1935, at 
page 31 : 

"The long-continued practice of this department and the precedents set 
by my predecessors in office indicate, what is undoubtedly the correct 
rule of law, that it is not within the province of the Attorney General to 
determine hypothetical questions which may arise, as distinguished from 
questions relative to actual states of fact set before the Attorney General, 
upon which states of fact public officials are presently required to act ; nor 
is it the duty of the Attorney General to attempt to make general inter- 
pretations of statutes or of the duties of officials thereunder, except as 
such interpretations may be necessary to guide them in the performance 
of some immediate duty." 

I have concluded, after very considerable thought and analysis, that the 
inquiries fall within the limitations just stated. I would apprehend that a 
necessarily discursive attempt to cover the field could cause more confusion 
than assistance. Please be assured, however, that upon submission to me 
of a particular set of facts involving the performance of some immediate 
duty, I will be pleased to render an opinion. In addition, the legal stafif 
of the Eminent Domain Division is in a position to render informal legal 
advice to members of your Department on any aspects of the questions 
your predecessor has raised, as they may arise. 

If this disposition presents any serious difficulties to you or to your 
staflf, I should be glad to discuss the matter with you further. 

Very truly yours, 
Elliot L. Richardson, Attorney General. 



115. June 6, 1967. 

Honorable Quintin J. Cristy, Chairman, Alcoholic Beverages Control 
Commission. 

Dear Mr. Cristy: — You have requested my opinion concerning two 
pending applications for transfers of alcoholic beverages licenses. One of 
these is an application to transfer to an individual a wine and malt "pack- 
age goods" store license under G. L. c. 138, § 15; the other is an applica- 
tion to transfer to that individual's spouse a restaurant license under G. L. 
c. 138, § 12 for the sale of all kinds of alcoholic beverages. 



228 P.D. 12 

In particular, you have asked the following questions : 

"1. Whether or not the Commission may approve the transfers to the 
individuals, man and wife? 

"2. Will the approval to the wife be predicated upon her having filed 
a Married Woman's Business Certificate?" 

General Laws c. 138, § 12 states, in part: 

"No person, firm, corporation, association or other combination of per- 
sons, directly or indirectly, or through any agent, employee, stockholder, 
officer or other person, or any subsidiary whatsoever, licensed under the 
provisions of section fifteen . . . shall be granted a license under this 
section." 

General Laws c. 138, § 17 states, in part: 

"Unless expressly authorized by this chapter, local licensing authorities 
shall not grant licenses to any person, firm or corporation under more 
than one section of this chapter." 

Under these sections not more than one of the transfer applications may 
be approved if the transfers will result in one person directly or indirectly, 
in combination with or through any other person, holding both a package 
store license and a restaurant license, deary v. Cardiillo's Inc., 347 Mass. 
337, 346-350. 

Therefore, the Commission must determine whether any arrangement 
exists between the husband and wife which would amount to one of them 
being the agent or subsidiary of the other or the two of them being a 
"combination of persons" in the holding of the two licenses. If the Com- 
mission finds that there is no such arrangement or combination, it may ap- 
prove the transfers. 

As for your second question, you will recall that in an opinion to you 
on July 25, 1966 Attorney General Edward W. Brooke discussed in detail 
the significance of the filing of a Married Woman's Business Certificate. 
Op. Atty. Gen. 66/67 No. 7. That opinion pointed out that such a certifi- 
cate is only one factor to be taken into consideration by the Commission 
in making its ultimate finding of fact. 

Very truly yours, 

Elliot L. Richardson, Attornev General. 



116. June 7, 1967. 

Honorable Anthony P. DeFalco, Commissioner of Administration. 

Dear Commissioner DeFalco: — You have requested my opinion on 
the following questions : 

"1. Does the Executive Office of Administration and Finance, acting 
through the Director of Program Planning and Research, have the auth- 
ority, under the provisions of General Laws, Chapter 7, Sections 3 and 
4, to do state level planning? 



P.D. 12 229 

"2. Does the Executive Office of Administration and Finance have 
authority, under General Laws, Chapter 7, Sections 3 and 4, to receive 
federal funds for the above purpose of doing state level planning?" 

You state in your letter that these questions arise because of an apph- 
cation made on behalf of the Executive Office for Administration and 
Finance to the United States Department of Housing and Urban Devel- 
opment for a $700,000 grant for "state-level planning." According to a 
memorandum furnished to me by your office, the term "state level plan- 
ning" as used in your letter includes the following functions: 

"1. Development and periodic revision of comprehensive state level, 
long-range plans for the Executive Department in Massachusetts [to pro- 
vide answers to the following questions:] 

a. What are the present responsibilities of the Executive Branch? 

b. How are those responsibilities best delegated to the various state 
agencies to avoid (minimize) overlap or functional conflict? 

c. What are the major long-range objectives of the Executive Depart- 
ment in Massachusetts? 

d. What are the relative priorities among those objectives? .... 



e. How can those objectives and priorities best be translated into an 
effective course of action ? 

f. What funds should be made available to which agencies over what 
period of time to accomplish the desired programs? 

"2. Preparation of Executive Department reorganization plans as 
necessary to improve the implementation capabilities of the various depart- 
ments and agencies of the Commonwealth. 

"3. Cooperation with agencies of the federal government in the devel- 
opment, allocation, supervision and evaluation of specific federal grants 
for state level planning in Massachusetts." 

Thus, the type of planning about which you inquire appears to be con- 
fined to organizational, fiscal, administrative and other managerial prob- 
lems — as distinguished, for example, from the physical, social and eco- 
nomic planning committed to the Department of Commerce and Develop- 
ment under G. L. c. 23 A, § 2(b). 

As to Question 1, I think that the power of the Executive Office for 
Administration and Finance to conduct managerial planning projects is 
implicit in G. L. c. 7, § 3, which provides : 

"The executive office for administration and finance shall serve as the 
principal agency of the executive department of the government of the 
commonwealth for the following purposes : 

( 1 ) Developing, co-ordinating, administering and controlling the finan- 
cial policies and programs of the commonwealth ; 

(2) Supervising the organization and conduct of the business affairs 
of the departments, commissions, offices, boards, divisions, institutions 
and other agencies within the executive department of the government of 
the commonwealth; 



230 P.b. 12 

(3) Developing new policies and programs which will improve the 
organization, structure, functions, economy, efficiency, procedures, services 
and administrative practices of all such departments, commissions, offices, 
boards, divisions, institutions and other agencies." 

Under G. L. c. 7, § 4, moreover, the Commissioner of Administration, 
as head of the Executive Office for Administration and Finance, is ex- 
pressly given powers which adequately encompass the functions listed in 
the above-quoted memorandum furnished to me by your Office : 

"[The Commissioner of Administration] shall act as the executive offi- 
cer of the governor in all matters pertaining to the financial, administra- 
tive, planning and policy co-ordinating functions and affairs of the de- 
partments, commissions, offices, boards, divisions, institutions and other 
agencies within the executive department of the government of the com- 
monwealth. He shall inquire into the business affairs of the common- 
wealth and the laws governing them ; shall supervise program planning 
and the co-ordination of the activities and programs of the common- 
wealth in its dealings with the federal government ; shall review and re- 
port to the governor and the general court on all proposed legislation 
affecting the organization, structure, efficiency and administrative func- 
tions, services, procedures and practices of the departments, commissions, 
offices, boards, divisions, institutions and other agencies, or any of them, 
under the executive department of the government of the commonwealth; 
shall conduct studies of the operations of the said agencies with a view to 
effecting improvements in administrative organization, procedures, and 
practices and to promoting economy, efficiency, and avoiding of useless 
labor and expenses in the said agencies ; shall from time to time recom- 
mend to the governor and the general court such changes as he shall deem 
desirable in the laws relating to the organization, structure, efficiency or 
administrative functions, services, procedures and practices of any such 
agency or agencies ; and shall have such other powers and duties as shall 
be assigned to him by statute and may from time to time be assigned to 
him by the governor in accordance with law." 

It is my understanding that the Director of Program Planning and Re- 
search, referred to in Question 1, is an official in the Executive Office for 
Administration and Finance whose office was created by you rather than 
by statute, to carry out the functions listed in the memorandum quoted 
in the second paragraph of this opinion. This delegation of authority is 
entirely proper. Under G. L. c. 7, § 4A, you, as Commissioner of Ad- 
ministration, "may from time to time establish within the executive office 
for administration and finance such bureaus, sections and other adminis- 
trative units not otherwise established by law as may be necessary for the 
efficient, economical administration of the work of the executive office for 
administration and finance. ..." Under G. L. c. 7, § 4D, you are auth- 
orized to "appoint such experts and other assistants in the said office as 
[you] shall deem necessary. ..." 

It is therefore my opinion that the Executive Office for Administration 
and Finance, acting through its Director of Program Planning and Re- 
search, has authority to conduct "state level planning" activities within the 
meaning of your letter. 

I am also of the opinion that Question 2 must be answered in the affirm- 
ative. The authority of the Executive Office for Administration and 



P.D. 12 231 

Finance to receive federal funds for "state level planning" purposes suffi- 
ciently appears in St. 1966, c. 411, § 8, which provides: 

"Applications for all federal subventions and grants available to the 
commonwealth under any act of congress shall be subject to the approval 
of the commissioner of administration. Any transfer within such sub- 
ventions or grants shall be subject to the approval of the commissioner of 
administration. All federal subventions and grants received by the com- 
monwealth, or by a corporation or other organization established as an 
affiliate of any agency or institution operated by the commonwealth or by 
an individual employed by the commonwealth, authorized to expend such 
funds in conjunction with services rendered by the commonwealth, may 
be expended without specific appropriation under the terms and conditions 
provided in rules and regulations established by the commissioner of 
administration and if such expenditures are otherwise in accordance with 
law. All such federal subventions and grants shall be reported in full by 
the head of the agency directly rendering the services mentioned above to 
the budget director, to the comptroller and to the house and senate com- 
mittees on ways and means. The report shall include such itemization as 
required in accordance with state and federal regulations. All federal sub- 
ventions and grants available to the commonzvealth under any act of con- 
gress and not othcrzvise authorised to be received shall be paid into the 
treasury of the commomvcalth. All such expenditures of federal subven- 
tions and grants shall be subject to the audit of the state auditor." (Em- 
phasis supplied.) 

This provision (which was enacted as a part of the Budget for the 1967 
Fiscal Year and which, in substantially identical form, has appeared in 
our budget statutes for many years) plainly contemplates the receipt by 
various state agencies, including the Executive Office for Administration 
and Finance, of federal funds "not otherwise authorized to be received." 
The only condition imposed upon the application to the federal government 
for such funds is that stated in the first sentence of the foregoing statute : 
your approval, as Commissioner of Administration. All funds thus re- 
ceived must, of course, as provided in the next to the last sentence of St. 
1966, c. 411, § 8, quoted above, be "paid into the treasury of the com- 
monwealth." 

It is therefore my opinion that the Executive Office for Administration 
and Finance, subject to your approval, has authority to receive federal 
funds for the purpose of conducting state-level planning activities auth- 
orized by G. L. c. 7, §§ 3 and 4. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



117. Junes, 1967. 

Mr. William G. Saltonstall, Chairman, Board of Education. 

Dear Mr. Saltonstall: — You have asked whether your membership 
on the State Board of Education, of which you are the chairman, pre- 
cludes your teaching, with or without compensation, one of the seminars 
ofifered under the Harvard University Freshman Seminar Program. As 



232 P.D. 12 

I understand it, such a teaching position would involve your formal ap- 
pointment by the Harvard Corporation to the position of Visiting Lec- 
turer in the Freshman Seminar Program ; you would have charge of what 
to teach in your seminar; you would not grade the students, but would 
indicate at the conclusion whether or not their work was satisfactory ; and 
satisfactory completion of your seminar would entitle the Harvard fresh- 
man taking it to receive credit towards his degree. It appears that these 
seminars were initiated in 1959 or 1960 on an experimental basis, and in 
1963 they "became a regular part of the curriculum at Harvard and Rad- 
cliffe". Pamphlet entitled. Harvard Collegc-Radclijfe College, the Fresh- 
man Seminar Program 1966-1967, p. 3. It is said in that pamphlet, "The 
Freshman Seminar Program offers opportunities for incoming students 
to work closely with members of the faculty on a variety of selected topics, 
in a variety of ways, each of which differs according to the predilections 
of the seminar leader and of the students he chooses to work with". At 
the end of the pamphlet is a brief description of each seminar with the 
name of the individual who will lead it. I understand that a stipend of 
$2000 would be offered to you for teaching a seminar, although, as indi- 
cated above, you might choose to waive it. 

General Laws, c. 15, § IE provides: 

"No appointive member of said board shall be employed by or derive 
regular compensation from any educational institution, or school system, 
public or private, in the Commonwealth. ..." 

Should you decline to receive compensation for teaching the seminar, the 
question would remain whether, although not receiving compensation, reg- 
ular or otherwise, you were nonetheless "employed by" an educational 
institution in the Commonwealth, within the meaning of the statute. 

This is not an easy question to answer. The words "employ" and "em- 
ployed" have been construed by courts in varying ways depending on their 
context. In the so-called Willis-Harrington report, which was the basis 
of the statute in question, the following rationale was given for exclud- 
ing from the Board persons employed by or deriving regular compensa- 
tion from educational institutions : 

"[The Board of Education] . . . must at the very least exclude school- 
men, whose profession stands to gain most in power from expanding 
education. The best composition can consist basically of taxpayers who 
must find the money to finance expansion. Within that group, labor, man- 
agement, industry, the private professions, finance, all stand at the fron- 
tiers of the Massachusetts economy. . . . Such statewide civilian leader- 
ship should be able to argue most persuasively and hardheadedly in sup- 
port of the returns it sees in particular investments in education. ..." 
Report of the Special Commission to Investigate and Study Educational 
Facilities in the Commonzvealth of Massachusetts, 1965 House Doc. No. 
4300, p. 190. 

The above language suggests that the words "employed by" should not 
be limited to those faculty and staff members of an educational institution 
who actually receive pay (although, normally, of course, persons having 
an employment relationship would receive pay). The object of the legis- 
lation is apparently to exclude from Board membership all "schoolmen", 
a term which seems more descriptive of what the individual does than 



P.D. 12 233 

whether or not he is compensated. ' Should you teach the seminar, you 
would receive a formal appointment to the Harvard Faculty ; you would 
be entitled to compensation whether or not you actually accept it; you 
would be in charge of a course being given for credit to freshmen; and 
you would be regularly exercising over the period of at least one semester 
all the duties customarily exercised by a member of the faculty with re- 
spect to that seminar. 

Under these circumstances, I am of the opinion that, regardless of whe- 
ther or not you receive or waive compensation you would be in the employ 
of Harvard within the meaning of the statute. Hence, it is my opinion 
that you may not consistently with your present position as a member of 
the Board of Education, teach the described seminar. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

118. June 8, 1967. 

Honorable Edward J. Ribbs, Commissioner of Public Works. 

Dear Commissioner Ribbs: — You have requested my opinion as to the 
appropriate source of payment of the cost of a certain proceeding before 
the Real Estate Review Board of your Department. 

The proceeding about which you inquire was the subject of the case of 
Revere Housing Authority v. Commonwealth, Mass. Adv. Sh. (1966) 
1047.' It arises from a taking of land by eminent domain from the Revere 
Housing Authority (RHA), made by the Metropolitan District Commis- 
sion (MDC) for a parking area under authority of St. 1960 c. 515. For 
such a taking the Metropolitan District Commission is required by St. 
1955 c. 693, § 1 to compensate the Revere Housing Authority in "an 
amount to be mutually agreed upon." Statute 1957, c. 657 amends this 
statute by adding the following provision : 

"In the event that the parties concerned are unable to mutually agree 
upon the amounts to be paid as herein provided the matter shall be re- 
ferred 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." 

Since the MDC and RHA were "unable to mutually agree upon the 
amounts to be paid" for the land taken, a proceeding before the Review 
Board was instituted in accordance with the last-quoted provision. 

We thus have two public agencies (the MDC and RHA) appearing 
as litigants before a third public agency (the Review Board), acting in a 
quasi-judicial capacity. Since the Review Board is within your Depart- 
ment, it is essential that you know from what source the expenses of this 
proceeding are to be paid. These expenses consist of salaries paid to the 
Review Board members and disbursements made by them. In the course 
of an opinion dated November 5, 1965 relative to the authority of the 
Review Board to determine the amount to be paid to the RHA for the 
taking, the then Attorney General declared : 



234 P.D. 12 

"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." Report of the Attorney General for the Year Ending June 
30, 1966, p. 164. 

You now ask whether or not the foregoing statement "still stand [s]" and, 
if not, the source from which the expenses of this proceeding shall be paid. 

I am of the opinion that the statement should be revised. The project 
in question was the construction and maintenance of a public parking area 
by the MDC and was authorized by St. 1960, c. 515, § 1, which provides 
in part as follows : 

"The metropolitan district commission is hereby authorized and directed 
to take by eminent domain under the provisions of chapter seventy-nine 
of the General Laws, or to acquire by purchase or otherwise, a certain 
parcel of land located on Ocean avenue in the city of Revere, containing 
approximately fourteen acres of land, owned by the Revere Housing Auth- 
ority and referred to as the Ocean Avenue Redevelopment Project, U R 
Mass. 1-1, for the purpose of constructing and thereafter maintaining and 
operating thereon a public parking area." 

The only appropriation of funds for this project was made to the Metro- 
politan Parks Division of the MDC and appears in St. 1961, c. 517, § 2, 
Item 9027-01, "... for the construction, enlargement and improvement 
of parking facilities . . . including the project authorized by [St. 1960, c. 
515] ..." 

As previously indicated, the Review Board is an agency of your Depart- 
ment. Thus, the use of funds available under the foregoing appropriation 
for the expenses of this proceeding would involve the transfer of those 
funds from the MDC to your Department. However, there is nothing in 
the enabling legislation or the appropriation (or in any other statute of 
which I am aware) which authorizes such a transfer. In the absence of 
statutory authorization, "one state department cannot transfer a part of 
the funds appropriated to it to another department." Baker v. Common- 
wealth, 312 Mass. 490, 493. Attorney General v. Trustees of Boston Ele- 
vated Raihvay Co., 319 Mass. 642, 654-655. I therefore conclude that the 
expenses of this proceeding in your Department may not be paid from 
the funds appropriated for the MDC project from which the proceeding 
arises. 

This being the case, there remains the question of the source from 
which these expenses shall be met. The Review Board was established 
"within the department of public works" by St. 1952, c. 556, § 6, and was 
given a continued existence by St. 1954, c. 403, § 6 and St. 1956, c. 718, 
§ 6. Under these same statutes, the members of the Review Board are 
appointed by the Commissioner of Public Works, and your Department 
is empowered to "fix the compensation of the members. ..." I infer from 
these provisions that the Legislature intended the salaries and disburse- 
ments of the Review Board to be paid from the funds of your Depart- 
ment. 

This inference, in my opinion, is neither weakened nor counteracted by 
the fact that the proceeding involved here does not pertain to the func- 



P.D. 12 235 

tions of the Review Board under the statutes referred to above. It is 
true that those statutes deal exclusively with the so-called accelerated high- 
way program and the powers of the Review Board with respect thereto, 
while the project from which the present proceeding arises is not a part 
of that program and the Review Board's jurisdiction here was conferred 
by an unrelated statute (St. 1955, c. 693, § 1, as amended by St. 1957, 
c. 657, referred to in the second paragraph of this opinion). For this 
reason the Legislature might have chosen to relieve your Department of 
the financial responsibility for such a proceeding. However, it did not 
do so. 

It is therefore my opinion that the expenses of the present proceeding 
must be paid from funds appropriated or otherwise available to your 
Department. Not having been supplied with more detailed information, 
I cannot specify the particular account to which these expenses should 
be charged, or, indeed, whether the necessary funds are even available. 
If no funds are presently available to your Department for this purpose, 
I can see no course open to you but to seek a special appropriation. 

Very truly yours, 

Elliot L. Richardson, Attorney General, 



119. June 13, 1967. 

Honorable Theodore W. Schulenberg, Commissioner, Department of 

Commerce and Development. 

Dear Commissioner Schulenberg: — In a recent letter you have re- 
quested my opinion on whether proposed housing projects for elderly per- 
sons of low income under G. L. c. 121, § 26AA et seq. are limited to 100 
dwelling units each and may be approved by your Department only after a 
public hearing, as in the case of housing projects for families of low in- 
come under G. L. c. 121, § 26AA(b). It is my opinion that these require- 
ments apply alike to both kinds of projects. 

General Laws c. 121, § 26TT (relative to housing for the elderly) pro- 
vides : 

"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 as a definite portion of projects 
undertaken under Part III or Part V of this chapter, or in remodeled or 
reconstructed existing buildings, and the provisions of Parts I, II, III 
and V of this chapter shall, so far as apt, be applicable to projects and 
parts of projects undertaken under this part, except as otherwise provided 
in section twenty-six UU* or elsewhere in this chapter." (Emphasis sup- 
plied.) 

General Laws c. 121, § 26AA (relative to housing for low-income 
families) found in Part III of chapter 121 provides in relevant part: 

"Excepting projects as to which a contract between the federal govern- 
ment and a housing authority is in effect, and projects involving the recon- 

*Section 26UU establishes certain special provisions for housing for the dlderly, and will be 
discussed below. 



236 P.D. 12 

struction, remodeling or repair of existing buildings, projects shall be 
approved by the board [the Department of Commerce and Development, 
see G. L. c. 121, § 26J] as follows: 

"(b) Projects involving the construction of new buildings by a housing 
authority shall be approved by the board following due notice and a public 
hearing in the town or city involved held to consider testimony relating 
to the determinations required to be made. The board shall approve such 
a project only if it makes the following determinations: (i) the proposed 
project does not include in excess of one hundred dwelHng units; . . . 
(iii) the design and layout of the proposed project is appropriate to the 
neighborhood in which it is to be located. ..." 

By use of the words "shall, so far as apt, be applicable" in section 
26TT, the Legislature in my opinion, meant to incorporate by reference 
all the provisions of the other Parts (I, II, III and V) of c. 121, unless 
a plain conflict would thereby be created. No such conflict exists with re- 
gard to the requirement of a public hearing or the limitation of a project 
to 100 dwelling units. Indeed, I regard both these conditions for approval 
of a project for low-income families as plainly compatible with a project 
for housing for the elderly. Both types of projects have features which 
may be of local interest in the communities where they are to be estab- 
lished. Specifically, the determination required by G. L. c. 121, § 26AA 
(b)(iii) that "the design and layout of the proposed project is appro- 
priate to the neighborhood in which it is to be located" is the kind of 
finding that is as applicable to one. kind of project as the other. Since 
such a determination may be made only after a public hearing in the case 
of projects for low-income families, it should also, in the case of projects 
for the elderly, similarly be made only after a public hearing. Such a 
hearing would provide the kind of balanced consideration that a deter- 
mination of that nature requires. 

Similarly, the limitation on the size of a project is a feature that is as 
appropriate to apply to one type of project as to the other. A policy 
determination that projects in excess of 100 dwelling units create an un- 
desirable environment would seem to have no less validity in the case of 
housing for elderly persons than in the case of housing for others. 

It is significant that there is statutory sanction for establishing a project 
for housing for the elderly as a "definite portion" of a project for low- 
income families. G. L. c. 121, § 26TT. This provision implies recognition 
of the similarity in the general character of both types of housing. 

Further, the provisions in G. L. c. 121, § 26UU that specifically relate 
to projects for the elderly, are not expressly or by implication incompat- 
ible with the public hearing requirement or the 100' dwelling unit limita- 
tion. These provisions simply establish standards peculiarly applicable to 
housing for the elderly. Thus section 26UU exempts occupants of housing 
projects for the elderly from any requirements that they constitute fami- 
lies; and it also provides that such projects shall when practicable be 
established near neighborhoods where elderly persons reside, shall be so 
designed "so as to alleviate the infirmities characteristic of the elderly," 
shall be assigned to applicants "without regard to their status as veterans," 
defines how rents shall be computed, and directs a housing board to estab- 
lish rules and regulations for tenant selection. None of the foregoing 



P.D. 12 237 

provisions of section 26UU are in conflict with the requirement of a 
pubHc hearing or the ICX) dwelling unit limitation. 

I thus conclude that proposed housing projects for elderly persons in- 
volving the construction of new buildings by a housing authority may be 
approved only after a public hearing by your Department under G. L. c. 
121, § 26AA and a determination that the proposed projects do not in- 
clude in excess of one hundred dwelling units except, as stated in section 
26AA, in the case of "projects as to which a contract between the federal 
government and a housing authority is in effect, and projects involving 
the reconstruction, remodeling or repair of existing buildings." 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



120. June 19, 1967. 

Honorable Theodore W. Schulenberg, Commissioner, Department of 
Commerce and Development. 

Dear Sir: — You have sent me, with your recent letter, a copy of a 
directive issued in March, 1967 from the Deputy Commissioner of the 
Division of Housing within the Department of Commerce and Develop- 
ment to each of the Housing Authorities in the Commonwealth, increasing 
architects' fees for housing projects effective March 1, 1967. The direc- 
tive provides that all approved Architectural Contracts which have not 
resulted in executed Construction Contracts prior to March 1, 1967 will 
be adjusted to specified maximum all-inclusive fees and it orders all Auth- 
orities having executed Architectural Contracts affected by the directive 
to vote to adjust the contract accordingly. I understand that the effect 
of the directive would be to increase the former fees. 

You then pose the following questions : 

"1. Does the Deputy Commissioner of the Division of Housing have 
the power and authority to set architects' fees and promulgate directives 
and regulations concerning same? 

"2. May the new increased fees be applicable retroactively to contracts 
which had provided for lesser fees between the local Housing Authority 
and the architect executed before the effective date of the directive but 
prior to the execution of the Construction Contract?" 

In reference to question No. 1, G. L. c. 121, § 26U provides that the 
Division of Housing may from time to time make, amend and repeal 
rules and regulations prescribing standards and stating principles govern- 
ing the planning, construction, maintenance and operation of projects by 
housing authorities. Although G. L. c. 121, § 26P authorizes housing 
authorities to enter into contracts relating to housing projects, approval 
of such contracts rests with the Division of Housing under § 26AA. 
Further, the Contract for Financial Assistance between the Common- 
wealth of Massachusetts and a local housing authority provides that all 
contracts are subject to the approval of the Division of Housing. In view 
of the foregoing, it is my opinion that the establishment and regulation 



238 P.D. 12 

of architects' fees relative to contracts for housing projects is within the 
power and authority of the Division of Housing. Accordingly, I answer 
your first question in the affirmative. 

Your second question relates to the retroactive effect of the March, 
1967 directive providing for increased architects' fees on those Architects' 
Contracts executed prior to March 1, 1967. I assume that these contracts 
were previously approved by the Division of Housing, and are now valid 
and legally binding obligations of the parties thereto. If this is so, the 
Division, in my opinion, has no power to direct the local housing authority 
to undertake to amend, on terms less favorable to itself, the original con- 
tracts — contracts to which the Division was not and is not itself a party. 
No such power can be inferred from the Division's authority to withhold 
approval of proposed contracts. If amendment of an approved and exist- 
ing contract could thus be forced, the local housing authority could be put 
in a position where it was committed against its will to a bargain which 
it no longer found acceptable or, indeed, could afford. A power of such 
magnitude cannot be inferred from any provision of G. L. c. 121. Accord- 
ingly, I must answer your second question in the negative. 

With regard to your request for assistance in outlining steps to be taken 
"to remedy the situation" which might result from a negative answer to 
your second question, I think that this can best be handled by informal 
discussions between members of our respective staffs. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



121. June 19, 1967. 

The Board of Trustees, Southeastern Massachusetts Technological In- 
stitute. 

Gentlemen : — You have requested my opinion on your authority to 
acquire by purchase or eminent domain certain oceanfront property for an 
oceanographic center which I understand is situated in the town of West- 
port, some distance away from the properties now held by your Institute. 
For the reasons which follow, I am of the opinion that you lack the auth- 
ority to make the acquisition. 

The Southeastern Massachusetts Technological Institute (SMTI) was 
created by § 3 of c. 543 of the Acts of 1960 (cited as c. 543), inserting 
G. L. c. 75B, "for the purpose of giving instruction in the theory and 
practical arts of engineering and science, the liberal arts, and other appro- 
priate curricula. ..." G. L. c. 75B, § 1. 

Section 4 of c. 543 is the only authority for the acquisition by SMTI 
of real estate by purchase or eminent domain. It provided : 

"The board of trustees for the Southeastern Massachusetts Techno- 
logical Institute may acquire, in the name of the commonwealth, by gift, 
devise, purchase or the exercise of the right of eminent domain in ac- 
cordance with the provisions of chapter seventy-nine of the General Laws, 
a suitable site subject to the approval of the governor and council for the 



P.D. 12 239 

campus of the Southeastern Massachusetts Technological Institute in an 
area most accessible to the major population centers of the region." (Em- 
phasis supplied.) 

vSection 5 of the same act declared : 

"Said board of trustees shall have the power, subject to appropriation 
and the provisions of sections thirty A to thirty J of chapter seven of the 
General Laws [relative to public building construction] to prepare plans 
and specifications and to award contracts for the construction of neces- 
sary class rooms and library, laboratory, dormitory, administration and 
other buildings at the site of the campus." (Emphasis supplied.) 

Sections 6-10 of the act provided for the eventual consolidation and 
integration of Bradford Durfee College of Technology, in Fall River, and 
the New Bedford Institute of Technology, in New Bedford, into SMTI. 
By c. 495 of the Acts of 1964, the consolidation was made efifective as of 
July 1 of that year. 

I understand that by three takings made since 1960, the trustees, with 
the approval of the Governor and Council, have acquired contiguous par- 
cels of land in North Dartmouth, which is now the center of SMTI. 
These acquisitions were financed by an appropriation made in Item 
8261-03 of § 2 of c. 774 of the Acts of 1960 relative to "the acquisition 
of a site for the Southeastern Massachusetts Technological Institute, auth- 
orized by [c. 543]." Item 8064-21 of c. 648 of the Acts of 1963 allocated 
$6,000,000 "[f]or the construction of certain classroom and administra- 
tive facilities for the institute ... in addition to the amount appropriated 
in item 8261-03 of [§ 2 of c. 774 of the Acts of I960]." 

The precise question raised by your inquiry is whether the proposed 
acquisition of the property in Westport, not being contiguous to the North 
Dartmouth campus and being some distance away in another community, 
is authorized by the provisions of § 4 of c. 543, whereby your board was 
empowered to "acquire ... a suitable site . . . for the campus" of South- 
eastern Massachusetts Technological Institute. The answer to this ques- 
tion accordingly depends on whether, within the meaning of the statute, 
a "site . . . for the campus" can consist of noncontiguous sites in different 
localities. 

The ordinary and natural meaning of the statutory language imports 
only one location. All references in the statute to the "campus" and to its 
"site" speak only in the singular, and the appropriation acts, cited above, 
relative to the acquisition of the "campus," also refer to it in the singular 
only. Like use of the singular is found in G. L. c. 75B, § 16, inserted by 
c. 543, whereby the trustees are authorized to "lease to any professor, in- 
structor, teacher or employee of said institute, or to any society, associa- 
tion or fraternity established thereat, land on the campus of the institute, 
owned by the commonwealth, for the erection and maintenance of suitable 
dwellings thereon. ..." (Emphasis supplied.) 

I am not unmindful of the provision of G. L. c. 4, § 6, Fourth, that in 
construing statutes, "words importing the singular number may extend 
and be applied to several persons or things." Statutory construction may 
make such an extension or application only where the context of a statute 
fairly permits. Here, however, I find no valid basis for doing so. It has 



240 P.D. 12 

been held that the "campus" of a university does not include noncontigu- 
ous lands. VanoH v. Munro, (Cal.) 147 C.A. 2d 179, 304 P. 2d 722 
(1956). Chapter 543, by its use of the words "a site," "the site," and 
"the campus" indicates that, in all likelihood, this was also the sense in 
which the Legislature used the word "campus." At the least, the Legis- 
lature, in my opinion, contemplated an integrated area made up of land 
confined to one local community. 

Nothing in this opinion should, of course, be regarded as implying that 
I do not regard the proposed oceanographic center as a desirable addition 
to SMTL On the information available to me, I indeed believe that it 
would be a valuable facility. But I am constrained to say that I cannot 
find any legal basis to permit the proposed acquisition. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

122. June 19, 1967. 

Honorable W. Henry Finnegan, Director of Civil Service. 

Dear Mr. Finnegan :— You have requested my opinion as to the ap- 
pointment of "confidential secretaries" in certain state agencies under 
G. L. c. 30, § 7, which provides : 

"Each officer, board and commission having supervision and control of 
an executive or administrative department, including the commissioner of 
administration, the comptroller, the purchasing agent, the budget director, 
and the director of personnel and standardization, each commissioner of 
the department of banking and insurance, the state superintendent of 
buildings, the alcoholic beverages control commission and the state racing 
commission, but not including the several boards serving in the division 
of registration of the department of civil service and registration, may 
appoint and remove a person to serve as a confidential secretary. Such 
appointment shall be in accordance with the provisions of sections forty- 
five to fifty, inclusive, of this chapter and shall be exempt from the pro- 
visions of chapter thirty-one." 

Your questions with reference to this statute are in substance as fol- 
lows : 

1. Does G. L. c. 30, § 7 authorize the appointment of a "confidential 
secretary" by the Board of Trustees of Lowell Technological Institute? 

2. Does G. L. c. 30, § 7 authorize the appointment of more "confiden- 
tial secretaries" in the Executive Ofifice for Administration and Finance 
than one such secretary for each of the six officials within that Office who 
are named in the statute? 

3. What is meant by the words "Each officer, board and commission 
having supervision and control of an executive or administrative depart- 
ment," in G. L. c. 30, § 7? 

By way of background to Question 1, you state in your letter that you 
have received a requisition from Lowell Technological Institute for "one 



P.D. 12 241 

permanent, full-time Confidential Secretary," and that you have withheld 
action on this requisition pending a determination of whether or not the 
Trustees are authorized by G. L. c. 30, § 7 to make such an appointment. 
As you point out in your letter, the existence of this authority depends 
on whether the Institute is "an executive or administrative department" 
within the meaning of § 7. 

I am of the opinion that Lowell Technological Institute is not "an 
executive or administrative department" for purposes of G. L. c. 30, § 7. 
When used with reference to agencies of our state government, the word 
"department" ordinarily has a precise technical meaning. This is trace- 
able to Article 66 of the Amendments to the Massachusetts Constitution, 
which provides : 

"On or before January first, nineteen hundred twenty-one, the executive 
and administrative work of the commonwealth shall be organized in not 
more than twenty departments, in one of which every executive and ad- 
ministrative office, board and commission, except those officers serving 
directly under the governor or the council, shall be placed. Such depart- 
ments shall be under such supervision and regulation as the general court 
may from time to time prescribe by law." 

The 66th Amendment was adopted November 5, 1918. It continued in 
force until November 8, 1966, when it was repealed by the 87th Amend- 
ment. During the forty-eight-year life-span of the 66th Amendment, the 
word "department" had a constitutional significance which is of utmost 
importance to an understanding of many of our statutes,* including G. L. 
c. 30, § 7. 

Soon after the adoption of the 66th Amendment and pursuant thereto, 
the Legislature enacted St. 1919, c. 350, entitled "An Act to Organize in 
Departments the Executive and Administrative Functions of the Common- 
wealth." Section 1 of this Act provided : 

"The executive and administrative functions of the commonwealth, 
except such as pertain to the governor and council, and such as are exer- 
cised and performed by officers serving directly under the governor or the 
governor and council, shall hereafter be exercised and performed by the 
departments of the secretary of the commonwealth, the treasurer and re- 
ceiver general, the auditor of the commonwealth and the attorney-general, 
and by the following new departments hereby established, namely: — 

The department of agriculture. 

The department of conservation. 

The department of banking and insurance. 

The department of corporations and taxation. 

The department of education. 

The department of civil service and registration. 

The department of industrial accidents. 

The department of labor and industries. 

The department of mental diseases. 

The department of correction. 

*See Commonwealth v. Toomcy, 350 Mass. 345, 348-350. 



242 P.D. 12 

The department of public welfare. 
The department of public health. 
The department of public safety. 
The department of public works. 
The department of public utilities. 

A metropolitan district commission is also hereby established as herein- 
after provided and the provisions of Part I of this act shall apply to said 
commission. 

"All executive and administrative offices, boards, commissions and other 
governmental organizations and agencies, except those now or by virtue 
of this act serving directly under the governor or the governor and coun- 
cil, are hereby placed in the said departments and said commission, as 
hereinafter provided. ..." 

Beginning with § 24 of the 1919 statute, the functions of each of these 
twenty departments were described in detail. These sections were preceded 
in the statute by the heading, "PART III. THE EXECUTIVE AND 
ADMINISTRATIVE DEPARTMENTS." 

The same statute, being a comprehensive reorganization of the state 
government, also dealt with "those officers serving directly under the gov- 
ernor or the council," which were excepted from the twenty-department 
restriction by the 66th Amendment. "PART 11" of St. 1919, c. 350, 
consisting of §§ 14-23, was entitled, "THE GOVERNOR AND COUN- 
CIL." The boards and officers listed in this category were : 

The Adjutant General (§14) 

The Supervisor of Administration (§ 15) 

The Armory Commissioners (§ 16) 

The Art Commission (§ 16) 

The State Ballot Law Commission (§ 16) 

The Board of Appeals from Decisions of the Tax Commissioner (§ 16) 

The Commissioners on Uniform State Laws (§ 16) 

The Commissioner of State Aid and Pensions (§ 16) 

The Trustees of the State Library (§ 16) 

The Superintendent of Buildings (§ 17) 

It was in the following year that the history of what is now G. L. c. 
30, § 7 began, with the enactment of St. 1920, c. 205 : 

"Each officer, board and commission having supervision and control of 
a state department under the provisions of chapter three hundred and fifty 
of the General Acts of nineteen hundred and nineteen, including the ad- 
jutant general and the officers, boards and commissions mentioned in sec- 
tions fifteen and sixteen of said chapter three hundred and fifty, may, 
subject to the provisions of chapter two hundred and twenty-eight of the 
General Acts of nineteen hundred and eighteen, as amended, and to the 
rules and regulations made thereunder, employ a person to serve under 
such officer, board or commission in a confidential capacity, and such em- 
ployment shall be exempt from the civil service laws. Appointments and 
removals made under this act shall be subject to the approval of the gov- 
ernor and council." 



RD. 12 243 

This statute, like the 1919 reorganization statute, drew a clear distinction 
between "departments" and non-departmental agencies serving under the 
Governor or Council. In designating the persons authorized to appoint 
a "confidential" employee, c. 205 first referred to "each officer, board and 
commission having supervision and control of a state department under 
the provisions of" St. 1919. c. 350 — that is, the heads of the twenty 
departments established by St. 1919, c. 350, § 1, previously quoted. The 
statute went on to confer the same power upon "the adjutant general and 
the officers, boards and commissions mentioned in" St. 1919, c. 350, §§ 
15 and 16 — that is, all the non-departmental officials listed in the pre- 
ceding paragraph, with the exception of the Superintendent of Buildings. 
(The word "including," by which the latter phrase is introduced, should 
be taken to mean "as well as," since this group of officials derives its 
authority under c. 205 only because they are named therein and not be- 
cause they are heads of "state departments" within the meaning of the 
statute.) Thus, under St. 1920. c. 205. the power to appoint a "confi- 
dential" employee was conferred upon virtually every board or officer 
having charge of an autonomous state agency in the Executive Branch, 
namely — 

(1) All department heads. 

(2) All heads of agencies serving under the Governor or Council 
(other than the Superintendent of Buildings). 

Though this statute has undergone a series of amendments since its 
original enactment as St. 1920, c. 205, the distinction between departments 
and non-departmental agencies has always been preserved in its language. 
The reference to "departments" as such in the initial phrase of the 1920 
statute has been amended only once. This occurred in 1921 when it was 
incorporated into the General Laws as G. L. c. 30, § 7. Since all the 
relevant provisions of St. 1919, c. 350 were also included in the General 
Laws at that time, the reference to the 1919 statute obviously had to be 
stricken. As a result, the opening phrase of the 1920 statute was replaced 
by the phrase with which G. L. c. 30, § 7 still begins : "Each officer, board 
and commission having supervision and control of an executive or adminis- 
trative department. ..." The insertion at that time of the words "exec- 
utive or administrative" before the word "department" appears to be a 
deliberate allusion to language in the 1919 statute ("executive and ad- 
ministrative functions of the commonwealth" found in St. 1919, c. 350, 
§ 1 ; and "THE EXECUTIVE AND ADMINISTRATIVE DEPART- 
MENTS" used as the title of "PART III" of the same statute). Simul- 
taneously with the substitution of G. L. c. 30, § 7 for St. 1920, c. 205, 
the Legislature enacted G. L. c. 30, § 1, wherein the word "department" 
was and still is defined, with exceptions not here material, as "all the 
departments of the commonwealth. ..." All of this suggests that the 
Legislature of 1921, like the Legislature of 1920, used the word "depart- 
ments" in its constitutional sense. 

The historical development of that portion of St. 1920, c. 205 dealing 
with the power of non-departmental agencies to appoint "confidential" em- 
ployees is also significant. When the 1920 statute became G. L. c. 30, § 
7 in 1921, the Legislature included within this grant of power "the ad- 
jutant general, the supervisor [of administration] and each officer, board 
and commission mentioned in section seventeen of chapter six. ..." Here 



244 P.D. 12 

again, there was no change in the substance of the law. However, numer- 
ous substantive changes have been made in this part of the statute since 
1921. In 1923. as a result of the establishment of a Commission on 
Administration and Finance, and the creation of a Comptroller's Bureau, 
Budget Bureau, Purchasing Bureau and Division of Personnel and Stand- 
ardization therein, § 7 was amended to authorize the heads of these agen- 
cies to appoint "confidential" employees. St. 1923, c. 362, § 38. In 1937 
the Chairman of the Commission on Administration and Finance, the 
Alcoholic Beverages Control Commission and the State Racing Commis- 
sion were added, and all reference to the Adjutant General and the numer- 
ous officers, boards and commissions listed in G. L. c. 6, § 17 was deleted. 
St. 1937, c. 414, § 1. In 1941 the power was extended to the State Super- 
intendent of Buildings. St. 1941, c. 512. In 1947 the Commissioner of 
Banks, the Commissioner of Insurance and the Commissioner of Savings 
Bank Life Insurance were added. St. 1947, c. 376. In 1962, § 7 assumed 
its present form, with the substitution of certain officers in the newly 
created Executive Office for Administration and Finance for those in the 
then defunct Commission on Administration and Finance. Thus, although 
G. L. c. 30, § 7 began by conferring the power to appoint "confidential" 
employees in virtually every agency in the Executive Branch, the Legis- 
lature has since manifested an intention to grant this power selectively. 
This is particularly noticeable in the wholesale deletions of the 1937 
amendment. It is also apparent from the fact that many new state agencies 
have been created in the past twenty years, of which but a few have been 
named in amendments to § 7. 

On the basis of this history, I conclude that the powers conferred in 
G. L. c. 30, § 7 have at all times been exercisable only by the heads of the 
twenty state departments authorized by the 66th Amendment and by the 
other agency heads enumerated in § 7. While there have been various 
changes in the roster of state departments since the establishment of the 
original group of twenty by St. 1919, c. 350. Lowell Technological Insti- 
tute has never been accorded departmental status. On the contrary, G. L. 
c. 75A. § 1 places the Institute "within the department of education . . . ," 
although exempting it from the "control" of the Department of Education, 
and conferring upon it a substantial degree of autonomy. There are, of 
course, a great many state agencies placed by statute "within" a given 
department "but not subject to its control," as well as many others, lack- 
ing departmental status, which serve directly under the Governor and 
Council. The Legislature has demonstrated its awareness of this by listing 
some of these agencies in G. L. c. 30, § 7. but, for whatever reason, has 
done so very selectively, Lowell Technological Institute is not among 
those listed. 

It is, therefore, my opinion that the Trustees of Lowell Technological 
Institute are not authorized to appoint a "confidential secretary" under 
G. L. c. 30, § 7. In stating this conclusion I do not rule out the possi- 
bility that the Trustees may have such power under some other statute, 
although no such statute has been called to my attention. Nor do I ex- 
press any opinion on the ruling of the Attorney General in 1949 that the 
Director of the Division of Employment Security was authorized to ap- 
point a "confidential secretary" under G. L. c. 30. § 7. Report of the 
Attorney General for the Year Ending June 30, 1949, p. 75. The con- 



P.D. 12 245 

elusion reached in that opinion was based on circumstances not present 
here. 

As to Question 2, regarding the powers of the Executive Office for 
Administration and Finance under G. L. c. 30, § 7, your letter states : 

"The section provides that ' . . . the commissioner of administration, the 
comptroller, the purchasing agent, the budget director, and the director of 
personnel and standardization, . . . the state superintendent of buildings 
. . . may appoint and remove a person to serve as a confidential secretary.' 
The question has arisen from time to time as to whether there may be 
within the Executive Office for Administration and Finance more than 
the six confidential secretaries provided for in the above provisions, such 
as a confidential secretary for the First Deputy Commissioner of Ad- 
ministration or the Deputy Commissioner for Fiscal Afifairs. Will you 
please inform me if the section restricts the appointment of a confidential 
secretary to these six officers or may additional appointments be made 
under the section within the Executive Office for Administration and 
Finance ?" 

For purposes of this question, the operative words of § 7 are "may 
appoint and remove a person to serve as a confidential secretary." (Em- 
phasis supplied.) The use of the singular ("a person" and "a confidential 
secretary") rather than the plural strongly suggests that each of the six 
named officers may appoint one "confidential secretary" for himself and 
no more. 

This conclusion is borne out by the legislative history of G. L. c. 30, 
§ 7. The Legislature enacted St. 1920, c. 205 (the predecessor of § 7, 
quoted earHer in this opinion) on the basis of a petition filed by the then 
Supervisor of Administration. That petition employed the term "a person" 
and was otherwise almost identical to the statute as enacted. 1920 House 
Doc. No. 42. The petition was accompanied by a report of the Supervisor 
of Administration (1920 House Doc. No. 41) stating that the purpose of 
his petition was to enable each agency head "to select one person as confi- 
dential secretary or clerk. ..." (Emphasis supplied.) 

It is, therefore, my opinion that G. L. c. 30, § 7 authorizes one and 
only one "confidential secretary" for each of the six officials in the Exec- 
utive Office for Administration and Finance who are named in the statute. 
I would emphasize once again, however, that this conclusion is confined 
to appointments made under the statute referred to. It might well be that 
additional appointments of this type could be made by the Commissioner 
of Administration under G. L. c. 7, § 4D* or some other statute. 

Question 3 is somewhat abstract. I believe, however, that it is substan- 
tially answered in my response to Questions 1 and 2. Any attempt on my 
part to answer more comprehensively might well be misleading when ap- 
plied to a particular set of facts arising in the future. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

*General Laws c. 7, § 4D provides that "the commissioner [of administration] may, without regard 
to chapter thirty-one but subject to the approval of the governor and council, appoint such experts 
and otl-.er assistants in the [executive] office [for administration and finance] as he shall deem 
necessary; provided, that the number of persons holding such appointments at any time shall not 
exceed nine. ..." 



246 P.D. 12 

123. June 20, 1967. 

Honorable Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin: — You have requested an opinion of 
the Attorney General on the following question : 

"Is a company incorporated for the purpose of providing protective- 
services against burglary and fire by means of devices placed in a sub- 
scriber's place of business and which provides a signal activated by an 
unauthorized entry into protected premises or the occurrence of a fire on 
the protected premises over low tension wires from the subscriber's 
premises to the company's central station, the 'transmission of intelligence 
by electricity' so that such companies are exempt from the rules and regu- 
lations [of the Board of Fire Prevention Regulations] by section 7 of 
chapter 141 of the General Laws?" 

Your question seems to assume that if the described company is in- 
corporated for "the transmission of intelligence by electricity" it is exempt 
from the rules and regulations of the Board of Fire Prevention Regula- 
tions. I do not believe this to be the case. 

The power of the Board, which is an agency of the Department of 
Public Safety, to make the rules and regulations in question is conferred 
by the first sentence of G. L. c. 143, § 3L, which provides : 

"The board of fire prevention regulations shall make and promulgate, 
and from time to time may alter, amend and repeal, rules and regulations 
relative to the installation, repair and maintenance of electrical wiring 
and electrical fixtures used for light, heat and power purposes in buildings 
and structures subject to the provisions of sections three to sixty, in- 
clusive." 

It is to be emphasized that the foregoing statute appears in G. L. c. 143, 
which is essentially a public safety statute and deals mostly with the in- 
spection and regulation of buildings. 

General Laws c. 141, on the other hand, is a licensing statute and re- 
lates to the examination, certification and activities of professional elec- 
tricians. It is administered not by the Board of Fire Prevention Regu- 
lations but by the State Board of Examiners of Electricians, an agency 
of the Department of Civil Service and Registration. An exemption from 
c. 141, for companies "incorporated for the transmission of intelligence 
by electricity," appears in § 7 of that chapter. 

Because of the difference in scope and subject matter of G. L. c. 141 
and G. L. c. 143, it cannot be inferred that an exemption under one of 
these chapters is applicable to the other without some expression of legis- 
lative intention to that effect. I find no such expression in either chapter. 
Indeed, G. L. c. 141, § 7, which creates the exemption referred to above, 
indicates a contrary intention. It provides : 

"This chapter shall not apply ... to the work of companies incorporated 
for the transmission of intelligence by electricity in installing, maintain- 
ing or repairing wires, apparatus, fixtures or other appliances used by 
such companies and necessary for or incident to their business. ..." 
(Emphasis supplied.) 



P.D. 12 247 

Thus, the very terms of the exemption confine its appHcation to "this 
chapter" — that is, G. L. c. 141. 

It is therefore my opinion that a company of the type described in your 
letter, if otherwise subject to the regulatory powers of the Board of Fire 
Prevention Regulations, would not be exempted therefrom merely because 
of its exemption from the licensing requirements of G. L. c. 141. Accord- 
ingly, it seems unnecessary for me to express an opinion at this time as 
to whether or not such a company is "incorporated for the transmission of 
intelligence by electricity" within the meaning of G. L. c. 141, § 7. Fur- 
ther, since your inquiry was directed only to the extent of the c. 141 ex- 
emption, I express no opinion on whether or not the activities of the 
described company involve "the installation, repair and maintenance of 
electrical wiring and electrical fixtures used for light, heat or power" for 
purposes of G. L, c. 143, § 3L. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



124. June 22, 1967. 

Honorable Leo L. Laughlin, Commissioner of Public Safety. 

Dear Commissioner Laughlin : — You have asked the following ques- 
tions relative to certificates of inspection and insurance of steam boilers, 
air tanks, refrigerators and air condition systems. For my convenience 
in answering, I have rearranged the numbering of your four questions. 

Question 1 : 

Certain fire insurance companies not authorized to insure steam boilers, 
air tanks and refrigeration and air conditioning systems which come with- 
in the scope of Chapter 146 are issuing a comprehensive insurance policy, 
or so-called package deal which includes the steam boiler, air tank and re- 
frigeration and air conditioning system. The unauthorized insurance com- 
pany in turn is entering into an agreement with an authorized insurance 
company [which] in turn [is] making the inspection and issuing a certi- 
ficate of inspection in the name of the authorized company and signed by 
an inspector in [its] employment who holds a Certificate of Competency 
to Inspect Steam Boilers issued by the Department of Public Safety in 
compliance with Chapter 146, Section 60. The authorized insurance com- 
pany does not issue a policy of insurance but does issue a statement where- 
by the authorized insurance company assumes full responsibility and con- 
trol of the boiler machinery insurance provided in the policy of the un- 
authorized insurance company doing business in the Commonwealth of 
Massachusetts. 

Does this procedure comply with the intent of Chapter 146, Mass. G. L. 
(Ter. Ed.), as amended? 

Question 2: 

There are in this Commonwealth insurance companies who are author- 
ized to insure steam boilers that come within the scope of Chapter 146, 
but who do not have in their employ a resident authorized inspector, and 



248 P.D. 12 

who issue a package policy and reinsure through an authorized insurance 
company. 

Must the reinsurer's company issue a policy of insurance in the name 
of the reinsurer's insurance company and issue a certificate of inspection 
in the name of the reinsurer's company and the certificate of inspection 
signed by the reinsurer's company's inspector who holds a certificate of 
competency in the name of the reinsurer's company? 

Question 3 : 

A group of independent authorized insurance companies combine for 
the purpose of dividing the risks involved and set up a central inspection 
agency whereby the inspectors of the central inspection agency have been 
authorized to inspect steam boilers, air tanks and refrigeration and air 
conditioning systems in the name of each independent authorized insurance 
company in the group. 

Does such a procedure constitute a violation of the intent of Chapter 
146, Mass. G. L. (Ter. Ed.), as amended? 

Question 4: 

The Department of Public Safety has taken the position that the Great 
and General Court of the Commonwealth created one inspection agency 
and placed that agency in the Division of Inspection of the Department 
of Public Safety, and that insurance companies are in the business of 
insurance and must comply with the specific sections governing authorized 
insurance companies doing business in the Commonwealth. 

Is the Department of Public Safety's position correct? 

With respect to Question 1, I am not clear if your reference to "un- 
authorized insurance companies" implies that these companies are writing 
insurance in actual violation of the insurance laws (as distinguished from 
the public safety laws) of Massachusetts. See G. L. c. 175, § 3 and Stone 
V. Old Colony Street Railway, 212 Mass. 459, 464. If such an implication 
was intended, I suggest that you bring evidence of any such insurance law 
violations to the attention of the Commissioner of Insurance. 

The General Laws group refrigeration and air conditioning systems 
together and treat air tanks and steam boilers separately. With respect 
to air tanks, G. L. c. 146, § 34 reads in part as follows : 

"No person shall install or use, or cause to be installed or used, any 
tank or other receptacle for the storing of compressed air at any pressure 
exceeding fifty pounds per square inch, except when attached to locomo- 
tives or street or railway cars or trackless trolley vehicles or their brakes 
or body lifting apparatus, unless the owner or user of such tank or other 
receptacle shall hold a certificate of inspection issued by the division, certi- 
fying that the said tank or other receptacle has duly been inspected within 
two years, or unless the owner or user shall hold a policy of insurance 
upon the said tank or other receptacle issued by an insurance company 
authorized to insure air tanks within the commonwealth, together with a 
certificate of inspection from an insurance inspector who holds a certificate 
of competency described in section sixty-two." 



P.D. 12 249 

Under G. L. c. 146, § 34, quoted above, air tanks must either (1) be 
periodically inspected by the Division of Inspection of the Department of 
Public Safety or (2) be covered by insurance in authorized companies 
and inspected by insurance company inspectors holding certificates of 
competency. I infer from your statement of facts in Question 1 that the 
described arrangements do not include inspection by the Department of 
Public Safety. It, accordingly, seems clear that they do not comply with 
G. L. c. 146, § 34, since although inspection would apparently be pro- 
vided by an authorized insurance company, the tanks would not also be 
insured by one. Thus, I am of the opinion that a person may not law- 
fully install or use an air tank in the situation described in Question 1. 

With respect to refrigeration and air conditioning systems, G. L. c. 
146, § 45A reads in part as follows : 

"No person shall operate or cause to be operated a refrigeration or air 
conditioning system, or any appurtenances thereof, excepting refrigeration 
or air conditioning systems in railway trains, motor vehicles, private resi- 
dences, apartment houses of less than five apartments, and refrigeration 
and air conditioning systems located on property under the jurisdiction of 
the United States government, refrigeration and air conditioning systems 
used exclusively for agricultural, horticultural and floricultural purposes, 
and refrigeration and air conditioning systems having less than five tons 
capacity, unless such system has been inspected by the division and a certi- 
ficate of inspection issued therefor, or unless such system is insured by 
and subject to periodical inspection by a company authorized to insure 
pressure vessels in the commonwealth, and a certificate of inspection has 
been issued therefor." 

My preceding discussion of air tanks would appear to be applicable, like- 
wise, to refrigeration and air conditioning systems, and my conclusions 
are the same, namely, that persons may not, in the situation described in 
Question 1, lawfully install or use such systems. 

Regarding steam boilers, a careful reading of the statute leads me to 
the conclusion that the Legislature did not intend to sanction an arrange- 
ment of the type described in your Question 1. 

General Laws c. 146, § 6 requires all steam boilers, with specified excep- 
tions, to be inspected annually. Section 13 provides that the inspection of 
boilers in the Commonwealth shall be made either by the Division of 
Inspection of the Department of Public Safety or "by inspectors of in- 
surance companies authorized to insure steam boilers in the common- 
wealth." While nothing in G. L. c. 146 expressly provides that a boiler 
which is under the inspection of an authorized insurance company need 
also be insured by an authorized company, the relevant statutory provi- 
sions, taken as a whole, lead me to infer that the Legislature intended that 
to be the case. General Laws c. 146, § 10, for example, provides in part, 
"that the owner or user of an insured boiler shall report immediately in 
writing to the chief [of inspections of the Department of Public Safety] 
whenever the insurance company ceases for any cause to inspect the 
boiler." (Emphasis supplied.) General Laws c. 146, § 26 provides that 
if a previously uninspected boiler "is insured . . . the company so insuring 
shall forthwith notify the chief to that effect, and shall inspect such boiler 
. . . after the insurance is effected." (Emphasis supplied.) General Laws 
c. 146, § 29 requires the owner or user of a boiler to "immediately notify 



250 P.D. 12 

the division or the insurance company, if the boiler is insured, if a defect 
affecting the safety of a boiler is discovered." (Emphasis supplied.) 
General Laws c. 146, § 30 provides, "If the insurance on any boiler re- 
quired by this chapter to be inspected expires, or is cancelled because the 
insurers deem it unsafe . . . the owner or user shall cease to operate it 
until it has been put in a safe condition, satisfactory to the insurers, or 
has been inspected by the division." (Emphasis supplied.) 

General Laws c. 146, §§ 60 and 62 provide : 

Section 60. Request of Insurer Accompanying Application ; Fee. 

"The application of a person desiring to act as inspector of boilers for 
an insurance company shall be accompanied by a written request of said 
company for an examination of such person, together with a fee of twenty 
dollars." 

Section 62. Right to, and Term of, Certificate. 

"If the applicant is found competent he shall receive a certificate of 
competency to inspect steam boilers for the company which requested the 
examination. The certificate shall remain in force during his employment 
by the company unless sooner revoked." (Emphasis supplied.) 

Nothing in the above statute suggests that inspectors for one company 
are authorized to conduct inspections for another. 

Accordingly, I am of the opinion that in the case of steam boilers, as 
in the other cases discussed above, the arrangement described in Question 
1 would be unlawful. I might add that if by the term "unauthorized com- 
panies" you mean that the companies are writing policies which they are 
not entitled to write under the insurance laws, this would, of course, be 
a further and separate reason that the said arrangement would be un- 
lawful. 

Your question which I have numbered 2 describes an arrangement 
whereby an authorized company (a reinsured) does not have in its direct 
employ a resident authorized inspector. Your attention is directed to the 
following pertinent statute : 

General Laws c. 146, § 8 provides : 

"No person shall operate or cause to be operated any boiler required 
by this chapter, to be inspected until it has been inspected, and the certi- 
ficate of inspection . . . has been issued." 

General Laws c. 146, § 13 provides in part: 

"The inspection of boilers and appurtenances shall be made by the divi- 
sion, under the supervision of the chief, or by inspectors of insurance 
companies authorized to insure steam boilers in the commonwealth." 

General Laws c. 146, § 14 provides in part: 

"Every insurance company authorized to insure steam boilers in the 
commonwealth, shall have in its employ at least one inspector who holds 
a certificate of competency under section sixty-two and resides in the com- 
monwealth." (Emphasis supplied.) 

The arrangement that you describe would clearly be in violation of the 
foregoing § 14 of c. 146, which specifically requires an authorized com- 
pany to employ an inspector, unless the reinsurance and inspection ar- 



P.D. 12 251 

rangement could be said to supply the necessary employment relationship 
between the reinsured company and the inspector. However, under the 
aforementioned sections 60 and 62 of G. L. c. 146 a qualified inspector 
receives "a certificate of competency to inspect steam boilers j^r the com- 
pany which requested the examination." (Emphasis supplied.) From the 
facts you state, it would appear that the inspector's certificate of compe- 
tency would relate only to the company issuing the reinsurance. He would 
therefore not be authorized under § 62 to inspect steam boilers for the 
reinsured ; and even under the most liberal statutory interpretation, I do 
not see how he can be said to be in the reinsured's "employ." The rein- 
sured company would thus be in violation of § 14 under the arrangement 
described in question 2. 

Further, it is my opinion that the reinsurer, by virtue of its reinsurance 
agreement alone (absent the issuance of an insurance policy in the in- 
surer's name), does not become the insurer of the steam boilers in ac- 
cordance with the intent of G. L. c. 146. In the case of Friend Brothers, 
Inc. v. Seaboard Surety Co., 316 Mass. 639, 642, it was said: 

"Reinsurance has been defined as 'an* agreement to indemnify the as- 
sured, partially or altogether, against a risk assumed by ... [it] in a 
policy issued to a third party.' Royal Ins. Co. v. Vanderbilt Ins. Co., 102 
Tenn. 264, 267." 

Being only an indemnitor, the reinsurer cannot be said to provide the 
insurance. It is my opinion that only if the reinsurer issues an insurance 
policy and certificate of inspection in its own name, the certificate being 
signed by the reinsurer's authorized inspector, can it be said that the re- 
insurer provides the insurance and satisfies the employment requirements 
of G. L. c. 146, § 14. 

Question 3, above, involves the interpretation of the word "employ" as 
used in said § 14. Specifically, are the inspectors in the employ of the 
independent authorized insurance company for whom they inspect the 
equipment? The primary object of c. 146 and sections thereunder deal- 
ing with the insurance and inspection of steam boilers would appear to 
be the taking of all necessary precautions for the safe operation and use 
of steam boilers. The statute should be interpreted with an awareness 
of this object. It has been stated : 

"It is a principle of general scope that a statute must be interpreted 
according to the intent of the makers, to be ascertained from its several 
parts and all its words construed by the ordinary and approved usage of 
the language, unless they have acquired a peculiar meaning in the law, 
considered in connection with the cause of its enactment, the subject mat- 
ter to which it applies, the pre-existing state of the common and statutory 
law, the mischief or imperfection to be remedied, and the main object to 
be accomplished, to the end that it be given an eflfect in harmony with 
common sense and sound reason." Duggan v. Bay State Street Railway, 
230 Mass. 370, 374 and cases cited therein. 

An employee may be a servant, agent or representative and the payment 
of compensation as such is not a necessary element of employment. Com- 
monwealth V. Riley, 210 Mass. 387, 395-6. VIII Op. Atty. Gen. 191, 
194-195 (1926). Factors such as direction and control by the independent 
authorized insurer as to the method and manner of the performance of 
the work to be done by the inspectors should be considered. Yet, whether 



252 P.D. 12 

or not an employment relationship exists is a question of fact to be deter- 
mined in each particular case. The statement of facts that you have fur- 
nished does not, I find, sufificiently describe the details of the structure 
and operation of the Central Inspection Agency and its relationship to 
the inspectors and independent authority companies so as to enable me to 
render an opinion on the legality of the arrangement under § 14 of c. 146, 
and it is not feasible to discuss various hypothetical possibilities. How- 
ever, the authorities which I have previously referred to should furnish 
you with a basis for determining whether the necessary employment rela- 
tionship in fact exists in the particular situation you have in mind. In 
general, if you find that the insurance company issuing the policy exer- 
cises sufficient authority and control over the inspector making a particular 
inspection so that he can be said to be in its employ, then the Central In- 
spection Agency arrangement would, in my opinion, be lawful. In addi- 
tion, of course, the inspector must be authorized to inspect boilers for the 
company insuring the particular boiler as required under § 62. 

With regard to air tanks, refrigeration and air condition, my opinion, 
in answering your third question, is in the afifirmative. 

With respect to the question which I have numbered 4, I trust that my 
opinion on your other questions are sufficient to indicate the inspection 
that may lawfully be performed by insurance companies and what their 
responsibilities are in connection therewith. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 

125. June 30, 1967. 

Honorable Roy C. Papalia, CJiairinan, Department of Public Utilities. 

Dear Commissioner Papalia : — You have requested an opinion on the 
respective jurisdictions of the Department of Public Utilities (DPU) and 
the Massachusetts Bay Transportation Authority (MBTA) over the pro- 
posed discontinuance of certain commuter trains of the New York Central 
Railroad Company. Nine trains are involved, five running between Boston 
and Worcester (the Worcester trains) and four running between Boston 
and Framingham (the Framingham trains). All nine trains stop at inter- 
mediate points between Boston and Framingham. The jurisdictional ques- 
tions presented by your request arise from the fact that the area consti- 
tuting the MBTA includes Framingham luit does not include Worcester. 
G. L. c. 161A, §§ 1 and 2. It is my understanding that none of the trains 
are operated under any contract between the railroad and the MBTA, and 
no application has been made by the railroad to the Interstate Commerce 
Commission for authority to discontinue any of the service involved. 

The railroad has filed with both the DPU and the MBTA petitions, 
under G. L. c. 160, § 128A,* for discontinuance of the trains. The DPU 

*"A railroad corporation which has scheduled and operated a passenger train on a regular schedule 
for twelve consecutive months or more, except for holidays or interruptions caused by storms or 
other causes beyond its control, shall not discontinue the operation of such train or cut out more 
than ten per cent of its station stops, except with the written approval of the department after 
public hearing, notice of which hearing and proposed discontinuance shall be posted by the corpora- 
tion at the stations involved for a period of fifteen days immediately preceding said public hearing. 
The department shall render a decision on its findings within a period of sixty days after said 
public hearing." 



P.D. 12 253 

petition seeks discontinuance of only the Framingham-Worcester portion 
of the five Worcester trains. The MBTA petition seeks discontinuance 
of the four Framingham trains and the Boston-Framingham portion of 
the five Worcester trains. 

With your letter you have sent a copy of a vote of the DPU adopted on 
April 13, 1967 in DPU 15377-F, relative to all nine trains, reading as 
follows : 

"VOTED : That pursuant to the provisions of Section 22 of Chapter 
161A of the General Laws, the Department determines that with respect 
to the proposed discontinuance of New York Central Railroad Company 
passenger train service between Boston, Framingham and intermediate 
points, there exists a conflict between the regulatory powers and duties of 
the Department of Public Utilities and the Massachusetts Bay Transporta- 
tion Authority, and the Department exercises its authority to resolve the 
conflict by ordering a public hearing, under the provisions of section 128A 
of Chapter 160 of the General Laws, concerning , the discontinuance of 
said service in conjunction with the proposed discontinuance of passenger 
train service between Boston and Worcester. The public hearing will re- 
late to the following trains Nos. 407, 409, 420, 431, 432, 442. 449, 451, 
490."* 

You have also sent with your request a copy of an Order of Notice in 
DPU 15474, setting forth the foregoing vote and announcing the holding 
of a public hearing by the DPU on the railroad's petition. This hearing 
has recently been held but no decision has yet been rendered. 

The MBTA, on petition filed with it by the railroad, originally sched- 
uled a hearing for April 25, 1967. However, this hearing was cancelled 
and a new hearing has since been scheduled for July 11, 1967. 

Based on the foregoing facts, you have asked the following questions : 

" ( 1 ) Has the Department acted within its statutorv authority in adopt- 
ing the Vote referred to above dated April 13, 1967, in DPU 15377-F? 

"(2) In what way, if any, is the action of the MBTA in ordering its 
April 25, 1967 [now July 11, 1967] hearing aflfected by the Vote and 
Order of Notice issued by this Department, on April 13, 1967? 

"(3) Under what circumstances may the Department properly decide 
that there exists a 'conflict' as referred to in § 22, c. 161A, and take action 
such as it took on April 13, 1967? 

"(4) What discretion has the Department in exercising 'such powers 
as it deems required in the particular instance'? 

"(5) What are the regulatory powers of both agencies over a carrier 
that operates both within and without the area of the MBTA i.e., railroads 
and bus operations that run from Boston to State lines, and beyond? 

"(6) Is either or both actions of the MBTA and this Department legal 
in connection with the pending New York Central petitions?" 

In answering your questions, I will consider first the Legislature's allo- 

*Trains 407, 409, 420, 431 and 432 are the Worcester trains; trains 442, 449, 451 and 490 are the 
Framingham trains. 



254 P.D. 12 

cation of jurisdiction between the DPU and the MBTA. The MBTA 
was created by § 2 of G. L. c. 161A, inserted by § 18 of St. 1964, c. 563. 
See Massachusetts Bay Transportation Authority v. Boston Safe Deposit 
and Trust Company, 348 Mass. 538. It is a "political subdivision of the 
Commonwealth" composed of a defined territory and the inhabitants there- 
of (G. L. c. 161 A, § 2) ; it is managed (§ 6) by a board of five directors 
appointed by the Governor for five-year terms, subject to the approval of 
certain public officials ; it has the power to make by-laws and rules and 
regulations (§ 3[e]); and to take real property by eminent domain (§ 
3[o]). It reports annually (§ 5[h]) to the Governor, a public advisory 
board and the Legislature. The State Auditor is required to make an an- 
nual audit of its accounts (§ 17) and to report thereon to its directors, 
the Governor and the Legislature. 

Section 5(a) imposes on the MBTA the "duty to develop, finance and 
operate the mass transportation facilities and equipment in the public in- 
terest ... in order to promote the general economic and social well-being 
of the [MBTA] area and of the commonwealth." By § 5(k) it is given 
"regulatory power . . . over all private companies providing mass trans- 
portation in the area of the Authority." Massachusetts Bay Transporta- 
tion Authority v. Boston Safe Deposit & Trust Company, 348 Mass. 538, 
547-548. Section 5 (k) reads: 

"Any private company lawfully providing mass transportation service 
in the area constituting the authority [the MBTA] at the time the auth- 
ority is established may continue so to operate the same route or routes 
and levels of service as theretofore, and may conduct such further opera- 
tions as the authority may permit in the future with or without a con- 
tract ; provided that the authority shall in all respects have the same powers 
and duties in respect to such private carriers as are provided by law for 
the department of public utilities except as to safety of equipment and 
operations, schedules and routes not being, however, considered safety of 
equipment and operations for the purposes of this paragraph ; and pro- 
vided, further, that whenever the authority desires to add new routes for 
service in any area, it shall give preference in the operation of such routes 
to the private carrier then serving such area unless the authority concludes 
that such carrier has not demonstrated an ability to render such service 
according to the standards of the authority, that such service can be oper- 
ated directly by the authority at substantially lesser expense to the auth- 
ority and the public than if operated by such private carrier, or that for 
substantial and compelling reasons in the public interest operation by such 
private carrier is not feasible." 

The foregoing provision, as the statement of the Supreme Judicial 
Court, just quoted, makes clear, gives the MBTA jurisdiction over all mass 
transportation service in its area. In my opinion it is equally clear that 
this jurisdiction is exclusive. By providing in § 5(k) that the MBTA 
"shall in all respects have the same powers in respect to . . . private car- 
riers as are provided by law for the department of public utilities . . . , " 
the Legislature vested in the MBTA the regulatory powers that had previ- 
ously been held by the DPU in the area involved. To interpret the legis- 
lation as giving concurrent jurisdiction to both agencies would be incon- 
sistent with the broad powers given by the Legislature to the MBTA to 
develop mass transportation facilities in its area. Moreover, such an un- 



P.D. 12 255 

natural construction would invite confusion and the frustration of any 
workable program of mass transportation. 

Only one exception to the MBTA's exclusive jurisdiction in its area 
was carved out by the Legislature — that is, matters of safety. These 
were to be retained by the DPU under the exception respecting "safety of 
equipment and operations, schedules and routes not being, however, con- 
sidered safety of equipment and operations. ..." (§ 3[i].) Any con- 
tention that "safety" does not apply to "operations" as well as to "equip- 
ment" would, in my opinion, be wholly unwarranted. If safety were in- 
tended to relate only to equipment, t^ie associated clause that "schedules 
and routes [are not] considered safety of equipment and operations ..." 
would be rendered self-contradictory and meaningless. Since schedules 
and routes are plainly a part of operations, a restriction of "safety" to 
"equipment" would cause the final clause to, in effect, read, "operations 
[are not] considered . . . operations." 

Support for the conclusion that the MBTA has exclusive jurisdiction 
over operations in its area is found in G. L. c. 161A, § 3(i), which is cor- 
relative to § 5(k). Section 3(i) gives the MBTA power: 

"To provide mass transportation service, whether directly, jointly or 
under contract, on an exclusive basis, except as provided in paragraph 
(k) of section five, in the area constituting the authority [the MBTA] 
and without being subject to the jurisdiction and control of the department 
of public utilities in any manner except as to safety of equipment and 
operations ; provided that schedules and routes shall not be considered 
matters of safety subject to the jurisdiction and control of said depart- 
ment." 

This section confirms the provisions of § 5(k) vesting in the MBTA 
exclusive jurisdiction "in the area constituting the authority." 

That area is defined in § 2 as the "Fourteen cities and towns and the 
sixty-four cities and towns," all specifically named. G. L. c. 161 A has no 
express provision, however, dealing with ( 1 ) service that originates with- 
in the MBTA zone and extends beyond it and (2) service that originates 
outside the MBTA zone and extends within it. Hence your inquiries. 

After careful consideration of the statute, I have concluded that the 
MBTA has exclusive jurisdiction under § 5(k) over the four Framing- 
ham; trains, since the cities and towns where they run are all in the area 
constituting the MBTA; the DPU has exclusive jurisdiction over the five 
Worcester trains, since the cities and towns where they run are not all 
within the MBTA area. I find in the statute a clear distinction between 
service "in the area constituting the authority" (§§ 3[i], 3[j], 3[k], 
5[f], 5[g], 5[k]) and "areas outside the area constituting the authority" 
(§§ 3[j], 5[j]). Thus § 3(j) states that the MBTA may operate mass 
transportation facilities and equipment in such outside areas "only pur- 
suant to (i) an agreement with or purchase of a private mass transporta- 
tion company, part of whose operations were, at the time the authority 
was established, within the area constituting the authority or (ii) an 
agreement with a transportation area or a municipality for service between 
the area of the authority and that of such transportation area or munici- 
pality, where no private company is otherwise providing such service." 
See Eastern Massachusetts Street Railway v. Massachusetts Bay Trans- 



256 P.D. 12 

portation Authority, 350 Mass. 340. And § 5(j) requires certain terms to 
be included in "[a]ny agreement entered into by the authority with a 
municipality outside of the area of the authority." 

Thus nothing in the legislation, except § 3(j), gives the MBTA juris- 
diction beyond its area. However, the fact that a carrier may have a 
separate route between a point outside of the MBTA area and a point 
therein or the fact that it may have a route wholly outside the area as well 
as a route wholly therein does not curtail the MBTA's jurisdiction within 
its area. Such a limitation of authority would find no warrant in the 
statute but, in my opinion, would be contrary to its underlying purpose 
to create the MBTA as an agency "to develop, finance and operate the 
mass transportation facilities and equipment in the public interest . . . , in 
order to promote the general economic and social well-being of the 
[MBTA] area of the commonwealth." (§ 5 [a].) "The implicit mandate 
of the statute is to provide transportation when and where public necessity 
and convenience require it." Massachusetts Bay Transportation Authority 
V. Boston Safe Deposit & Trust Company, 348 Mass. 538, 548. 

On the other hand, a commuter train running between Boston and 
Worcester is an indivisible unit and cannot, in my opinion, be realistically 
split, for regulatory purposes, into two segments — one within and one 
without the MBTA area. The interrelationship of all stops, in respect 
of revenues, service and personnel, leads me to the conclusion that a single 
agency must have been intended by the Legislature as the instrument of 
public regulation of such a train. As between the MBTA and the DPU, 
I consider the DPU as the instrument that the Legislature designated for 
this purpose. The MBTA's jurisdiction stops at its geographical peri- 
meter, and no implication of additional jurisdiction can, in my opinion, be 
implied. On the other hand, the DPU had jurisdiction in the MBTA 
area before the creation of the MBTA ; that jurisdiction must, in my 
opinion, be regarded as having continued unless curtailed by the MBTA 
statute. In the case of the five Worcester trains, I conclude that there 
was no such curtailment. 

Further, it is my opinion that since the statute delimits the respective 
spheres of the MBTA and the DPU over the four Framingham trains 
with sufficient clarity, there is no room for the application of G. L. c. 
161A, § 22, whereby "In the event of any conflict between the regulatory 
powers and duties of the [DPU] and the regulatory powers and duties 
of the [MBTA] within its area, the [DPU] shall resolve such dispute 
and exercise such powers as it deems required in the particular instance." 
In my opinion, this section does not refer to a disagreement such as that 
involved in the present matter. Where, as here, the statute is sufficiently 
clear and explicit to sustain the MBTA's exclusive jurisdiction over the 
four Boston-Framingham trains, § 22 has no application. There may be 
other situations in which it may properly apply, but preferring to deal 
with them as concrete cases when they actually arise, I believe it advisable 
to refrain from speculating about them as mere possibilities. 

Relating this opinion to the questions asked in your letter of April 20, 
1967, my views are, accordingly, as follows : 

( 1 ) The DPU acted beyond its statutory authority in adopting its vote 
dated April 13, 1967 in DPU 15377-F. 



P.D. 12 257 

(2) The MBTA's jurisdiction in this matter was not affected by the 
foregoing vote or the DPU's Order of Notice dated April 13, 1967. 

(3) Because the application of § 22 should be determined on a case- 
by-case consideration of particular facts, I believe it would be inadvisable 
to speculate on possible circumstances to which it might apply. Suffice it 
to say, it did not authorize the adoption of the vote dated April 13, 1967 
in DPU 15377-F. 

(4) Because of the generality of this question, I believe it inadvisable 
to attempt an answer. In the absence of specific facts, any answer would 
necessarily be inconclusive. 

(5) Since the present matter does not involve any operations beyond 
state lines, I believe it inadvisable to deal with such a hypothetical situa- 
tion. So far as this question deals with operations wholly within Massa- 
chusetts, I hope that this opinion will clarify the jurisdiction of each 
agency. 

(6) I regard the hearings of each agency, in respect to the New York 
Central Railroad Company, as legal with the respective spheres of juris- 
diction defined above in this opinion. 

Very truly yours, 

Elliot L. Richardson, Attorney General. 



258 P.D. 12 

INDEX TO OPINIONS 



OPINION 


PAGE 


50, 118 


108, 233 


80 


150 


116 


228 


113 


224 


122 


240 


17 


56 


116 


228 


44 


95 


113 


224 


80 


150 


116 


228 


100 


193 


10 


46 


3 


35 


11 


47 


79 


149 


88 


168 


92 


176 


103 


197 


35,38 


78,83 



Accelerated Highway Program : 

Accounts, Division of : 

Administration and Finance, Executive Ofifice for : 

Commissioner of Administration .... 

Comptroller's Division 

Confidential secretaries 

Consultants 

Director of program planning and research 

Sales tax 

State aid to regional planning agencies 

State aid to transportation areas .... 

State-level planning 

Administration of funds : 
Administrative Procedure Act: 

Application to Bureau of Relocation 

Application to Commission on Firemen's Relief 

Filing requirements 

Hearing requirements 

Advertising : 
Advisory committees : 
Aeronautics Commission : 
Age requirements : 
Agencies, public : 

Powers of, after exhaustion of funds ... 81 154 

See individual public agencies 
Agency: 7 40 

Agriculture, Department of : 

Approval of racing meeting sites .... 

Assault pay for veterinarians 

Registration of milk dealers with Division of Dairying 

and Animal Husbandry 

Air pollution: 

Airports : 

Alcoholic Beverages Control Commission : 

Local options 

Package store licenses 

Regulations . . . . . 

American Legion Highway: 
Animals : 
Anti-Aid Amendment : 

Appropriation of funds : 

For capital expenditures 

For salaries 

Lack of 

Requests for 

Transfer of 

Arbitration : 
Armed services : 
Architects : 



20 
68 


60 
133 


23 


65 


40 


85 


103 


197 


48 

7,115 

28 


104 

40, 227 

72 


112 


223 


68 


133 


5,22, 
97 


37,64, 
188 


60,84 
41 

76, 81, 

91 

84 

118 


121, 161 
87 

144, 154, 
174 
161 
233 


59,72 
29 


119, 137 
72 


120 


237 



P.D. 12 



259 



Arrest : 

Assault pay: 

Attorney General, opinions of : 

Hypothetical questions 

Local questions 

Audits : 

Bankruptcy Act: 

Banks : 

Barbers : 

Bonds : 

Boston, City of: 

Boston Harbor : 

Boston Redevelopment Authority: 

Building Code: 

Capital Outlay statutes : 

Children : 

Attendance at Massachusetts Hospital School . 

Attendance at public schools 

Of unwed mothers 

Cities and towns : 

Boards of health 

Boston, City of 

Hotel, motel and lodging house licenses 

Lincoln, Town of 

Liquor licenses 

Local options 

Marshfield, Town of 

Membership in districts 

Objections to applications before Outdoor Advertising 

Board 

Officers and departments 

Plumbing inspectors 

Redevelopment authorities 

Revere Housing Authority 

Schools • . 

Springfield, City of 

Tax liens 

Traffic regulations 

Wire inspectors 

Zoning ' , . . 

Civil service: 

Confidential secretaries 

Examinations 

Jurisdiction 

Veteran's tenure 

Commerce and Development, Department of : 

Advisory committees 

Bureau of Relocation 

Consultants 

Housing projects 



OPINION 


PAGE 


4 


36 


68,69 


133, 134 


55, 114 


112,227 


5,110 


37,218 


63 


124 


14 


51 


49 


106 


37 


82 


80 


150 


107,112 


211,223 


55 


112 


107 


211 


21 


62 


60,84 


121, 161 


74 


141 


52, 104 


109, 199 


108 


214 


18 


57 


107 


211 


2 


34 


52 


109 


7,48, 


40, 104, 


115 


227 


40,48 


85, 104 


60 


121 


40,110 


85,218 


88 


168 


5 


37 


24 


66 


107 


211 


118 


233 


5,52, 


37, 109, 


57, 61, 


115,134, 


104, 106 


199, 208 


104 


199 


90 


172 


70 


135 


111 


221 


103 


197 


122 


240 


12 


48 


26, 54, 


70,111, 


63 


124 


42,66 


93, 129 


92 


176 


10 


46 


17 


56 


72, 119, 


137, 235, 


120 


237 



260 



P.D. 12 



Regional planning districts 

Commitment : 

To Massachusetts Hospital School .... 
To mental institutions 

Community colleges : 
Comptroller : 
Confidential secretaries : 
Constitutionality : 

Anti-Aid Amendment 

Disclosure of names of mental patients to licensing 

agencies 

Due process of law ....... 

Employment of religious sisters in public school 

Equal protection 

Law enforcement 

Home Rule Amendment 

Public employees' oath 

Religious freedom 

Scholarships to private institutions .... 

Teachers' oath 

Consultants : 
Contracts, public: 

Arbitration of 

For architects' fees 

For consultant services 

For education in private schools .... 

For state aid to transportation areas 

With federal agencies 

Corporations and Taxation, Department of : 

Cigarette tax 

Division of Accounts 

Room occupancy excise 

Sales tax 

School Aid 

Transportation area bonds 

Correction, Department of : 

Counties : 

Courts : 

Criminal procedure: 

Arrest of mental patients 

Nolle Prosequi 

Privilege against self-incrimination .... 
Cushing Hospital : 

Dairying and Animal Husbandry, Division of : 
Damages : 

Eminent Domain 

Tort 

Delegation of powers : 

By Board of Agriculture 

By municipalities 

By Public Works Commission 



OPINION 


PAGE 


110,113 


218, 224 


74 


141 


4,96, 


36, 184, 


108 


214 


91 


174 


113 


224 


42,122 


93, 240 


5,22, 


37,64, 


97 


188 


96 


184 


93,96 


177, 184 


5 


Z7 


1 


32 


93 


177 


107 


211 


102, 105 


197, 204 


5,105 


37. 204 


97 


188 


102. 105 


197, 204 


17,26 


56,70 


59,72 


119, 137 


120 


237 


17,26 


56,70 


5 


37 


80 


150 


94 


181 


49 


106 


80 


150 


2 


34 


44, 108 


95,214 


57, 61, 


115,122, 


106 


208 


80 


150 


78,85 


148, 162 


76 


144 


76, 104 


144, 199 


4 


36 


25 


68 


8 


43 


11,15 


47,54 


23 


65 


36, 50, 


80, 108, 


90,114 


172, 227 


46 


98 


20 


60 


88 


168 


70 


135 



P.D. 12 



261 



Departments : 

School "departments" 
State "departments" 



See individual state departments 
Detectives, Private : 
District Attorneys: 
Districts : 

Air pollution districts 

Regional planning districts 

Transportation areas 

Divisions : 

Of Metropolitan District Commission 

See individual divisions 
Domicile : 

Due Process of Law : 
Education, Department of : 

Board of Education members as teachers in private in- 
stitutions 

Board of Regional Community Colleges . 

Contracts with private institutions .... 

Education of children on Federal reservations 

Educationally disadvantaged children 

Lowell Technological Institute .... 

Massachusetts Executive Committee for Educational 

Television 

Massachusetts Maritime Academy .... 

Religious sisters as public school teachers 

Scholarships 

School Transportation 

Southeastern Massachusetts Technological Institute 

State aid to private institutions .... 

State aid to public schools 

Teachers' oath 

Vietnam veterans 

Effective date: 
Elderly persons: 

Charges at Cushing Hospital 

Exemption from real estate property taxes 

Housing projects 

Elections : 

Inquests 

Public officer as candidate 

Registration sessions 

Voting rights 

Electricians : 
Eminent domain : 

Damages, apportionment of 

Damages for property tax liability . 

Damages, right to ... . 

Damages, services in lieu of 

Damages, statute of limitations as to 

Power to take land under jurisdiction of bankruptcy 

court 



5 


37 


18. 77, 


57, 145, 


122 


240 


38 


83 


8,76 


43, 144 


40 


85 


110,113 


218, 224 


80 


150 


77 


145 


1 


32 


93,96 


177, 184 


117 


231 


91 


174 


5,22 


37,64 


52 


109 


5 


37 


105, 122 


204, 240 


63,98 


124, 190 


66 


129 


5 


37 


97,99 


188, 192 


104 


199 


41,121 


87, 238 


5,22. 


37,64. 


97 


188 


57, 61, 


115.122. 


106 


208 


102. 105 


197, 204 


75,91 


143, 174 


11,45 


47,96 


11,15 


47,54 


45 


96 


119 


235 


8 


43 


64 


127 


31 


74 


29,47 


72, 101 


111,123 


221,246 


90,114 


172, 227 


90 


172 


36 


80 


50 


108 


36 


80 



14 



51 



262 



P.D. 12 



Powers of Department of Mental Health 

Powers of municipalities as to Commonwealth land 

Powers of Southeastern Massachusetts Technological 

Institute 

Real Estate Review Board 

Tax claims against land taken .... 

Employment : 
Employment, public: 

See Public service 
Enforcement of laws : 

Agreements with Federal agencies .... 

Arrest of mental patients 

Parking regulations 

Persons employed in 

School transportation requirements .... 
Equal protection : 
Equalized valuation : 

Equity : 

Evidence : 

Executive Committee for Educational Television : 

Executive Council : 

Pardons 

Powers 

Veterans' benefits .... ... 

Executive Office for Administration and Finance : 

See: Administration and Finance, Executive Office for 
Federal funds : 

Administration of 

For historic preservation 

For state-level planning 

For summer schools 

For vocational training 



Federal reservations : 
Federal statutes : 

Bankruptcy Act 

Historical Preservation Act 

Interstate Commerce Act .... 

Manpower and Development Training Act 

Social Security Act 

Vocational Rehabilitation Act . 

Voting Rights Act 

Fire Prevention Regulations, Board of : 

Firemen's relief: 

Fish dealers: 

Fisheries and Game, Division of : 

Funds, Public: 

Accelerated Highway Program 

Administration of 

Appropriation statutes .... 



Appropriations, lack of 



OPINION 


PAGE 


84 


161 


112 


223 


121 


238 


118 


233 


90 


172 


117, 124 


231,247 


94 


181 


4 


36 


93 


177 


95 


183 


104 


199 


1 


32 


57,61, 


115,122, 


106 


208 


104 


199 


8 


43 


63,98 


124, 190 


30 


73 


28,71 


72, 136 


89 


170 


100, 116 


193, 228 


100 


193 


116 


228 


5 


37 


22, 26, 


64, 70. 


62 


122 


52 


109 


14 


51 


100 


193 


94 


181 


22 


64 


62 


122 


26,62 


70, 122 


47 


101 


123 


246 


87 


166 


1 


32 


50, 118 


108, 233 


100 


193 


41.84. 


87, 161, 


118 


233 


76, 81, 


144, 154, 


91 


174 



P.D. 12 



263 



Audits 

Bonds and notes 

Capital outlay statutes .... 
Educational Television Program Fund 
Federal funds 

Indemnification of public employees 

Local Aid Fund 

Scholarships 

Support of private institutions . 

Support of public schools 

Support of regional planning districts 

Support of transportation areas 

Transfer of 

Walter Parker Beckwith Scholarship Fund 
General Court : 
Governor : 

Bills laid before 

Executive orders 

Powers as to officers appointed by 

Powers as to pardons .... 
Governor's Council : 

Pardons 

Powers 

Veterans' benefits ..... 
Greenfield-Montague Transportation Area: 
Hanscom Field : 
Hearings : 

Amendment of regulations 

Expenses of 

Firemen's relief .... 

Housing projects .... 

Outdoor advertising permits 
Higher Education, Board of: 

Lowell Technological Institute 

Scholarships to private institutions . 

Southeastern Massachusetts Technological 

Teachers' oath 

Vietnam veterans .... 
Highways : 

Accelerated Highway Program 

American Legion Highway 

Enforcement of laws 

Parking areas 

Traffic regulations .... 
Historical Commission, Massachusetts : 
Home Rule Amendment : 
Hospital School, Massachusetts: 
Hospitals : 

Arrest of Patients 

Gushing Hospital 

Disclosure of names of mental patients to licensing 

agencies 



Inst 



itute 



OPINION 


PAGE 


63 


124 


80 


150 


60,84 


121, 161 


63,98 


124, 190 


5,22, 


37,64, 


26, 62, 


70, 122, 


100,116 


193, 228 


46 


98 


9,113 


44,224 


97,99 


188. 192 


5,22, 


37, 64, 


97 


188 


57. 61, 


115,122, 


106 


208 


110,113 


218, 224 


80 


150 


118 


233 


99 


192 


2,34 


34,77 


45, 107 


96,211 


35 


78 


25,64 


68, 127 


30 


73 


30 


73 


28,71 


72, 136 


89 


170 


80 


150 


52 


109 


79 


149 


118 


233 


3 


35 


119 


235 


88 


168 


105, 122 


204, 240 


97 


188 


41, 121 


87, 238 


105 


204 


75,91 


143, 174 


50, 118 


108, 233 


112 


223 


93,94 


177, 181 


118 


233 


70,93 


135, 177 


100 


193 


107 


211 


74 


141 


4 


36 


11,15 


47,54 



96 



184 



264 



P.D. 12 



Land acquisition 

Medfield State Hospital 

Soldiers' Home 

Tort liability of physicians 

Hotels, motels and lodging houses : 
House of Representatives: 
Housing, public: 

Arbitration of contracts for 

Architects' fees 

For the elderly 

Revere Housing Authority 

Immunity laws : 
Imprisonment: 

Pardons 

Parole 

Sales tax credits 

Indemnification : 
Inspector of wires : 
Insurance : 

Motor vehicle liability 

Property damage 

Steam boilers, air tanks, refrigerators, and air condi- 
tioning systems 

Interest : 

On arrearages owing to suspended public officer 

On land damages . 

Interstate Commerce Act : 
Land: 

Powers of Department of Mental Health 

Powers of Executive Committee for Educational Tele- 
vision 

Powers of Southeastern Massachusetts Technological 

Institute 

Law enforcement : 

Agreements with Federal agencies .... 

Arrest of mental patients 

Parking regulations 

Persons employed in 

School transportation requirements .... 
Leases : 

Legislative Research Bureau : 
Legislature : 
Leave of absence : 

Consultant contracts during 

Failure to renew 

For gubernatorial appointees 

Veterans' tenure of persons on .... 

Licenses : 
Alcoholic beverages 

Assistants in medicine 

Barbers 

Electricians 



OPINION 


PAGE 


51,84 

18 

46, 53, 

65,71 

46 


108, 161 

57 

98,110, 

128, 136 

98 


2,48 


34, 104 


2,34 


34,77 


72 
120 
119 
118 


137 
237 
235 
233 


8 


43 


30 

78 

108 


73 
148 
214 


46 


98 


111 


221 


34 
63 


77 
124 


124 


247 


82 
36,90 


156 
80, 172 


94 


181 


51,84 


108, 161 


63,98 


124, 190 


121 


238 


94 

4 

93 

95 

104 


181 
36 
177 
183 
199 


63,98 


124, 190 


56 


114 


2,34 


34,77 


17 
85 
64 
42 


56 
162 
127 

93 


7,48, 

115 

35 

37 

123 


40, 104, 

227 

78 

82 

246 



P.D. 12 



265 



Fish dealers .... 

Hotels, motels and lodging houses 

Motor vehicles 

Of mental patients 

Outdoor advertising 

Plumbers 

Private detectives 

Racing 

Radio and television technicians 

Sporting 

Steam boiler operators 

Watch, guard or patrol agencies 

Liens : 

Lieutenant Governor : 
Limitations, statutes of : 
Lincoln, Town of : 
Liquor : 



Local Aid Fund : 

Local option : 

Lowell Technological Institute : 

Manpower and Development Training Act: 

Maritime Academy, Massachusetts: 

Married women : 

Marshfield, Town of: 

Massachusetts Aeronautics Commission : 

Massachusetts Bay Transportation Authority: 

Massachusetts Executive Committee for Educational 

Television : 
Massachusetts Historical Commission : 
Massachusetts Hospital School : 
Massachusetts Maritime Academy: 
Massachusetts Turnpike Authority: 
Medfield State Hospital : 
Medicine : 
Mental Health, Department of : 

Arrest of patients 

Assault pay for employees 

Charges at Cushing Hospital 

Land acquisition 

Notice to licensing agencies of patients' names 

Refuse disposal 

Metropolitan Area Planning Council : 
Metropolitan District Commission: 

Divisions within 

Land acquisition 

Metropolitan Police 

Sewerage projects 

Milk: 

Minors : 
Licenses as "assistants in medicine" 
See Children 



OPINION 


PAGE 


87 


166 


2 


34 


58,96 


118, 184 


96 


184 


88 


168 


39 


84 


38 


83 


20 


60 


109 


216 


1 


32 


73 


140 


101 


195 


90 


172 


26,62 


70,122 


36 


80 


52 


109 


7,48, 


40, 104. 


115 


227 


9,113 


44,224 


40,48 


85, 104 


105, 122 


204, 240 


22 


64 


66 


129 


7,115 


40, 227 


60 


121 


103 


197 


24, 125 


66, 252 


63,98 


124, 190 


100 


193 


74 


141 


66 


129 


64 


127 


18 


57 


35 


78 


4 


36 


69 


134 


11,15 


47,54 


51,84 


108, 161 


96 


184 


18 


57 


113 


224 


17 


145 


112,118 


223, 233 


77 


145 


83 


158 


23 


65 



35 



78 



266 



Motor vehicles : 

Insurance 

Licensing- of operators 

Registration 

Traffic regulations 

Municipalities : 

See Cities and towns 
Natural Resources, Department of : 

Division of Fisheries and Game 

Division of Water Pollution Control 

Fish dealers certificates 

Water Resources Commission .... 
Navigation : 
Nolle prosequi : 
Notes : 
Notice : 

Of names of mental patients to licensing agencies 

Of non-payment of motor vehicle excise . 

Of reinstatement to public office 

Of tax claims on land taken by eminent domain 

To inspectors of wires 

Nuns: 

Oath of office: 

Officers, public : 

School committee members as . 

See public service 
Outdoor Advertising Board: 
Package stores: 
Pardons : 

Parking regulations: 
Parks Division : 
Parole : 
Patients : 

Animals as 

Elderly : 

Eligibility for admission as ... . 

Mental 



Pensions : 

Eligibility of state officers formerly under municipal 

retirement system 

Eligibility of state officers suspended under Perry Law 

Perry Law : 

Effect of suspension on leave of absence . 
Effect of suspension on retirement rights 
Reinstatement of suspended officer or employee 

Persons : 

Physicians : 
Planning districts : 
Planning, state-level : 
Plumbers : 
Police : 



P.D. 12 

OPINION PAGE 

34 77 

96 184 

58 118 

70, 93 135, 177 



1 


32 


83 


158 


87 


166 


83,86 


158, 164 


55 


112 


25 


68 


80 


150 


96 


184 


58 


118 


25 


68 


90 


172 


111 


221 


5 


37 


102, 105 


197, 204 


5 


37 


88 


168 


7,115 


40, 227 


30 


73 


93 


177 


77 


145 


78 


148 


68 


113 


11,15 


47,54 


53,74 


110, 141 


4,96, 


36, 184, 


108 


214 


67 


131 


16,19 


55,59 


85 


162 


16,19 


55,59 


25, 43, 


68, 94, 


82 


156 


18 


57 


46 


98 


110,113 


218, 224 


116 


228 


24,39 


66,84 


77,95 


145, 183 



OPINION 


PAGE 


64 


127 


76 

40, 80, 

110,113 

18 


144 

85, 150, 

218, 224 

57 


40 


85 


83 


158 


30 

78 

108 


73 
148 
214 


38 


83 



P.D. 12 267 



Political activities : 
Political subdivisions : 

Counties 

Districts 

State departments as 

See Cities and Towns 
Pollution, air : 
Pollution, water : 
Prisoners : 

Pardons for 

Parole of 

Sales tax credit for 

Private detectives : 
Public agencies : 

Powers of, after exhaustion of funds ... 81 154 

See individual public agencies 
Public contracts: 

See contracts, public 
Public Funds: 

See Funds, public 
Public Health, Department of : 

Air pollution districts 

Approval of sewerage projects .... 

Massachusetts Hospital School 

Powers as to Boston Harbor 

Refuse disposal 

Public housing: 

Arbitration of contracts for 

Architects' fees 

For the elderly 

Revere Housing Authority 

Public policy: 

Public Safety, Department of: 

Board of Fire Prevention Regulations 

Board of Schoolhouse Structural Standards 

Board of Standards 

Private detectives, regulation of ... . 

State Police 

Steam boilers, regulation of 

Watch, guard and patrol agencies, licensing of 
Public schools: 

Eligibility for admission 

State aid 

Teachers 

Transportation 

Public Service: 

Assault pay 

Confidential secretaries 

Consultants 

Court employees 

Employees' oath 

Firemen 

Indemnification 



40 


85 


83 


158 


74 


141 


55 


112 


18 


57 


72 


137 


120 


237 


119 


235 


118 


233 


32, 33, 


75, 76, 


34 


77 


123 


246 


81 


154 


21,79 


62. 149 


81 


154 


95 


183 


7?>. 124 


140, 247 


101 


195 


52 


109 


57, 61, 


115, 122, 


106 


208 


5 


37 


104 


199 


68,69 


133, 134 


42, 122 


93, 240 


17,26 


56,70 


76 


144 


102, 105 


197, 204 


3 


35 


46 


98 



268 P.D. 12 



Leaves of absence 



Members, Board of Education 

Members, Boston Redevelopment Authority 

Physicians 

Political activity 

President, Southeastern Massachusetts Technological 

Institute 

Private employment 

Reimbursement for expenses 

Retirement 

Salaries 



Suspension 



Teachers 

Testimonial Dinner Law 

Tort liability 

Veterans' tenure 

Veterinarians 

Witnesses 

Workmen's compensation 

Public Utilities, Department of : 
Public Works, Department of : 

Arbitration of contracts 

Employees as expert witnesses in private litigation 

Employees suspended, Perry Law . . . . 

Funds for projects in Marshfield . . . . 

Powers as to Boston Harbor 

Powers as to traffic regulations . . . . 

Powers under eminent domain laws 



Real Estate Review Board 

Purchases : 

Powers of Executive Committee for Educational Tele- 
vision 63, 98 124. 190 

Powers of Southeastern Massachusetts Technological 
Institute 

Racing : 

Radio and television technicians : 

Railroads : 

Real Estate Review Board : 

Records : 

Redevelopment authorities : 

Referendum : 

Regional Community Colleges : 

Regional planning districts : 



OPINION 


PAGE 


17, 42, 


56, 93, 


64,85 


127, 162 


117 


231 


107 


211 


46 


98 


64 


127 


41 


87 


117 


231 


92 


176 


16, 19, 


55, 59, 


67 


131 


41,43, 


87, 94, 


63, 65, 


124, 128, 


68. 69, 


133, 134, 


82. 85. 


156, 162. 


107 


211 


16. 19, 


55. 59. 


25. 43. 


68, 94, 


82. 85. 


156, 162. 


95 


183 


5.66. 


37. 129, 


102. 105 


197, 204 


95 


183 


46 


98 


42,66 


93, 129 


68 


133 


13 


50 


69 


134 


94, 125 


181,252 


59 


119 


13 


50 


43, 82, 


94, 156. 


85 


162 


60 


121 


55 


112 


70,93 


135. 177 


14, 36, 


57, 80, 


50, 90, 


108. 172. 


114 


227 


118 


233 



121 


238 


20 


60 


109 


216 


14, 125 


51,252 


118 


233 


96 


184 


107 


211 


48 


104 


91 


174 


10,113 


218, 224 



P.D. 12 



269 



Registration, Division of : 

Board of Registration in Medicine .... 

Board of Registration of Barbers .... 

Board of Registration of Radio and Television Techni- 
cians 

Board of State Examiners of Electricians 

Board of State Examiners of Plumbers . 
Registry of Motor Vehicles : 

Licensing of operators 

Motor vehicle insurance 

Registration of vehicles 

Regulations : 

Amendment of 

Effective date of 

Of Alcoholic Beverages Control Commission . 

Of Board of Fire Prevention Regulations 

Of Board of Standards 

Of Bureau of Relocation 

Of Commissioner of Corporations and Taxation 

Of Commissioners on Firemen's Relief . 

Of Department of Mental Health .... 

Of Department of Public Works .... 

Of Division of Housing 

Of traffic 

Reinstatement to public office : 

Effect of 

Notice of 

Religion : 

Relocation, Bureau of : 
Residence : 
Retirement : 

Eligibility of state officers formerly under municipal 

retirement system 

Eligibility of state officers suspended under Perry Law 
Retroactivity : 

Revere Housing Authority : 
Salaries of public servants : 

After reinstatement under Perry Law 

Assault pay 

Deductions 

Members of Boston Redevelopment Authority . 

President, Southeastern Massachusetts Technological 

Institute 

Professional employees of Executive Committee for 

Educational Television 

Scholarships : 

Schoolhouse Structural Standards, Board of : 

Schools, private: 

Schools, public : 

Eligibility for admission 

State aid 



OPINION 


PAGE 


35 


78 


37 


82 


109 


216 


111,123 


221, 246 


24,39 


66,84 


96 


184 


34 


77 


58 


118 


79 


149 


11 


47 


28 


72 


123 


246 


21,79 


62, 149 


10 


46 


44 


95 


3 


35 


96 


184 


55,93 


112,177 


120 


237 


70,93 


135, 177 


43, 82, 


94, 156, 


85 


162 


25 


68 


5,105 


37, 204 


10 


46 


1,62 


32, 122 


67 


131 


16,19 


55,59 


67, 120 


131,237 


118 


233 


43, 82, 


94, 156, 


85 


162 


68,69 


133, 134 


65 


128 


107 


211 


41 


87 


63 


124 


97,99 


188, 192 


81 


154 


5,22, 


37,64, 


97 


188 


52 


109 


57, 61, 


115, 122, 


106 


208 



270 P.D. 12 



Teachers 

Transportation 

Secretary of the Commonwealth : 

Elections 

Massachusetts Historical Commission 

Questions of public policy for submission to voters 

Self-incrimination, privilege against: 
Service, public : 

See Public service 
Sewerage : 
Social security: 
Soldiers' Home: 

Credit union obligations of employees of 

Powers of Executive Council over .... 

Tort claims against physicians in ... . 

Vietnam veterans as patients at ... . 
Southeastern Massachusetts Technological Institute : 
Sovereign immunity: 
Sportsmen : 
Springfield, City of : 
Standards, Board of : 
State Board of Retirement : 

Eligibility of state officers formerly under municipal 

retirement system 

Eligibility of state officers suspended under Perry Law 
State Police : 

State Racing Commission : 
State Secretary: 

Elections 

Massachusetts Historical Commission 

Questions of public policy for submission to voters 

State Teachers College at Salem: 
State Treasurer: 
Administration of funds 

Firemen's relief 

Retirement benefits 

Veterans' tenure 

States : 

Statutory construction : 

Administrative interpretation 

Effective date 

Legislative intent 

Retroactivity 

Steam boilers : 

Students : 

Commuting 

Scholarships for 



OPINION 


PAGE 


5 


37 


104 


199 


29,31, 


72, 74, 


47 


101 


100 


193 


32, 33, 


75, 76, 


34 


77 


8 


43 


83 


158 


62 


122 


65 


128 


71 


136 


46 


98 


53 


110 


41, 121 


87, 238 


46 


98 


1,87 


32, 166 


104 


199 


21,79 


62, 149 


67 


131 


16,19 


55,59 


95 


183 


20 


60 


29, 31, 


72, 74, 


47 


101 


100 


193 


32, 33, 


75, 76, 


34 


77 


99 


192 


9,99, 


44, 192, 


100 


193 


3 


35 


16, 19, 


55, 59, 


67 


131 


42 


93 


37 


82 


44,89 


95, 170 


45 


96 


56 


114 


67 


131 


7Z, 124 


140, 247 


74 


141 


97,99 


188, 192 



P.D. 12 



271 



Sporting licenses for . . . . , 

Transportation of 

Vietnam veterans as 

Suspension from public service: 
Effect of reinstatement 

Effect on application of Testimonial Dinner L,a\ 
Effect on retirement benefits . . . , 

Notice of reinstatement 

Taxation : 

Cigarette excise 

Income tax 

Motor vehicle excise ...... 

Property tax 

Room occupancy excise . . . . , 
Sales tax 

Tax liens 

Teachers : 

At Massachusetts Maritime Academy 

In private institutions 

Oath of 

Religious sisters as 

Television technicians : 
Testimonial Dinner Law : 
Torts : 
Towns : 

See Cities and Towns 
Traffic regulations : 
Transportation : 

Airports 

Highways 

Of school children 

Railroads 

Water 

Transportation Areas : 
Treasurer and Receiver General : 

Administration of funds .... 

Firemen's relief 

Retirement benefits 

Veterans' tenure 

Trusts : 

Turnpike Authority: 

Vehicles : 

Insurance 

Licensing of operators .... 

Registration 

Traffic regulations 

Veterans : 

Admission to Soldiers' Home . . . , 



1 


32 


104 


199 


75,91 


143, 174 


43, 82, 


94, 156, 


85 


162 


95 


183 


16,19 


55,59 


25 


68 


49 


106 


33 


76 


58 


118 


32,45, 


75, 96, 


90 


172 


2 


34 


34, 44, 


77, 95, 


108 


214 


90 


172 


66 


120 


117 


231 


102, 105 


197, 204 


5 


37 


109 


216 


95 


183 


46 


98 



70, 93 135, 177 



103 


197 


70, 93, 


135, 177, 


94,112 


181, 223 


104 


199 


125 


252 


55 


112 


80 


150 


9,99, 


44, 192, 


100 


193 


3 


35 


16, 19, 


55, 59, 


67 


131 


42 


93 


99 


192 


.64 


127 


70,93 


135, 177 


34 


77 


96 


184 


58 


118 


70,93 


135, 177 



53 



110 



272 P.D. 12 



Benefits 


89 


170 


Education 


75, 91 


143, 174 


Tenure 


42, 66 


93, 129 


Veteran's Services, Commissioner of : 


89 


170 


Veterinarians : 


68 


133 


Vocational education : 


22 


64 


Vocational Rehabilitation Planning Commission: 


26,62 


70, 122 


Voting Rights Act: 


47 


101 


Warrants : 


4 


36 


Watch, guard or patrol agencies: 


101, 123 


195, 246 


Water Pollution: 


83 


158 


Water Resources Commission : 


83,86 


158, 164 


Waterways, Division of : 


55 


112 


Wire inspectors: 


111 


221 


Witnesses : 


8,13 


43,50 


Workmen's Compensation : 


69 


134 


Zoning : 


103 


197 



1974